The government has tabled a bill to amend the Whistleblowers Protection Act of 2011 in the Lok Sabha, but if the bill is passed, there may not be many whistleblowers to protect in the future.

The bill was introduced on Monday with a long list of forbidding don’ts which, say activists, are likely to dissuade anyone from blowing the lid off corruption in the government or bureaucracy.

To begin with, whistleblowers – either public servants, non-profit organisations or individuals – will not be allowed to reveal any documents classified under the Official Secrets Act of 1923, even if the purpose is to disclose acts of corruption, misuse of power or criminal activities. This is in addition to any information that could “prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State” – information that is already off-limits in the existing Whistleblowers Protection Act.

The proposed amendments allow whistleblowers to disclose some kinds of information only if it has been obtained through a Right To Information query. This includes intellectual property, trade secrets and even information that can be considered the “unwanted invasion of privacy” of an individual.

Whistleblowers would be entitled to official protection only if all of these conditions are met, could face action if they are not, and the central and state governments would be the final authorities with the power to judge each case.

Too many exemptions

Unsurprisingly, RTI activists and anti-corruption crusaders are outraged.

“This amendment bill is creating a huge area of exemptions for the state authorities to stay out of reach of whistleblowers,” said Anjali Bhardwaj, the co-convener of the National Campaign for People’s Right to Information, a non-profit forum. The RTI Act, Bhardwaj points out, already makes a lot of information inaccessible to the public on various grounds. By making it imperative for whistleblowers to prove they have obtained information through RTI, the amendment bill leaves very little room for actually calling out corruption in the system.

The controversy around the amendment bill has been raging for several months, with activists claiming that the proposed changes were drafted without any transparent consultation with the public.

The original Whistleblowers Protection Act, although passed in 2011, is not yet operational because its rules have not been regularised. In October 2014, activist Venkatesh Nayak from the Commonwealth Human Rights Initiative sought information through an RTI query on the delay in enforcing the Act and on plans for amending it. In response, the central government declined to provide any information on the grounds that an amendment to the bill was being prepared.

“The amendments have been drafted in secrecy and without any transparency,” said Bhardwaj.

Fussing over national security

Activists believe that the amendment bill’s concern for protecting “national security” and exempting information under the Official Secrets Act is meant to dilute the Whistleblowers Protection Act and eventually turn the law into a dead-letter.

“To some extent it may be correct to keep intelligence and security-related information out of the Act, but even within that, corruption and human rights violations should never be exempt,” said Subhash Agarwal, an RTI activist based in Delhi.

NCPRI coordinator Manu Chaturvedi points out that the excuse of “national security” could be used by any public authority to scuttle any investigation into a whistleblower complaint. “No person, let alone a public servant, will come forward to blow the whistle on corruption or other wrongful actions in government for fear of inviting prosecution under the Official Secrets Act,” said Chaturvedi.

Protecting whistleblowers is a must

Genuine concerns over national security, says Bhardwaj, can be addressed without compromising the purpose and strength of the Whistleblowers Protection Act. “The Act could put in place specific mechanisms to ensure that sensitive information is not leaked to the public – such as making sure whistleblower complaints go straight to a judicial officer in a sealed envelope,” said Bhardwaj.

What must not be compromised under any circumstances, she says, is the right of a whistleblower to avail of protection.

“Whistleblowers in any society take on the severest of personal risks and often make unprecedented sacrifices in order to safeguard the rights of their fellow citizens from corruption and other forms of maladministration in public institutions,” said Chaturvedi. “Providing a whistleblower with a safe alternative to silence is the foundational principle of every whistleblower protection law.”

Meanwhile, Dhananjay Dubey – whose brother Satyendra Dubey was murdered in 2003 for exposing corruption in the Golden Quadrilateral highways projects – is keen to see any kind of law for whistleblower protection implemented.

“It has been 11 years [since Satyendra’s killing], during which at least 50 whistleblowers have lost their lives, but Whistleblowers Protection Act has still not been made a functional law,” said Dubey, an electronics engineer at a private firm in Delhi. “Passing of the Act has been delayed so that it can be diluted, but if we have some kind of a functional law, at least some people will be deterred from harming whistleblowers.”