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Discretion, the better part of valour

First published in The Hindu

In order not to deter whistle-blowing, past court observations should encourage a debate on the need to remain 
discreet about the identity of informers in high-profile corruption cases

whistleblower

“In a time of universal deceit, telling the truth is a revolutionary act.”

– George Orwell

The Supreme Court’s insistence that the identity of the secret informer — who gave the copy of the entry registers of the official residence of the Central Bureau of Investigation (CBI) Director, exposing his meetings with 2G spectrum scam accused — be revealed, has the potential to seriously deter anonymous whistle-blowing in India. The lawyer, Prashant Bhushan, who submitted the document against the CBI chief in the form of an affidavit in the on-going investigations into the 2G scam, will now have to satisfy the court regarding the veracity of the evidence. The court, for its part, has taken recourse to the justification that court rules obligate every person filing an affidavit to disclose the source of his/her information. It has sought the information in a sealed cover.

Though there is a law in place with the apparent intention to “protect” people coming forward to expose corruption, the safety of whistle-blowers cannot be guaranteed in India. In an affidavit filed by the Centre for Public Interest Litigation (CPIL) on September 18, the appellants have noted that “revealing the identity of informants in the corruption case would not only be a breach of trust on the part of the organisation, but would also tantamount to putting them under serious risk of bodily harm, harassment or victimisation.” It has further argued that revealing the identity of the whistle-blower is not pertinent, as in most cases involving public interest, the court “has taken cognisance of information placed before it without asking the source of the information from the petitioners.” It cites the example of a bench headed by Justice J.S. Verma who never asked for the source of the ‘Jain diary’ in the Hawala case and yet ordered a court-monitored investigation into the Vineet Narain case (1998) 1 SCC 226.

Need for anonymity

Former Information Commissioner Shailesh Gandhi told The Hindu that the court would do well to begin investigation into the allegations and question the CBI chief for his alleged inappropriate conduct in compromising investigations into the telecom scam, rather than place the informant, who brought the matter to the court’s attention through the lawyer, in a position of vulnerability.

On May 13, 2014, President Pranab Mukherjee gave his assent to the Whistleblowers Protection Act, 2011. The Act, hurriedly passed in the last parliamentary session before the general election, does not have any explicit provisions on posting of anonymous complaints pertaining to corruption. Chapter II on Public Interest Disclosure in the Act says, “No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant…” thus making it mandatory to reveal the complainant’s identity to the Competent Authority. The Act, however, mandates concealing the identity of the whistle-blower to the public and the agency involved unless he himself makes his identity public or gives a no-objection to the disclosure of his identity.

The Act also places the burden of establishing veracity of complaint on the whistle-blower, by demanding that in case the complainant does not agree to being named, then he must “provide all documentary evidence in support of his complaint to the Competent Authority.” These provisions place too much responsibility on the shoulder of the whistle-blower.

The 2011 Act is listed for review under the Repealing and Amending Bill, 2014, introduced by the Union Law Minister in the Lok Sabha. Though only minor amendments have been indicated, the government could consider reviewing the provisions for anonymity as well.

Whistle-blowing itself is fraught with risks and a serious debate is needed to assess the virtues of maintaining anonymity of the complainant. It is worth recalling here the murder of engineer Satyendra Dubey who had dared to expose corruption in the Golden Quadrilateral project in 2003. Though Dubey had made a written plea to then Prime Minister Atal Bihari Vajpayee to keep his identity a secret for exposing corruption in the sub-contracting of the project, he lost his life to the local mafia that had been illegally benefitting from the project.

As of now, the rules for the Whistleblowers Protection Act, 2011, have not been framed, rendering whatever protections available on paper useless. Meanwhile, the Supreme Court should evaluate the risks involved in seeking the identity of the 2G scam whistle-blower. In the Indirect Tax Practitioners versus R.K. Jain case (2010) 8 SCC 281, the Supreme Court had recognised the practice of revealing misconduct such as a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health or safety violations and corruption through discreet means. It further said: “In these cases, depending on the information’s severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies.”

Lessons from ‘Watergate’

The 2G spectrum allocation scam, which is at the centre of the present controversy, is one of the biggest scandals unearthed during the regime of the previous United Progressive Alliance (UPA) government. Though the numbers are disputed by various agencies, the CBI investigating the case had pegged losses incurred from allocation of 2G telecom spectrum through corrupt methods at Rs. 30,984.55 crore in its first charge sheet.

The Indian telecom scam infamously made it to the second spot in Time magazine’s ‘Top 10 abuses of power list’ in 2011, the first being the 1974 ‘Watergate’ scandal in the U.S. But while in that country the identity of the secret informer “Deep Throat” — who exposed the White House burglaries and illegal espionage activities aimed to help the U.S. President Richard Nixon’s re-election — was kept protected, in India, the messenger is sought to be unmasked. It was only 30 years after Washington Postjournalists broke the story of the ‘Watergate’ scandal that the identity of the informer, Federal Bureau of Investigation agent Mark Felt, was made public. President Nixon, whose corrupt activities stood exposed, resigned in the face of certain impeachment.

In India by comparison, the prime accused, ex-telecom Minister A. Raja, is out on bail and the former Prime Minister, under whose auspices the scandal took place, completed a full term in office before his party was routed in the 2014 general election. And now the Director of the agency investigating the scam allegedly met the accused in the case. For sure, the world’s largest democracy could do better.

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About Vidya Venkat

Senior Assistant Editor, The Hindu. Anthropology graduate from SOAS, UK.

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