Whistle-blowers continue to be murdered even as a law for their protection awaits notification.The death of a 36-year-old Indian Administrative Service officer in Bengaluru and the suspicion that his death was not self-inflicted, has yet again sparked off a debate on the fate of whistle-blowers, Right to Information (RTI) activists, public servants who take on vested interests and witnesses to major crimes in India.
On 11 March, the Supreme Court upheld the life imprisonment awarded to six men for murdering an Indian Oil executive S Manjunath in 2005 because he had obstructed the oil mafia’s doings in Uttar Pradesh. Since 2003, when Satyendra Dubey was murdered in Bihar for exposing corruption in the Golden Quadrilateral Highway building project, India has witnessed several cases of assault and murder of RTI activists and whistle-blowers.
There have been a large number of cases of harassment, physical intimidation and victimisation of those who have stood up to corruption. In a different set of cases, court witnesses are threatened and even murdered to prevent them from testifying against the accused, two witnesses in the rape case against so-called god-man Asaram Bapu were killed within six months of each other. A judge and police inspector have also reportedly received threats since the case began in mid-2014. Against this scenario stands the unenforced Whistle Blowers Protection Act, 2011 while the courts continue to exhort governments to draw up effective witness protection mechanisms.
The Whistle Blowers Protection Act, 2011 got presidential assent in May 2014. However, no rules have been formed under the act and more importantly the National Democratic Alliance government has declared that the 2011 act needs amendments on national security and sovereignty considerations, before it can be implemented. As it is, the shortcomings in the legislation which was approved by Parliament in February 2014 have been much debated and written about.
Prime among these shortcomings are the punishment of up to two years imprisonment and a fine of Rs 30,000 for “false and frivolous” complaints and no action on a disclosure if it does indicate the identity of the complainant or public servant, or if the identity is found to be “incorrect.” Further, if the complainant is found to have been involved in the irregularity or illegality, he or she will not have immunity or leniency.
The 2011 act also does not apply to the private sector. Given that there is a nexus between government employees and those from the private sector in almost all major corruption cases, the non-applicability of the law to the private sector is a major lacuna. Many large Indian companies have, however, set up their own whistle-blower protection policies, ironically, fearing exposure through social media should they ignore initial complaints.
The Supreme Court as well as three reports of the Law Commission have all stressed the need for an effective witness protection mechanism in the country. On 10 March 2015, the Bombay High Court directed the Maharashtra government to finalise, within six months, a witness protection law that would bring whistle-blowers and activists under its jurisdiction.
The high court was hearing of a suo motu petition regarding the murder of RTI activist Satish Shetty in 2010. Again, media reports recently gave details of an affidavit filed by the Central Vigilance Commission in the Supreme Court showing that in the 3,634 complaints filed with it from 2007 to 2014, only 1,063 were forwarded for action. More tellingly, 244 complaints filed by whistle-blowers of victimisation and intimidation were ignored.
Quite apart from the foot-dragging over enforcing the whistle-blowers protection law, the Indian situation adds complexity to an issue that is a difficult one in any country. No sooner does a whistle-blower expose a major scam involving the powerful, he or she is accused of being a “political tool.”
Then there are the ingrained structural weaknesses in the law enforcement machinery, the regulatory mechanism and the delays in the judicial process. When these major systems which are supposed to deal with crimes and corruption are riddled with major drawbacks, it is but natural to be skeptical that any whistle-blowers protection law can be effectively implemented and witnesses protected from retribution.