By Apoorva Mandhani
Senior Advocate Prashant Bhushan recently launched the Citizens Whistleblowers Forum, with a parallel attack on the Government for its failure to notify and implement the law for protecting whistleblowers, and seeking to dilute it through an amendment in the Parliament.
While demands for a whistleblowers protection program having been made on several occasions in the past, it would be remiss to not view the emergence of the forum as the eventual wielding of the sword by and for the average helpless citizen.
The Whistleblowers Protection Act 2011
Blowing the lid off any wrongdoing in India has often placed the lives of such crusaders at risk. The cases are several from NHAI Project Director Satyendra Dubey, who was killed in 2003 after he secretly complained to no less than the Prime Minister’s Office (PMO) on a matter of corruption, to the recent unnatural deaths of even those probing the Vyapam admission and recruitment scam in Madhya Pradesh.
NHAI Project Director Satyendra Dubey was killed in 2003, hence increasing the need for a Whistleblowers’ Protection Act | Picture Courtesy – Knowledge of India[su_pullquote]The Whistleblowers Protection Act, 2011 was, therefore, being welcomed as a harbinger of a change that could rebuild public trust in the Government. The Bill was passed by the Parliament and received the Presidents assent on May 9, 2014. [/su_pullquote]
The Act was welcomed as a harbinger of a change that could rebuild public trust in the Government. The Bill was passed by the Parliament and received the Presidents assent on May 9, 2014. The citizens, however, have been left high and dry with the legislation not in operation till date. The same year, India was rated as one of the countries that does the least to ensure that whistleblowers can speak out without fear of retribution, according to a report released by an Australian NGO Blueprint for Free Speech, Transparency International Australia, Griffith University and Melbourne University. With the country having acquired such a global image, the indifference of two successive governments towards continued harassment of whistleblowers is equally startling and suspicious.
The final blow
After receiving the Presidents assent, the responsibility of implementing the Act fell on the newly appointed NDA government, which, instead of promulgating Rules to facilitate the law, served the final blow to the expectations of the citizens with the introduction of an Amendment Bill in May 2015.
The new amendments severely dilute the law, introducing ten categories of information in respect of which there is a prohibition on reporting or making disclosures.
The Bill seeks to remove the safeguard provided to whistleblowers from prosecution under the Official Secrets Act. Further, it prohibits any disclosure that would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, friendly relations with foreign States or lead to incitement to an offence. Intellectual property and trade secrets have also been protected.
Therefore, for instance, the national security exemption could possibly prevent a whistleblower from complaining about potential irregularities in defence procurements. Further, exempting corporate entities would mean that whistleblowers in cases like the Essar email leaks and Niraa Radia tapes would not be entitled to any protection under the new law. Implementation of the Amendment Act would, in effect, in no way deliver the objective sought to be achieved by a whistleblower protection legislation, and would only function as an impediment to the long-standing objective of reducing corruption in governance.
Governments alarming passivity
[su_pullquote align=”right”]The implementation of the Act has not only been stalled, but has been attempted to be watered down, with the explanation that the original Act conferred an absolute right on the whistleblower to make disclosures.[/su_pullquote]
The Act, along with the amendments, clearly does not seem enough to instil confidence in the people, despite the gravity of the consequences that have been faced by whistleblowers in the past. What is more worrisome is the vagueness surrounding the Centres intention towards a law for protecting whistleblowers. The implementation of the Act has not only been stalled, but has been attempted to be watered down, with the explanation that the original Act conferred an absolute right on the whistleblower to make disclosures.
The Whistleblowers’ Protection Act, along with the amendments, clearly does not seem enough to instil confidence in the people | Picture Courtesy – Al JazeeraInterestingly, in April 2016, in response to a question in the Parliament, Dr Jitendra Singh (Minister of State in the PMO) had stated that the Amendment Bill had been sent to a committee. However, in response to an RTI application, the Rajya Sabha Secretariat had disclosed that as of August 2016, the Bill was not pending with any Parliamentary Committee.
With such ambiguity in the claims and advances towards a more protective environment for whistleblowers, the creation of the forum seems timely. However, in the absence of any concrete corresponding efforts by the Government, the forums efforts might turn out to be futile in the long run, for want of adequate authoritative backing. It is, hence, an opportune time for India to protect its whistleblowers and move towards corruptionless governance, an agenda that could make or break PM Modis much acclaimed Make in India campaign.