#India – Who Is Qualified To Be A Whistleblower ?



In a recent judgement, the Supreme Court has argued about the basic qualifications required to expose wrongdoings by organisations. Reports Ankit Agrawal
BY  ANKIT AGRAWAL  , Tehelka

Last month a two member bench of the Supreme Court comprising Justice Surinder Singh Nijjar and Justice MY Eqbal of the Supreme Court of India gave it’s verdict on the civilian case of Manoj H Mishra v/s Union of India and Others. The civil suit was filed by Mishra to contest his sacking from the Kakarapar Atomic Power Project (KAPP) at Surat, Gujarat.

Mishra was working as a tradesman at the power-plant when on the night of 15 July 1994 Surat recorded an unprecedented rainfall of 480mm in 10 hours, causing massive flooding inside the complex. More than 25 feet of the turbine, adjacent to the nuclear reactors, was submerged before dawn. In fact, some of the barrels that contained nuclear waste were also washed away by the floodwater. Even though, the emergency was declared on the next day, due procedures, which includes alerting State authorities and deputing assistant health physicist to check contamination and radiation, weren’t implemented. Worried, Mishra wrote a letter to the editor of  Gujrat Samachar  mentioning flooding inside the nuclear facility, improper safety precautions and flouting of Action Plan for Site Emergency. Pointing towards corruption, he demanded an inquiry by a high-level committee. Subsequebntly, he was sacked by the inquiry committee for criticising the project and passing confidential information to the media.

Mishra contented this punishment in lower, high and the Supreme Court and argued that he acted as whistleblower keeping in mind the best interest of people and the nuclear facility. While dismissing his case the SC delved into the concept of whistleblower and referred to the Indirect Tax Practitioners v/s RK Jain, which defines whistleblower as “a person who raises a concern about wrongdoing occurring in an organisation or body of people. Usually this person would be from that same organisation. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption.” Following this reference Justice Nijjar observed in judgement, “In our opinion, the aforesaid observations are of no avail to the appellant. It is a matter of record that the appellant is educated only upto 12th standard. He is neither an engineer, nor an expert on the functioning of the Atomic Energy Plants. Apart from being an insider, the appellant did not fulfill the criteria for being granted the status of a whiste blower. One of the basic requirements of a person being accepted as a whistleblower is that his primary motive for the activity should be in furtherance of public good. In other words, the activity has to be undertaken in public interest, exposing illegal activities of a public organization or authority. The conduct of the appellant, in our opinion, does not fall within the high moral and ethical standard that would be required of a bona fide whistleblower.” The court further says that Mishra breached confidentiality agreement by alleging about widespread corruption in the organisation.

RTI and whistleblowers protection activists are miffed following the judgment. Prashan Bhushan, a senior advocate, who appeared for Mishra in the court, termed this judgment a “fallacy of justice”. He said, “By informing the media about the near-catastrophic accident and poor response by the authorities, Mishra did a public duty therefore he was a whistleblower.” Shekhar Singh, RTI activist, points out two dangerous points in the judgment, expertise of the whistleblower and purity in motive. He says, “What is the sort of expertise one wants to be a whistle blower? The judgement falls flat when compared to the Whistleblowers Protection Bill, 2011 as it doesn’t have any mention about the purity of intention. Important thing is to expose the wrongdoing.”

#India – A sound whistleblowers’ protection law is long awaited


The responsibility to protect

Anjali Bhardwaj , Shekhar Singh : Mon May 06 2013,
A sound whistleblowers’ protection law is long awaited. It languishes in Parliament at the system’s perilNandi Singh, a resident of a remote village in Assam, was brutally attacked with axes in September 2012 as a result of a complaint filed by him regarding irregularities in the functioning of fair price shops supplying rations under the public distribution system. He succumbed to his injuries on the way to the hospital and his wife was seriously injured in the attack. Nandi Singh had also been attacked a month prior to his murder and had filed a case and sought protection. His wife and two children await justice.Ram Thakur from Bihar’s Muzaffarpur district was shot dead last month by relatives of the mukhiya of his village. He had exposed embezzlement of funds in the MGNREGA in Ratnauli panchayat using muster rolls and other information he had accessed under the RTI Act. He had also alleged that the mukhiya of the village had siphoned off the funds. Prior to the fatal attack, there had been several incidents of attacks on him and he had repeatedly sought protection from the police.

Nandi Singh, Ram Thakur and thousands like them across the country have been threatened, assaulted, even killed for raising their voices against corruption and wrongdoing. Following the passage of the RTI Act in 2005, it isn’t just officials within the system who have access to government information — ordinary citizens across the country are holding local officials to account in ways that were unfathomable even a decade ago. Unfortunately, for these whistleblowers who dared to show truth to power, there has been no justice. Neither have their attacks and murders been properly investigated, nor have the cases of corruption and wrongdoing they exposed been dealt with.

The well-known case of Satyendra Dubey, a graduate from IIT-Kanpur who was murdered in 2003, after he exposed financial and contractual irregularities in the Golden Quadrilateral Corridor Project of the National Highways Authority of India, had sparked the demand for an effective bill to protect whistleblowers. However, over nine years and innumerable attacks on whistleblowers later, the bill remains stuck in legislative morass.

The Whistleblowers Protection Bill, introduced in Parliament in August 2010, was passed by the Lok Sabha in December 2011 and has been awaiting discussion and passage in the Rajya Sabha. The bill provides for a mechanism to conceal the identity of a whistleblower, where (s)he feels that revelation of identity would lead to victimisation or harassment by vested interests. The bill makes it an offence to reveal the identity of the complainant and prescribes imprisonment and fine for anyone who reveals the identity. In addition, there are provisions to protect the whistleblower from victimisation resulting from the disclosures made.

There are, however, several lacunae in the bill that need to be discussed and addressed in Parliament. One of the most significant is the lack of a clear and adequately broad definition of what constitutes victimisation. It is critical to ensure that under the law, in case of a complaint of victimisation, the charge should stand established if the action or inaction that led to the complaint violates any law, rule, policy, order or is not in conformity with the general practice, procedures and norms in the matter, or is not based on sound reasons.

The bill is also silent on penalties and compensation vis-à-vis victimisation. If the legislation is expected to effectively deter victimisation, it must provide for strict punishment and penalties to be imposed on anyone who victimises whistleblowers. It must also ensure that wherever a whistleblower is killed or suffers grievous injury as a result of making a complaint, action is taken on a priority basis on the original complaint of corruption or criminal offence filed by the whistleblower. Cases of people like Nandi Singh, Ram Thakur and scores of whistleblowers who are poor and marginalised, bear testimony to the fact that whistleblowers and their families need to be compensated for any loss or other detriment suffered by them as a result of victimisation.

The law must cover complaints against the prime minister, chief ministers and all other public authorities, like the armed forces. Also, it is important that complainants against the private sector get protection under this act. It is widely recognised that corruption in private institutions has a significant impact on the public. Given the vast scale of the private sector in India and the corruption therein, it is important that this bill be extended to complaints about the private sector when they either abet corruption (under Section 12 of the Prevention of Corruption Act), or commit a criminal offence. This would also be in keeping with the stated position of the government, as indicated in the prime minister’s speech at a CBI conference in October 2011, to bring the private sector within the ambit of anti-corruption laws.

The law must take care to not empower anyone to dismiss or close a complaint on the grounds that it is “frivolous” or “vexatious”. These terms are impossible to define objectively and are likely to be misused. It may lead to a situation where most complaints would be routinely rejected as being frivolous or vexatious.

It is the moral obligation of the government to protect whistleblowers like Satyendra Dubey, Ram Thakur and Nandi Singh, who represent the conscience of the nation. A robust mechanism for the protection of whistleblowers in a time-bound manner is necessary to promote an environment to encourage people to blow the whistle about wrongdoings. A sound whistleblowers’ protection law might not be sufficient to protect whistleblowers, but is certainly a long-awaited and necessary first step. The National Campaign for Peoples’ Right to Information (NCPRI) has been demanding that the Whistleblowers Protection Bill be immediately discussed and passed by Parliament in the current session. This legislation is a key measure for fighting corruption, and in conjunction with other anti-corruption and grievance redress legislations like the Lokpal bill and the grievance redress bill, will ensure better governance.

The writers are members of the National Campaign for Peoples’ Right to Information

– See more at: http://www.indianexpress.com/news/the-responsibility-to-protect/1111862/0#sthash.EipBoELw.dpuf

 

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