The Whistleblowers act is a joke, but better than no act at all

by Apurv Kumar Mishra The only whistleblower from India whose story has a happy ending is Vibhishan. In exchange for divulging the secret of his elder brother Ravana’s strength, he is made the king of Lanka after Rama kills Ravana. From Satyendra Dubey to Premnath Jha, Ram Kumar Thakur and V Saseendran, our whistleblowers have always been hounded, intimidated and harassed for speaking up against acts of corruption. And when their presence has become too inconvenient, these brave souls have been conveniently eliminated without much fuss, away from the eyes of the national media, since most of them work in places like Ratnauli and Palakkad. The parliament had an opportunity to fix this crisis by passing the Whistleblowers Bill which was put up for discussion in the Rajya Sabha on Friday. Instead, the day’s play was abandoned without a ball being bowled. [caption id=“attachment_1380999” align=“alignleft” width=“380”]  Will the Rajya Sabha pass the act into law? PTI[/caption] With just 10 days left in this session of the parliament, the best case scenario is that the Bill will be cleared in a hurry on the last day without any substantive deliberation or debate- like a last-minute student assignment just before the deadline. And that is a shame, because this Bill is the new Jokepal in the House and needs some serious debate by our Elders to fix its many shortcomings. The primary purpose of any Whistleblowers Bill is to prevent the victimization of individuals who make a disclosure against their organization in public interest. So, naturally the first question that a potential informant will ask is what actions is he/she protected against? What constitutes ‘victimization’? Does it include only suspension and transfer or also indirect forms of retribution like denial of promotion, dilution of powers, withholding increments and adverse remark in the service record? Against all logic, the Bill provides no definition of ‘victimisation’ even though a comprehensive definition of this term was provided in the Law Commission’s version of the Whistleblowers Bill. And suppose, in the middle of the most vulnerable and turbulent time of his life, a whistleblower does manage to establish this crime of ‘victimization’, what is the punishment prescribed for the public official in the Bill? Nothing- zero, zilch, nada- despite the recommendation of Administrative Reforms Commission in 2007 that ‘victimization’ should be made a criminal offence with substantial penalty and sentence. Do you know of any another crime which does not have a corresponding punishment? On the other hand, if you are in the mood to risk your life and career by making a complaint which cannot be proven after an inquiry (conducted by the very department that you complained against- albeit under the supervision of the vigilance commission), then be prepared to go to jail for 2 years. And I thought the whole purpose of this Bill was to protect whistleblowers. If you ask any legislator about this provision, they will predictably raise the bogey of ’threat of misuse’- as if losing your job and receiving death threats over a frivolous complaint is the most natural thing to do when you are bored and want to have some fun. Corruption is one of the many ways that public servants misuse their power. Other weapons in their arsenal include human right violations, acts of maladministration which waste public money, delaying decisions, negligence bordering on asininity, actions which harm the environment and violate standards of public health and safety. However, the Bill guarantees protection only for disclosures that expose financial corruption. The government chose to ignore international best practices and provided a very restricted definition of ‘disclosure’. When was the last time you heard of a corruption case that did not involve a politician? The people who drafted this Bill think that the only threat to a whistleblower is a bureaucrat and not the minister or the local contractors, who are paragons of virtue. Accordingly, you will only get protection if you spill the beans on a bureaucrat and spare your friendly, neighbourhood politician. The proposal to include ministers within the ambit of this law was another recommendation by the Law Commission that was “duly noted and summarily rejected” by the parliament. And if all this was not enough, the government wants to further amend the Bill by preventing the investigation of disclosures that affect “security, defence, scientific, economic or strategic interests of the State”, damage our relations with a foreign country or if the disclosure is likely to incite an offence. These are reasonable restrictions as long as an impartial third party decides whether a disclosure falls under any of the above categories. However, it is the designated authority of the concerned organisation that gets to decide this and their decision is final, with no scope of an appeal. Further, at any stage of an investigation, the government can refuse to cooperate by claiming that the information being asked for comes under one of the categories described above. Just imagine the variety of documents that can be shielded from an investigation by the creative use of umbrella categories like “economic interest” and “information that is likely to incite offence”. This proposed amendment is a direct violation of the fundamental principle of natural justice that no one can be a judge in his own cause. What is the end result of this long-drawn process? If the Vigilance Commission is convinced that there was a bonafide case against a public servant, it can merely recommend corrective action to the relevant public authority. It is like asking the head of a family to punish its erring child. Data collected by PRS Legislative Research indicates that between 2004 and 2008, the Central Vigilance Commission received 1354 complaints. In as many as 946 cases (70 percent) the concerned department did not comply with its recommendations on penalty. An alert citizenry is crucial for a healthy democracy. To quote Michael Moore, “there is at least one disgruntled person in every workplace- and at least double that number with a conscience. Hard as they try, they simply can’t turn their heads away from an injustice when they see one taking place”. In India, unfortunately, whistle blowing is an exception, not the norm. This is because there is a very high premium for speaking the truth- one must risk their reputation, employability and life. And if you are lucky enough to survive all this, you still get branded as a ‘snitch’ for the rest of your life. This is why most jurisdictions outside India don’t just protect whistleblowers but also incentivise them through qui tam provisions that allow whistleblowers to profit from exposing the truth. Dinesh Thakur, who recently exposed the corrupt manufacturing practices at Ranbaxy to the US FDA, was awarded Rs 224 crore (10 percent of the total settlement amount paid by Ranbaxy). Even in India, there are reward schemes run by the Health Ministry and the Excise department that reward informants with 20 percent of the total penalty recovered. However, I understand that it is too ambitious to hope for such provisions to be added to the Whistleblowers Bill if and when it does come up for discussion in the Rajya Sabha. I will take a flawed Bill that offers minimal protection any day because it makes the difference between life and death. When Satyendra Dubey wrote to the Prime Minister’s Office in 2004, he specifically requested them not to disclose his name. That did not happen and he paid the ultimate price for exposing corruption in the Golden Quadrilateral project. The current Bill makes it compulsory for the investigating agency to take the written consent of the complainants before disclosing their names. This simple provision would have saved Satyendra Dubey’s life. Too many decent people since then have died for the lack of such elementary legal guarantees. Let’s hope we have a Whistleblowers Act by the end of this session; it can be improved in the times to come. Apurv Mishra is a Young India Fellow at Ashoka University. He graduated with a degree in law from National Law University, Bhopal and was previously working with corporate law firm  Amarchand & Mangaldas.