There is something disconcerting about the demand made by the Supreme Court bench dealing with the case of Central Bureau of Investigation director Ranjit Sinha’s alleged complicity with those accused in the 2G and coal block scams.
During the hearing on Monday, the judges demanded that petitioner Prashant Bhushan disclose the identity of the person who tipped him off about Sinha’s visitor logbook. Bhushan contends that the entries in this logbook bear out his allegation that the CBI director has deliberately compromised the investigation into the scandals.
The court’s demand that the whistleblower’s identity be revealed arose after Sinha claimed that 90% of the logbook entries had been fabricated by people determined to damage his reputation. The judges said that the source of the leak must be determined because the reputation of many people was at stake. To do so, it utilised Order IX Rule 13 of the Supreme Court Rules, 2013 which mandates disclosure of the source of information in every affidavit that is filed before the court.
Shield laws
While it is undeniable that at least one reputation acquired after a lifetime of public service is on the line, the court’s directive jeopardises even the meagre protection whistleblowers enjoy in India. Consequently, it deals a powerful blow to the movement to ensure accountability and honesty in governance.
This is because “shield laws”, or the legal provisions that offer protection to those who blow the whistle on the corrupt and powerful, are the only means to ensure such citizens are not silenced through intimidation or the possibility of retaliation. The indispensability of anonymity cannot be overemphasised: think Mark Felt (Deep Throat) who led the world to Watergate, or more recently Glen Greenwald’s work with Edward Snowden, blowing the cover off the US National Security Agency's dragnet surveillance programme.
Meagre protections
The Law Commission of India first mooted anonymity for whistleblowers in 2002, recommending a Public Interest Disclosure (Protection of Informers) Act. The Malimath Committee on Reforms in the Criminal Justice System also put forward a slew of recommendations in 2003. None of these were acted upon by the government.
In February, after a long struggle, the United Progressive Alliance government finally enacted the Whistleblower Protection Act. This law, greeted with some fanfare, is hardly sufficient even on paper. Section 4, Clause 6 says that no action will be taken by an anti-corruption watchdog or any other competent authority unless the complainant’s identity is disclosed or if the person's identity is incorrect. If at the very outset the law questions the veracity and motivation of the leak, it seriously limits its efficacy.
Persecuting anonymity
In 1972, the Supreme Court of the United States ruled in Branzburg v Hayes that it was only permissible to compel the disclosure of an informant’s identity when the “government shows a substantial relation between information sought and a subject of overriding and compelling state interest.”
As recently as June 19 this year, in Lane v Franks, the US Supreme Court ruled in favour of whistleblower protection. The court held that such leaks are “a quintessential example of citizen speech” and must not be suppressed in any manner. Though the “floodgates theory” postulates that such protection would result in a deluge of false and malicious claims by garden-variety mischief-mongers, the US Supreme Court did not submit to these apprehensions.
The Obama administration’s hounding of journalists James Risen and Barett Brown for reporting on closely guarded secrets of the US intelligence agencies goes to prove that attacking the anonymity of conscientious informers is the first step in squelching demands for accountability.
The Supreme Court of India’s demand, although made with the intention of arriving at the truth, leads down a slippery slope that will eventually compromise justice.
We welcome your comments at
letters@scroll.in.
During the hearing on Monday, the judges demanded that petitioner Prashant Bhushan disclose the identity of the person who tipped him off about Sinha’s visitor logbook. Bhushan contends that the entries in this logbook bear out his allegation that the CBI director has deliberately compromised the investigation into the scandals.
The court’s demand that the whistleblower’s identity be revealed arose after Sinha claimed that 90% of the logbook entries had been fabricated by people determined to damage his reputation. The judges said that the source of the leak must be determined because the reputation of many people was at stake. To do so, it utilised Order IX Rule 13 of the Supreme Court Rules, 2013 which mandates disclosure of the source of information in every affidavit that is filed before the court.
Shield laws
While it is undeniable that at least one reputation acquired after a lifetime of public service is on the line, the court’s directive jeopardises even the meagre protection whistleblowers enjoy in India. Consequently, it deals a powerful blow to the movement to ensure accountability and honesty in governance.
This is because “shield laws”, or the legal provisions that offer protection to those who blow the whistle on the corrupt and powerful, are the only means to ensure such citizens are not silenced through intimidation or the possibility of retaliation. The indispensability of anonymity cannot be overemphasised: think Mark Felt (Deep Throat) who led the world to Watergate, or more recently Glen Greenwald’s work with Edward Snowden, blowing the cover off the US National Security Agency's dragnet surveillance programme.
Meagre protections
The Law Commission of India first mooted anonymity for whistleblowers in 2002, recommending a Public Interest Disclosure (Protection of Informers) Act. The Malimath Committee on Reforms in the Criminal Justice System also put forward a slew of recommendations in 2003. None of these were acted upon by the government.
In February, after a long struggle, the United Progressive Alliance government finally enacted the Whistleblower Protection Act. This law, greeted with some fanfare, is hardly sufficient even on paper. Section 4, Clause 6 says that no action will be taken by an anti-corruption watchdog or any other competent authority unless the complainant’s identity is disclosed or if the person's identity is incorrect. If at the very outset the law questions the veracity and motivation of the leak, it seriously limits its efficacy.
Persecuting anonymity
In 1972, the Supreme Court of the United States ruled in Branzburg v Hayes that it was only permissible to compel the disclosure of an informant’s identity when the “government shows a substantial relation between information sought and a subject of overriding and compelling state interest.”
As recently as June 19 this year, in Lane v Franks, the US Supreme Court ruled in favour of whistleblower protection. The court held that such leaks are “a quintessential example of citizen speech” and must not be suppressed in any manner. Though the “floodgates theory” postulates that such protection would result in a deluge of false and malicious claims by garden-variety mischief-mongers, the US Supreme Court did not submit to these apprehensions.
The Obama administration’s hounding of journalists James Risen and Barett Brown for reporting on closely guarded secrets of the US intelligence agencies goes to prove that attacking the anonymity of conscientious informers is the first step in squelching demands for accountability.
The Supreme Court of India’s demand, although made with the intention of arriving at the truth, leads down a slippery slope that will eventually compromise justice.
