Notwithstanding the flak directed at the Madhya Pradesh home minister, Babulal Gaur, for commenting that he could not secure the safety of Vyapam witnesses any more than Indira Gandhi could be protected, the fact remains that in the absence of an institutional structure designed to protect witnesses, mere administrative enthusiasm can never serve the purpose. The nearest we have come to such a structure is in passing the Whistleblower Protection Act, 2011, which finally received Presidential assent on May 9, 2014.
In the year since, it has not been implemented. Instead, the Centre has moved to substantially amend it to ensure that whistleblowers are prevented from disclosing a wide variety of information including commercial secrets and IPR.
The ensuing outrage of civil rights activists may well be misplaced though because, all else apart, the original law wasn’t going to serve its purported purpose to begin with.The corruption problem
To my mind, any law addressing the ‘corruption problem’ is unlikely to be effective unless it has five basic features. First and foremost, the man most competent to prove bribery is the man who gave it. On the principle that the man giving a bribe is being forced to pay his way, bribe-giving should be legal but bribe-taking should not.
That is not the law. 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.
Since most everyone “in the know” is complicit one way or the other, this law alone excludes most potential witnesses. Perhaps we would do well not to stop at legalising bribe-giving. We could incentivise the bribe-giver. The money disgorged from the bribe-taker should be returned to the bribe-giver together with 20 per cent of the penalties recovered from the bribe-giver as his reward. Citizens would then happily give bribes, get the job done, blow the whistle and get their money back.Secrecy and security
Absolute secrecy is the second must-have for any whistleblower law. If you check out “Attacks on RTI activists in India” in Wikipedia, you will see a very long list of assaults and killings. The best way to protect a witness is to have his identity concealed. Instead, Section 4(6) of the new whistleblower law 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 seems disinterested in protecting the identity of the whistleblower; instead, it stands him up on Main Square for anyone who wishes to shoot at him. Naturally, anonymity comes with apprehensions. Allowing an informer to hide behind an anonymous e-mail ID or a ‘care of’ address may be overrated as an invitation to mischievous complaints and wild goose chases when everyone can be tracked down in this information age. Indeed, if anything, the law should direct governments not to track down informers except in specified circumstances.
This brings us to the third must-have: security. Witness protection is not about being followed on a morning walk by a baton-wielding policeman. Witness protection is about specialist security servicemen, safe houses, new identity papers, secret relocation and resettlement. This presumes an institutional structure grounded in a legal framework riding on a generous budget. We have none of this in India: now or in this unimplemented whistleblower law.Persecution and checking data
Next we have the problem of persecution and hounding. This occurs at two levels depending on whether the whistleblower is on the inside or outside. The insider suffers the fate of IAS officer Ashok Khemka. He is transferred 40 times in 22 years because he refuses to engage in dirty dealings.
The outsider suffers the fate of RTI activist Rajendra Kumar. On October 15, 2013, he committed suicide outside the chief secretary's office at the State secretariat in Bhopal by consuming poison because he could no longer deal with the false cases against him. In his suicide note, he named 33 people who had been torturing him since 2006 because he had revealed 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 into him. A credible whistleblower law must protect the weak from victimisation. Our law has not conceived of this reality.
Finally, we come to the question of who investigates the data and who deals with the witnesses. Our law prescribes a preliminary internal investigation by a designated ‘competent authority’ who is an insider. He is then required to forward the complaint to the relevant head of department (another insider) for comments, on the other side of which the case is sent to the police if it is found to have substance. Consequently, we have three players in the investigation game, all vulnerable to influence in one way or another. How would it work?
Arvind Kejriwal has ridden to power on the back of issues around this subject of which the Lokpal Bill is only one. The Supreme Court has recently dealt with it in the context of the Vyapam investigation. The fact is if you don’t have an independent investigator, you don’t have anything. The conclusion is inescapable: all things considered, you cannot protect your Vyapam witnesses, even if you want to.
The writer is managing partner of the corporate law firm, N South, and author of ‘Winning Legal Wars’ and ‘Bullshit Quotient: Decoding India’s Corporate, Social and Legal Fine Print’