Protect whistleblowers

SENSATIONAL disclosure by Justice R. Raghupathy of the Madras high court that a union minister tried to influence him for granting anticipatory bail to the father-son duo, accused in a mark sheets forgery case, has been followed by a tragic report that the man who blew the lid off the forgery racket in Pondicherry University was murdered. Whistleblower Jayaraman, working with the examination department of the university, had complained to higher authorities in writing that middlemen and university officials were hand-in-glove in large-scale tampering of answer papers and mark sheets. When the university set up inquiry, surprisingly, Jayaraman’s name figured among those allegedly involved. He was harassed and threatened so much that once he attempted suicide. On 18 June last, Bihar PWD engineer Yogendra Pandey was murdered by powerful local contractors for his uncompromising insistence on quality work. He had committed the ‘audacity’ to cancel the contract of a powerful contractor who failed to complete the work by the deadline. Pandey was threatened and thrashed, but his request for providing him security cover went unheeded.
Both Jayaraman and Yogendra Pandey have made the supreme sacrifice for upholding the truth. Earlier Satyendra Dubey and Manju Nath met the same fate. When Dubey ‘dared’ to write to the PMO about the corruption rampant in the National Highway Authority of India, instead of inquiring into the allegations and taking steps to extirpate corruption, Dubey was asked to explain how he could dare write directly to the PMO. Even his identity was not kept secret. The list of whistleblowers does not consist of only these four names. There are countless such heroes who were eliminated by mafias but their sacrifices remained unwept and unsung.
Whistleblowers have traditionally been targeted and eliminated. Jesus was the one who blew whistle against Jewish priests who had converted places of worship into that of money changing, and Roman Governor Pontius Pilate ordered his execution. Present day whistleblowers face threats from mafias as well as the government. Their arrows cannot pierce the epidermis of the administration which is that of a pachyderm. If the whistleblower happens to be a government employee, he is heckled in so many ways. First, conduct rules go against him and s/he is punished for insubordination if the complaint is against the boss. Even the Supreme Court has sanctified such punitive action against the employee though earlier it held that government employees enjoy the same right to freedom of speech and expression, a fundamental right, under Article 19 of the Constitution as any citizen- the right of government servants to participate in demonstrations Article 19 (1) (b) and the right to freedom of freedom of speech under Article 19 (1) (a) (Kameshwar Prasad v. Bihar), the right to form associations under Article 19 (1) (c) (O. K. Ghosh v. E. X. Joseph). But in a clear departure form this position, in M. H. Devendrappa’s case (1998), the Court distinguished the earlier cases on the ground that government service falls under Article 19 (1) (g) (to practise any profession, or to carry out any occupation, trade or business), on which restrictions could be imposed in the public interest. So, it laid down that the right under 19 (1) (a) had be harmonized with Article 19 (1) (g). On this ground, the Court upheld the dismissal of a public servant for exercising his right to freedom of speech against a conduct rule. Devendrappa, an employee of the Karnataka State Industries Development Corporation, complained about the corrupt practices of his boss. In the inquiry conducted by the department, his charges were found true, and yet he was dismissed for violating a service rule. In fact, any law violating the fundamental right is invalid, and the Court ought to have examined the validity of that rule under the touchstone of Article 19 (2) which mentions grounds on which the right to freedom of speech can be curtailed. It is clearly in conflict with its decision in Bennett Coleman and other cases. Surprisingly, again, in Baldev Singh Gandhi v. Punjab, the Supreme Court set aside the dismissal of Baldev Singh, an elected member of a city council. He was dismissed on ground of misconduct for speaking against the decision of the council. The Court differentiated that as a representative of the people, he owed a duty to them to disclose and criticize the decision of the council whereas Devendrappa was only an employee of the corporation. The distinction is inscrutable as Devendrappa too owed a duty to the public to acquaint at least the higher authorities, if not the public, with the prevailing corruption. It only served a national purpose. However, the brouhaha created over Satyendra Dubey’s murder put the government on mat and sensing the public mood, the Ministry of Personnel, Government of india, issued a notification granting immunity to all employees of the government except those in armed and intelligence services. But this is not sufficient. Parliament must enact a robust law to protect whistleblowers both from the government as well as from hoodlums. The Commission to Review the Working of the Constitution recommended to enact such a law and the law Commission’s 179th report suggests ways to help whistleblowers circumvent confidentiality agreement. Stringent punishment must be provided in the act for those harassing the whistleblowers. Once a person complains of corruption the entire department is up in arms against him. Each work of the person is subjected to microscopic scrutiny and one may be trapped as to err is human. In the US, Jeffrey Wigand blurted out truthfully what he saw as the head of research and development for Brown and Williamson Tobacco Corporation- how the company misled consumers about the highly addictive nature of nicotine, how it ignored research indicating that some of the additives used to improve flavour caused cancer, etc. Wigand was persecuted by lawsuits, countersuits, and a severe smear campaign orchestrated by his company to such an extent he lost his family, privacy and reputation. His wife divorced him and their two daughters went to live with the mother.
At present, only four countries- the USA, the UK, Australia and New Zealand- have such a law. In fact, divulging a secret document does not necessarily harm the interest of the nation. When Daniel Ellsberg made the US documents on the Vietnam war public, he was hounded and prosecuted, though finally acquitted. These papers, later known as Pentagon Papers, contained details of the lies told to justify the war. Ellsberg, formerly of the Rand Corporation and the Defence Department, had tumbled down these documents, but White House paranoids, including President Nixon himself, thought Ellsberg might be the first surfaced agent of a vast conspiracy. However, the government made no real effort during the various court proceedings to claim that specific damage would result from publication.
The proposed law also must provide in detail the witness protection programme as most of the whistleblowers are witnesses themselves. It will also extend to general criminal cases where witnesses are harassed and even eliminated. In the USA, witnesses are protected by making them incommunicado, changing their names and faces by plastic surgery, settling them in a new location and giving them new jobs. But even there, only around 1,500 witnesses have been protected like this so far. It may not be possible in India. But some protection must be given and provision should be made for awarding capital punishment for killing a witness as the crime of murder is compounded with the attempt to affect the course of justice.