Venkatesh Nayak on Undermining Whistle-Blower Protection in India

(Pix (c) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, entitled, If the Whistleblower Act amendments go through it might be easier to pass a camel through the eye of a needle than to get a whistleblower complaint inquired.

The essay was produced for the 10th anniversary of the adoption of the Right to Information Act (RTI Act) in India.  It considers the effects of The Whistle Blowers Protection (Amendment) Bill, 2015.

The amendments to the bill are being carried out with a view to incorporate necessary provisions aimed at strengthening safeguards against disclosures which may prejudicially affect the sovereignty and integrity of the country and security of the state, among other things. While government insists the amendments would address concerns relating to national security, some activists have claimed that it will dilute the measure. (Bill to amend whistleblowers law introduced in Lok Sabha, Indian Express, May 11, 2015)

For more on that amendment see HERE and HERE.  The essay that follows suggests that the amendments do in fact dilute whistle blower protection substanbtially more than any purported benefit to national sovereignty and security. It speaks particularly to the ways that the formal protections of a whistle blower provision may actually undermine the fundamental purposes of whistle blower statutes.  In effect it throws a useful light on a manifestation of the great tensions in such acts between institutional loyalties and the radical undermining for a greater purpose that whistle blowing represents. For a different view see here.

The essay follows. For those interested in the subject from a comparative perspective it also provides a wealth of original source material. It is especially useful for understanding the trans cultural character of the sorts of traps for the unwary, and the undermining frameworks, of whistleblower provisions.  It may be especially useful for those confronting similar issues in the United States (see, e.g., here and here).

The Indian Whistle Blower Protection Act of 2011 No. 17 of 2014 (9 May 2014) can  be accessed HERE.

Dear all,

Today is the 10th anniversary of the adoption of the Right to Information Act (RTI Act) by Parliament. Ten years ago the Rajya Sabha gave its approval to the RTI Bill and the first baby steps were taken towards establishing a regime of transparency across the country. Two main purposes of the RTI Act as spelt out in its Preamble are - a) containment of corruption and b) making Government and its instrumentalities accountable to the governed, namely, the people of India. While the RTI Act has arguably become the most popular law in recent times, the regime of transparency and much less the regime of accountability remain a quest. The Lokpal and Lokayuktas Act (LL Act) enacted in 2013 and the Whistleblowers Protection Act (WBP Act) enacted in 2014 are enabling legislation for pursuing the twin purposes of the RTI Act. Implementing such laws is a commitment that India made to the international community when it ratified the United Nations Convention on Corruption in 2011. Four years were completed yesterday since this ratification (11th May). Yet neither law has been operationalised. Instead, successive governments under the United Progressive Alliance (UPA) and the National Democratic Alliance (NDA) have played ball with these laws. Efforts are being made to dilute both laws through regressive amendments- not a new idea- but a carry over from the last year of the UPA's tenure in Delhi.


What is the purpose of a Whistleblower Protection Law?

Readers may recollect that the WBP Act when tabled in parliament in 2010 had a much longer name- Public Interest Disclosure and Protection for Persons Making the Disclosures Bill (PIDPIR Bill). Depsite its length, the title of the Bill clearly conveyed its intention- to create a mechanism for honest, sincere officials, citizens and even NGOs with a conscience, to make complaints about corruption, misuse or abuse of authority or discretion by unscrupulous officials resulting in demonstrable loss to the public exchequer or undue gain to any private party and have them properly inquired by competent authorities. Disclosure of such wrongdoing including any offence recognised under any criminal law is in the public interest- silence is not. Progressive whistleblower protection laws around the world are based on the cardinal principle of providing a safe alternative to silence to such potential complainants. A good whistleblower law also protects the complainant from any kind of retaliatory action taken against him/her by the department concerned. Additionally, it provides for a speedy inquiry into the whistleblower complaints so that action may be taken against the guilty. The underlying principle of such a law is that it is in the public interest to disclose wrongdoing in government departments or its agencies as silence would only result in greater harm.


India has the unique distinction of extending the protection of the WBP Act to persons outside of government - namely any citizen or non-government organisation. To the best of my knowledge no other WB law in the world protects outsider whistleblowers. Rather than give such a progressive law the space and time for implementation, the NDA Government wants to defang it much like what the UPA Government tried to do to the RTI Act when it felt threatened by its impact. The UPA failed in its efforts to amend the RTI Act, thanks to the people rising in its defence every time. Unfortunately, the sincere and honest bureaucrats who are one of the potential beneficiaries for the WBP Act have simply not risen to its defence till date despite several of them paying a heavy price for their sincerity and honesty- some like the Late Satyendra Dubey and the Late Manjunath even paying the price with their lives.


Now every Whistleblower complaint will have to pass at least 32 tests before inquiry can begin

Yesterday I sent out a preliminary critique of the amendments (1st attachment) to the WBP Act that the NDA Government tabled in Parliament. After sleeping over it last night, I realise that I had not even appreciated the full import of the amendments proposed to Sections 4, 5 and 6 of the WBP Act (2nd attachment). What is the implication of copying the exemptions to disclosure listed in Section 8 of the RTI Act on to Section 4 of the WBP Act? This is best illustrated with an example.


Let us imagine the Late R K Laxman's Common Man and his constant female companion (not sure if Laxmanji meant her to be his wife) making a complaint of corruption against a government officer in a department, to the Central Vigilance Commission (CVC) - the competent authority to receive and inquire into such complaints under the WBP Act. What would happen next? If Section 4 is amended as proposed by the NDA Government, the CVC will have to first check whether the subject matter of the whistleblower complaint attracts any of the grounds listed in that Section. Now how many grounds will that be? Seven under Section 4(1)(a) relating to national security, three under Section 4(1)(b) relating to courts, two under Section 4(1)(c) relating to Parliament and State Legislatures, three under Section 4(1)(d) relating to trade secrets and intellectual property rights, one each under Sections 4(1)(e) and (f) relating to fiduciary relationships and foreign relations, six under Section 4(1)(g) relating to law enforcement, three under Section 4(1)(h) relating to fair investigation and trial procedures, three under Section 4(1)(i) relating to Cabinet Papers and three under Section 4(1)(j) relating to privacy of a natural person. That makes it a total of 32 grounds or tests that a whistleblower complaint must satisfy if the CVC has to launch an inquiry into it. However exceptions are made to the grounds mentioned in Section 4(1)(e), (f) and (j), namely, if the information is obtained under the RTI Act then there is no bar on the CVC inquiring into such a complaint.


That is not all, even if there is the slightest doubt about whether the whistleblower complaint attracts any of the grounds mentioned in Section 4(1), then it must be referred to an authorised officer in the department complained against. Once again the complaint will be put to the 32-way test (Blessed Rotarians have to fulfill only a four-way test). If the authorised officer certifies that any of the grounds mentioned in Section 4(1) are attracted, he/she may issue a certification which will effectively bar the CVC from even launching an inquiry. So in theory a whistleblower complaint will have to pass through 32 kinds of tests TWICE to reach the stage of inquiry. Given the track record of the CVC, it would not be surprising if they sent every whistleblower complaint to the concerned department for vetting before launching an inquiry, saving themselves the trouble of applying the 32 tests themselves. There is every possibility, this might become the default option.


This situation becomes so similar to the metaphor that Jesus Christ is said to have used while applying the test of admission to heaven for a rich man - "Again I say to you it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God" (Mathew 19:24 - King James version of the Bible- New Testament). In the context of the WB Act this popular lesson may be parodied as: "It may be easier to pass a camel through the eye of a needle than to get an inquiry launched into whistleblower complaint, if Parliament approves these regressive amendments."


But there is more than that. What happens if the whistleblower complaint relates to matters other than Section 4(1)(d), (e) and (j)? In my opinion even if the information supporting the complaint has been obtained under the RTI Act, the competent authority will be barred from inquiring into it unless the authorised officer in the department issues a clearance certificate. So the competent authorities such as the CVC will be reduced to being dummies before the decisive powers of the Government. Frankly, the WBP Act, 2011 of Bangladesh which does not meet several international best practice standards would appear more whistleblower-friendly than India's own, if Parliament approves the proposed amendments.


How to make the WBP Act stronger?

Apart from dropping the regressive amendments tabled in Parliament, the WBP Act can make do with a range of progressive amendments. There are at least 14 that I can think of:


1. The WBP Act does not permit a whistleblower to complain about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by the Prime Minister (at the Centre) or any of the Chief Ministers (in the States). There must be a mechanism for this in the manner provided in the Lokpal and Lokayuktas Act;


2. The Lokpal (National level apex anti-corruption and Grievance Redress agency) which will be established under the LL Act, will have no role to play in the scheme of protection of Whistleblowers unless the Central and State Government notify them as competent authorities. Under the Lokpal Act any person may make a complaint about an act of corruption allegedly committed by the Prime Minister to the Lokpal. However the Whistleblower Act does not say what will happen to an allegation of corruption against a Prime Minister if sent to the Central Vigilance Commission. Ideally, the Lokpal should also have been mentioned as a competent authority under the WBP Act for the purpose of receiving complaints.


3. Further, under the Lokpal and Lokayuktas Act, complaints of corruption committed by officers of the three elite All India Services must be made to the Lokpal. The CVC cannot inquire into such complaints without the direction of the Lokpal. What will happen to whistleblower complaints against officers of these elite services when made under the WBP Act must be clarified in the Act itself.


4. The Act does not recognise whistleblowing against human rights violations and unlawful acts affecting the environment, public health and safety as valid. This remains as a major lacuna despite strong civil society demand for its inclusion.


5. The procedure for inquiring into complaints of about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by members of the lower judiciary is very unsatisfactory because the inquiry procedure that other competent authorities will adopt under Chapter III of the Act is not suitable for the lower judiciary. Lower courts are under the administrative supervision of the respective High Courts in the States. Inquiring into actions of corruption of judges and judicial officers will require permission of the High Court.


6. Many States have not established the institution of Lokayukta or State Vigilance Commission. Where such bodies do not exist, the Whistleblowers Act permits the State Government to designate any authority to inquire into complaints of wrongdoing and protect the whistleblower. This is an unsatisfactory arrangement because these bodies are likely to be government-controlled and their effectiveness in inquiring into complaints and protecting whistleblowers may be compromised.


7. There is no mention of what will happen to a case if the inquiry into a whistleblower complaint cannot be completed within the three month period stipulated in Section 5(8) of the Act. Such cases must not lapse due to the doctrine of laches.


8. The Act does not clarify whether sanction for prosecuting serving officers of Government is required under Section 197 of the Criminal procedure Code, 1973 and/or Section 19 of the Prevention of Corruption Act, 1988 for launching criminal cases against them.


9. The WBP Act, does not include a definition of ‘victimisation’ of the whistleblower despite the Parliamentary Committee and the Law Commission (in 2006) recommending one. This is a major lapse despite the recommendation to include such a definition being made by the Law Commission of India in its 179th Report.


10. The WBP Act does not contain any mechanism for protecting RTI users and activists who turn whistleblowers despite the Parliamentary Committee’s recommendation that such a mechanism be included in the law.


11. The WBP Act does not protect persons who volunteer to give additional information related to a whistleblower complaint that is under inquiry unless they are recognized as witnesses formally.


12. The WBP Act does not cover wrongdoing in the private sector despite the Second Administrative Reforms Commission recommending its inclusion in a comprehensive whistleblower protection law. MPs who spoke during the debate on the WBP Bill in the Rajya Sabha demanded that the scope of the Act be expanded to cover the private sector as well. The Government has not acted on this issue.


13. The WBP Act does not permit a whistleblower to publicise the allegations of wrong doing and related facts through the media when authorities fail to take adequate action on a complaint.


14. The WBP Act doe snot permit anonymous whistleblowing which was recently legitimised by the Supreme Court in the matter of Centre for PIL & Ors. vs Union of India & Ors. (IA Nos. 73 and 76 in Civil Appeal No(s). 10660/2010] also known as the CBI diarygate scandal.


The Department of Personnel and Training (DoPT) which is the nodal department for drafting and later implementing the WBP Act refused to disclose the amendment proposals last year when I sought information under the RTI Act. Now citizens who want the protection of the WBP Act for blowing the whistle on wrong doing in Government must flood the DoPT with requests for the Cabinet Note and all file notings and inter-Ministerial discussions on the amendment proposals. Two matters need to be ascertained- a) what is the inspiration for these regressive amendments; and b) whether the regressive amendments were initiated by the bureaucrats themselves or by the political establishment or both have connived to wreck the WBP Act.


Please circulate this email widely.


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Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
#55 A, 3rd Floor, Siddharth Chambers-1
Kalu Sarai
New Delhi- 110 016