Skip to main content

Easier to pass camel through eye of needle than inquire into whistleblower complaint

By Venkatesh Nayak*
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 (May 11). 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 carryover from the last year of the UPA’s tenure in Delhi.

What is the purpose of a Whistleblower Protection Law?

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). Despite 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.

Every whistleblower complaint will have to pass 32 tests before inquiry can begin

In continuation of my recent article on WBP Act, I realise that there is a need to further appreciate the full import of the amendments proposed to Sections 4, 5 and 6 of the WBP Act. 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: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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The WBP Act does not 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.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Comments

TRENDING

Modi govt distancing from Adanis? MoEFCC 'defers' 1500 MW project in Western Ghats

By Rajiv Shah  Is the Narendra Modi government, in its third but  what would appear to be a weaker avatar, seeking to show that it would keep a distance, albeit temporarily, from its most favorite business house, the Adanis? It would seem so if the latest move of the Ministry of Environment, Forests and Climate Change (MoEFCC) latest to "defer" the Adani Energy’s application for 1500 MW Warasgaon-Warangi Pump Storage Project is any indication.

US govt funding 'dubious PR firm' to discredit anti-GM, anti-pesticide activists

By Our Representative  The Alliance for Sustainable & Holistic Agriculture (ASHA) has vocally condemned the financial support provided by the US Government to questionable public relations firms aimed at undermining the efforts of activists opposed to pesticides and genetically modified organisms (GMOs) in India. 

Bayer's business model: 'Monopoly control over chemicals, seeds'

By Bharat Dogra*  The Corporate Europe Observatory (CEO) has rendered a great public service by very recently publishing a report titled ‘Bayer’s Toxic Trails’ which reveals how the German agrochemical giant Bayer has been lobbying hard to promote glyphosate and GMOs, or trying to “capture public policy to pursue its private interests.” This report, written by Joao Camargo and Hans Van Scharen, follows Bayer’s toxic trail as “it maintains monopolistic control of the seed and pesticides markets, fights off regulatory challenges to its toxic products, tries to limit legal liability, and exercises political influence.” 

'Flawed' argument: Gandhi had minimal role, naval mutinies alone led to Independence

Counterview Desk Reacting to a Counterview  story , "Rewiring history? Bose, not Gandhi, was real Father of Nation: British PM Attlee 'cited'" (January 26, 2016), an avid reader has forwarded  reaction  in the form of a  link , which carries the article "Did Atlee say Gandhi had minimal role in Independence? #FactCheck", published in the site satyagrahis.in. The satyagraha.in article seeks to debunk the view, reported in the Counterview story, taken by retired army officer GD Bakshi in his book, “Bose: An Indian Samurai”, which claims that Gandhiji had a minimal role to play in India's freedom struggle, and that it was Netaji who played the crucial role. We reproduce the satyagraha.in article here. Text: Nowadays it is said by many MK Gandhi critics that Clement Atlee made a statement in which he said Gandhi has ‘minimal’ role in India's independence and gave credit to naval mutinies and with this statement, they concluded the whole freedom struggle.

105,000 sign protest petition, allege Nestlé’s 'double standard' over added sugar in baby food

By Kritischer Konsum*    105,000 people have signed a petition calling on Nestlé to stop adding sugar to its baby food products marketed in lower-income countries. It was handed over today at the multinational’s headquarters in Vevey, where the NGOs Public Eye, IBFAN and EKO dumped the symbolic equivalent of 10 million sugar cubes, representing the added sugar consumed each day by babies fed with Cerelac cereals. In Switzerland, such products are sold with no added sugar. The leading baby food corporation must put an end to this harmful double standard.

Militants, with ten times number of arms compared to those in J&K, 'roaming freely' in Manipur

By Sandeep Pandey*  The violence which shows no sign of abating in the ongoing Meitei-Kuki conflict in Manipur is a matter of concern. The alienation of the two communities and hatred generated for each other is unprecedented. The Meiteis cannot leave Manipur by road because the next district North on the way to Kohima in Nagaland is Kangpokpi, a Kuki dominated area where the young Kuki men and women are guarding the district borders and would not let any Meitei pass through the national highway. 

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah*   The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

UNEP report on how climate crisis is impacting displacement, global conflicts, declining health

By Shankar Sharma*  A recent report by the United Nations Environment Programme (UNEP), titled "A Global Foresight Report on Planetary Health and Human Wellbeing," warrants urgent attention from our country’s developmental perspective. The findings, detailed in the report, should be a source of significant concern not only globally but especially for our nation, which has a vast population and limited natural resources.