Skip to main content

Easier to pass camel through eye of needle than inquire into whistleblower complaint

By Venkatesh Nayak*
Today is the 10th anniversary of the adoption of the Right to Information Act (RTI Act) by Parliament. Ten years ago the Rajya Sabha gave its approval to the RTI Bill and the first baby steps were taken towards establishing a regime of transparency across the country. Two main purposes of the RTI Act as spelt out in its Preamble are – (a) containment of corruption, and (b) making Government and its instrumentalities accountable to the governed, namely, the people of India. While the RTI Act has arguably become the most popular law in recent times, the regime of transparency and much less the regime of accountability remain a quest.
The Lokpal and Lokayuktas Act (LL Act) enacted in 2013 and the Whistleblowers Protection Act (WBP Act) enacted in 2014 are enabling legislation for pursuing the twin purposes of the RTI Act. Implementing such laws is a commitment that India made to the international community when it ratified the United Nations Convention on Corruption in 2011. Four years were completed yesterday since this ratification (May 11). Yet neither law has been operationalised. Instead, successive governments under the United Progressive Alliance (UPA) and the National Democratic Alliance (NDA) have played ball with these laws. Efforts are being made to dilute both laws through regressive amendments – not a new idea – but a carryover from the last year of the UPA’s tenure in Delhi.

What is the purpose of a Whistleblower Protection Law?

The WBP Act when tabled in parliament in 2010 had a much longer name – Public Interest Disclosure and Protection for Persons Making the Disclosures Bill (PIDPIR Bill). Despite its length, the title of the Bill clearly conveyed its intention: To create a mechanism for honest, sincere officials, citizens and even NGOs with a conscience, to make complaints about corruption, misuse or abuse of authority or discretion by unscrupulous officials resulting in demonstrable loss to the public exchequer or undue gain to any private party and have them properly inquired by competent authorities. Disclosure of such wrongdoing including any offence recognised under any criminal law is in the public interest – silence is not.
Progressive whistleblower protection laws around the world are based on the cardinal principle of providing a safe alternative to silence to such potential complainants. A good whistleblower law also protects the complainant from any kind of retaliatory action taken against him/her by the department concerned. Additionally, it provides for a speedy inquiry into the whistleblower complaints so that action may be taken against the guilty. The underlying principle of such a law is that it is in the public interest to disclose wrongdoing in government departments or its agencies as silence would only result in greater harm.
India has the unique distinction of extending the protection of the WBP Act to persons outside of government – namely any citizen or non-government organisation. To the best of my knowledge no other WB law in the world protects outsider whistleblowers. Rather than give such a progressive law the space and time for implementation, the NDA Government wants to defang it much like what the UPA government tried to do to the RTI Act when it felt threatened by its impact. The UPA failed in its efforts to amend the RTI Act, thanks to the people rising in its defence every time. Unfortunately, the sincere and honest bureaucrats who are one of the potential beneficiaries for the WBP Act have simply not risen to its defence till date despite several of them paying a heavy price for their sincerity and honesty- some like the Late Satyendra Dubey and the Late Manjunath even paying the price with their lives.

Every whistleblower complaint will have to pass 32 tests before inquiry can begin

In continuation of my recent article on WBP Act, I realise that there is a need to further appreciate the full import of the amendments proposed to Sections 4, 5 and 6 of the WBP Act. What is the implication of copying the exemptions to disclosure listed in Section 8 of the RTI Act on to Section 4 of the WBP Act? This is best illustrated with an example.
Let us imagine the Late R K Laxman’s Common Man and his constant female companion (not sure if Laxmanji meant her to be his wife) making a complaint of corruption against a government officer in a department, to the Central Vigilance Commission (CVC) – the competent authority to receive and inquire into such complaints under the WBP Act. What would happen next? If Section 4 is amended as proposed by the NDA Government, the CVC will have to first check whether the subject matter of the whistleblower complaint attracts any of the grounds listed in that Section.
Now how many grounds will that be? Seven under Section 4(1)(a) relating to national security, three under Section 4(1)(b) relating to courts, two under Section 4(1)(c) relating to Parliament and State Legislatures, three under Section 4(1)(d) relating to trade secrets and intellectual property rights, one each under Sections 4(1)(e) and (f) relating to fiduciary relationships and foreign relations, six under Section 4(1)(g) relating to law enforcement, three under Section 4(1)(h) relating to fair investigation and trial procedures, three under Section 4(1)(i) relating to Cabinet papers and three under Section 4(1)(j) relating to privacy of a natural person.
That makes it a total of 32 grounds or tests that a whistleblower complaint must satisfy if the CVC has to launch an inquiry into it. However exceptions are made to the grounds mentioned in Section 4(1)(e), (f) and (j), namely, if the information is obtained under the RTI Act then there is no bar on the CVC inquiring into such a complaint.
That is not all, even if there is the slightest doubt about whether the whistleblower complaint attracts any of the grounds mentioned in Section 4(1), then it must be referred to an authorised officer in the department complained against. Once again the complaint will be put to the 32-way test (Blessed Rotarians have to fulfill only a four-way test). If the authorised officer certifies that any of the grounds mentioned in Section 4(1) are attracted, he/she may issue a certification which will effectively bar the CVC from even launching an inquiry. So in theory a whistleblower complaint will have to pass through 32 kinds of tests TWICE to reach the stage of inquiry.
Given the track record of the CVC, it would not be surprising if they sent every whistleblower complaint to the concerned department for vetting before launching an inquiry, saving themselves the trouble of applying the 32 tests themselves. There is every possibility, this might become the default option.
This situation becomes so similar to the metaphor that Jesus Christ is said to have used while applying the test of admission to heaven for a rich man — “Again I say to you it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God” (Mathew 19:24 – King James version of the Bible- New Testament). In the context of the WB Act this popular lesson may be parodied as: “It may be easier to pass a camel through the eye of a needle than to get an inquiry launched into whistleblower complaint, if Parliament approves these regressive amendments.”
But there is more than that. What happens if the whistleblower complaint relates to matters other than Section 4(1)(d), (e) and (j)? In my opinion even if the information supporting the complaint has been obtained under the RTI Act, the competent authority will be barred from inquiring into it unless the authorised officer in the department issues a clearance certificate. So the competent authorities such as the CVC will be reduced to being dummies before the decisive powers of the Government. Frankly, the WBP Act, 2011 of Bangladesh which does not meet several international best practice standards would appear more whistleblower-friendly than India’s own, if Parliament approves the proposed amendments.

How to make the WBP Act stronger?

Apart from dropping the regressive amendments tabled in Parliament, the WBP Act can make do with a range of progressive amendments. There are at least 14 that I can think of:The WBP Act does not permit a whistleblower to complain about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by the Prime Minister (at the Centre) or any of the Chief Ministers (in the States). There must be a mechanism for this in the manner provided in the Lokpal and Lokayuktas Act.
The Lokpal (National level apex anti-corruption and Grievance Redress agency) which will be established under the LL Act, will have no role to play in the scheme of protection of Whistleblowers unless the Central and State Government notify them as competent authorities. Under the Lokpal Act any person may make a complaint about an act of corruption allegedly committed by the Prime Minister to the Lokpal. However the Whistleblower Act does not say what will happen to an allegation of corruption against a Prime Minister if sent to the Central Vigilance Commission. Ideally, the Lokpal should also have been mentioned as a competent authority under the WBP Act for the purpose of receiving complaints.
Further, under the Lokpal and Lokayuktas Act, complaints of corruption committed by officers of the three elite All India Services must be made to the Lokpal. The CVC cannot inquire into such complaints without the direction of the Lokpal. What will happen to whistleblower complaints against officers of these elite services when made under the WBP Act must be clarified in the Act itself.
The Act does not recognise whistleblowing against human rights violations and unlawful acts affecting the environment, public health and safety as valid. This remains as a major lacuna despite strong civil society demand for its inclusion.
The procedure for inquiring into complaints of about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by members of the lower judiciary is very unsatisfactory because the inquiry procedure that other competent authorities will adopt under Chapter III of the Act is not suitable for the lower judiciary. Lower courts are under the administrative supervision of the respective High Courts in the States. Inquiring into actions of corruption of judges and judicial officers will require permission of the High Court.
Many States have not established the institution of Lokayukta or State Vigilance Commission. Where such bodies do not exist, the Whistleblowers Act permits the State Government to designate any authority to inquire into complaints of wrongdoing and protect the whistleblower. This is an unsatisfactory arrangement because these bodies are likely to be government-controlled and their effectiveness in inquiring into complaints and protecting whistleblowers may be compromised.
There is no mention of what will happen to a case if the inquiry into a whistleblower complaint cannot be completed within the three month period stipulated in Section 5(8) of the Act. Such cases must not lapse due to the doctrine of laches.
The Act does not clarify whether sanction for prosecuting serving officers of Government is required under Section 197 of the Criminal procedure Code, 1973 and/or Section 19 of the Prevention of Corruption Act, 1988 for launching criminal cases against them.
The WBP Act, does not include a definition of ‘victimisation’ of the whistleblower despite the Parliamentary Committee and the Law Commission (in 2006) recommending one. This is a major lapse despite the recommendation to include such a definition being made by the Law Commission of India in its 179th Report.
The WBP Act does not contain any mechanism for protecting RTI users and activists who turn whistleblowers despite the Parliamentary Committee’s recommendation that such a mechanism be included in the law.
The WBP Act does not protect persons who volunteer to give additional information related to a whistleblower complaint that is under inquiry unless they are recognized as witnesses formally.
The WBP Act does not cover wrongdoing in the private sector despite the Second Administrative Reforms Commission recommending its inclusion in a comprehensive whistleblower protection law. MPs who spoke during the debate on the WBP Bill in the Rajya Sabha demanded that the scope of the Act be expanded to cover the private sector as well. The Government has not acted on this issue.
The WBP Act does not permit a whistleblower to publicise the allegations of wrong doing and related facts through the media when authorities fail to take adequate action on a complaint.
The WBP Act does not permit anonymous whistleblowing which was recently legitimised by the Supreme Court in the matter of Centre for PIL & Ors. vs Union of India & Ors. (IA Nos. 73 and 76 in Civil Appeal No(s). 10660/2010] also known as the CBI diarygate scandal.
The Department of Personnel and Training (DoPT) which is the nodal department for drafting and later implementing the WBP Act refused to disclose the amendment proposals last year when I sought information under the RTI Act. Now citizens who want the protection of the WBP Act for blowing the whistle on wrong doing in Government must flood the DoPT with requests for the Cabinet Note and all file notings and inter-Ministerial discussions on the amendment proposals. Two matters need to be ascertained- a) what is the inspiration for these regressive amendments; and b) whether the regressive amendments were initiated by the bureaucrats themselves or by the political establishment or both have connived to wreck the WBP Act.

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

Comments

TRENDING

Abrogation of Art 370: Increasing alienation, relentless repression, simmering conflict

One year after the abrogation by the Central Government of Art. 370 in Kashmir, what is the situation in the Valley. Have the promises of peace, normalcy and development been realised? What is the current status in the Valley? Here is a detailed note by the People’s Union for Civil Liberties , “Jammu & Kashmir: One Year after Abrogation of Art. 370: Increasing Alienation, Relentless Repression, Simmering Conflict”:

Repeated failure to appoint Chief, other commissioners undermining RTI Act

By Anjali Bhardwaj, Amrita Johri* The post of the Chief Information Commissioner of the Central Information Commission (CIC) has fallen vacant with the retirement of Bimal Julka with effect from August 27, 2020. This is the fifth time in the last six years that the Commission has been rendered headless. Four posts of information commissioners are also vacant in the CIC. Currently more than 35,000 appeals and complaints are pending in the commission resulting in citizens having to wait for months, even years for their cases to be disposed, thereby frustrating peoples’ right to know. Since May 2014, not a single commissioner of the CIC has been appointed without citizens having to approach courts. The failure of the government to make timely appointments of commissioners is a flagrant violation of the directions of the Supreme Court. In its February 2019 judgment, the apex court had categorically stated that if the CIC does not have a Chief Information Commissioner or required strength

Sunil Gavaskar, G Viswanath rated Andy Roberts best fast bowler they ever faced

By Harsh Thakor  The West Indies pace quartet or battery of the 1970’s and 1980’s truck terror to deliver a knockout punch, like never in cricket history. One was reminded of bomber raiding an airbase or a combing operation. Andy Roberts was the pioneer in orchestrating or propelling the most fiery and lethal pace bowling attack ever in the history of the game. Simply the godfather of Modern West Indies fast bowlers. He spearheaded the pack from the mid 1970’s .Without Andy the talent of Michael Holding, Joel Garner and Colin Croft would never have blossomed.Michael Holding credits Andy for shaping his great bowling career, by infusing vital elements.

Adivasi land rights question in Telugu states: Digitization process without transparency?

By Dr Palla Trinadha Rao  This paper examines whether the Land Records Modernization Program initiated by the successive governments in Telugu States is beneficial to tribals in the Scheduled Areas in the light of special protective Land laws that are in force there. Digitization process or regularization of land records or land surveys without transparency will result in disempowerment of Adivasis. This can be tested in the case of Adivasis in the Scheduled Areas of Telugu States. British colonialism, through its land revenue policy and elaborate exploitative bureaucratic structure, made land alienable on a large scale especially in tribal areas. 1 Land and the forest produce remain the main source of tribals’ livelihood; but availability of land is restricted by forest reservation on the one hand, and non-tribal encroachment on the other. 2 In the Andhra Area, there were certain laws including the Agency Tracts Interest and Land Transfer Act, 1917 that existed before the inaugurati

Ultimate champion in crisis, arguably best ever skipper: Created history in Aussie cricket

By Harsh Thakor  In the history of cricket few cricketers knit and propelled a cricket team or had such profound influence on the game as Ian Chappell. Ian Chappell was responsible for converting a bunch of talented individuals into a world beating side, giving a dramatic turn to Australian cricket. Few cricketers ever led such a renaissance.

Largest democracy in world has become weakest at hands of fascist Hindutva forces

Note on “The Nazification of India”, a report released By Justice For All: *** This report, the Nazification of India, compares how Hindutva ideology not only is inspired by Nazis and Fascists of Europe, but their treatment of the Muslim minority closely follows developments that resulted in pushing Jews to the gas chambers. Situation is indeed quite alarming. The report says that the largest democracy in the world has become the weakest at the hands of the fascist Hindutva ideology. India today is ruled not just by a political party the Bharatiya Janata Party (BJP), but its mother organization the Rashtriya Swayamsevak Sangh (RSS). Because the BJP’s government policies are linked to extra-legal enforcement by RSS paramilitary street power, this report has coined the term “The BJP-RSS regime” to reflect their intrinsic links and collaborative relationship. The Nazification of India report marks the anniversary of the Gujarat pogroms of 2002 against Muslims which propelled the BJP-RSS

BSF's unconstitutional, whimsical order violates life, livelihood of Dalits, minorities

Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM), writes to the Chairman, National Human Rights Commission: *** I want to attract your attention towards the illegitimate restrictions on the life and livelihood of the villagers of Paschim Sahebganj village under Dinhata - II Block and Sahebganj police station in Cooch Behar district of West Bengal by the Border Security Force personnel attached with Dharala Border Out Post under 138 Battalion BSF. The population of Paschim Sahebganj village is around 1480, where almost 75 percent of the villagers belong from Hindu Scheduled Caste (Dalit) and 25 percent from minority Muslim backgrounds.The main occupation of the villagers is agriculture. About 260 acres of cultivable land in the village that belongs to the villagers is located outside the border fencing, which is heavily guarded by the Border Security Force (BSF). The BSF regulates the ingress and egress of the villagers to their fields through the fencing gates that a

Varanasi social worker who has devoted her life for the ultra-poor and the marginalized

Passion Vista and its partners profile Founder and Managing Trustee Shruti Nagvanshi as  someone whom women leaders look up to: *** Shruti Nagvanshi, a social worker and human rights activist based in Varanasi, Uttar Pradesh, has devoted her life to reaching out to the ultra-poor and marginalized communities in India. Born in Dashashwmedh, Varanasi on 2 January 1974, she married Dr Lenin Raghuvanshi on 22 February 1992 and has a son, Kabeer Karunik, a Business management Graduate who is also a national level snooker player.

An approach to lake/pond restoration by Ramveer Tanvar, Pond Man of India

By Monami Bhattacharya*, Mansee Bal Bhargava**  Lakes/ ponds are often referred to as an elixir of life, a living ecosystem that adds incremental value to the larger biota. Across the tropical landscape of the country lakes/ ponds are a common sight. Lakes/ponds have always shaped the life and livelihood of those dwelling in and around it. The dependence of the local population on these natural resources of water is noticeable since time immemorial. However, they are fading fast in both rural and urbanscapes from the popular parlance with the advance of humanity. It has been a popular notion to value land more than the waterscape and hence these nurturers of life are under stress in several areas. In many instances, these once beautiful waterscapes referred as the ‘Eye of the Earth’ are mostly now only dilapidated garbage dump yards emitting foul smell with no sign of a healthy ecosystem.

Urban crisis: Impact of erosion of democratic framework on Indian cities

By IMPRI Team  On 13th February, 2023, IMPRI Impact and Policy Research Institute, New Delhi in collaboration with ActionAid Association India arranged a book launch followed by lecture series under the title “India’s G20 Presidency & the Urban Agenda for the Developing Countries”. The event was held in Indian International Centre (IIC) Annex, New Delhi. The event began with the book inauguration session, under the honorary presence of Mr Sitaram Yechury, former Rajya Sabha member and General Secretary, CPI (M), accompanied by Mr Sandeep Chachra, executive director, ActionAid Association India. Session 1 | Book Launch: ‘Cities in Transition’ by Mr Tikender Singh Panwar The book launched was “Cities in Transition”, written by Mr Tikender Singh Panwar, former Deputy Mayor, Shimla and a Senior Fellow at IMPRI. Beginning with brief remarks on his book, Mr Panwar outlined the basic subject matter and the purpose behind writing the book, which he considers as a by-product of his experien