Watching out for whistleblowers
Aug 07th, 2010 - Antara Dev Sen Share
The law to protect whistleblowers may be finally here. As I write
this, the Union Cabinet is supposed to be discussing the Public
Interest Disclosure (Protection of Informers) Bill 2010, which has
been on the agenda for years and almost made it to Parliament last
year. The law would be a reassuring step towards proving our
commitment to democratic freedoms. But it is far from enough.
First, let's see what the bill involves. It attempts to empower us to
file complaints against corruption or make damning disclosures in the
public interest against government employees. Any information on the
misuse of public money or authority would constitute a public interest
disclosure.
The bill also attempts to prevent disciplinary action against
whistleblowers — in this case, those who expose corruption in
government — by laying down penalties. The identity of the informer
would not be revealed; if it is, their superiors would be held
accountable.
Complaints are to be made to the Central Vigilance Commission (CVC),
which would have the powers of a civil court, including the power to
order a police investigation and to provide security to the
whistleblower. The CVC would not divulge the identity of the person
filing the complaint.
But the public needs to have more information about the scope of the
bill. We need to know, for example, if the law is applicable to the
private sector, i.e. would it protect corporate whistleblowers? In the
interest of fairness, it should also extend to non-governmental
organisations. And within the public sector, would it restrict itself
to government employees or apply — as it most certainly should — to
the various contractors and subcontractors that the government so
happily farms out work to? Would it apply to the armed forces, police
and perhaps even the intelligence agencies — as long as it doesn't
endanger lives and national security?
We have been talking of the crying need to protect whistleblowers
since the death of Satyendra Dubey in 2003. Dubey, a project director
with the National Highways Authority of India, had written to Prime
Minister Atal Behari Vajpayee exposing rampant corruption in the
construction of highways. Although he had requested that his identity
be kept secret, his letter was openly tossed between various
government departments, leaving him exposed and vulnerable. He was
killed shortly thereafter.
Horrified media campaigns and a public outcry prompted the Supreme
Court to get the government to issue the Public Interest Disclosures
and Protection of Informers Resolution in 2004. It specified the CVC
as the nodal agency for complaints. But not much changed. As was clear
from the murder of Manjunath Shanmugham the next year. The sales
manager of Indian Oil Corporation was murdered in late 2005 for
opposing the petrol adulteration racket.
Murdering those who try to expose corruption continues to be a handy
tool of corrupt officials and their criminal associates. Because there
is no protection mechanism for those who dare to challenge the crooks.
Of late, activists using the Right to Information (RTI) Act to expose
such offences have been easy targets. In just the first seven months
of this year, eight RTI activists have been murdered and dozens
attacked around the country.
If RTI activists and other whistleblowers were protected, it would
certainly encourage us to expose wrongs that harm our country, its
people and the environment. And containing corruption is the first
step to good governance. Most of our nation's ills — including
sectarian violence, failure of poverty alleviation, lack of
development — are a result of corruption and bad governance.
There are reservations about the bill. Some want it to be named The
Public Interest Disclosure (Protection of Whistleblowers) Bill,
instead of "Protection of Informers". Nobody likes a snitch and
"informers" sound like police moles. Besides, specifying a timeframe
for complaints may be used as an escape route by our clever
bureaucrats and politicians. The bill states that no complaint will be
probed if it is made 12 months after the petitioner got to know of it,
or five years after the date of the alleged offence. These clauses
need to go, say activists.
Besides, the CVC has its limitations. It was set up back in 1964 to
help tackle corruption. Like the illustrious detective Remington
Steele, it works freely and in an advisory capacity. Unlike Remington
Steele, it is not fictitious, and is expected to look over a country
of 1.1 billion real people. Also unlike Remington Steele, it is not an
investigative agency and needs to depend (apart from its own officers)
on government investigators like the police or the Central Bureau of
Investigation (CBI). So as long as the police and the CBI are under
the thumb of politicians and bureaucrats, the CVC cannot really have a
free hand.
Which leads us to suspect the level of protection that the CVC can
offer whistleblowers standing up to powerful criminals. It is fine to
say that people who take disciplinary action against the whistleblower
would be penalised. But in our country the "disciplinary action" is
often murder. People are frequently killed even under police
protection. And when the stakes are high, perpetrators will do all
they can to silence the whistleblower. Just a law won't do — we also
need the infrastructure to implement it properly.
And some precautionary measures may be useful. For example, RTI
activists or applicants who face death threats must not only be given
protection but their allegations must be investigated as soon as
possible, and the findings made public. Also, there should be a law
that if a whistleblower dies — under even slightly suspicious
circumstances — there must be an investigation into not just the death
but all that he or she was in the process of unearthing. That way,
murder would cease to be the chosen method of silencing the
whistleblower.
In short, we desperately need a law to protect whistleblowers. But it
better be effective. The only thing worse than not having a protective
law is a law that offers the illusion of protection.
Antara Dev Sen is editor of The Little Magazine. She can be contacted
at sen@littlemag.com
--
Urvashi Sharma
RTI Helpmail( Web Based )
aishwaryaj2010@gmail.com
Mobile Rti Helpline
8081898081 ( 8 A.M. to 10 P.M. )
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