Protection delay for whistleblowers

The recent controversy in the United States regarding explosive national security leaks from the National Security Agency (NSA) has caught the imagination of the public at large.

The whistleblower Edward Snowden, a former CIA employee who worked as a contractor for the NSA, revealed the existence of a huge NSA intelligence system called Prism, which collects data on intelligence targets from the systems of some of the biggest technology companies. He also revealed the details of a secret order that demanded private communications companies pass on the details of phone calls related to millions of customers to the NSA.

The Snowden case has forced us to ruminate on the plight of whistleblowers in India. India has been terribly unkind to whistleblowers. Numerous Human Rights Defenders (HDR’s) and RTI activists have been killed for exposing corruption and nepotism in the system. In November 2003 an engineer, Satyendra Dubey, was murdered in cold blood. Dubey had blown the whistle in a corruption case in the National Highways Authority of India's Golden Quadrilateral project. He had repeatedly pleaded with higher authorities for protection as his life was in grave danger. Sadly his pleas were ignored.

The same fate befell an Indian Oil Corporation officer, Shanmughan Manjunath, who was murdered in 2005 for exposing a scam that involved the selling of adulterated fuel at petrol pumps. Closer home Karnataka official SP Mahantesh, who was working as Deputy Director of the audit wing in the state’s Cooperative department was murdered in May 2012.

The government sought to remedy this precarious state of affairs by drafting the Whistleblowers Protection Bill,2011. It is yet come into effect. The intentions appear to be noble. It seeks to establish a mechanism to register complaints on any allegations of corruption or willful misuse of power against a public servant.

The bill also provides safeguards against victimisation of the person who makes the complaint.  The bill seeks to protect whistleblowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offence by a public servant. Any public servant or any other person including a non-governmental organisation may make such a disclosure to the Central or State Vigilance Commission.

Every complaint has to include the identity of the complainant. The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary.

However there are some serious concerns with this bill. The Central Vigilance Commission (CVC) has limited powers. It is restricted to only making recommendations and it does not possess the power to impose penalties. There is also problem with definitions of terms like disclosure which has been defined in a limited sense. ‘Victimisation’ has not been defined, which is at variance with countries like US, Canada and UK.

The Law Commission and the second Administrative Reform Commission (ARC) had proposed a Bill that was quite different, especially in areas like non-admission of anonymous complaints and lack of penalties for officials who victimize whistleblowers. The present bill only ‘vows’ to act against those who persecute or harass complainants .It does not outline penalties or punishments for officials found victimising complainants. A major drawback is the inability to file complaints anonymously. This bill permits the CVC, under certain circumstances, to disclose the complainants’ identity to the head of the government department under investigation. This will surely act as a deterrent for individuals seeking to file complaints.

The other glaring flaw in the bill is the omission of the corporate sector. The present version of the Whistleblower’s Protection Bill only covers citizens who expose wrongdoings in the government sector. We could learn a few lessons from the US, where whistleblowers who expose the wrongdoings of the corporate sector are also protected by legislation. The recent case in the US of a whistleblower exposing the misdeeds of the pharma giant Ranbaxy is a case in point. Ranbaxy was forced to plead guilty to felony charges when it admitted to selling adulterated drugs with intent to defraud. This model can be followed in India as well to check the rising instances of corporate fraud.

Edward Snowden said that he had turned whistleblower because he felt that the government had granted itself powers it was not entitled to and there was no public oversight to restrain them. India needs a much stronger Whistleblowers Protection Bill if we really value the lives of our citizens. We cannot remain indifferent any longer.

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