The Hindu: New Delhi: Tuesday, August 01, 2017.
Proposed
amendments to the Whistle Blowers Act defeat the very purpose of the
legislation
More than 15
whistle-blowers have been murdered in India in the past three years. Parliament
may have passed the Whistle Blowers Protection (WBP) Act in 2014, but this did
not help save their lives as the government has doggedly refused to
operationalise the law. The Act aims to protect people who bring to the notice
of the authorities concerned allegations of corruption, wilful misuse of power
or commission of a criminal offence against a public servant.
A wider
definition
Significantly,
in defining who a whistle-blower is, the law goes beyond government officials
who expose corruption they come across in the course of their work. It includes
any other person or non-governmental organisation. The importance of such
progressive expansion is underlined by the fact that in the last few years,
more than 65 people have been killed for exposing corruption in the government
on the basis of information they obtained under the Right to Information (RTI)
Act. The RTI law has empowered the common man to have access to information
from public authorities which only government officials were earlier privy to making
every citizen a potential whistle-blower.
The WBP law
has provisions for concealing the identity of a whistle-blower, if so desired,
following cases such as Satyendra K. Dubey’s, whose murder in 2003 led to
demand for such legislation. In a letter addressed to the Prime Minister,
Dubey, a manager in the National Highways Authority of India (NHAI) posted at
Gaya, had highlighted corrupt practices in the NHAI and specifically requested
that his identity be kept secret. But the information was leaked, leading to
his murder.
Most notably,
the law affords protection against victimisation of the complainant or anyone
who renders assistance in an inquiry. This is critical as whistle-blowers are
routinely subjected to various forms of victimisation suspensions, withholding
of promotions, threats of violence and attacks. The law empowers the competent
authorities to accord them protection, which includes police protection and
penalising those who victimise them. Whistle-blowers Ram Thakur, Nandi Singh
and Amit Jethwa were intimidated and sought police protection in vain, before
they were murdered.
Instead of
operationalising the WBP law, an amendment Bill, which fundamentally dilutes
the law, was introduced in Parliament in 2015 by the Bharatiya Janata Party-led
government without public consultation.
Shooting
the messenger
The amendment
Bill seeks to remove immunity provided to whistle-blowers from prosecution under
the draconian Official Secrets Act (OSA) for disclosures made under the WBP
law. Offences under the OSA are punishable by imprisonment of up to 14 years.
Threat of such stringent penalties would deter even genuine whistle-blowers.
The basic purpose of the WBP Act is to encourage people to report wrongdoing.
If whistle-blowers are prosecuted for disclosing information as part of their
complaints and not granted immunity from the OSA, the very purpose of the law
would be defeated.
Further, to
ostensibly bring the WBP Act in line with the RTI Act, the amendment Bill says
that complaints by whistle-blowers containing information which would
prejudicially affect the sovereignty, integrity, security or economic interests
of the state shall not be inquired into. In addition, certain categories of
information cannot form part of the disclosure made by a whistle-blower, unless
the information has been obtained under the RTI Act. This includes what relates
to commercial confidence, trade secrets which would harm the competitive
position of a third party, and information held in a fiduciary capacity. These
exemptions have been modelled on Section 8(1) of the RTI law which lists
information which cannot be disclosed to citizens.
Two laws,
different objectives
The
amendments ignore the fact that the two laws have completely different
objectives. The RTI Act seeks to provide information to people, while the WBP
Act provides a mechanism for disclosures to be made to competent authorities
within the government to enable inquiry into allegations of corruption and
provide protection to whistle-blowers.
Conflating
the two laws is inappropriate and would preclude genuine whistle-blowing in
several scenarios. For instance, what about government officials who come
across evidence of wrongdoing in the normal course of their work and do not
need the RTI Act to access relevant information? Again, should complaints
exposing corruption in nuclear facilities or sensitive army posts not be
inquired into just because they contain information relating to national
security? Surely the country would benefit if such wrongdoing is exposed so
that appropriate action can be taken.
If the
intention was to ensure that sensitive information pertaining to national
security and integrity is not compromised, instead of carving out blanket
exemptions the government could have proposed additional safeguards for such
disclosures such as requiring complaints to be filed using sealed envelopes to
the competent authorities.
Concerns
about these regressive amendments were brushed aside and the Bill pushed
through the Lok Sabha in haste. The amendment Bill is listed for discussion and
passage in the Rajya Sabha in the current session. To reconsider amendments
that would fundamentally dilute the law, and provide an opportunity for public
consultation, it is imperative that the Bill be referred to a select committee
of the Upper House.
There is no
justification for not operationalising the WBP Act. It is the moral obligation
of the government to immediately promulgate the rules and implement the law to
offer protection to those who, at great peril, expose wrongdoing.
(Anjali
Bhardwaj and Amrita Johri are members of the National Campaign for Peoples’
Right to Information (NCPRI))