Whistleblowers’ Protection Bill: Anti-graft only in name
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Suppose you want to pass a law to discourage whistleblowers, what should be the single most important provision of such a law? The answer is obvious: refuse the whistleblower the fundamental safeguard of anonymity, and do not accept any “public interest disclosures” unless the whistleblower reveals her identity.
Well, this is precisely what the misleadingly named Whistleblowers’ Protection Bill, passed by the Rajya Sabha on the last day of the winter session of Parliament last month, does.
It states categorically (section 4, clause 6): “No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure or the identity of the complainant or public servant is found incorrect or false.”
In a country where corruption is so endemic that it’s now an emotive electoral issue, why is a supposedly anti-corruption piece of legislation more eager to establish the identity of the complainant than to ensure that complaints are received, are investigated, and that the complainant is protected from retaliation?
As it happens, this is just the beginning of the travesty—it gets better.
After anonymity, the next most critical element of legislation such as this is the protection of the whistleblower from victimization. The version of the Bill currently awaiting the President’s nod to be made into law solves this problem by refusing to define “victimization” altogether.
Thirdly, coming to the question of what constitutes a legitimate subject of “disclosure”, similar laws in other countries, such as the US, allow for reporting of a broad range of misconduct, including offences such as racial discrimination, stalking, etc. In fact, the original version of our Bill, drafted by the Law Commission in 2003, had included “maladministration” as part of “disclosable conduct”.
Under “maladministration” were covered actions that were “unreasonable, unjust, oppressive or discriminatory; negligence or undue delay in taking such action; reckless, excessive or unauthorized use of power in taking such action; and violation of systems and procedures.” A definition of disclosure that included such instances of maladministration would have taken care of a range of torture mechanisms that are routinely inflicted on the common man by corrupt government departments—“undue delay” being an especially popular one.
Many of the abuses grouped under “maladministration” are simply preparatory to corruption and may not themselves, strictly speaking, constitute an offence under the Prevention of Corruption Act, 1988, or qualify as a “wilful misuse of power” leading to “demonstrable wrongful gain” for a public servant or “demonstrable loss” to the government; and they may not amount to “a criminal offence” either. But these are the only kinds of misconduct about which whistle-blowing is permitted by the new law, which leaves out the entire section on maladministration that the 2003 draft had.
The final betrayal concerns the “Competent Authority” that will receive the disclosures. As per the Bill, for the majority of the public servants covered under this legislation, it is the Central/State Vigilance Commission (CVC). In other words, the Competent Authority has no powers of prosecution—it can only recommend appropriate action. The obvious question here is why the draft law doesn’t have the Lokpal or the Lokayukta as the “Competent Authority” for receiving and investigating disclosures. After all, if the vigilance departments were so great, there would have been no need for a Lokpal or Lokayukas in the first place.
Unlike other anti-corruption legislation such as the Lokpal Bill or the Right to Information Act (RTI), the Whistleblower Protection Bill is different in that its focus is not corruption itself but the warriors in the battle against corruption, whom it is supposed to protect and encourage. Whistleblower legislation in the West typically incentivize, or even make it obligatory, for those who come to know of some wrongdoing, to make public interest disclosures. The Sarbanes-Oxley Act of the US, though limited to the financial domain, is one such legislation.
But India’s Whistleblowers’ Protection Bill, far from offering incentives for whistle-blowing, actively discourages whistle-blowers. It has even pointedly ignored calls from civil society and activists to include a provision for the protection of RTI activists, many of whom have been killed by powerful vested interests who felt threatened by RTI disclosures. RTI activists, who use a legal provision to bring hitherto undisclosed information into the public domain, are no different from whistle-blowers when the information they ferret out contains evidence of wrong-doing on the part of a public servant. So it is inexplicable why they were not given protection under this Bill, for in India, unlike what is typically the case in the West, victimization is not just restricted to, say, termination of employment or setbacks in career, promotion, etc - it often takes the form of a murderous attack on the whistleblower.
It is widely acknowledged that the Whistleblowers’ Protection Bill was pushed through in the 15th Lok Sabha at the insistence of the Congress vice president Rahul Gandhi. Gandhi has also been quick to take credit for the RTI, which his own government has tried time and again to dilute. And from the haste with which it was passed, it is evident that he hopes to reap electoral dividend from the Whistleblowers’ Protection Bill as well. But Gandhi and his advisers may have seriously underestimated the intelligence of the Indian public.
The credibility of the Lokpal Bill piloted by the UPA and passed in December 2013—criticized as severely flawed by the Aam Aadmi Party—is already in question, with successive legal luminaries refusing to have anything to do with it. It is only a matter of time before it becomes obvious that the Whistleblowers’ Protection Bill is yet another legislation that is anti-graft in name only.