How the Whistleblower Protection Amendment Bill gets everything wrong?

How the Whistleblower Protection Amendment Bill gets everything wrong?

INTRODUCTION

Transparency and accountability are the two riders to combat corruption. Whistleblowers therefore, have a vital role here, in bringing forth the corrupt activities by putting at stake, their career, reputation, and in many cases life too. The murder of NHAI Director, Satyendra Dubey in November 2003 is a glaring example in this regard, after he attempted to intervene in the ongoing financial irregularities in Golden Quadrilateral Project by sending a letter to PMO. He also requested not to reveal his identity, but the same was not granted. Thus, a foolproof complaint-redressal mechanism relating to disclosures was felt indispensable, to protect such whistleblowers. Premised on this rationale, The Whistleblowers Protection Act, 2011 (the original Act) was enacted in 2014.

However, the original Act is sought to be amended through The Whistleblowers Protection (Amendment) Bill, 2015 (the Bill) which prohibits certain categories of information from being disclosed. Here, it may be pointed out that financial irregularities in NHAI would have remained unreported as falling under “threat to economic interests of the State”, if such provisions were in place then (in 2003).

Therefore, the broad categories of exemptions along with other amendments raise the concerns over the effectiveness of the set up built for protection of whistleblowers, as being discussed in the following sections.

KEY CONCERNS

The Official Secrets Act, 1923 (the OSA) made applicable

The OSA is a colonial law meant to prosecute and penalize those who possess or disclose any official information without authority, keeping in view the national security. However, the law envisages almost every information to be a confidential one within the official corridors.  The questions regarding intention of the accused or if there was any threat at all are not entertained under the OSA. Thus, it has been keeping the trend of secrecy intact in the government offices since colonial era. It hinders the transparency and blunts any anti-corruption move. The Second Administrative Reforms Commission recommended its repeal in its 2007 Report considering it a “convenient smokescreen to deny the members of public access to the government information.”

However, the disclosure of the information which was prohibited under OSA was permitted in the original Act under Section 4(1). However, the Bill amends the Section to the effect that whistleblowers disclosing information which invite prosecution and penalties under the OSA would face similar consequences. Exposing the disclosures made in good faith to the criminal liabilities would result in gross injustice.

The original Act rightly kept the disclosures out of the scope of the OSA. The Whistleblowers could disclose the instances of corruption, abuse of power, human rights violations without fearing any prosecution under the OSA. But the Bill pulls out such immunity and lets the OSA back into play.

This move would surely deter the whistleblowers to come up and report the matters fearlessly, even in public interest (which is permitted under the RTI Act if public interest outweighs the harm done under the OSA). Thus, the basic purpose of the original Act, i.e. to encourage the whistleblowers gets defeated.

Imposition of broad exemptions

The original Act did not contain any exempted category of information as far as disclosures were concerned. However, the Official Amendments moved in 2013 (which were not incorporated in the original Act) listed two categories of information (which prejudicially affects the sovereignty, integrity, security, strategic, scientific, economic interests of state, relations with foreign state, or lead to incitement of an offence, or cabinet or council of minister disclosure)  as exempted from disclosure in the public interest.

But the Bill further extends these categories to ten under Clause 4(1A). These include information regarding breach of privilege of legislature, trade secrets, intellectual property,  investigation process, confidential information received by foreign government, personal information etc.

In this regard, the prime concern is that almost every disclosure may be covered under these broad categories of exemption. Like scandals in defence procurement, any wrong doing in the Stock Exchanges or failures of intelligence agencies, a source-based journalistic report about corruption in public banks etc. may be termed as the information prejudicially affecting national security, defence or strategic or economic interests. Similarly, information regarding false certificates relating to caste, education, income or character would be exempted as personal information, unless it is permitted to be disclosed under the RTI Act, 2005. Do officials working in the same office need to access such information through the RTI first in spite of having first hand information?

Table showing what might be exempted under the Bill

CATEGORIES OF EXEMPTIONS

EXAMPLES

   

Information prejudicially affecting the sovereignty and integrity of India, the security of the State, the strategic, scientific or economic interests of the State, friendly relations with foreign States or lead to incitement to an offence

Information related to scandals in defence procurements, wrongdoings in stock exchanges, failure of intelligence agencies, a source based journalistic report on fraud of banks

Information expressly forbidden to be published by any court of law or tribunal, or the disclosure of which may constitute contempt of court

Information related to any fraud/scam contained in the documents held by any Court/Tribunal while case is pending or as court records.

Information causing a breach of privilege of Parliament or State Legislature

Anything said or done by the MPs/MLAs during the proceedings of the Houses which serves as a direct evidence of any wrongdoing

information regarding commercial confidence, trade secrets or intellectual property etc. unless disclosed under RTI Act

 

information which is available to a person in his fiduciary capacity or relationship, unless disclosed under the RTI Act

The information about  defaulting borrowers held in fiduciary position by the banks

information received in confidence from a foreign government

Instances of bribery of foreign public officials

Information endangering life or physical safety of individuals, or identify the source of information or assistance given in confidence for law enforcement or security purposes

Any evidence of wrongdoing including human rights abuse recorded in the police station camera may be prohibited on the pretext of safety and security of visiting witnesses or informers  

Information, which would  impede the process of investigation or apprehension or prosecution of offenders

Any instance of police misconduct or brutality like forced confessions, fake arrests, falsification of evidences etc. during the investigation resulting in miscarriage of justice.

Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers, unless permitted by RTI Act

 

Personal information not related to any public activity, or which would cause unwarranted invasion of the privacy of the individual, unless disclosed under RTI Act, 2005

False certificates related to caste, education, income or character;

 

The Whistleblowers Law and the RTI Law

It is said that the Bill seeks to model the original Act on the lines of the RTI Act, 2005. Here, it is worth noting that although both the original Acts broadly seek to ensure greater transparency and accountability in public offices, but their operating fields are entirely different. Under the RTI Act, a person seeks information from public authority, whereas under the Whistleblowers Protection Act, a person reveals information to a competent authority. Therefore, while exemptions under the RTI Act may be justified in certain cases but to blindly introduce similar exemptions under the concerned Bill is not justified in any case because every revelation of corrupt activities is in public interest. Even the RTI Act takes public interest into account but the concerned Bill does not.

Instead of imposing such broad exemptions, the Government could have proposed additional safeguards for sensitive/confidential disclosures. But such a move raises the concerns about intent of the Government as to who they actually want to protect, whistleblowers against victimisation or corrupt officials against prosecution?

Unchecked powers of the authorised authority

The whistleblowers are required to make public interest disclosures before the competent authority in writing or by e-mail (Section 4). Such competent authority would be the authority having administrative supritendence over the concerned authority or persons. Like in case of Union Ministers, the competent authority would be Prime Minister, in case of MPs it would be the speaker/chairman, for judges, magistrates etc. the High Court and so on (Section 2(b)). The competent authority is responsible for any inquiry or investigation on the receipt of complaint, keeping the identity of complainant unrevealed (Section 5).

Now, the Bill introduces Section 5(1A) to the original Act which prohibits the competent authority to investigate into any disclosure which involves information falling under any category specified under Section 4(1A). Instead, the competent authority has to refer the same to another authorised authority, which will certify if the disclosure falls under the prohibited categories. The decision of such authority will be binding.

Also, Section 8 of the original Act is sought to be amended to do away with the requirement of providing any such information (falling under Section 4(1A)) during an investigation by any person. This means that no person can be compelled to disclose the information under the specified categories during any investigation. Consequently, the true picture of the alleged facts may be conveniently (and lawfully) covered under the garb of exempted categories. Again, the decision in this regard rests with the new authorised authority.

As stated above, in many cases the competent authority itself is a high-level authority like Prime Minister etc. In this scenario, to have an authority above such authority appears confusing. And then, the Bill also does not clarify who would be this new authorised authority adds to the concerns regarding a sound mechanism.

Also, the decision of such authorised authority shall be final, with no appeal/review provisions. And yet again, the public interest clause is missing in the provisions. It is to be noted that the RTI Act also has a two-appeal process in place for refusal of any information. This unchecked power of the unidentified authorised authority makes the procedure more opaque than transparent. Certainly the Bill needs a serious re-look on these issues.

CONCLUSION

As per the data provided by Ministry of Home Affairs in Rajya Sabha, there were 142 attacks on RTI activists/ whistleblowers in 2014-15 and 70 deaths in the last 24 years. Ram Kumar Thakur for raising his voice against embezzlement of funds for MGNREGS; Nandi Singh for complaining the irregularities in the PDS in 2012; Amit Jethwa for filing numerous RTI applications in 2010; V. Sassendaran for disclosing rampant corruption in Malabar Cements Ltd. in 2010; the killings of Vyapam Scam; and the list seems endless when it comes to the murders/suicides of RTI activists/whistleblowers. It is to be noted that the NCRB is yet to come up with data regarding deaths of whistleblowers/RTI activists despite announcing it in the year 2015.In such a scenario, the amendments proposed in the Bill appear regressive and unyielding.

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Tags: Whistleblower, Transparency, Corruption, RTI, Secrets

Maansi Verma