Watching out for whistleblowers

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 [2]