Venkatesh Nayak on Governmental Policy Justifications for Narrowing Whistle-Blower Protection and Popular Accountability in India--Substantial Insights for Patterns in Other States

(Pix (c) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has been writing about the evolution of whistle blower protections in India, its relation to governmental transparency policies, and recent efforts to shrink both transparency and accountability (through whisteblowing) in the name of state security. See here and here.

The issues are important for three reasons.  First, to mollify public opinion (or at least to manage it) states appear increasingly interested in finding a plate full of palatable policy language to justify narrowing transparency and popular accountability vehicles.  Second, India represents an influential non-Socialist state that is attempting to engage in this narrowing and that may be influential with other developing states.  Third, the effort is important as a means of taking anti-corruption efforts "in house", that is within ruling parties; that would increase the power of parties in power to manage anti corruption efforts (with respect to targeting and exposure) and reduce the ability of people to directly involve itself in such efforts. That effort, may be tempting not just for developing states like India, but also for developed states like the United States, Canada and the Member States of the European Union.

Mr. Nayak has requested the circulation of the following essay, entitled, ""People cannot have an absolute right to blow the whistle" - RTI reveals Government's rationale for whistleblower law amendments given in its Cabinet Note." It analyses the policy bases for restricting both popular accountability and the extent of whistle blower protection for those denouncing corruption.

-->

"People cannot have an absolute right to blow the whistle" - RTI reveals Government's rationale for whistleblower law amendments given in its Cabinet Note

Dear all,

Readers will remember the heated debate that took place inside and outside Parliament during the budget session earlier this year, on the proposals to amend the Whistleblowers Protection Act, 2011 (WBP Act). The WBP Amendment Bill approved by the Lok Sabha and now pending consideration in the Rajya Sabha seeks to amend the WBP Act substantially apart from rectifying some typographical errors.

In May I had circulated critical comments on these amendment proposals arguing: "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 as it will have to pass through 32 tests." The Cabinet Note attached to the WBP Amendment Bill only proves this allegory (see attachment).

WBP Amendment Bill's Cabinet Note proves the critique right

After the last budget session ended, I sought a copy of the Cabinet Note that was placed before the Union Cabinet for its approval to table the draft WBP Amendment Bill in Parliament. The Department of Personnel and Training (DoPT) which is the nodal department in the Government of India (GoI) for both whistleblowing matters and implementation of the Right to Information Act (RTI Act) has furnished a copy of the Cabinet Note. GOI's justification for the restrictions sought to be placed on potential whistleblowers are as follows (along with my comment on their implications):

Reasoning 1: Justification for Amendment of Section 4(1): "In its present formulation Section 4(1) appears to confer an absolute right on the whistleblower to make a whistleblower complaint" about:

a) offences of corruption recognised under the Prevention of Corruption Act, 1989, or attempts to commit such offences;

b) willful misuse of power or discretion to cause demonstrable loss to the Government or demonstrable wrongful gain to the public servant or a third party; and 

c) commission or attempt to commit any offence recognised under any law for the time being in force.

Apparently, this "absolute right" falls foul of Section 3 of the Official Secrets Act, 1923. Further, Section 8(1) of the RTI Act contains safeguards against the disclosure of information that would prejudicially affect the sovereignty, integrity, defence, security, strategic, economic and scientific interests of the country, its foreign relations etc. So GoI has reasoned that it is essential to have such safeguards against whistleblowing under the WBP Act. So the 10 exemption clauses under Section 8 of the RTI Act must be imported lock stock and barrel to the WBP Act in Section 4(1). If the complaint relates to commercial confidence, trade secrets, intellectual property rights or is available to a person in his fiduciary relationship (lawyer-client, doctor-patient etc.) or relates to the privacy of an individual then the whistleblower must prove that the information was obtained under the RTI Act if the competent authority is to inquire into it (pages 6-7).

Reasoning 2: Justification for Amendment of Section 5: When a whistleblower complaint relates to any of the ten grounds for exempting information under the RTI Act then the Competent Authority must be prevented from inquiring into such a complaint without the approval of an authority authorised by the concerned Department to examine and certify whether or not the complaint relates to any of the prohibited categories. Such a certificate is conclusive and binding on the Competent Authority (page 7).

Reasoning 3: Justification for Amendment to Section 8(1): A person must be forbidden from furnishing  any information called for by the Competent Authority that is inquiring into a whistleblower complaint if it falls under the ten exempt categories because the Act must be brought in line with the restrictions on the right to freedom of speech and expression listed under Article 19(2) of the Constitution of India and also the exemptions listed in Section 8(1) of the RTI Act (page 7-8).

What is wrong with this rationale?

The cat is finally out of the bag. According to GoI, the restrictions on the fundamental right to free speech and expression and the right to information which is a part of that right as well as the prohibition of espionage under the Official Secrets Act must apply to whistleblowing as well. Is there anything left to complain about if all these restrictions are applied to whistleblower complaint? The following implications of the amendment proposals flow logically from the rationale explained in the Cabinet Note:

1) To hold that a whistleblower must be prohibited from making a complaint if it relates to national security, defence or strategic or economic interests means that no official will be allowed to blow the whistle on scandals in defence procurement or any wrong doing in the Stock Exchanges or botch up in military strategies or failures of intelligence agencies;

2) To hold that a whistleblower must be prohibited from making a complaint related to the commercial confidence, trade secrets or intellectual property of a private company means that no officer, private person or NGO will be allowed to blow the whistle about environmental pollution or degradation of the ecology caused by that company's actions, often occurring in collusion with or connivance of other public servants. If a person makes a complaint about unsafe drugs or harmful GM crops released into the market and concerned public servants have done nothing to stop it, then he or she has to show that the information has been obtained under the RTI Act. Even then, the same department which gave him the information may certify that it falls under the exempt categories and prevent the competent authority from taking further action on the complaint. A combined reading of the amendment to Section 4(1) and 5(1) of the WBP Act indicates that there is no guarantee that a competent authority will inquire into a complaint even if it is backed up by records obtained under the RTI Act because the concerned department can block it through a certificate.

3) To hold that a whistleblower must be prohibited from making a complaint related to the personal information about an individual means that no officer, private person or NGO will be able to make a complaint against any public servant for submitting false certificates relating to caste, education, income or character. Obtaining such information under the RTI Act is next to the impossible, thanks to the orders and judgements of some High Courts and the Supreme Court (Girish Ramachandra Deshpande case of 2012). It would also become very difficult to make a complaint about disproportionate assets of a public servant based on other publicly available records such as his/her Immovable Property Returns compared with property title registration documents obtained under other laws and rules that are in vogue. No more VYAPAM, Adarsh or Commonwealth Games type of scams may be exposed by whistleblowers in future.

4) To hold that a whistleblower must be prohibited from making a complaint related to the personal information about a public servant means means that he cannot make a complaint of bribery against a Minister unless he has obtained the supporting records under the RTI Act.  Even the Prime Minister may be blocked from inquiring into a whistleblower complaint of corruption against his/her Cabinet colleague if the authority authorised in the concerned Ministry certifies that it falls under the exemptions to whistleblowing.

5) While justifying the need for greater protection for national security-related matters, the Cabinet Note does not justify why other categories of information such as commercial secrets, parliamentary privilege and personal privacy must be brought in as restrictions on the right to blow the whistle. These categories of information have nothing to do with national security concerns.

6) Section 39 of the Code of Criminal Procedure, 1973 (CrPC) compels every person who has knowledge about the occurrence or likelihood of the occurrence of crimes such as murder, attempt to murder, rioting, adulteration of food and drugs, kidnapping for ransom etc. to report to the police or the nearest Magistrate. This duty includes reporting other categories of offences such as - waging war against the State or conspiring to so do and collecting arms for such purposes. So if the WBP Amendment Bill were to be passed by Parliament, then blowing the whistle on such matters to the police or the judiciary would be legal under the CrPC but doing so under the WBP Act would be prohibited. An official who has knowledge about his colleagues who may be engaged in activities inimical to the country's safety and security will have no recourse to the WBP Act but could make a complaint to the police or Magistrate under the CrPC. Further, Section 39 of the CrPC also makes it compulsory for a person to report bribery (Sections 161-165 of the Indian Penal Code, 1860) by public servants to the police or the Magistrate. So making a complaint under the CrPC about such actions would be legal but a whistleblower complaint made under the WBP Act to the competent authority will have to pass 34 tests [32 under the RTI Act and one each under Section 3 of the Official Secrets Act and Article 19(2) of the Constitution] and there would still be no certainty that the concerned department would not derail the inquiry process by issuing an exemption certificate. Is this the modern version of Singhasan Battisi?

The sheer absurdity of the implications of these amendment proposals and the rationale underlying them is, to say the least, unbelievable. Article 19(2) of the Constitution only places reasonable restrictions on the freedom of speech and expression to protect national security, the dignity of courts, the reputation of private individuals and to prevent the incitement to commit any offence. These restrictions are intended to prevent public utterances from having such harmful effects on society. Section 8(1) of the RTI Act exempts disclosure of information held in government records in order to prevent harm to legitimate public interests such as national security, foreign relations, trade secrets, fair investigation into crimes and fair trial and personal privacy etc. Section 3 of the Official Secrets Act (OSA), is an anti-espionage provision which criminalises disclosure of secret codes, passwords, sketches, maps, models and articles where the disclosure is calculated to be useful to the enemy. It also criminalises trespass of or sharing information about prohibited areas such as defence installations or equipment.

The freedom of speech and expression is exercised publicly and in the privacy of one's home The restrictions are about preventing misuse or abuse of that fundamental right in public. Section 8(1) of the RTI Act prevents the harmful effects of information disclosure to the public and private spheres of civilised life. Official secrets of the kind listed in the OSA may be leaked both publicly or passed on to enemies covertly. In contrast, nothing in the WBP Act requires that a whistleblower complaint be made public prior to the initiation of the inquiry. No duty of transparency is placed on the competent authorities that are empowered to receive and inquire into whistleblower complaints regarding their contents until a final order is issued on the complaint. Even then the original complaint and annexures are not required to be made public. The WBP Act does not even recognise whistleblowing to the media unlike its counterparts in countries like South Africa, Romania, the United Kingdom and the United States of America. 

The Central Government has simply ignored the main principle underlying a whistleblower protection law- namely, to provide a safe alternative to silence to a person who has knowledge of or is witness to an offence or wrong doing in a public authority. Instead the amendments are aimed at making it nearly impossible for a citizen, official or NGO or any private entity to make a whistleblower complaint. A witness will not be able to report custodial murder or torture or custodial rape unless he obtains proof of the same under the RTI Act (CCTV camera recordings?).

Tongue-in-cheek, the Statement on Equity, Accountability and Innovations attached to the Cabinet Note (a common feature of every Cabinet Note which briefly explains how these imperatives will be furthered by the proposal) states that the proposed amendments are expected to make public servants more accountable and thus help eradicate corruption in the country! (page 13) The regressiveness of the amendment proposals is too stark to be missed. Strange that the legal luminaries in the Union Cabinet did not raise objections over the inconsistencies in the logic underlying the Cabinet Note.

What makes it worse, Parliament was never told that a citizen cannot have an absolute right to blow the whistle. The Statement of Objects and Reasons attached to the WBP Amendment Bill do not contain this line of justification. Had it been included, Lok Sabha may have looked at the Bill differently.

What is wrong with the process of consultation on the WBP Amendment Bill?

According to GOI's Transaction of Business Rules, 1961, when the subject of a case concerns more than one department, consulting them all is an essential ingredient of the decision-making process. According to para #37 of GOI's Handbook on Writing Cabinet Notes, the draft Cabinet Note must be sent to all ministries and departments whose work is likely to be affected by the proposal. Whistleblowing affects all ministries and departments in Government because corruption and misuse of power and discretion are very widespread phenomena. The Whistleblower Policy which has been repealed by the WBP Act was applicable to all ministries and departments since 2004. Nevertheless, according to the attached Cabinet Note, the DoPT consulted only the Law Department on the amendment proposals and none other. The Law Department is said to have concurred with the amendment proposals. One wonders how well the Law Department officials understood the principles on which a whistleblower protection law must be founded before giving their approval. 

The Pre-Legislative Consultation Policy adopted by the Government of India in January 2014 requires every Ministry to consult not only the stakeholders related to an issue but the public at large, on any new legislative proposal or amendments to existing laws. Neither employees' associations in government or public sector enterprises and banks, who constitute a major segment of the stakeholder community for the WBP Act, were consulted on these amendment proposals. The draft WBP Amendment Bill was never placed in the public domain to invite comments from the citizenry which has lost more than 40 members since 2005 for demanding to know the truth under the RTI Act. Many of them were acting as whistleblowers by merely demanding access to information about corruption or wrong doing in public authorities. Had these consultative processes been conducted, the illogicality and the regressive nature of the amendment proposals would have become apparent to the Government. Being an optimistic citizen I do not want to yet impute ulterior motives to the Government for bringing these retrograde amendments to the WBP Act- NOT YET! Therefore even though the DoPT wrongly calculated the additional RTI fee initially, I have sent them the balance amount after receiving the information (see last page of the attachment). One must act in good faith because Government is also expected to act in good faith.

What can we do now?

India's national motto is "satyameva jayate" (truth alone shall triumph). Every citizen, public servant and non-governmental organisation has the absolute right to know the truth and utter it to seek remedial action against corruption and the commission of or plans to commit offences and other kinds of wrongdoing recognised in the WBP Act. The "rule of law" is the fundamental basis of democratic, responsible and accountable governance. The Constitution of India particularly, the fundamental rights cannot be allowed to become an excuse to prevent whistleblowing. That is not the kind of governance that the mothers and the fathers of the Constitution had envisaged more than six decades ago. The rodents of corruption are gnawing away at the vitals of India's governance structures for too long. The very edifice of India's polity and civilisation is in serious danger of collapse. While it is fine to celebrate the glory that India of old was, the Government would do well to take a leaf out of Kautilya's Arthashastra (Book II: Chapter VIII) to promote whistleblowers through mechanisms such as rewards instead of discouraging them. Kautilya wanted external whistleblowers to be rewarded more than internal whistleblowers, as the latter would only be doing their duty. GoI does not even want to recognise the citizens right to blow the right on corruption and wrong doing in the public sector as being absolute. Blow the whistle on the prohibited categories of information and be damned by prosecution under OSA seems to be the new advance warning mechanism or- "close your eyes and ears and shut up about corruption and wrongdoing" seems to be the new aspiration.

The WBP Amendment Bill has been slated for discussion and passing in the Rajya Sabha during the current monsoon session of Parliament. It is important for every socially sensitive citizen and civil society organisations to meet their MPs - particularly from the Rajya Sabha and tell them how absurd the amendments are and demand that they reject the Amendment Bill. 

Note for friends in the media: This email is bcced to all recipients in order to protect the privacy of their email addresses. I am requesting journalist friends to cover this revelation without delay, if they find it good enough. This email is not being shared with anybody in an exclusive manner and is being sent out sufficiently early in the day to facilitate enough time to do the story.

Please circulate this email widely.

. . . .

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