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SC makes common cause with whistleblowing; Centre wants it to pass 32 tests

By Venkatesh Nayak*
On May 13, 2015 the National Democratic Alliance (NDA) Government used its majority in the Lok Sabha to boorishly push through a set of regressive amendments to the Whistleblowers Protection Act (WBP Act) despite the very vocal and well-reasoned objections of the Opposition. Some MPs of the treasury benches also questioned the wisdom behind these amendments.
In brief, the regressive amendments passed by the Lok Sabha:
1) Seek to take away immunity of whistleblowers from prosecution under the Official Secrets Act, 1923 (OSA) which is part of the original Act;
2) Prohibit a whistleblower from making any complaint (about corruption, the commission of any offence or the abuse of power or discretion within Government intended to cause substantial loss to the public exchequer or undue gain to a private party) if the information in the complaint relates to any of the grounds mentioned in Section 8(1) of the Right to Information (RTI) Act, 2005 inserted as the new Section 4(1) of the WBP Act. These grounds of prohibition are not merely related to national security or relations with foreign States but also cover trade secrets, intellectual property rights, investigation or prosecution for criminal offences, contempt of court, intelligence informers, trust-based relationships such as lawyer-client, doctor-patient (fiduciary relationships), Cabinet notes and personal privacy of an individual;
3) Prevent the competent authorities from inquiring into any whistleblower complaint if it relates to any category of information described above in para #2 unless an officer of any grade or rank in the public authority complained against, as may be notified by the Government, certifies it fit for initiating the inquiry. The Competent Authorities at the Centre are- the Prime Minister (in the case of his/her Ministers), the Speaker and the Chairperson in Parliament (in the case of MPs) and the Central Vigilance Commission (CVC in the case of all other public authorities) and in the States are – the Chief Minister (in the case of Ministers), the Speaker and the Chairperson of the Legislatures (in the case of MLAs and MLCs) the High Court (in the cause of judges of the lower courts) and any other competent authority notified by the State Government (in case of other public authorities); and
4) Prevent any person from providing assistance, information or documents to the competent authorities if it relates to any of the categories described at para #2 above.

Supreme Court requires only one test for inquiring into whistleblower complaints while Central Government wants 32

Less than 24 hours after the Lok Sabha approved these retrograde amendments, the Supreme Court of India dealt with the issue of whistleblowing in a more reasonable manner. In the matter of Common Cause & Ors. vs Union of India & Ors. (I.A. No. 13/2014 and Crl M. P. 387/2015), a three-judge Bench of the Apex Court observed as follows:
“40. … Mr Prashant Bhushan referred to Indirect Tax Practitioners Association v. RK Jain [(2010) 8 SCC 281] with regard to the growing acceptance of the phenomenon of a whistle blower.
This Court observed that the respondent in that case was the whistleblower who had tried to highlight the malfunctioning of an important institution established for dealing with cases involving the revenue of the State and there was no reason to silence such a person by invoking the contempt powers of the Court under the Constitution or the Contempt of Courts Act, 1971.Though the submissions made by Mr Sinha’s [Mr Ranjit Sinha, former Director, Central Bureau of Investigation (CBI)] learned counsel on the contents of his application were limited, the oral submissions spread over a larger canvas. It is submitted by Mr Vikas Singh that Mr Prashant Bhushan, Common Cause, and Mr Kamal Kant Jaswal [the Petitioners] have not only committed perjury but are also guilty of contempt of Court, and additionally Mr Prashant Bhushan has violated the provisions of the Official Secrets Act, 1923 by placing on record the official notes with regard to the case of the Dardas [ex-MP Vijay Darda and his associates]. We have considered Mr. Sinha’s application from all these angles.
In our opinion, the submissions made by Mr Vikas Singh in this regard do not deserve acceptance. It is true that this Court had required the Director, CBI to ensure, by its order dated May 8, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistleblower particularly when his or her action is in public interest. It is another matter if the whistleblower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event, it would be permissible for this Court or an appropriate Court to take action against the whistleblower, if he or she is identified.
However, the present case is not of any such category. The whistleblower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.”
This case is related to the allegations of corruption in the allotment of coal blocks by the Central Government over several years. The 2G Spectrum allocation scandal also figures in this matter with allegations based on “officially recorded information” about the behaviour of the ex-CBI Director. So in effect the Supreme Court seems to be saying:
1) It does not matter if a whistleblower complaint is made anonymously. If the allegations supported by copies of official documents reveal prima facie wrongdoing, it must be inquired into. The WBP Act makes it compulsory for a whistleblower to mention his/her name in the complaint which the competent authority will keep confidential and will not reveal to the public authority without his/her written consent. The WBP Act requires anonymous complaints to be trashed. So this provision of the WBP Act – Section 4(6) – stands in complete contradiction to what the Apex Court has observed. This situation needs to be rectified through a positive amendment to the WBP Act;
2) The only test to be applied for inquiring into a whistleblower’s complaint is that it must be made to protect the larger public interest and without mala fide intent. It is enough if the whistleblower believes that the complaint is being made in the public interest for the inquiry to be initiated. However, if the purpose of the disclosure by the whistleblower is to outrage or damage the public interest, then any Court may take action against such a whistleblower. The amendment to Section 4 of the WBP Act approved by the Lok Sabha first of all, prohibits a whistleblower from making a complaint if it relates to any of the grounds mentioned in Section 4(1).
Further, if the competent authority decides to take cognizance of such a complaint it must apply 32 tests [comprising each ground mentioned in Section 4(1)] to determine whether it is a fit case for inquiring into (Please see my previous emails on the subject). Third, if there is the slightest doubt, the complaint must be referred to a designated authority in the public authority complained against, in order to get clearance. If the clearance is not given, no further action can be taken on the whistleblower’s complaint. So the Government’s intention to put a whistleblower complaint through so many hoops with no time limit set for the end result, i.e., whether it will be inquired into or not, runs completely contrary to the observations of the Supreme Court.
3) The Apex Court clearly said that if the whistleblower complaint is genuine and appears to have been made to further the larger public interest, such a whistleblower cannot be prosecuted under the Official Secrets Act. If the whistleblower has attached copies of official records including file notings that are not already published, it should only be seen as the failure of the public authority concerned to maintain its records properly. The whistleblower must not be faulted or prosecuted under OSA for producing such information along with his/her complaint. The original WBP Act provided for such immunity from prosecution under OSA. However the amendment approved by the Lok Sabha takes way this immunity leaving the whistleblower vulnerable to vengeful prosecution by his seniors or the public authority complained against.
4) Another implication of the Apex Court’s observations is that a whistleblower making a complaint to outrage or damage the public interest may be prosecuted for violation of the OSA or charged with contempt of court only if his/her identity is known. It did not proceed to say that an investigation must be launched to ascertain the identity of the anonymous whistleblower.
The short point of what the Apex Court said in the Common Cause case seems to be — “Heed the message, don’t shoot the messenger”. The Government seems to want to do the opposite by amending the WBP Act in a regressive manner.

‘Public interest disclosure’ does not mean that the contents of a whistleblower’s complaint become public

The expansion of the grounds for prohibition on whistleblowing from national security (as was originally demanded by some MPs in the Rajya Sabha in 2011 and 2014) to cover all ten exemption clauses contained in Section 8(1) of the RTI Act appears to have been made by the Government in the mistaken belief that all information contained in a whistleblower complaint will become public automatically. Readers will remember that the original name of the WBP Act when tabled in Parliament in 2010 was- Public Interest Disclosure and Protection to Persons Making the Disclosures Bill. So it is quite possible either the political executive or the bureaucracy may have misunderstood the implication of the phrase – “public interest disclosure”.
“Public interest disclosure” does not mean that all information contained in a whistleblower complaint, including the attached official records (or copies) will become accessible to the public. Nothing in the WBP Act requires the competent authorities to publicly disseminate the contents of the complaint either upon receiving it or during the inquiry. The competent authority is required to keep the identity of the whistleblower and the public servant complaint against, confidential and conduct a discreet inquiry into the allegations made.
“Public interest disclosure” only means, that it is in the public interest to make a disclosure of wrongdoing within government bodies so that a competent authority may take action on it. In other words, it is not in the ‘public interest’ to keep such matters secret. This is the basic principle of whistleblower law — ‘providing a safe alternative to silence’ for a conscientious official or citizen or NGO to be able to make a complaint about wrongdoing instead of remaining a silent observer.
Some MPs who spoke on the amendment Bill in the Lok Sabha seem to have been under the mistaken impression that the WBP Act expands the regime of transparency established by the RTI Act further. Nothing is farther from the truth. The WBP Act is not a transparency law. It is a law that establishes an important mechanism for deepening accountability in government and other public bodies. All safeguards that apply to the inquiry/investigation of complaints or corruption and other criminal offences under the criminal procedure laws will continue to apply to the inquiry into whistleblower complaints. A proper reading of the provisions of the WBP Act as enacted by Parliament in 2014 makes this point crystal clear. Any other twisted reading of the whistleblower law, as was originally enacted in 2014, will only make the practical realisation of the national motto – ‘satyameva jayate’ impossible.
The NDA Government now has some guidance from the highest levels to rectify its mistakes by withdrawing the regressive amendments and by tabling progressive amendments to the WBP Act.

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

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