Blowing the Whistle

Written by  //  August 2, 2011  //  Law & The Judiciary  //  3 Comments

[Ritwika Sharma, a 3rd year law student at Amity Law School, New Delhi writes on the proposed Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 (the Whistleblower bill) and why such legislation is necessary, albeit inadequate in its current form]

For a nation that is so fervently marred and tainted by instances of widespread corruption, it must take a lot of grit and audacity to stand up against a particular malpractice and challenge the system. For those who dare to undertake this daunting task, the need of the hour is to provide them effective protection and avert circumstances that may be life-threatening. It is in such a circumstance that a “whistleblower” legislation becomes an issue of intense deliberation. In common parlance and for the purpose of understanding the aim and object of the corresponding legislation, a whistleblower may be defined as a person who makes a disclosure in public interest and who is entitled to receive protection by the State. The concept of protection to whistleblowers is quite akin to the need for devising an effective Witness Protection Programme (WPP).  It has been witnessed on numerous occasions that witnesses end up turning hostile at crucial junctures in criminal trials that rely heavily on circumstantial evidence thereby rendering the proceedings redundant and inflicting a severe jolt to the ends of justice. The purpose of a witness protection program is to afford protection to witnesses who are of utmost importance to a particular trial and for them to give their testimony in the Court of law without any fear and apprehension as to any danger to their life, limb or loved ones.

A similar purpose is sought to be achieved by whistleblower legislation. Persons making disclosures with regard to alleged malpractices or acts of corruption in their respective departments require necessary protection at the hands of the State so that they do not forbear from making such disclosures due to fear of meeting an untoward consequence from those benefiting from such indulgences. Whistleblower legislations have been enacted in numerous countries in the preceding two decades, Uganda being the latest to have enacted the Whistleblowers’ Protection Act in April 2010.

Even though the Bill of 2010 (introduced in the Lok Sabha) does manage to invoke substantial hope, it certainly is not the first attempt towards legislation for the protection of whistleblowers. Prior to this, endeavors were made in form of the Public Interest Disclosure (Protection of Informers) Bill, 2002 which was drafted by the Law Commission of India, and also in 2006 when the Whistleblowers (Protection in Public Interest Disclosures) Bill was presented in the Rajya Sabha. The Bill of 2002 was the upshot of a request made by then Chief Vigilance Commissioner (CVC) Mr. N. Vittal to draft a Bill encouraging the disclosure of corrupt practices by public functionaries and protecting persons making such disclosures. The 2006 enterprise was spurred by the murder of Mr. Satyendra Dubey who was Deputy Engineer with the National Highways Authority of India (NHAI) and associated with the “Golden Quadrilateral” Project. Mr. Dubey met an untimely fate when he complained to the Prime Minister’s Office (PMO) alleging irregularities and corruption by the NHAI officials and contractors in the aforementioned project. An uproar by IIT alumni across the nation and a public interest litigation (PIL) filed in the Supreme Court with regard to the murder of Mr. Dubey and the need for protection of whistleblowers got the then ruling NDA (National Democratic Alliance) government into action and the outcome was the Bill of 2006.

The disconcerting facet vis-à-vis both the Bills were that neither of these saw the light of day and were stuck in limbo without any hopes whatsoever of getting concretized into legislations. Meanwhile, with the enactment of the Right to Information (RTI) Act, 2005, a new breed of whistleblowers emerged and the pressing need for a legislation for their protection manifested itself with an escalating number of RTI activists succumbing to disclosures made by them with regard to departmental malpractices in public services.

Nearly four years later, attempts have resurfaced to ensure protection to whistleblowers in the form of what has been ceremoniously coined as “The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010”, popularly known as the “Whistleblower Bill”. This Bill comes after whistle blowing having claimed yet another life, that of environmentalist Amit Jethava who campaigned for the cause of the lions of the Gir Forest Reserve in Gujarat against illegal miners.

Though most certainly a welcome move, the Bill comes with its fair share of loopholes. What is most perturbing about the provisions of this Bill is the vesting of wide amplitude of powers in the Central Vigilance Commission (CVC). The cause of worry is two-fold. Firstly, the CVC is circumscribed in its powers and functions by means of the Central Vigilance Commission Act, 2003 in so far that it can neither register a criminal case itself nor order the Central Bureau of Investigation (CBI) to investigate. This inherent limitation was recognized by the CVC itself when it sought to widen the ambit of its powers so as to give effect to the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, 2004 in letter and spirit.  Secondly, and a factor that is far more disconcerting, is the recent spurt of allegations of corruption that have raised serious concerns over the integrity of the office of the CVC, the supposed watchdog for corruption in the country. With the constitutionality of the appointment of former Central Vigilance Commissioner Mr. P.J. Thomas having been upheld by the Supreme Court, it seems unlikely that such an institution can be entrusted with the duty of protecting persons who wish to unearth the roots of corruption from the system. Also, section 10 (2) of the Bill declares that the Competent Authority shall give “suitable directions” to the concerned public authority or public servant who has allegedly victimized a person making a disclosure. Though on paper, it seems like a provision in good measure; in actuality it is difficult to ascertain how “suitable directions” would deter a person who can go to the extent of killing someone who tries to uncover an alleged malpractice.

Having voiced the aforesaid concerns, whether or not the Bill meets its expectations would be clear once it becomes an Act. Till then, only speculations would do the rounds doing no good to the purpose sought to be met by the Bill. Though still pending in the Lok Sabha, the Bill invokes immense hope with respect to the enactment of a concrete legislation for the protection of whistleblowers.  Whistleblowers are entitled to protection not only as citizens of society but because of what the nation would owe to them if the disclosures made by them are adequately acted upon. In such an event, the legislation should find its way to the Gazette as soon as practicable; if not for anything else then as a tribute to those who have lost their lives unearthing the misdeeds of those responsible for the culture of all-pervasive corruption in India today.

3 Comments on "Blowing the Whistle"

  1. Rohan Bagai August 7, 2011 at 5:44 am ·

    thought provoking post Ritwika!

  2. Walter Gehr August 10, 2011 at 8:22 pm ·

    Dear Mr. Sharma,

    I just wanted to thank you for posting the blog “Blowing the Whistle” which was very useful to me for writing a blog entitled “Whistleblowing in India” on the website of Whistleblowing Austria: http://tinyurl.com/4362gex .

    Best regards,
    Walter Gehr

  3. Ritwika Sharma November 10, 2011 at 2:14 pm ·

    @Rohan Bagai – Thank you. I have been quite irregular over the net. Hence the delay in replying to your message (of almost 3 months!!)

    @Walter Gehr – I am glad my post helped you. You are more than welcome 🙂

    Just one small correction. I am Ms. Sharma.

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