The Panama Papers incident, which has shocked the nation with its revelations brings a question to mind, are whistleblowers protected in India? While, yes, there is a Whistleblower Protection Act, 2011, the Act unfortunately, does little to actually protect the whistleblowers. The Whistleblower Protection (Amendment) Bill, 2015 (the Amendment Bill) only makes matters worse.
The Whistleblowers Act provides for a ‘public interest disclosure’ which can be made by any person, including a government official, a public authority or even an NGO. The disclosure should be made to the ‘Competent Authority’ appointed under the Act (the Authority), which is usually the Central Vigilance Commission or the State Vigilance Commission. The actual complaint mechanism under the Act is yet to be set up. Complaints can still be made to the CVC under the Resolution on ‘Public Interest Disclosure and Protection Informer’. The disclosure can be sent in a closed envelope, e-mail, SMS or any other form of electronic communication. A complainant can give documentary evidence in any form, such audio recording, video recordings, documents, photographs, etc.
How effective the Whistleblowers Act is in protecting whistleblowers is best understood in the context of revelations made in the past:
Anonymous, pseudonymous complaints cannot be made
The Panama Papers involved a report given by the International Consortium of Investigative Journalists (ICIJ), involving thousands of leaked documents from a Panama based law firm. The actual source of the information has requested anonymity. Under the Whistleblowers Act, the ICIJ could not have filed a report with the authority on behalf of the unknown source. There is no provision for such indirect disclosures.
In fact, the first step to be taken by the authority is to ascertain the identity of the person making the complaint. An anonymous or pseudonymous complaint will not be allowed. The person is required to reveal his name at the beginning or end of the letter. The authority is under an obligation to conceal the identity of the person. However, if in the text of the letter, he reveals his identity in any form, even through a hint, the obligation ceases. A revelation in any other form by the complainant will also result in the obligation ceasing. How such a revelation will be determined is not clear. In the Satyendra Dubey case, who revealed major discrepancies in an ongoing NHAI project, Satyendra Dubey first approached the higher officials at the NHAI. Thereafter he wrote to Prime Minister’s Office requesting anonymity. Will the approaching of the higher officials first be considered to be a revelation of his identity by the complainant? Considering that the text of the letter will have details similar to those given the higher officials by the NHAI, which is sufficient for him to be identified, will that be considered to be a ‘hint’?
Disclosure related to public persons only
Disclosures in relation to private persons or corporate entities cannot be made under this mechanism. Therefore, even among the names revealed under the Panama Papers, only the names of government officials involved will be considered. Considering that the possible disclosures are as great from private persons as from government officials, it is surprising that law makes no provision for such disclosures.
Security information, personal information cannot be disclosed
The Whistleblowers Act doesn’t allow disclosures on all subjects. Instances of corruption, abuse of power by a government authority, or a crime committed by a public servant can be reported. Issues relating to private persons or companies cannot be reported. The Amendment Bill introduces ten broad categories of information which cannot be disclosed.
For example, suppose the source of the Panama Papers is an attorney employed at the law firm from which the documents were leaked. In this case, the complaint will not be inquired into, since it falls under the restricted category of ‘information obtained in a fiduciary capacity’ (the lawyer-client relationship) under the Amendment Bill. Edward Snowden’s revelations can fall into the restricted category of information concerning the ‘security’ of the nation. Chelsea Manning’s revelations regarding the US military will also not be allowed, since the armed forces are not subject to this Act. For example, the alleged army atrocities in Jammu and Kashmir cannot be reported under this Act.
Under the Amendment Bill, the authority is required to forward the matter to an appointed authority to ascertain if the matter falls under any of these restricted categories. The decision of such an authority will be binding on the Authority. Neither the Authority nor the complainant can either question or appeal this decision. This gives far too simple an escape route for government officials who do not wish to inquire into something.
The Act requires the Government to ensure that the complainant is not victimized. The Act does not define ‘victimisation’. As a result, it is not clear what will constitute victimisation, or how precautionary measures are to be granted. The Act mentions that the Authority can take such measures as he deems fit, which will include police protection. Specific provisions have been made with respect to administrative measures. For example, in the Ashok Khemka case, he faced over 40 transfers on account of the disclosures. Such transfers can be remedied under this Act. The Act, however, makes no specific provisions for the protection of complainants whose lives will be in danger. This is surprising, given that whistleblowers are most often in fear of their lives.
Only a complainant under the Whistleblower Act will be protected
Only a person who makes a disclosure under this Act is entitled to seek protection under this Act. For example, Edward Snowden chose to make his disclosure through the press, while Satyendra Dubey chose to approach the higher officials first. Such people who choose other routes, whether lawful or unlawful, cannot seek protection under this Act.
Time limit of 7 years
Under the Act, only complaints regarding incidents over the last 7 years can be heard. For example, the Panama Papers concern incidents of the last 40 years. As per this rule, the Authority will only be able to inquire into incidents of the last 7 years, and all previous ones will have to be overlooked.
Limited responsibility on officials called to give evidence
The Act does not permit government officials to seek exemptions from giving evidence on grounds such as an obligation to maintain secrecy, for instance under the Official Secrets Act, or any privilege to not produce documents, such as the privilege of members of parliament. However, they can claim that the information will affect the sovereignty, security, etc. of the State. A certificate issued by the Government to this effect will be binding and conclusive, which means, again, that neither the Authority nor the Complainant can appeal against this decision. Under the Amendment Bill, the exemptions are extended to the ten prohibited categories.
Maximum penalty imposed is Rs 50,000
Interestingly, this Act prescribes a higher penalty for a person making a false disclosure, than on a government official filing a false report (for instance, as the outcome of the case, or as evidence). The former will be penalized with imprisonment of upto two years plus a fine upto Rs 30,000, while the latter has a maximum penalty of Rs,50,000/-. The same penalty also applies to a government official who deliberately gives wrong or misleading information, or who destroys document. This gives an all too easy escape route for corrupt government officials — destroy the relevant records, pay the penalty, and escape the inquiry.
The maximum penalty imposed on a government authority for victimisation of a complainant is Rs 30,000. The Act makes no provision for any compensation either for such victimisation. This penalty is hardly enough given the forms victimisation can take. For example, in the Satyendra Dubey case, the victimisation was in the form of murder. Snowden was forced to flee the country.
The Central Vigilance Commission itself said that the Act does little to instill confidence in the people. Considering the grave consequences of the disclosures made by whistleblowers, the Act does not appear to take the matter seriously at all.