Whistle-blowers’ are ordinarily employees of a public authority
The National Campaign for People's Right to Information (NCPRI) held a public forum at Jantar Mantar, New Delhi, demanding amongst other things that a strong whistleblower protection law be enacted for protecting whistleblowers in light of the growing number of attacks on public spirited citizens using the Right to Information Act to unearth corruption. Readers will remember that the Whistleblowers Protection Bill (1st attachment) was approved by the Lok Sabha in December 2011 without much discussion as all the heat and fire was focused on the Lokpal and Lokayuktas Bill (anti-corruption law) which had caught the imagination of the public utterly frustrated by the growing number and volume of scams. The debate on this Bill began in the Rajya Sabha in May 2012 but had to be wound up prematurely due to the demise of a Central Minister. This Bill has not come up for discussion in the Rajya Sabha, ever since. The legislative agenda of the Government in the Rajya Sabha during the winter session of Parliament which begins on the 5th of December is awaited.
Meanwhile Mr. R K Jain a well known crusader for justice has sent me a judgement of the Supreme Court in one of his own matters where several important elements of whistleblower protection are recognised (2nd attachment). In the matter of Indirect Tax Practitioners Association vs R K Jain [(2010) 8SCC 281] a 2-judge bench of the Apex Court has recognised whistleblowing as a legitimate exercise necessary to a democracy that is underpinned by the principle of rule of law.
At para #23 of the judgement the Court recognises that while whistleblowers are ordinarily employees of a public authority indulging in corruption or wrongdoing there could be external whistleblowers as well, such as Mr. R K Jain who highlight wrongdoings through the media. I will not go into the details of this case as it arises out a contempt charge filed against him by a quasi-judicial tribunal for commenting on its performance publicly. The Court threw out the petition holding that Mr. Jain had done nothing wrong in criticising the work of the tribunal and awarded him costs.
In this judgement the Court recognised some crucial elements of whistleblower enabling laws that are missing from the Whistleblower Protection Bill (the Bill) pending in the Rajya Sabha. First, the Court observed that public authorities must have robust internal mechanisms for receiving whistleblower complaints. The Bill does not have this element of internal mechanism for whistleblowing at all. All complaints must be made to an external regulatory agency such as the Central Vigilance Commission (CVC) in the Central Government or some similar authority notified by the State Governments in their own jurisdictions. Second, the Apex Court recognises that whistleblowing to the media, law enforcement of watchdog agencies, lawyers or federal, State or local agencies depending upon the severity and nature of the complaint may be permitted. The Bill does not contain any provision for blowing the whistle to the media or lawyers or any other watchdog agency despite submissions made by civil society to include such a provision under some practical safeguards.
Instead of correcting these lacunae in the Bill, the Government had given notice of amendments to the Bill pending in Rajya Sabha during the monsoon session this year seeking to immunise complaints from thorough inquiry by the designated agencies when they have a national security or 'defence interests of the State' angle (3rd attachment). Some of the MPs who spoke on the Bill in the Rajya Sabha also highlighted the need for such protections for national security and defence and focused less on inserting the essential ingredients which are missing from the Bill. A critique of the Bill in its current form and the proposed amendments are in the 4th attachment.
Given the pronouncement of the Supreme Court on these issues, the Government will have seriously rework the Whistleblower Protection Bill and make further amendments to strengthen it.
This judgment also discusses and upholds the principle of truth as defence in contempt of court matters.
However in April 2013 this year the Supreme Court refused to treat an employee of an Atomic Power Plant as a whistleblower for going to the media about flooding of a power plant in Gujarat. The court said that not being an engineer qualified in such matters he acted more as a vigilante by going to the Press before allowing due process to take its course within the management of the power plant and the district administration. In this judgment (5th attachment) the Supreme Court held that the motives of the whistleblower must be unimpeachable and linkable to the highest standard of ethics. The employee had conceded that he had acted hastily and was only seeking reduction of punishment awarded to him during the disciplinary proceedings. Nevertheless the ratio of the Apex Court deserves to be debated as it can be misinterpreted to mean that only complainants with unblemished record can be treated as whistleblowers.