Confession Of A (Hushed) Whistleblower: Why We Need A Strong Whistleblower Protection Law

Posted on February 3, 2014 in Politics, Specials

By Astha Agrawal:

I am scared. I shouldn’t have known the ugly truth. No, I am not a coward, and have integrity. But I lack the gall to take on dishonest-yet-merrily-drunken-in-power bureaucrats, ministers, and industrialists, especially when I do not have the law on my side. I do realize the moral imperative to act, but for what? To land up in jail for an unruly disclosure and a lack or manipulation of evidence, or be killed for the show of my bravery? Even if I jeopardize my career and sacrifice my life, will the culprits be punished? In today’s date, with the absence of required legal provisions, not even a hair will be harmed. Who am I? A whistleblower – an insider who exposes misconduct/illicit activity of an organization s/he is a part of. Notwithstanding this description, the most characteristic of my identity in this avatar is the great personal risk I take.

Whistleblower Protection Bill

I am reminded of Satyendra Dubey, a project director at National Highway Authority of India (NHAI) who, in 2003, was killed for bringing to notice malfeasance in the organization. By disrespecting his request to conceal his identity, the PMO took his life. Yes, the people protested in good numbers and the Court issued guidelines to protect whistleblowers. In 2004, the government did pass a resolution to the effect which temporarily empowered Central Vigilance Commission (CVC) to receive, investigate and act on such complaints and keep the identities of complainants concealed. But it didn’t have a provision to protect whistleblowers from harassment. As a result, not many dared to walk the thorny path; of those who did, most were tortured, harassed, and/or murdered.

In 2011, the Whistleblowers Protection Bill, 2011 was passed by the Lok Sabha. However, to accentuate my anxiety, it languishes in Rajya Sabha since then. The bill in its current form is inadequate to quell my fear. To start with, it doesn’t define ‘victimisation’. Does it include suspension, transfer, dilution of power, adverse entries in the service record and punishment under disciplinary rules? The bill doesn’t answer. It has punitive provisions for negligence on the part of a whistleblower but none against those who harass or victimise him/her. If found guilty of a false complaint, I cannot even appeal against the order, except in the High Court (lest we all forget how smooth our judicial process is!). The definition of ‘disclosure’ is narrow, and a complaint can be lodged only against a public servant; neither a minister, nor (of course!) a private sector shenanigan. I hear what you are thinking aloud — private businesses are not accountable to the public since they, unlike public sector, do not play with ‘public’ money (only that they sure do!). Besides the fact that most projects are executed under Public-Private Partnership, there is a clear politician-bureaucrat-industrialist nexus which, if ignored, shall only demonstrate our chosen naivety. The bill doesn’t guarantee protection to non-government employees/whistleblowers, and fails to specify the nature of relief, if violated. It keeps defence, military, and intelligence personnel out of the ambit of disclosure, for the reasons of security, sovereignty, and integrity. The worst of all is the inability of the CVC to start a criminal proceeding against alleged officials, and an absence of a fixed time period in which enquiry should be conducted and completed. It can only recommend after investigation. The biggest protection would be a quick inquiry and corrective action against wrongdoers, and this is the weakest of all the powers that the ‘competent’ authority has.

You must be wondering why I feel morally dragooned when the auditor, ombudsman, vigilance commission, regulating agency, media, civil society and courts can play their parts. Yes, there are many nodes in the web. However, good governance is both top-down and bottom-up. Exposing corruption from below is as important (if not more) as keeping an eye from above. There is no fill-in for the information provided by an insider. A whistleblower stands for a vigilant citizenry and is symptomatic of courage and responsibility that each denizen of a democracy must call and claim. It lifts the dust-laden file of corruption from the shelf of government, makes many copies of it, and reticulates them so that each one of us takes charge, to ensure fair conduct in the organizations we are part of. None should be punished for being honest! This is why I feel that a Whistle Blower Protection Law is as important as the Jan Lokpal Law!

I feel that I am walking through the ‘forbidden’ forest, surrounded by the spirits of Satyendra Dubey, Shehla Mahsood, Amit Jethwa, Purushottam Chauhan, Lingaram Kodopi, Premnath Jha and others, along with subtle yet powerful presence of Sorinjee, Snowden, and Ellsberg, trying to comfort/advise/warn me. As I ruminate, I hear the following grow louder and louder:

“If you must sin, sin against the God, not against a bureaucrat [/minister/industrialist/mafia]. God may forgive you but they never will.” ~ U.S. Admiral Hyman Rickover