Blowing Away Whistle Blowers

Election fever this time has sent the outgoing government scurrying in search of a brave new world of probity, the main manifestation of which are (1) a whistle blower protection law and (2) a Lokpal law. Is it fair to expect that the Whistle blower legislation will herald in an era of integrity in public life?

If you live in India and want to address the corruption problem, what is it that you want first? At a pinch, I’d say five things. First, you should be allowed to kiss and tell without fear of retribution. What better way to prove that a bribe was given than to have the guy who gave it, say so? This is possible if bribe giving is legal but bribe taking is not. That is not the law right now. While Sections 7 to 11 of the Prevention of Corruption Act 1988 go to great lengths to define and punish public servants for corruption but Section 12 also states that “Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment” etc. If paying a bribe sends you to jail, how will anyone persuade you to admit that a bribe was paid? How often are you likely to catch anyone ‘red handed’ so to speak?

Naturally, there is a lot of hypocrisy and the double talking jive around this issue. If we make bribe giving legal, won’t that make bribery more brazen, more widespread? Shouldn’t we draw a distinction between giving a bribe to get what is your right anyway, and giving a bribe to get ahead of the others (like in a coal mine or telecom spectrum queue)? I don’t buy most of these arguments, not least because we’ve had the Prevention of Corruption Act for 25 years and it’s not been spectacular in achieving its goals, or won’t you say? That apart, what is a right for one man is a privilege for another. In a country where so many live without electricity and water supply, is getting a power connection a right or a something you need to jump the queue for?

In fairness, Section 24 of the Prevention of Corruption Act also states that “a statement made by a person in any proceeding against a public servant for an offence under Sections 7 to 11 or under Sections 13 or Section 15, that he offered or agreed to offer any gratification…or any valuable thing to the public servant, shall not subject such person to a prosecution under Section 12”.That is not enough! This section is talking about confessing to a sin in a statement in a legal proceeding: what if someone proves you guilty independent of the confession? In this age of video graphed stings, the bribe giver will be up to his neck in it long before he gets to a statement making stage.

I wouldn’t stop at making bribe giving legal either. Once bribe giving is legal, also incentivize the briber giver to whistle blow. Create a law which forces every bribe taker to return the money he took to do the job he did. As the construct then goes, if someone asks for a bribe, no problem man; go buy a cheap pen camera in Palika bazaar and go video graph the deal as it is made. Then get what you asked for and ask for the money back! Heck, the department may even give you a extra reward for turning in the slime who took a bribe from you.

Which takes us to the second “must have” for any whistle blower law: absolute secrecy. Remember Satyandra Dubey? If you’ve forgotten, check out the facts in the ten year old April 2003 Fine Print Legislating for Whistle-blowers. Satyandra Dubey was murdered because he blew the whistle on corruption in highway building. He is by no means the only one. If you check out Wikipedia’s “Attacks on RTI Activists in India”, you will see a very long list of assaults and killings. If you are not guaranteed absolute secrecy when you complain, every dirty politician and his hoodlum contractor will have a supari out on you. If you are blowing the whistle about something more than peanuts, your life isn’t worth more than peanuts.

Anonymity is key; that is a no brainer. But guess what the new Whistle Blower legislation does? Section 4(6) requires that “No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure”. The law isn’t interested in protecting the identity of the whistle blower; it wants him to stand up on main square and stop a bullet from a country made Katta.

Oh, and by the way, it gets richer. True to bureaucratic type, it’s not enough to disclose a crime; you have to do it in a prescribed format complete with declarations. Check out Section 4(3): “Every disclosure shall be made in good faith and the person making disclosure shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true.” That sounds like a sophisticated piece of drafting we are going to need a lawyer to help do right! It’s hard not to think that this isn’t about protecting whistle blowers: it’s about setting up so many hurdles to whistle blowing that a bunch of complaints get rejected because they aren’t made according to the ‘rules’. Sounds familiar?

Of course, we can sympathise with the bureaucracy for this piece of work-shirking. But seriously, will allowing anonymity really mean that the government will have to go on a wild goose chase every time it receives a mischievous anonymous tip off? I hope not. Clearly, the guy receiving the complaint needs to be able to touch base with the complainer, even if it’s only to get more information or a clarification or similar. At the same time, the complainant needs to have the comfort of anonymity. What is the downside to allowing the complainant to crouch behind the wall of an anonymous e-mail ID or a “care of” address? Since every-one can always be tracked down in this information age, the law should specifically state that the complainer should not be tracked down but should leave some means to be contacted if necessary.

This directly brings up the third point: security. I would have expected any whistle blower law to expend a lot of energy in setting up a secure witness protection program with a liberal budget. What we get is not a word. How can you even claim to have a credible Whistle blower law when the protection of whistle blowers isn’t even on your event horizon? Should I be subjecting this law to a critique, or just be falling about helplessly on the floor laughing derisively?

So it’s on to the fourth point: preventing persecution. There are two different levels of this stuff. If you are thinking insider whistleblowing, think IAS officer Ashok Khemka. The man has suffered 40 transfers in 22 years because he refuses to engage in dirty dealing. His exploit in exposing Vadragate is well documented. On the other hand, if you are thinking about a public spirited individual, think RTI Activists Rajendra Kumar.

On October 15th, 2013, he committed suicide outside the Chief Secretary’s office at the state secretariat in Bhopal by consuming poison because he could not deal with the false cases against him any longer. In his suicide note, he named 33 people who were torturing him since 2006 because he revealed that they got their jobs on the basis of fake caste certificates. You can kill a man in a million ways, or make life so onerous for him that he decides to save you the trouble of thrusting the knife in. Not that every persecution of every whistle blower necessarily ends in death. You can kill a man’s career, or discriminate against him till he stops progressing in his work. So how is our new Whistle Blower legislation protecting the weak from victimisation? Don’t be silly: the legislators didn’t think that is an issue at all. ‘Victimisation’ is not even a defined term in this law.

With that, we now come to our fifth and final point. We know that people have complained about corruption in the past and died for their beliefs. We know that more often than not – even in Satyendra Dubey’s case – bureaucracy has failed to act on these disclosures. In this environment, how should whistle blowing complaints be investigated? The new whistle blower legislation decides to address this issue by prescribing a preliminary internal investigation by a designated ‘Competent Authority’. This guy is required to forward to complaint to the relevant Head of Department for comments on the other side of which, the case gets sent out to the police if there is any substance in it. Now, I don’t want to knock the cops who, at least in Delhi, are for us with us always, but the fact remains that these guys are so busy protecting VIPs they can’t investigate these same VIPs for corruption. Besides, how exactly is the pot going to call the kettle black? That is the Lokpal Bill issue all over again. If you don’t have an independent investigator, you don’t have anything. I need not say more.

So as I stand back and look at this new legislation, try as I might not to be deliberately cynical about its potential for heralding change, I am compelled to conclude that this is another piece of grotesque tokenism legislated with the hope that it will fool enough of the people for long enough a time to get another election result in the bag. After that, well, there is always Louis XIV’s Le Deluge.

Originally Published on March 13, 2014 in Businessworld


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