Skip to main content

If Rajya Sabha amends whistleblowers Bill, activists may have to challenge it

\By Venkatesh Nayak*
The Rajya Sabha (Upper House in India’s Parliament) took up the Government’s proposed amendments to the Whistleblower Protection Act, 2011 (WBP Act) for discussion on December 7, 2015. Members of Parliament (MPs) belonging to both the treasury and opposition benches spoke on the contents and implications of the Bill. Any person who has a reasonably good understanding of what it takes to protect whistleblowers would have recognised that the MPs were simply not well prepared to discuss the serious implications of the retrograde amendments that the National Democratic Alliance (NDA) Government is proposing. The discussion on the Bill already passed by the Lok Sabha (Lower House) could not be completed on December 7. Meanwhile, Hussain Dalwai, MP from the Indian National Congress (INC), has moved amendments to the Bill and there is also a major demand to refer the amendment proposals to a Select Committee of the House along with the Prevention of Corruption (Amendment) Bill, 2013 as they are said to be interlinked.

What core issues were not reflected in the Rajya Sabha debate on the WBP Amendment Bill today?

While the MPs speaking for the Opposition, particularly, the United Progressive Alliance (UPA) said again and again that the legal grounds for refusing access to information to citizens under the Right to Information Act, 2005 (RTI Act) could not imported lock stock and barrel into the WBP, the justification given by most of them for such objection was simply not convincing at all. One of the MPs representing the NDA went as far as saying that the Bill was brought to harmonise whistleblowing with Article 19(1)(a) of the Constitution which imposes reasonable restrictions on that fundamental right of which RTI is deemed to be a part. I hope the MP was compelled to speak the party line and was saying so.
If it was not the party line, this assertion unfortunately betrays an unfortunate lack of knowledge of what whistleblowing is about or what Article 19(2) is meant to do to Article 19(1)(a). One UPA MP even candidly admitted that the NDA Government had brought the Bill for discussion in such a rush that he could not refresh his memory about what was wrong with the Bill and collect his prepared notes. This led to the Minister piloting the Bill to take a dig at him for speaking without adequate knowledge of the issue. I remember hearing another UPA MP saying that they were not opposed to the “principle” underlying the Amendment Bill but were pressing for debate on its contentions provisions in a Select Committee nominated for that purpose. It is the Bill’s underlying principle that is hugely problematic.
First, none of the MPs who spoke in the Rajya Sabha on the WBP Amendment Bill including those of the NDA who claim to have a copyright over all things “Hindu” said that those amendments would negate India’s national motto – “satyameva jayate” (=truth alone shall triumph) borrowed from the ancient text Mundaka Upanishad which forms one of the important foundational texts of ancient Hindu philosophy. The thinking of the NDA Government is made crystal clear in the Cabinet Note that was prepared for seeking the Union Cabinet’s approval for the WBP amendments.
Paras 4.1-4.2 of the Cabinet Note make the Government’s intention very clear that citizens of India cannot have an absolute right to blow the whistle on corruption, wrongdoing or the commission of offences by public servants. It is one thing to say that citizens’ freedom of speech and expression is not absolute. True, these rights cannot be used to trample upon the rights of other individuals or jeopardise the existence of peaceful society or the ability of the State to function effectively but importing the exemptions under Section 8(1) of the RTI Act to the WBP Act wholesale is a very clever method of ensuring that no person comes forward to blow the whistle.
There are in all 32 tests for whistleblowing that the NDA Government would like to impose in its infinite wisdom (click HERE). This is a clear violation of the national motto which emphasise the triumph of the truth even in the worst of situations and also an unreasonable restriction on the right to free speech and expression. Remember, there is no bar in Article 19(2) on the right to blow the whistle on corruption, wrongdoing or any offence committed by public servants. The WBP Amendment Bill seems like an attempt to introduce such an unreasonable restriction without even amending the Constitution.
Second, none of the MPs who spoke on the WBP Amendment Bill pointed out clearly the difference between Section 8(1) of the RTI Act and the retrograde amendments to the WBP Act. The WBP Amendment Bill assumes that once a whistleblower complaint is made it will become publicly accessible, therefore it is necessary to protect national security, the dignity and privilege of Parliament and the Courts, commercial and trade secrets, fair investigation of and trial in crimes, intelligence informers, international relations, Cabinet secrecy and lastly personal privacy of individuals – and that too when the Supreme Court of India has accepted the NDA’s contention that whether the individual’s right to privacy is guaranteed under the Constitution is in doubt.
However, nothing in the WBP Act permits the whistleblower complaint to be made public by the competent authorities. The entire scheme of the law is designed to ensure confidentiality of not only the whistleblower’s identity but also the progress of the inquiry into the whistleblower complaint until a final decision is reached. So the very basis for the bar on whistleblowing sought to be introduced in Clause 4 is untenable at best and mischievous at worst.
Of course, references were made to several things under the sun both burning in the present and consigned to the pages of history – from the Good and Services Tax Bill and reservations for the disadvantaged segments of society to Stalinist Russia and China which reformed under the late Deng Xiao Ping although one wondered what was the connection. While the rights of MPs to speak their minds freely on issues before the House must be respected, citizens do have the right to expect a more informed debate with MPs presenting deeper insights for their stance- supporting or opposing a Bill under consideration. Any person who watched today’s debate would have sorely missed this level of maturity. It is the citizens’ right to comment and debate the quality of the discussions in Parliament without of course indulging in defamation.
Thankfully, one of the MPs did mention that the initial debate on the need for tightening the exceptions to whistleblowing which took place in February 2014 focused only on national security concerns whereas the WBP Amendment Bill introduces 10 grounds for preventing whistleblowing (out of which three grounds can be waived if the documents supporting the complaint are shown to have been obtained under the RTI Act). However none of the MPs pointed out that the absolute bar on even making a whistleblower complaint or the competent authorities taking it into cognizance if they attracted the 10 grounds was simply unacceptable in a democratic government based on the principle of the rule of law. Wrongdoing cannot be masked under the garb of national security or trade secrets or personal privacy.
Some MPs referred to the deaths of 30 whistleblowers since 2010. It is not sure whether they were referring to whistleblowers other than RTI activists. Close to 50 RTI users and activists have lost their lives since 2005 for seeking the most mundane of information from public authorities and this factum was worth quoting in the debate.
Meanwhile, inspired by media reports of the representations made by various officer associations to the 7th Pay Commission, which submitted its reports recently, I filed two RTI applications with the Department of Personnel and Training, Government of India asking for a copy of those representations. They sent me a Bill for Rs. 108, which I have paid. So there must be several submissions received in relation to pay packets and superiority of one service over the other. However, my 2nd RTI to the same Department asking the number of representation made by officers in relation to the WBP Amendment Bill being debated in Parliament drew a blank.
Is this indicative of where the concerns of many members of the bureaucracy lie? Can Indian citizens expect either the political establishment or the bureaucracy to champion the cause of whistleblower protection in India, or is it going to be like the RTI Act which nobody likes except for the millions of citizens who have used it very creatively and sometimes paid the price of their lives demanding transparency and accountability in the most mundane of things?
To the best of my knowledge no RTI user or activist was attacked or murdered for seeking information about national security or trade secrets. They lost their lives demanding transparency in the spending of public funds, public decision making process and reasons for the inaction of the police in acting against criminals and land, sand and construction mafia.
If the Rajya Sabha passes the WBP Amendment Bill, many of us in civil society may have to move the Courts to challenge the constitutionality of the Bill vis-a-vis the basic human right to accountable governance and the fundamental right to freedom of speech and expression.

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

Comments

TRENDING

Sorry state of Indian academics: why was I thrown out of Delhi varsity interview room?

By Dr. Abhay Kumar*  The interview for the post of political science (Guest) was scheduled on Saturday afternoon, September 10, 2022. Given my previous experience, I was not willing to appear for it. But friends persuaded me to go and fight for our rights. I reached the college well before the time. When my turn came and I entered the room. The first question was asked about my experience. I said that I had taught for four semesters at NCWEB. I mentioned that I had taught ”Comparative politics”, “International Relations”, “Comparative Political Thoughts” and “Indian Government and Politics”. I said that as a teacher I had taught all the articles listed in the syllabus of the same Delhi University and the expert could ask anything about any reading or ideas. Friends, the first question asked by a female member, perhaps she is the principal of the college if I am not wrong, to give the full form of NCWEB! The second question asked by a male expert, perhaps he is the political science dep

Musician and follower of Dr Ambedkar? A top voilinist has this rare combination!

Some time back, a human rights defender, Vidya Bhushan Rawat, who frequently writes for Counterview, forwarded to me a video interview with Guru Prabhakar Dhakade, calling him one of India's well known violinists.  Dhakade is based in Nagpur and has devoted his life for the Hindustani classical music. A number of his disciples have now been part of Hindi cinema world in Mumbai, says Rawat. He has performed live in various parts of the country as well as abroad. What however attracted me was Dhakade's assertions in video about Dr BR Ambedkar, India's undisputed Dalit icon. Recorded several years back at his residence and music school in Nagpur, Dhakade not only speaks candidly about issues he faced, but that he is a believer in Dr Ambedkar's philosophy. It is in this context that Dhakade narrates his problems, even as stating that he is determined to achieve his goal. A violinist and a follower of Ambedkar? This was new to me. Rarely do musicians are found to take a

Tokens, symbols or incipient feminists? : First generation women sociologists in India

By IMPRI Team  The online event on the theme ‘Tokens, Symbols or Incipient Feminists? : The first Generation of Women Sociologists in India’ was held as an initiative of Gender Impact Studies Center (GISC), IMPRI Impact and Policy Research Institute, New Delhi under the #WebPolicyTalk series of The State of Gender Equality – #GenderGaps. Inaugurating the session, Zubiya Moin welcomed the speaker and participants to the program, followed by an introduction to the eminent panelists. Commencing the program, Prof Vibhuti Patel made her opening remarks welcoming Prof Kamla Ganesh, Feminist Sociologists and then greeted Prof Ratna Naidu and the editors of book ‘Reimaging Sociology in India: Feminist Perspective’, Dr Gita Chadha and Dr. Joseph M.T. along with Prof Arvinder Ansari and also welcomed all participants. She set up the stage by making us familiar with women sociologists and their works. Dr Gita Chadha, Editor of the book ‘Reimaging Sociology in India: Feminist Perspective’ After th

Omission of duty by BSF and police: Hindu forcefully kidnapped, taken to Bangladesh

Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM), & National Convenor, Programme Against Custodial Torture & Impunity (PACTI) writes to the Chairman, National Human Rights Commission: *** I am writing this to focus on the life and situation of the poor and marginalized villagers living alongside the Indo-Bangladesh border of West Bengal. Through the several complaints we made throughout the years to your good office, it is now evident that the people of this border are living in an acute crisis, not only from a financial perspective but also in terrible distress. The people of the border are devoid of their basic rights and are subjected to immense torture, harassment and restrictions mostly enacted by the Border Security Force personnel, who are supposed to be posted at the international borders with intentions to protect the Indian citizenry. However, on the contrary, incidents of victimizing Indian citizens are being witnessed at large by the BSF. 130 Bhot

Tamil Nadu govt claiming to reform Hindu religion, temples. People deserve better

By NS Venkataraman  For the last several decades, there have been hate campaign against Hinduism in Tamil Nadu in a subtle or not so subtle manner. Initially, it was a hate campaign against brahmins and the brahmins were abused, insulted and physically attacked. Fearing such conditions, many brahmin families left Tamil Nadu to settle down in other states in India or have gone abroad. Now, the brahmin population in Tamil Nadu is at microscopic level, for which these hate campaigners against brahmins were responsible. Later on, emboldened by the scenario of scared brahmin families not resisting and running away, the hate campaigners started focusing on Hindus. For some years, when M.G.Ramachandran and Jayalalitha were the chief ministers of the state, the hate Hindu campaigners were not much heard, as both these chief ministers were staunch believers in Hindu philosophy and have been offering prayers in temples in full public view. However, in the last eighteen months in

Emerging dimensions of India’s foreign policy in the context of global politics

By IMPRI Team  The three-day course took place recently, providing participants with an understanding of the development of Indian foreign policy, the complexity of geopolitics, and its flexibility to adjust to and even shape global outcomes. Many distinguished academics, senior scholars, former Indian diplomats, and journalists who are skilled observers and commentators of India’s foreign policy will serve as instructors for this course. Day 1 The three-day immersive online certificate training on “Emerging Dimensions of India’s Foreign Policy and Global Politics”, an initiative by the Center for International Relations and Strategic Studies (CIRSS) at IMPRI Impact and Policy Research Institute (IMPRI), began on July 14th, 2022 at 5:00 PM (IST) on Zoom platform. Dr Souravie Ghimiray served as the emcee throughout the 3 days of the event and welcomed the distinguished speakers of Day 1. The esteemed panel on Day 1 consisted of, Dr Soumita Basu, Associate Professor, Department of Intern

Demographic parameters of India@75: resource allocation, political representation

By IMPRI Team  As per UN Population Prospects 2022, India is going to be the most populous country in the world. In this regard, IMPRI Impact and Policy Research Institute, New Delhi with #IMPRI Center for Human Dignity and Development (CHDD) , organized a panel discussion, #WebPolicyTalk, as part of the series The State of Population Development- #PopulationAnd Development on India@75: Most Populous Country? The moderator of the event was Mr Devender Singh, Global Studies Programme, University of Freiburg and a Visiting Senior Fellow at IMPRI. The panellists for the event were Prof P.M Kulkarni, Demographer, Retired Professor of Population Studies, Jawaharlal Nehru University(JNU) , New Delhi; Dr U.V Somayajulu, Co-Founder, CEO and Executive Director, Sigma Research and Consulting ; Dr Sonia George, General Secretary, Self Employed Women’s Association (SEWA), Kerala; Prof K.S James, Director and Senior Professor, International Institute for Population Sciences (IIPS), Mumbai. Th

Bhagawat Gita shows the way for the attitude to life and desirable goal of life

By NS Venkataraman*  When a mother delivers a human body, this body has no identity. Then, parents, relatives, friends consult each other and discuss the alternate appropriate names and arrive at a suitable name for this human body and this body is known and identified by this name. This human body, which steadily grow just like animals, plants and others and after experiencing the pleasures and pains of worldly life alternately for several years, perish one day, for the body to be burnt or buried. This body, bearing a name as it’s identity, comes in to the world and goes away from the world and the name that is the identity for the body also goes away along with the body. This is the scenario for several thousands of years that have gone by. The question: One question that does not seem to be still “convincingly explained” in a way that will appeal to the brain in the human body, is as to whether this human body only consists of flesh, bone and blood with well

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

Tattoos and intimidating gestures can't always win cricket matches for India

By Sudhansu R Das  Team India waited with baited breath for the outcome of the Pakistan vs Afghanistan match. Speculation was on about India’s return to the game if Pakistan loses to Afghanistan until Pakistan’s tailender, Naseem hit two massive sixes to win the match for Pakistan. Unfortunately, Afghanistan lost the match after being in a strong position till the last over of the game; two full touch balls in the final over turned the match into Pakistan side. The Afghanistan team would never forget this blunder and shock for a long time. India’s team management should introspect and take tough decision keeping in view of the tough match situation in the world cup matches. India lost two crucial matches in the Asia Cup. It could not defend a big total of 176 against Pakistan due to mediocre bowling attack, sloppy fielding and unimaginative captainship. It failed against Sri Lanka in similar fashion; it could not defend another respectable T 20 total of 171 runs. It was a pat