Skip to main content

Will disclosing whistleblower's identity serve to adjudicate case against CBI director?

By Venkatesh Nayak*
Once again the issue of whistleblowing on corruption and inappropriate behaviour and protection for individuals who blow the whistle is in the limelight. This, even as the Central and State Governments and the Central Vigilance Commission (CVC) drag their feet over operationalising the Whistleblowers Protection Act, 2011 enacted in May 2014. In a country where whistling and making catcalls at women are often dismissed with a wink and an uncivilised justification — “boys will be boys” – can and should whistleblowers come forward to serve the national motto ‘satyameva jayate’ (truth alone triumphs) by risking their lives and reputation openly? Will the administrative edifice erected over the foundation of the rule of law rise to protect them or is the foundation itself so shaky that whistleblowers will prefer the alternative of remaining silent in the face of apparent violation of the law, rules and code of ethical conduct? Should we only demand that Caesar’s wife be above reproach or should we hold Caesar himself to task for his alleged misconduct? Those are the big questions at the centre of the latest controversy over the disclosure of what is alleged to be a register of visitors’ entries reportedly maintained at the official residence of the Director of the Central Bureau of Investigation (CBI).

Pressing for the disclosure of the identity of the whistleblower: it isn’t cricket

In an age when the de facto national sport itself is often plagued by controversies of match-fixing, can anything else be expected to be a gentleman’s game (with sincere apologies to all women who also play and love that sport)? After all, the concept of the rule of law that must underpin our governance structures and decision-making processes, particularly, the enforcement machinery, is a recognition of that very principle- society agrees on a set of rules to govern itself and every person is expected to abide by them for an orderly way of life. However, when a finger points to those not playing by those very rules they are meant to enforce and abide by because of their near monopoly over power, should the wrong-doing become the umpire’s focus or should his/her preoccupation be about the size, shape, colour and motivation of the finger? Unlike in cricket there is no third umpire to decide this case of CBI Register-gate without fear or favour.
In its daily order dated 08 September 2014, the Supreme Court recorded the Petitioner Society’s averment that some unknown persons came to the residence of its lawyer and handed over the original entry/guest register of the residential establishment of the CBI’s Director. The Hon’ble Court directed that the said register be kept in sealed cover. (click HERE to see). Yet there are umpteen media reports splashing the names of some individuals who are said to have met the CBI Director again and again over several months. These reports display scanned portions of the alleged register as proof. We have no way of ascertaining the veracity of these claims except to wait until the Court rules on the authenticity or otherwise of the alleged register. If this is the fate of the contents of a sealed cover, how much faith should be placed in its ability to protect the identity of the whistleblowing soul if its disclosure were also made mandatory, albeit in sealed cover.
With the greatest respect to the wisdom of the Apex Court, a bigger question that all citizen-taxpayers must raise is what purpose will disclosing the identity of the whistleblower serve to the adjudication of this case? What the Apex Court said about the noble and courageous act of whistleblowing, four years ago is worth recalling here. In the matter of Indirect Tax Practitioners Association vs R K Jain [(2010) 8SCC 281] a 2-judge bench of the Apex Court recognised whistleblowing as a legitimate exercise, necessary to a democracy that is underpinned by the principle of rule of law, in the following words:
“23. At this juncture, it will be apposite to notice the growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and controlling organization, but a choice of options for individuals, including an option that offers near absolute confidentiality. However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information’s severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In our view, a person like the respondent can appropriately be described as a whistleblower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Articles 129 or 215 of the Constitution or the provisions of the Act”.
In the above case the Petitioner body- CESTAT had accused the Respondent of committing contempt by publishing articles about its poor functioning. Interestingly, the same lawyer in this case is appearing for the Petitioner society in the CBI Register-gate matter. In the 2010 case the Apex Court recognised that whistleblowers will not come forward if there are co-complaint systems that offer ‘near absolute confidentiality’. The Court also recognised whistleblowing to lawyers as legitimate, especially in cases where the matter is of such grave and serious nature. If the alleged diary is truly a record of the meetings of the head of CBI with persons involved in or closely related to cases that were under its investigation, what option does the individual who had access to the alleged diary have but to go to a lawyer? Under the previous regimes, two young professionals paid the price of whistleblowing against corruption with their lives when they complained to the highest office in Government. How will a sealed cover protect the identity of a whistleblower in this case is a question that we all must be asking, especially when the Whistleblower Protection Act has not been operationalised yet?

Can a whistleblower be prosecuted under the Official Secrets Act, 1923?

Section 4(1) of the Whistleblower Protection Act clearly states that irrespective of what the Official Secrets Act (OSA) says, any public servant, person or non-governmental organisation may make a complaint about corruption or willful misuse of power or discretion resulting in demonstrable loss to Government or demonstrable wrongful gain to a public servant or a third party. ‘Gain’ here may not necessarily be restricted to mean ‘financial gain’. It could mean any kind of wrongful advantage that is demonstrable. However, in the absence of Rules to operationalise the Whistleblowers’ Protection Act, the Central Vigilance Commission is unable to provide the fullest protection of the law to a whistleblower in accordance with that law. So, given this position in law that OSA is no bar on disclosing official documents along with a whistleblower complaint, it is difficult to understand why the identity of the person disclosing the alleged register is important at all? He/she cannot be prosecuted for unauthorisedly handing over official documents to persons accepted by the Court as legitimate recipients of information about wrongdoing in Government in serious and grave matters.
As explained above, the Apex Court has recognised that whistleblowing to a lawyer in serious matters is permitted even though the Whistleblwoers Protection Act does not permit it. The Court’s position stands as law unless that judgement is recalled. So the people of India have the right to know why disclosure of the identity of the whistleblower is important, even if it be in sealed cover. Instead, it is humbly submitted that the process of verifying the identity and contents of the register must be undertaken immediately. If registers of visitors are being maintained at the official residence of the CBI’s Director, it is not because the sentries at the gate have nothing better to do. If they have been instructed to maintain such a register for the purpose of security of the CBI Directors’ person and residence, the CBI has a duty to make a clean breast of it and clear up the mystery whether it is a register maintained in the pursuance of an official duty.

CBI now seeks transparency after developing allergy to the RTI Act: What will GoI do?

Media reports state that the CBI demanded in its affidavit the disclosure of the whistleblower’s identity when the alleged register was produced before the Apex Court. That apart, the CBI’s curiosity over the whistleblower’s identity is strangely in opposition to its self-confessed allergy to the idea and practice of transparency. In 2011 the CBI successfully persuaded the then Government to exempt it from the ordinary obligations of transparency under the Right to Information Act and is now litigating before the Delhi High Court to prevent disclosure of information about allegations of corruption against its own staff. Gandhiji’s sound advice- “practice what you preach” must be heeded instead of merely garlanding his statues and photos next month on his birth anniversary. But then why blame the CBI alone? The Government of Tamil Nadu was the first to push its Anti-Corruption Department and Vigilance Commission out of the ambit of the RTI Act followed by Uttar Pradesh. Both Governments stated that this measure was necessary to ensure- believe it or not – the transparent, accountable and efficient functioning of these anti-corruption bodies.
The National Democratic Alliance Government came to power in May this year with two major promises- ‘sab ka saath, sab ka vikas’ (with all, for the development for all).While it is engaged in major initiatives for financial inclusion, will it show its commitment to the first part of its slogan and stand by whistleblowers to start with as a measure of governance reform beyond ridding offices of old files and insisting on punctuality? The national motto — ‘satyameva jayate‘ – drawn from the Mundaka Upanishad is as Hindu as any noble principle can aspire to be. It is not an alien or western precept. Governments and their agencies have a duty to deliver on this motto. The second promise was to root out corruption and bring the guilty to book in various scams that surfaced over the last few years. Will the Government:
1) advise the CBI to withdraw its affidavit demanding disclosure of the identity of the current whistleblower and to not insist upon disclosure of the identity of any whistleblower in future?
2) amend the Whistleblower Protection Act to make disclosure of the whistleblower’s identity not mandatory for receiving a complaint and operationalise it quickly?
3) take action to ensure passage of the Bill to amend the Prevention of Corruption Act, pending in the Rajya Sabha and reintroduce all the lapsed Bills which sought to make India’s anti-corruption regime compliant with the requirements of the UN Convention Against Corruption? and
4) establish and constitute the Lokpal through a transparent and participatory process by appointing members who are of impeccable integrity and have proven commitment to the eradication of corruption and also make it a body competent to receive and act on whistleblower complaints like the CVC?

Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Comments

TRENDING

Although sporting genius, Wasim Akram was mascot of cricket globalisation era

By Harsh Thakor*  Since Independence India and Pakistan produced a galaxy of cricketing stars that permeated cricketing artistry of legendary heights. Amongst this bunch.Wasim Akram manifested pure cricketing genius to the greatest height.I speculate how India’s fortunes would have changed had partition not taken place and Wasim playing for India. Wasim Akram explored realms untranscended in bowling wizardry, like a painter devising new art forms or a scientist experimenting. He simply re-defined the art of reverse swing, reversing the ball in and out. There were bowlers quicker, more accurate and with better records, but none equalled Wasim in an all-round package. He was more lethal with a new and old ball than any fast bowler ever. Wasim could produce balls that were surreal, with his reverse swing, defying laws of bio mechanics He was simply the epitome of versatility, possessing a repertoire of six different deliveries within an over itself, disguising deliveries in the manner of

Zakir Naik tumult, Catholic Church power abuse: will Anwar Ibrahim save Malaysia?

Anwar Ibrahim By Jay Ihsan*  Anwar Ibrahim, a hardcore reformist who took a punch to his eye in 1998 from then inspector-general of police, Rahim Noor, has finally been given the mandate by Malaysians to serve as the nation's 10th prime minister. Anwar knows too well the burden of staying true to both trust and faith the people have in him requires every once of commitment and dedication. The question is will he be apologetic for his transgressions enroute to "rebuilding" Malaysia? In his overzealousness to get the job done, Anwar, 75, needs to safeguard every bit of gumption to address prickling issues plaguing the safety of the nation especially those involving communal sensitivities. For one, dare Anwar get rid of terrorist hate preacher and fugitive Zakir Naik for inciting religious unrest in Malaysia? In November 2016, India’s counter-terrorism agency filed an official complaint against Naik, holding him responsible for promoting religious hatred and unlawful activi

Galileo-Catholic church affair: must history repeat at Malaysia’s St Francis Xavier church?

By Jay Ihsan*  Christianity is the enemy of liberation and civilization -August Bebel Christianity taught men that love is worth more than intelligence -Jacques Maritain Real Christianity can be summed up in two commands: Love God and love people. - Joyce Meyer Pious XI was too neutral to mention the gas chambers; decent people like my own family were turned into devils by crude Christianity - Lionel Blue Religious doctrines cannot escape the liberty of thoughts and expression. To each their own, so it is said. From all things nice to all things that make one cringe - religion is polarised and in this regard, Christianity has over time faced the wrath of bigotry espoused by those "bequeathed" to protect it. Take Pope Francis for example. He had a secret meeting with giant pharma Pfizer chief executive officer Albert Bourla last year while the world struggled to make sense of the word "lockdown" and suffer adverse effects of the Corona virus vaccines produced by Pfiz

Qatar World Cup has a strong Bangladesh connection: stadium construction, t-shirts

By Mashrur Siddique Bhuiyan*  The FIFA World Cup fever has unquestionably cut through the minds of mass people all over the world. Stadiums in Qatar are buzzing with football fans and athletes representing their countries at the “Greatest Show on Earth". The magic of the FIFA World Cup is so enormous that even being unable to participate does not matter much to the fans who support different nations. This is one of the highest viewed events in the world, with the 2018 event viewed by about 3.6 billion people worldwide. But this crowd is not aware of the contribution of migrant workers who helped build the very stadiums where the matches are playing in. Qatar won the bid in 2010 to host the FIFA World Cup 2022, which got the oxymoron of celebration and controversy. This also created the potential for Qatar to Showcase its monumental economic achievements and unique culture on the global stage. The motto for Qatar’s bid team in 2010 was ‘Expect Amazing’ and migrant workers across th

A classic, 'Gandhi' ignores merciless cruelty unleashed on militant freedom fighters

By Harsh Thakor  The movie ‘Gandhi’ produced by Richard Attenborough, which was released 40 years ago on November 30th, 1982, was classic in it's own right. Ironical that it took an Englishman to embark upon the making of a film on this legendary figure. I can't visualize a better pictorial portrayal of Gandhi's life or an actor getting in the skin of the character an exuding the mannerisms as actor Ben Kingsley. Episodes are crafted and grafted surgically, illustrating how Gandhi wove fragmented bits into a cohesive force, to confront he British empire. Most boldly the movie unfolds how British colonialism subjugated the Indian people to barbaric cruelty. With great mastery the cinematography captures the vast Indian landscapes and essence of livelihood of Indians under colonial rule. The movie most illustratively shows the crystallisation of anti-colonial fervour from the embryonic stage and how it fermented into an integrated movement. In a most subtle manner it illustr

Implementing misleading govt order to pollute Hyderabad's 100 year old reservoirs

Senior activists* represent to the Telangana Governor on GO Ms 69 dated 12.4.2022 issued by the Municipal Administration and Urban Development (MA&UD), Government of Telangana: ‘...restrictions imposed under para 3 of said GO Ms 111 dated 8.3.1996 are removed...’: *** Ref: GO Ms 111 dated 8.3.1996: ‘To prohibit polluting industries, major hotels, residential colonies or other establishments that generate pollution in the catchment of the lakes upto 10kms from full tank level as per list in Annexure-I...’ We come to your office with grievance that GO Ms 69 dated 12.4.2022 issued by Government of Telangana not only contains false information issued ‘By Order and in the name of the Governor of Telangana’ , without any scientific or expert reports, but also that implementation of the said GO is detrimental and can be catastrophic to the Hyderabad city as two 100 year old reservoirs Osman Sagar and Himayath Sagar were constructed as dams on river Moosa and river Esa, with the first and

Film on evidence of viability of in situ communitarian urban water management

By Rahul Banerjee  Over the past few years it has become increasingly clear that centralised urban water management in India is in deep crisis. Water supply is both inadequate and extremely costly, water harvesting and recharging and used water treatment and reuse are mostly absent and storm water management is a disaster. Under the circumstances, the only viable solution is communitarian in situ water management and this is what has been proposed in the latest guidelines of both the Atal Mission for Rejuvenation and Urban Transformation and the Swacch Bharat Mission. Our NGO, Mahila Jagat Lihaaz Samiti , has not only implemented communitarian in situ water management but has also carried out research to provide evidence of the unviability of centralised water management and the suitability of the former. Here is a film based on a detailed research that I did on urban water management in Chhattisgarh for the National Institute of Urban Affairs, New Delhi, that succinctly critiques cen

Terrorism and right-wing politics in Bangladesh: Exploring the nexus

By Shafiqul Elahi*  Although terrorism as broadly understood as violent extremism or militancy has long historical roots, in Bangladesh, it surfaced in the 1970s through leftist militants. Later, it shifted to Islamist extremism in the 1980s and flourished throughout the 1990s, and reached its peak in the early 2000s. The menace of terrorism particularly in the form of Islamic militancy has widely been felt in Bangladesh's society and polity since 1999. Since then, several militant groups have gained ground and started to challenge the government over the issues of the political process and social systems in the country. The central goal of the operations of the militant groups is to establish an Islamic regime in the country. The Fifth Amendment of the Bangladesh Constitution under the Zia regime in the late 1970s and the eighth amendments of the Constitution under the Ershad regime in the early 1980s have placed Islam at the state level to recognize its importance in the country

Chemical project promoters of Tamil Nadu have a lot to learn from Gujarat

By NS Venkataraman*  When good investment opportunities in chemical industry exist which are known in a region and which are yet to be exploited, it can be said that the chemical industry in the region is at the cross roads. However, when there are good investment opportunities in chemical industry but which are ignored and focus shifted to some other sector, it can be said that the scenario amount to poor strategy. Tamil Nadu government has now fixed a target for achieving one trillion dollar economy in the state by 2030. This is a bold and forward looking initiative and certainly this target is achievable, even though the year 2030 is only seven years away. With the target of achieving one trillion dollar size economy, it is necessary to give due role and importance for the growth of the chemical industry, since several chemical products are feed inputs for several other industrial sector such as automobile, electronics, textile and so on. Growth of such chemical in

Floods: As ax falls on most vulnerable, Pak seeks debt cancellation, climate justice

By Tanupriya Singh  Even as the floodwaters have receded, the people of Pakistan are still trying to grapple with the death and devastation the floods have left in their wake. The floods that swept across the country between June and September have killed more than 1,700 people, injured more than 12,800, and displaced millions as of November 18. The scale of the destruction in Pakistan was still making itself apparent as the world headed to the United Nations climate conference COP27 in Sharm el-Sheikh, Egypt, in November.  Pakistan was one of two countries invited to co-chair the summit. It also served as chair of the Group of 77 (G77) and China for 2022, playing a critical role in ensuring that the establishment of a loss and damage fund was finally on the summit’s agenda, after decades of resistance by the Global North. “The dystopia has already come to our doorstep,” Pakistan’s Minister for Climate Change Sherry Rehman told Reuters. By the first week of September, pleas for h