The amendments allow whistleblowers to disclose information only if it has been obtained through a Right To Information query. The Right To Information Act itself has 10 exemption clauses, listing as many as 32 grounds, that restrict the kinds of information that can be accessed.
A cabinet note from the Department of Personnel and Training reveals the reasoning behind these forbidding provisions of the whistleblowers bill. The government, it appears, is wary of conferring an “absolute right” of a whistleblower to make a complaint.
In the previous version of the bill a whistleblower could make disclosures under the Prevention of Corruption Act, to expose the misuse of power for wrongful gain of a public servant or loss to the government, or a criminal offence by a public servant – all this notwithstanding any of the provisions of the Official Secrets Act. This, the government feels, might affect security, strategic, scientific or economic interests of India. While RTI activists agree that the country’s sovereignty and security need to be protected, they question the severe dilution of the bill.
As Venkatesh Nayak, activist with the Commonwealth Human Rights Initiative, points out, to prohibit a whistleblower from making a complaint about national security, defence or strategic or economic interests means that no official can blow the lid off scams in defence procurement, or wrongdoing in the stock exchanges, or failures in military strategies or intelligence operations.
Adding in the RTI Act restrictions means that a whistleblower is also prevented from revealing matters of commercial confidence, trade secrets or intellectual property of a private company. The fallout would be that no officer, individual or NGO would be able to reveal environmental pollution that a company causes, the kind that often occurs in collusion with public servants. The Cabinet Note offers no justification for why a whistleblower cannot speak up about information involving commercial secrets, parliamentary privilege and personal privacy.
Nayak has calculated that to make a complaint under the Whistleblowers Act one will have to first check that the complaint doesn’t violate the 32 exemptions under the RTI Act and to exemptions under the Official Secrets Act – 34 tests to pass in all before it can be heard. The irony is that the Code of Criminal Procedure compels every citizen to report to the police or nearest magistrate any information about murder, attempt to murder, rioting, adulteration of food and drugs, kidnapping, waging war against the State and bribery. Approaching the courts, as we have seen so far, would offer little in terms of protection of the complainant.
Whistleblowing, not freedom of expression
The whistleblowers bill also prevents a competent authority, like the Central Vigilance Commission, from taking up a whistleblower's complaint without the concerned government department certifying that the complaint does not violate any of the exemptions under law. “The default option for the Central Vigilance Commission is to every time refer the matter back to the concerned authority,” said Nayak. “Why should the department even be looking at the complaint? They should only be responding to an enquiry by the commission.”
The government also reasons, in the cabinet note, that the amendments aim to bring the whistleblowers law in line with the constitutional right to freedom of speech and expression and with the Right to Information Act. In doing this, the government has conflated different objectives of the different laws. The reasonable restrictions that the Constitution allows on the freedom of speech and expression are meant to safeguard national security, the dignity of courts and to protect other people’s rights. The Right to Information restrictions are meant to prevent harmful effects of disclosing information in public.
The Whistleblowers Protection Act, however, is not meant to meet any of these ends but exists to protect whistleblowers during the course of investigation into corruption. A complaint does not have to be made public before an inquiry begins and the competent authority has no obligation to make proceeding transparent until a final order is issued.
“The Act itself was not very strong, but now with these amendments, it’s as good as killing it,” Nayak said.