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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

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