India’s Whistleblowers Can’t Escape Foul Play

The Statue of Justice wearing a blindfold signifies that Justice must be meted out impartially, without fear or favour. But what is preventing us from safeguarding those whom the Law is meant to protect? There was Satyendra Dubey, murdered in 2003 for exposing corruption in a government-run highway project where he was an engineer. There was Manjunath Shanmugam, an official working with a public sector oil major, who was shot dead by the petrol adulteration mafia in 2005. And more recently in 2012, bureaucrat SP Mahantesh succumbed to his injuries following an attack, after whistleblowing on irregular land allotments.

It took the Indian Parliament nearly half a decade to pass a law to set up a national corruption ombudsman. It remains to be seen how many whistleblowers will have to pay with their lives before they have a law to shield them.

Trial and error
The central government’s spin doctors will, undoubtedly, point to the Whistle-Blowers Protection Bill, 2011, as evidence of their commitment to the cause of protecting India’s whistleblowers. And they will blame the Opposition for holding up the Parliament (ironically, on charges of government corruption), which has prevented the Bill from getting passed.

They will also deflect questions about the apathy that prevailed since 2004, when the Supreme Court had first instructed the government to create a robust whistleblower mechanism, in the wake of the Satyendra Dubey tragedy.

The government’s response at the time was disappointing. It instructed the corruption watchdog, the Central Vigilance Commission (CVC), to do something so that the fig leaf for compliance could be presented to the courts. A look at the relevant section of the CVC’s website dealing with whistleblowers will amply illustrate that it is a poor apology even for a fig leaf.

Despite widespread corruption that led to the currently popular ‘India Against Corruption’ initiative, data show that the CVC only registered around 1,300 complaints between 2005 and 2008. Moreover, in around 950 cases, the action recommended by the CVC was not implemented by the concerned authorities. While tigers could be close to extinction in India, it seems there is no shortage of toothless tigers when it comes to fighting corruption.

The much-vaunted Bill does no better, unfortunately.

The not-so-fine print
A quick comparison of the present draft of the Bill with the Law Commission’s recommendations on whistleblowing in 2001 and the international laws governing whistleblowing throws up some glaring deficiencies.

Anonymity of the complainant is most crucial for the effectiveness of whistleblowing. Yet, the Bill does not guarantee this, leaving it to the CVC’s discretion to disclose the identity of the complainant. The Law Commission report had left the decision to go public to the complainant.

Disclosures can only be made against public servants and not elected representatives. In a country where politicians in power and bureaucrats operate an unholy nexus, reversing the Law Commission’s recommendation is borderline farcical.

Victimisation or harassment of a complainant through transfer or other administrative measures is left undefined. Therefore, seeking protection against such acts will be difficult. Forget the US and the UK; even Ghana’s laws have specific provisions regarding victimisation and penalties for the same.

Although the Law Commission has recommended that inquiries should be completed between 6 months and 2 years after a complaint comes in, the Bill has not prescribed any time limit for investigation or disposal. More discretion and more opportunities for abuse.

Most modern laws on whistleblowing are not just limited to corruption but also cover negligence and maladministration. However, in a country that has seen a spate of train accidents and declining standards of safety in the public sector monopoly that runs the Indian Railways, the Bill will not entertain any potential whistleblower.

The most damning indictment of the Bill, however, lies in the status quo regarding the power of the CVC to enforce action against those found guilty. Ignoring the Law Commission’s recommendation that the CVC should be empowered to direct criminal proceedings, the Bill has continued to hobble the CVC by not allowing it to go beyond recommending measures to the concerned authorities.

This is despite the CVC’s recommendations having been blithely ignored in the past!

High treason
As India plays catch-up with modern democracies, the public debate should also reflect on how all the whistle-blower protection in the world did not prevent the US from persecuting Ed Snowden. Condemned as a traitor even though the US courts have different legal opinions regarding his acts and in spite of the public opinion firmly in his favour, Snowden has to take refuge in a foreign country today. It seems patriotism could be the last refuge of crooks who can hide blatant examples of malfeasance under the cloak of secrecy and security.

India’s whistleblowers don’t lack the courage to do what is necessary for public good. So it is time for the masses to blow the whistle on a weak Bill that betrays its very purpose.

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