Unscrupulous Act

New amendments threaten to sabotage a law that protects whistle-blowers

Anand Rai is one of the whistle-blowers who exposed the Vyapam scam in Madhya Pradesh. shankar mourya / hindustan times
01 September, 2015

In November 2002, a civil engineer named Satyendra Dubey sent a letter to the office of the prime minister of India. At the time, Dubey was posted in Bihar, with the National Highways Authority of India, or NHAI. In the letter, he described widespread corruption in the Bihar operations of Atal Bihari Vajpayee’s flagship national infrastructure project, the Golden Quadrilateral highway network. He wrote of how processes had been “manipulated and hijacked by the big contractors,” of the rampant “diversion or idling of funds,” of a “big fraud in the selection” of consultants, and of the NHAI’s complicity in such graft. A year later, Dubey was shot dead near his home, in the district of Gaya.

A few days later, the Indian Express broke the story of Dubey’s letter to the prime minister. It revealed that the engineer had left his letter unsigned, but had sent his curriculum vitae in separately to persuade the prime minister of his credentials. He specifically requested anonymity, writing, “I request you to kindly go through my brief particulars (attached on a separate sheet to ensure secrecy) before proceeding further.” But the prime minister’s office forwarded the letter to the road transport ministry with details of Dubey’s identity. From there, it was passed on to other government offices, and studied and discussed by a chain of officials.

The government’s betrayal of Dubey sparked public outrage, and a debate about the lack of legal protection for whistle-blowers seeking to expose corruption. After hearing a writ petition on Dubey’s murder, the Supreme Court directed the government to put in place “suitable machinery … for acting on complaints from ‘whistleblowers’” till such time as specific laws on the matter were enacted. In 2010, a trial court in Patna sentenced three people to life for the murder, but did not link the crime with Dubey’s activism.

In 2011, the United Progressive Alliance government introduced and passed the Whistle Blowers Protection Bill in the Lok Sabha; it was passed by the Rajya Sabha in 2014. The broad intent of the law is to enable whistle-blowers to report corruption involving government officials without risking their careers or safety.

The public’s impression of whistle-blowers is typically of insiders to a system who bring information about wrongdoing within it into the public domain, often through the media—take, for instance, Edward Snowden and the Central Intelligence Agency, or Chelsea Manning and the United States Army. But the Indian act—like most whistle-blower laws across the world—envisages processes by which revelations of government corruption can be tackled internally, thereby containing any damage.

By the Indian law, anyone with information on corruption in government, or government-aided bodies, can report it to a “competent authority” within the government. The relevant authority varies depending on the branch of government involved. The law empowers the “competent authority” to act on the complaint following a specific procedure, and mandates that the whistle-blower’s identity be kept secret. Thus, by providing a robust mechanism for internal inquiry and punishment, along with a guarantee of anonymity, the law serves to discourage whistle-blowers from releasing information to the public.

Earlier this year, however, the National Democratic Alliance government introduced a set of amendments to the Whistle Blowers Protection Act that, if passed, would subvert that original process. Not all of the amendments are NDA innovations. The UPA cabinet approved a similar set of amendments in 2013, but the government did not see them through parliament. The NDA has built on those amendments to try and defang the act.

The amended bill was passed by the Lok Sabha in May this year. In a note prepared for the cabinet earlier, the government argued that some provisions of the 2011 bill “needed a relook with a view to strengthening the safeguards against disclosures.” If the bill passes in the Rajya Sabha, it will put in place a system that actively dissuades anyone with important information on wrongdoing from reporting it.

The absurdities of the amendments might be illustrated through a hypothetical example. Imagine a personal secretary of a vice-chancellor of a well-regarded, government-aided university, who, over the course of handling his superior’s communications, comes to possess emails proving that his boss has been taking bribes to fill vacancies at the institution. He decides to complain about the matter to the relevant authority—in this case, depending on the university, the central or the state vigilance commission—hoping that the whistle-blower law will protect his person and career, and end his boss’s unscrupulous behavior.

The whistle-blower would encounter his first obstacle when making this complaint. As per the amendments, his public-interest disclosure will not be considered if it is based on information not available under the Right to Information Act. Which is to say, the competent authority is not allowed to accept a complaint unless it relies on information that is publicly available.

A long list of possible disclosures are immediately excluded from the ambit of the whistle-blower act by virtue of falling under areas excepted from the RTI Act. This includes, among other categories, information tied to the security, strategic, scientific or economic interests of India; information that may lead to incitement to an offence; information that affects relations with a foreign state; cabinet papers; records of deliberations of the council of ministers or secretaries; information that will breach the privileges of parliament or state legislative bodies; trade secrets and intellectual property; and information available with a person in a fiduciary capacity, or which would invade privacy. All of these relate to areas where corruption has been found in the past, and might well be found again.

As an actual example, consider the revelations of the Essar leaks. Earlier this year, a trove of internal emails of the corporate group was made public by a whistle-blower who had access to them in his fiduciary capacity. These emails, in many cases, proved that the company had intimate dealings with ministers deciding on matters important to Essar’s business interests. The company, it transpired, even provided some ministers and senior bureaucrats with favours. The emails also showed that the company had access to classified government documents, which were shared between its most senior executives.

The whistle-blower would not be guaranteed any protection or due process in complaining against the company, since private entities fall outside the scope of the Indian whistle-blower law. But even if the Essar whistle-blower wanted to complain against some of the political leaders and bureaucrats mentioned in the emails, under the amended act he would be unable to. His access to the emails isn’t covered under the RTI Act, barring the competent authority from acting on information in them. The only route to official attention would be for such a whistle-blower to approach a court, via a lawyer filing a public-interest litigation, or leak the details to the media in hopes that the resulting outcry would lead to action. The Essar whistle-blower has done the former, and at immense risk. He told me he has received multiple death threats in the last few months (none of them has been proven to be linked to the company).

The application of RTI restrictions to a whistle-blower’s information is indefensible. The RTI Act, intended to promote transparency in governance, allows for information obtained under its provisions to be made public, so some restrictions to it to prevent highly sensitive revelations can be reasonable. Under the whistle-blower act, all complaints go directly to an official authority—that is, all revelations are contained within the government. In its case, there is no good reason for the government to invoke restrictions meant to safeguard against public disclosures. That it has done so betrays either a deep distrust in its own “competent authorities” keeping information secret, or an intent to discourage legitimate complaints by people working for it.

Further, since the RTI Act came into force, both the UPA and the NDA governments have tried to dilute its power by stalling the appointments of enforcing officers, dragging their feet over specific RTI cases, and attempting to reduce the scope of information it covers. If whistle-blowers’ revelations are required to adhere to that law, the RTI Act will become a convenient lever for the government to control what is and is not permissible evidence of corruption.

Consider again the hypothetical university employee, and assume that some of the information he came by was procured through an RTI application to the university’s information officer (presumably without the tainted superior learning of the query). He files his complaint with the vigilance commission. Under the original law, if the vigilance commission, “either as a result of discreet inquiry, or on the basis of the disclosure itself,” feels there is sufficient reason for suspicion, it can initiate investigations. Under the amendments, however, the vigilance commission will have to send the complaint—without revealing the identity of the whistle-blower, thankfully—to “the Secretary to the Government of India or the Secretary to the State Government, as the case may be, or, any authority so authorised by the Central or State Government.”

This is remarkably vague phrasing, but what is clear is that it gives state or central governments absolute power to decide whom the relevant vigilance commission must approach for permission to start an enquiry. Whatever authority the central or state government gives this responsibility must then inform the vigilance commission if the information in a complaint falls under RTI exceptions.

So, the whistle-blower may provide a vigilance commission with clinching proof of corruption, and the commission may forward it to, say, a state’s chief secretary, only for the matter to screech to a halt because the secretary maintains that the information falls under the exceptions listed under the Right to Information. Under the proposed amendments, the secretary’s decision would be binding upon the vigilance commission. This suggests the government is not only unwilling to trust its “competent authorities” with internal information, it doesn’t even trust them to judge whether particular information is exempted from RTI provisions.

Let us assume that, against all the odds, the hypothetical complaint makes it from the whistle-blower to the vigilance commission to the secretary, and is accepted. A final, confounding, obstacle awaits. By the new amendments, the person or department targeted in the complaint will not have to “furnish any such information or answer any such question or produce any documents or information or render any other assistance in inquiry” if the state or central government issues a certificate saying that “such information, answer, document or assistance is of the nature specified in” the section of the law that lists the exceptions to the Right to Information. That is, even after technically accepting the complaint, the authority watching over the vigilance commission can refuse to order that further information be furnished by the person or the department against which a complaint has been made, by claiming that it could affect “public order” or “decency or morality,” or could lead to “defamation or incitement to an offence.” These grounds are so broad and subjective that officials—acting on behalf of governments—can invoke them whenever they please, to block the progress of investigations into whistle-blowers’ allegations.

The new law also retains a key flaw of the original one. The “competent authority” has the power to punish a complainant if it feels that any disclosure is made “mala fidely and knowingly that it was incorrect or false or misleading.” Effectively, a whistle-blower’s complaint can be blocked at any level, and he can still be jailed if the authority decides that the complaint was born of ill intent.

If these amendments come into force, they would dissuade any but the most foolhardy from raising issues of corruption within the government. Whistle-blowers such as Anand Rai, who blew the lid off the Vyapam scam in Madhya Pradesh, would have to fight against multiple layers of their own departments and government bodies to even start an enquiry into impropriety.

One of Narendra Modi’s most popular slogans in his election campaign last year was “Na khaunga na khane dunga”—neither will I take a bribe, nor shall I let others. But wrongdoing is not always down to a lack of personal integrity, it is also a systemic problem. To tackle it, the institutions that can reveal corruption, investigate it and prosecute the guilty need to be strengthened. No government that is serious about fighting malfeasance would try to undermine an anti-corruption law as blatantly as the present government is doing.