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Whistleblower Protection Bill

Published on Fri, Jun 05,2015 | 22:19, Updated at Mon, Jun 08 at 17:35Source : CNBC-TV18 |   Watch Video :

Whistleblowers in India have had no protection – over the years, more than 200 whistleblowers have been assaulted and nearly 40 have lost their lives! Countless others have been transferred or forced to resign. Recently, a law was enacted to protect whistleblowers from such harassment, but before it could be implemented a long list of exemptions have been added. So how much protection does the Whistleblower Protection Act offer now? Aayush Ailawadi finds out!

The Whistleblowers Protection Act was enacted last year to provide protection to persons making a disclosure of corruption or wilful misuse of power by public servants. The Act aims to keep the identity of such whistleblowers secure and protect them from victimisation.

Although the Act received Presidential assent on 9 May, 2014, it wasn’t notified because the Modi government was keen on certain amendments. So, last month the Lok Sabha approved the amendments to the Act.

Essentially these amendments introduce a long list of exemptions i.e. circumstances in which a whistleblower will get no protection under the Act. There are ten exemptions, the first is a routine exemption for matters relating to national security, sovereignty and integrity of the state. But, the remaining ones have raised eyebrows.

These are the same ten categories excluded from the Right To Information Act and while that may work to protect information, these exemptions may substantially limit the scope of the Whistleblower Protection Act. For instance, a whistleblower complaint cannot include information that would cause a breach of privilege of Parliament – that means the whistleblower complaint cannot cast aspersions on an MP? Another exemption states that a whistleblower complaint cannot reveal any trade secrets or IP – that means a whistleblower cannot expose the purchase of faulty defense technology. Yet another exemption says no complaint should disclose cabinet papers or inter-ministerial communication or even deliberations among secretaries – thereby killing any chance of blowing the whistle on a future 2G scam or coal scam? The exemptions also cover information that would impede an ongoing investigation, information received in confidence from a foreign government and personal information.

Prashant Bhushan
Senior Advocate, SC

“Any information which a citizen may not be able to obtain under the Right to Information Act cannot be the subject matter of a whistleblower complaint. Moreover, the Designated Authority should first seek the permission of the Information Commission as to whether this information is of a kind, which can be revealed under the Right to Information Act. Therefore, this cripples the whole Act.”

KK Venugopal
Senior Advocate, SC

“I think that is the maximum that I could contribute to the interpretation of this law and I don’t think that the law should be interpreted in a manner where you say that there is a total prohibition against all these exceptions which are picked out from Sec 8 of the RTI Act being the subject-matter of disclosures, there is no total ban. There is only a calculated ban, if the secret which is disclosed is something which will have repercussions on the sovereignty of India, integrity of India and so on.”

Another important amendment is that a whistleblower is no longer protected from prosecution under the Official Secrets Act. Besides spying and selling state secrets, the Official Secrets Act also bars possession of government documents and sharing of government related information. Earlier, a Whistleblower could make a public interest disclosure, despite anything contained in the Official Secrets Act. That provision has now been deleted.

Venkatesh Nayak
RTI Activist
Programme Coordinator, CHRI
Co-convener, NCPRI

“So what will happen now is, even if some whistleblower gathers the courage to make a complaint, he is open to be prosecuted by Govt. under official secrets Act. And that is another major discouraging factor for all potential whistleblowers. Who would want to risk their lives? Who would want to risk their career by making a whistleblower complaint and then putting themselves up open for prosecution under the Official secrets Act?”

KK Venugopal
Senior Advocate, SC

“ When I started, I said there are two interpretations, one is an interpretation of which there being a total ban on anything relating to the 10 exceptions in 4(1)A being the subject matter of that disclosure. But, I don’t think that is what is being intended. An officer of the government sells official secrets, purchase of, let us take, a helicopter, he says that this is the price at which the government is prepared to pay but if you demand a higher price, you will get it. Or this is the armament fitted in it and I am telling you in advance so that you may be prepared to bid for it. These are all kept as top secrets! Now, if somebody is selling those secrets and committing a crime under the Official Secrets Act, the whistleblower will not be committing a further crime to bring this crime to the notice of the competent authority. In such a case, the disclosure is in public interest and is not against public interest and will not prejudicially affect the State. That is the interpretation which I think has to be given.”

Interestingly, just days before the Lok Sabha approved these amendments, the Supreme Court said public interest trumps the source of information. In one of the coal block allocation cases, Prashant Bhushan, argued that CBI Director Ranjit Sinha privately met some accused that his agency was investigating. The information regarding these meetings was sourced from a whistleblower who had access to his daily schedule diaries. The Supreme Court said ‘if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest.’

Prashant Bhushan
Senior Advocate, SC

“Now the Supreme Court, in this case, has clearly said that a person who reveals some facts about an investigation which has been dishonestly done in public interest with a view to expose that dishonesty is a whistleblower. Now under the new amendment, he would not be treated as a whistleblower and this kind of information about dishonesty in some investigation would not be acted upon for the reason that this information might be considered to be one of the exempted information under the Right to Information Act because one of the exemptions is any information which might interfere or which might compromise some investigation being done. So if there is dishonesty involved in the investigation and that is revealed, that would come under the exemption and therefore under the amendment and that would not be acted upon at all.”

Experts say that these hurried amendments – that is the ten exemptions, and the sudden withdrawal of protection from the Official Secrets Act considerably weaken the Whistleblower Protection Act… and that these are not the only flaws.
Nearly 40 whistleblowers in India have been killed, more than 200 assaulted, 4 committed suicide and dozens have been transferred. Ashok Khemka was transferred 45 times in 23 years, including for exposing the Vadra land deals. The WB Act has provisions in place to prevent a whistleblower from being victimised. A whistleblower can apply to the competent authority to issue directions to public servants or the authorities or the police to prevent ‘victimisation’. But, the bill’s fine print is ambiguous on what really amounts to ‘victimisation’?

Prashant Bhushan
Senior Advocate, SC

“No it won’t protect the whistleblower because as I said, usually people know who the whistleblower is, so identity protection is not the important thing. What is important is to protect him from administrative harassment and occasionally from physical threats etc to provide him security. But by and large, whistleblowers are subjected to administrative victimisation by way of suspensions, disciplinary proceedings, transfers, etc. And unfortunately, the CVC has not understood its job to protect the whistleblower is also from administrative harassment. Therefore, this should have been clearly defined in the Act that victimization includes administrative harassment by way of suspensions, postings, transfers, etc or spoiling ACRs  and that the CVC should be empowered to protect a whistleblower from such victimisation as well.”

KK Venugopal
Senior Advocate, SC

“No, I would proceed on the basis that the Courts could well interpret it and authorities can also interpret this phrase ‘victimisation’ which would mean that acting against a person contrary to whatever the rules or the laws would entitle him to as a protection. Therefore, if you act, for example, he is entitled to a promotion, withhold his promotion and you find that a complaint is pending against an officer who is supposed to be the promoting authority, you would presume that by withholding a promotion by that person is really a matter of victimisation, so it depends upon the situation. And I don’t think that the failure to define victimisation would affect at all the operation of the law.”

Unlike South Africa’s ‘Protected Disclosures Act’, the Whistleblower law in India does not provide for a whistleblower to publicise the wrong doing through the media as a last resort, when authorities fail to take adequate action on a complaint.
But, the SC has made an interesting observation in the case of Indirect Tax Practitioners’ Association:-

“…Whistleblowers may make their allegations internally, for example, to other people within the accused organisation or externally-to regulators, law enforcement agencies, to the media or to groups concerned with the issues.”

Venkatesh Nayak
RTI Activist
Programme Coordinator, CHRI
Co-convener, NCPRI

“Now, this is a principle that the Supreme Court has recognized in both those cases. In the Indirect Tax Practitioners Association, they upheld the blowing of the whistle to the media. In another case of Manoj Kumar Mishra, they actually said that blowing the whistle to the media was not really appropriate because the district administration, in that case, had already started taking action and therefore there could not have been any necessity of going to the media unless the action was proven to be inadequate. Therefore, in both cases, the Supreme Court has recognized the possibility of blowing the whistle to the media if all other options fail. Now ideally, the amendments don’t permit blowing the whistle to the media and that is a huge cause for concern.”

During deliberations and debates surrounding this law, several MPs and activists called for the WB Act to cover the private sector as well, as is the case in countries like the UK, Norway and South Africa. But successive governments have decided against such a move.

Venkatesh Nayak
RTI Activist
Programme Coordinator, CHRI
Co-convener, NCPRI

“So, we believe that the whistleblower protection laws should also be amended to bring the private sector in and the appropriate bodies which are regulatory agencies like SEBI or the Forward Markets Commission and a whole range of other regulatory bodies like Electricity Regulatory Authority. They could all be made competent authorities to inquire into whistleblower complaints.”

Although it has received a lot of flak from all corners, what’s unique about India’s whistleblower law is that it has extended protection to whistleblowers outside the government as well- to citizens and NGOs.

Prashant Bhushan
Senior Advocate, SC

“The Supreme Court has also held that the whistleblower could also be anybody. In fact, the Supreme Court has gone further to hold that the whistleblower is also a person who blows the whistle, not just to an official designated authority but blows the whistle to, let’s say a journalist, blows the whistle to a lawyer who then approaches a Court in public interest, etc. This is what the Court has held in the 2G case as well as the in the Coalgate case, as well as in earlier cases.”

Venkatesh Nayak
RTI Activist
Programme Coordinator, CHRI
Co-convener, NCPRI

“Absolutely, because I am a member of the Whistleblowers International Network which contains activists in organizations that are experts in whistleblower protection around the world and when we discuss the Indian bill with them, they told us that in most of the other countries, where whistleblower protection laws have been enacted, the law only recognizes somebody who is a member of a Government body as the whistleblower. No outsider gets whistleblower protection.”

But, that protection itself is under threat. If these amendments are passed by the Rajya Sabha in the next session, then the fear is that we’d have a diluted version of the original Whistleblower Act of 2014, which was considered to be a weak piece of legislation in the first place! So, is this a classic case of taking one step forward, two steps back?

In Mumbai, Aayush Ailawadi

 
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