Don't believe Rahul, here's why the Whistleblower Bill won't matter
The fustian charade of anti-corruption stands exposed even as the political class pussyfoots around a severely faulty bill.
by ShiningPath & Bhanupriya Rao
Rahul Gandhi, whose modesty is rivalled only by his stratospheric intelligence, has been making some mumbling noises of late on how the UPA government has been instrumental in bringing in the RTI as well as the Lokpal Bill. To further test our powers of credulity, he has also waxed stupid – apropos of nothing, one suspects - on a range of other draft bills, which are in the pipeline, to fight institutionalized corruption. Six, as the courtiers to the dynasty never tire of repeating.
So we decided to put one of those six bills under the scanner – the Whistleblower Protection Bill.
The long road to the nadir of legislative action on the aforementioned bill has followed a familiar script wherein grandiose visions locked up in voluminous and well-bound reports morph into lame action, turgid political speak fades into pedestrian silence and the lofty quickly descends into the gory.
For instance, take the preface to the report titled “Second Administrative Reforms Commission – Ethics in Governance [Jan ’07]”:
“One cannot mandate honesty. The rule of law can only defeat the perverse mind. However, it cannot defeat the perversity of the heart. In the words of Aleksandr Solzhenitsyn: “The line separating good and evil passes not between states nor between classes… but through the middle of every human heart.
We have no destinies other than those we forge ourselves. He who administers government by means of his virtues may be compared to the Pole star which keeps its place and all other stars turn towards it. When the ruler himself is right, the people naturally follow him in his right course. If governance is by men who are derelict, the governed will suffer” – Shri Veerappa Oily Moily, Chairman [16th Jan, 2007].
Lofty indeed. The only thing missing was him resorting to an even grander form of bogus refulgence towards the end. You know, "the governed will suffer till the ground has been rent asunder to its nethermost depths and every declivity and protuberance oozes malintent on part of those who govern."
But we digress.
Dummies guide to legislation:
When it comes to progressive legislation, the script can usually be deconstructed into the following elements:
1. Appoint a committee of erudite legal/public policy experts, which presents an extremely comprehensive report [including eminently actionable roadmaps].
2. The Chairperson writes a preface that has a pinch of the tediously grandiloquent and a dash of the resplendently farcical.
3. The report then passes through a sieve that separates the wheat from the chaff.
4. The wheat is utilized for giving media sound bites.
5. The chaff is used for drafting the legislation.
The Whistleblower Bill followed this time-tested trajectory in its descent from the lofty to the gory.
Dumping the wheat, adopting the chaff:
Almost 13 years ago, the Law Commission, drafted an extremely comprehensive draft Bill to "encourage the disclosure of corrupt practices on the part of public functionaries and protect honest persons from such disclosures".
Soon after the report was published, nothing happened. Predictably, nothing continued to happen for about 2 more years.
This state of somnolence was rudely shattered on 27, Nov 2003, when Satyendra Dubey [a young project manager with NHAI] was killed.
His crime? The young engineer associated with AB Vajpayee’s pet Golden Quadrilateral Project, chose not to be a silent bystander to the corruption and contract mismanagement in the multi-million dollar project. It was reported that a letter he wrote to the PMO’s office citing specific instances and naming his superiors was leaked. His confidentiality thus violated, he became a sitting duck for the very people he was trying to blow the whistle on.
Had the political class put an effective Whistleblower Bill in place, Dubey would have had a legal statute for protection while blowing the lid off corruption.
The 2nd Administrative Reforms Commission (2007), appointed by GoI, once again thrust the importance of protecting whistleblowers into public domain.
"Building trust and confidence requires an environment where there is a premium on transparency, openness, boldness, fairness and justice. We should encourage this."
Such tautological baloney notwithstanding, the ARC, like the Law Commission Report before it, is fairly prescriptive of concrete measures for whistleblower protection. Following that familiar template, the political class carefully ignored the specifics, added its own dash of vagueness in large dollops and pushed the Whistleblower Protection Bill, 2010along the road most travelled – the one that goes from the lofty to the gory.
“Whistleblowers exposing false claims, fraud or corruption should be protected by ensuring confidentiality and anonymity, protection from victimization in career, and other administrative measures to prevent bodily harm and harassment”, states the ARC.
But, what constitutes victimisation? The Bill maintains a morbid silence on this. When an RTI activist Shivaji Raut, who has been seeking details of a land scam in Maharasthra, gets a letter with the threat “don’t follow this matter [Jambhe land Scam], otherwise we will use all the ways possible [to stop you]”, is he being victimized?
When a senior cop Devdutt Mishra is forcibly remanded to a mental asylum for exposing corruption by the Mayawati administration, is that victimization? Would it be applicable only to cases of grievous bodily harm? Or murder, god forbid!
If the political class had even a modicum of serious intent to protect whistleblowers, it would have simply followed the Law Commission Report, which defined victimization with utmost clarity.
The ARC, further prescribes that “acts of harassment or victimization of or retaliation against, a whistleblower should be criminal offences with substantial penalty and sentence”.
The bill, far from penalising the perpetrator, actually penalises the whistleblower if the complaint were found to be ‘frivolous’ and ‘vexatious’. What is ‘frivolous’? ‘Vexatious’ for whom? Feel free to guess!
In the wake of numerous instances of victimisation including murders, it is a no-brainer that protecting the identity of the whistleblower is a sine qua non. The ARC reiterates:
“There is a very close connection between the public servant’s willingness to disclose corruption in his organization and the protection given to him and his/her identity. If adequate statutory protection is granted, there is every likelihood that the government would be able to get substantial information about corruption.”
Now, here is where things take a sharp turn towards the grotesquely absurd. How does the Bill intend to protect the ‘identity’ of the Whistleblower? By not allowing for anonymous complaints, believe it or not!
Had Satyendra Dubey’s anonymity not been compromised, he’d been alive and the big fish in the maze of corruption would have been incarcerated. ‘Anonymity’ would not have put the lives of Amit Jethwa, Sehla Masood, Satish Shetty and 30 other whistleblowers at risk, whose only crime was that they chose to expose corruption using the RTI- that mighty empowerment tool we are constantly reminded of these days.
Yet for the government to insist that anonymous complaints are inadmissible is either being myopic of reality, a deliberate attempt to discourage whistleblowing or mocking the courage of scores of RTI users who have suffered victimisation in different forms thus far. The best Whistleblower protection laws in the world, including those in UK, US and South Africa, allow for anonymity.
The ARC prescribes that “we have to suitably strengthen the institutional framework for investigating corrupt practices and awarding exemplary punishment to the corrupt thereby raising the risk associated with corrupt behavior".
Who could argue with that? Until, of course, one looked closely at the risible ‘incompetence’ bestowed on the ‘competent authority’-The Central Vigilance Commission and State Vigilance Commissions. The “incompetent authority’ is endowed merely with powers of recommendation on appropriate action and zilch power for prosecution against the wrongdoers. Why are the Lokpal and Lokayuktas, who have real penal powers not designated as ‘competent authorities’ is a million dollar question our lawmakers are not prepared to answer.
A large number of whistleblowers who have had to risk their life and limb, are often from small towns and village, seeking to expose corrupt practices in social welfare schemes like NREGA and PDS. Decentralisation of filing complaints would be a good incentive to encourage whistleblowing.
The Law Commission had originally defined disclosures in a rather comprehensive manner, by incorporating concepts such as ‘wilful misuse of power’ and ‘maladministration’. The ARC had also factored in mal-administration, defining it "any action which is unjust, causes undue delay or negligence, leads to waste of public funds."
The Bill stops short at just wilful misuse of power. When Ram Kumar Thakur unearths a host of ‘ghost names’ in the NREGA muster rolls in his village that exposes the Sarpanch’s complicity in corruption, is such a ‘disclosure’ worthy of investigation? Does it amount to wilful misuse of power or maladministration?
If accountability must start with the highest offices of the state, the ARC quite rightly states that "social monitoring through empowered autonomous and credible structures will have to be established even for the highest of the public offices."
Yet the highest public offices, those of the Prime Minister and Chief Ministers are conveniently exempt from whistleblowing. Small mercies then, that the ‘council of ministers’ have been included within the ambit of the law, following a very timely recommendation by the Parliamentary Standing committee.
Midway, through the descent from the lofty to gory, is the small matter of sneaking in amendments, drafted in complete secrecy to dilute the bill further. If the Government has its way, whistleblowing on grounds of national security, defence, scientific, economic or strategic interests of the state or harming foreign relations, categories with as much vagueness as possible, will be disallowed. That should pave the way for future Bofors and Howitzer kind of deals to be sealed with no threat from conscientious individuals whose ethics might stand in the way of murky activities.
The fustian charade of anti-corruption stands exposed even as the political class pussyfoots around a severely faulty bill and lets it languish in the Rajya Sabha, two years after it was passed in the Lok Sabha.
The Whistleblower Bill in its current form, mocks at the spirit of activism of those who care to blow the lid off corruption and leaves the entire whistleblower community vulnerable to the ignoble intricacies of vendetta-fuelled hearts. The crying spirit of democracy in the nation yearns not for an anti-Whistleblower Bill, but a better-drafted Whistleblower Bill.
The answer lies in enacting a clear, unambiguous and effective legislation, potent enough to protect the conscientious and penalize the perpetrator. Post May 2014 (we are willing to wager the current bill will lapse on 21 February) the lawmakers need to take the business of legislation seriously, debate the bill adequately and insert those amendments that would make this a robust bill. It would be a travesty if, after a 10-year wait, what emerges is a bill that does nothing to encourage and protect whistleblowers.
Let those inside the parliament know that political craftsmanship and wisdom must be directed towards realizing peaceful revolutions, for in the words of John F. Kennedy –
"Those who make peaceful revolution impossible will make violent revolution inevitable."
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