Whittling the whistle

“Not a single charge of corruption has been levelled against my government,” was Prime Minister Narendra Modi’s bold assertion at the Saharanpur rally, commemorating the NDA government’s second anniversary. “Charge” seems to be the keyword here.

Having a corruption-free government would undoubtedly be the ideal scenario for our country. Technically speaking though, "corruption" and "charges of corruption" are not exactly the same. The latter could just imply that an act of corruption hasn't been exposed or become public knowledge yet.

And, "any charges of corruption" may never blow up if the Rajya Sabha passes the Whistleblowers Protection (Amendment) Bill, 2015  that has been pending in the Upper House and listed for business this Winter Session as well. The restrictive provisions in the Bill is likely to scare the living daylights out of any potential whistleblower.

That would effectively mean the Bill will not really discourage corruption but only a whistle being blown on it. It will only shield corruption, including previously unknown instances. That's not really the ideal scenario.

Remember, much of the scams that the UPA government faced in its second stint originated in its debut inning. Many of those—from the coal scam to the Niira Radia tapes that revealed the Indian polity’s underbelly—were exposed by whistleblowers .

In the Lok Sabha, where the BJP-led government has a comfortable majority, the Bill was passed within a couple of days of its introduction, on May 13, 2015. However, with the Opposition parties having larger numbers in the Rajya Sabha, the scenario is different.

"We want the WBP Bill to be sent to a Select Committee," D Raja, CPI leader and Rajya Sabha MP, tells National Herald. "Later, necessary amendments could be made," he adds.

The important question then is whether the NDA government will play ball to truly provide a conducive environment for whistleblowing. This, especially as the Winter Session starts in a charged atmosphere over the demonetisation move, ostensibly to check black money.

It’s no secret that, in India, blowing the whistle about any wrongdoing hasn’t always ensured confidentiality, anonymity and many a times only put the lives of the whistleblowers at risk. The cases are many—from National Highways Authority of India project director Satyendra Dubey, who in 2003 was killed after he secretly complained to no less than the Prime Minister's Office over corruption, to the recent "unnatural deaths" of even those probing the Vyapam admission and recruitment scam in Madhya Pradesh.

The Whistleblowers Protection Act (WBP Act), 2011 was, therefore, enacted to provide a statutory mechanism to protect any person who blows the whistle, that is, makes a complaint on corruption, wilful misuse of power or discretion by any public servant from harassment. Any disclosure was to be made to a specified "competent authority", who must discreetly conduct an inquiry.

Keeping the identity of the whistleblower secure was, of course, the top priority. The whistleblower could be a citizen, an NGO or a public servant—Member of Parliament, minister, bureaucrat, regulatory authority and so on. Thus, the Act could be considered a powerful tool against corruption.

The WBP Act of 2011 was never implemented, though. It had received the President’s
assent on May 9, 2014 and the decision on implementing it fell on the new NDA government, which  took over the reigns at the Centre a few weeks later.

In 2015, the NDA government sought to build too many walls around the Act. It prohibited 10 grounds on which one couldn't report on corruption, in the form of Article 4(1A). These prohibited categories are borrowed from the Right to Information Act (RTI), 2005 and include national security and intelligence, scientific and economic interests, Cabinet matters, intellectual property, personal information of a public servant and so on. The government's argument was that the Act appeared to confer an “absolute right” on the whistleblower to make a complaint.

"The wide exceptions in the 2015 Bill may beat the purpose of the Whistleblowers Act to spot corruption," says MR Madhavan, President of PRS Legislative Research, a public policy research institution. “It’s an overkill done without understanding a key difference between RTI and whistleblower,” says Venkatesh Nayak of Commonwealth Human Rights Initiative, a non-government body.

The fine print

When it comes to security and intelligence issues, countries like the US and the UK do have specific exemptions to their whistleblower laws. In the Indian context too, while there could be areas of national security that need to be protected, the question is whether there should be a blanket ban.

Many shady deals, say, in the defence procurement sector, may lie protected under this provision. Anyone familiar with government functioning will know that some deals are so intricate and complex that only an insider would be in a position to join the dots. But, while the 2011 Act gave the whistleblower immunity from the provisions of the Official Secrets Act, 1923, that immunity has been done away with now. Leave alone a complaint being looked into, the whistleblower may even be put behind bars for a long time if, say, the complaint could be termed as national security related. It’s important to note that even on security matters, the complaint isn't being made public but to a competent authority, discreetly.

Similarly, if a foreign country has in confidence passed on information on, for instance, black money stashed abroad; wouldn’t that be in the interest of the nation if that is exposed? If major private multi-nationals are responsible for harmful drugs, crops, machinery and the like which may have harmed our countrymen, wouldn’t they be taking refuge under these provisions? Wouldn’t politicians, bureaucrats and their ilk try to shield themselves against any improprieties citing privacy? Many such questions arise.

It may, therefore, be a good idea to include a couple of other provisions from the RTI Act that are related to the 10 exemptions. Madhavan points out that the RTI Act allows the competent authority to disclose information ‘if he thought it was in the public interest’. And, if the requested information is withheld, there’s a two-stage process to appeal against it. The justification for not including these provisions in the 2015 Bill isn't really a sound one.

Interestingly, the Whistleblower legislation was initially called Public Interest Disclosure & Protection to Persons Making The Disclosure Bill, 2010. So, it isn't about making revelations public but being made in "public interest".

Morale busters

Despite all these hurdles, supposing a determined whistleblower still goes ahead and passes on a public interest disclosure to a competent authority—let's say the Central Vigilance Commission (CVC)—there's no guarantee that action would be taken immediately.

If the disclosure falls under the 10 categories, the CVC will have to refer it to a “government authorised authority". The specifics of this authority though aren't mentioned; and as it will be appointed by the government, it's anyone's guess where its loyalties would lie. This authority has been given powers to take a final and binding decision on the matter. So, there it goes.

Now, anyone familiar with the working of a government system would know that it would not be difficult to guess who the whistleblower is. Irrespective of any legislative provisions, if the concerned executive is not keen on implementing it strictly, the whistleblower will suffer career wise, or worse.

With diluted protection provisions and extra hurdles placed before him, why would any honest officer or a conscientious citizen want to blow the whistle? “If the exceptions become part of the law, no whistleblower in his right mind will come forward to risk his career or even his life to make a complaint,” says Venkatesh Nayak.

The consequence then will only be a false imagery of no corruption. Not only should the legislation protect and encourage whistleblowers, it should go further to encourage even anonymous disclosures.

The Supreme Court in March 2015 said that a whistleblower can’t be punished for divulging confidential documents if he has acted in public interest. The government should take a relook at the amendments reflected in the 2015 bill. It should encourage an environment where any whistleblower finds it easy to disclose any wrongdoing, and feels secure doing so.

The Prime Minister's official website says that Mr Modi believes that "transparency and accountability are the two cornerstones of any pro-people government." That statement will fall flat if there is an opaque, inefficient whistleblowers legislation. There's still time to avoid that.

Sebastian PT is Editor-at-large of National Herald. He tweets at @sebastianpt7