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Supreme Court legitimises anonymous whistleblowing in India

Dear all,

The Hon'ble Supreme Court has withdrawn its 15th September, 2014 order (2nd attachment) demanding that the Petitioners in a matter relating to the corruption scandals being investigated by the Central Bureau of Investigation (CBI) disclose the name of the whistleblower who supplied the contents of the guest entry register maintained at the residence of the CBI Director. Readers may remember my email alert of16th September critically examining the Supreme Court's order demanding disclosure of the name of the whistleblower in light of the Apex Court's earlier pronouncements with regard to whistleblower protection. You may access this email alert at:
 
In its 20th November order (1st attachment), the Supreme Court has recalled its earlier order and accepted the affidavit filed by Senior Counsel Prashant Bhushan where he averred that he is not in a position to disclose the whistleblower's identity and refuted the CBI's allegation that the whistleblower was none other than one of its own Director General's of Police (DIG). He stated that he neither knew nor had ever spoken with that DIG. The Apex Court seems to have paid back the CBI with its own coin as far as transparency is concerned. In an attack of allergy towards the RTI Act, the CBI had successfully obtained near complete exemption form the obligations of transparency underThe Right to Information Act, 2005 (RTI Act). More recently, it has sought the Delhi High Court's intervention to prevent the disclosure of even corruption-related information held in its custody, thereby making a mockery of the proviso under Section 24 of the RTI Act which mandates the disclosure of such information. Yet, during the hearing before the Hon'ble Supreme Court, it had demanded disclosure of the identity of the whistleblower who supplied the guest entry register to the Court through the Petitioner. Now, thanks to the Apex Court's November 20th order, the CBI is made to swallow the bitter pill which hopefully will soothe its allergy to transparency.
 
Implications for India's Whistleblowers Protection Act
The Apex Court's latest action, recalling its 15th September order creates a new standard in the jurisprudence around whistleblower protection in India. The Court has for all purposes indicated that the disclosure of the identity of a whistleblower is not important if the information about an offence or wrongdoing he/she supplies is credible enough to proceed with for further action. Section 4(6) of the Whistleblowers Protection Act, 2011 (WBP Act) which Parliament enacted in February 2014 and which was notified in the official gazette later in May, bars competent authorities from inquiring into anonymous complaints in the following words:
 
"(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." [emphasis supplied]
 
If the WBP Act (accessible at: http://persmin.nic.in/DOPT/EmployeesCorner/Acts_Rules/TheWhistleBlowersProtectionAct2011.pdf) in its current form is enacted, all anonymous whistleblower complaints will be treated as garbage. With its 20th November order, the Hon'b'e Supreme Court has legitimised the practice of anonymous whistleblowing which is a great boon for anonymous whistleblowers in India. 
 
 
Possible amendments to the WBP Act
The Department of Personnel and Training (DoPT) which is under the charge of the Hon'ble Prime Minister assisted by the Minister of State for Personnel, Public Grievances and Pensions, is the nodal department for implementing the WBP Act. In a recent reply to my request for information under RTI Act, the DoPT said that it was indeed contemplating amendments to the WBP Act which has not yet come into force. The Central Government has not operationalised this law in terms of Section 1(3), by notifying the Rules and Regulations that would give force to its provisions. It is not clear what the Government wants to amend in this law that has not been implemented yet. My request for details of the proposed amendments were stonewalled by the DoPT stating that the file was with the "higher authorities". Readers will note that this vague reply (3rd attachment) is not even a rejection of my RTI application under Section 8 of the RTI Act. The Government must publicly indicate why it intends to amend the WBP Act without even operationalising it.
 
If the Government is planning to amend the WBP Act to make it more effective, it must on a priority basis amend Section 4 to recognise anonymous whistleblowing in order to give effect to the new standard laid down by the Apex Court. The choice of disclosing one's identity or otherwise should be left to the potential whistleblower. Wherever the complaint discloses prima facie material facts about corruption or any other offence or other kinds of wrong doing, the competent authorities must proceed with an inquiry into the complaint without insisting upon the identity of the whistleblower. Later on if the anonymous whistleblower wants protection against harassment or other kinds of retaliatory action, he/she must have the freedom to approach the competent authority, prove his/her connection with the whistleblower complaint and secure the protection of the law.
 
Alternately, as in the current Supreme Court matter filed by the Centre for Public Interest Litigation and Others, an anonymous whistleblower should be permitted by law to approach an advocate or a responsible media person with all details of wrongdoing, so that a complaint may be filed before the competent authority for taking appropriate action or it may be reported in the media. The Supreme Court has already recognised whistleblowing to the media as a legitimate exercise in its judgement in the matter of Indirect Tax Practitioners Association vs R. K. Jain [(2010) 8SCC 281].
 
 
Deliver on what was promised at G20 Summit in Brisbane
While the Indian media went to town with the Hon'ble Prime Minister's (PM) Brisbane Summit speech, seeking assistance of the international community to unearth and bring back black money, an important commitment made by the G20 leaders to combat corruption did not get the same kind of attention. In the 2015-16 Anti-Corruption Action Plan (4th attachment), the Heads of Government have committed themselves to paying more attention to whistleblower protections along with other measures to curb corruption (4th attachment). Neither on the PM's own website nor elsewhere in the media is there any report of his speech highlighting his commitment to enforcing the WBP Act in India. 
 
 
India's Response to the G20 about what it is doing for Whistleblower Protection
The G20 website contains the text of India's response sent in 2014 to a Questionnaire received from G20's Anti-Corruption Working Group (ACWG) about action taken to effectively combat corruption in India. The response regarding whistleblower protection makes for interesting reading:
 

"WHISTLE BLOWER PROTECTION

 33.      Does your country have legislation to protect whistleblowers: 

a. In the public sector

YES  ✓

NO

 

b. In the private sector

YES  ✓

NO

 

34.       Have changes to whistle blower protection legislation been proposed or implemented since the last monitoring report? 

YES  ✓

NO

 If yes, please provide details.

Whistleblowers Bill has been passed by both Houses of the Parliament and is likely to become a Law very soon.

 

35.  Since the last progress report, has your country implemented any measures to protect journalists reporting incidents of corruption?

If yes, please provide details

Whistleblowers Bill has been passed by both Houses of the Parliament and is likely to become a Law very soon.

It is obvious that this questionnaire was filled up prior to February 2014 when the WBP Act was passed by Parliament. Nevertheless, India's response to the questions shows how structured questionnaires cannot facilitate the disclosure of the complete truth. For example, the WBP Act does not cover whistleblowing in the private sector even though the 2nd Administrative Reforms Commission made such a recommendation which the Central Government eventually accepted (5th attachment). There are very limited and unsatisfactory provisions in the Companies Act, 2013 about private sector whistleblowing. These provisions do not match the international standards of whistleblower protection that civil society has been demanding in India. Yet, India's reply states that the whistleblower law covers the private sector as well. Second, India's reply states that the WBP Act will act as a measure for protecting journalists reporting incidents of corruption. Any reader of the WBP Act will recognise that reporting corruption through the media is not recognised as whistleblowing under the WBP Act. Only a report made in complete secrecy to the competent authority such as the Central Vigilance Commission at the central level will qualify for the protection of the Act. 

 

It appears that these replies were sent to G20's ACWG during the previous UPA Government. The present NDA Government has a constitutional duty to set the record straight by making a clean breast of what the WBP Act covers and what it does not. If not, India is in danger of becoming an object of ridicule at the international level for saying one thing before the international community and acting in a diametrically opposite manner at home. G20 also needs to assess member countries' responses to its questionnaires by soliciting feedback from civil society advocates in order to arrive at a balanced picture of their efforts to combat corruption.

 

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DATED: Saturday, 22 November 2014 12:51
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