This is the updated version of my previous Article
in this regard that was written by me in 2004/05.
The Article was originally written to suggest Indian Government to ensure the “Protectional Requirements” of Whistleblowers in India. However, it has been more than 6 years since that Article was written and even till now we have no Whistleblower Protection Laws in India
None can doubt that a Strong and Effective Whistleblowers Protection Law in India is urgently required. Whistleblowing is capable of gifting a free, transparent and just social order and it can eliminate the arbitrariness, officialdom and corruption from a society. This is more so when the system of E-Governance is used for Public-Governmental interactions. The Accountability can be established with the use of E-Governance in the Governmental and Non-Governmental functioning.
The concept of E-Governance can do many wonders and one of them is to play the role of Whistleblowing. The expression “Whistleblowing” is very wide in scope and it refers to a situation where the factum of arbitrariness, illegality or a wrongful act by the “Dominant Personality” is brought to the notice of general public and Courts. The dominant personality may be the all-powerful State, its instrumentalities or even the private employers, who by virtue of their position and resources are capable of suppressing the wrongful conduct. Such a conduct is required to be brought before the scrutiny of the general public and the courts, so that the culprit may be punished. The concept of Whistleblowing is claimed to be the gift of foreign countries, particularly the USA. That is, however, not correct. It was always present in India in the form of “investigative journalism” and “Public Interest Litigation” (PIL). Thus, the “Nomenclature” and not the “Concept” is alien to India. The public-spirited citizens always participated in bringing and establishing a transparent, just, fair and reasonable Governmental dealing. This takes us to the “modes” of Whistleblowing as used in India from time to time.
II. Modes of Whistleblowing
The modes of Whistleblowing can be grouped under the following categories:
(A) The Traditional Modes, and
(B) The Contemporary Modes.
(A) The Traditional Modes
The traditional methods of Whistleblowing can be grouped under the following categories:
(i) The Constitution of India, and
(ii) The Statutory Enactments.
(i) The Constitution of India: The Constitution of India provides means of Whistleblowing in the form of PIL and enforcement of “Public Law Remedy” for the violation of Fundamental Rights. The difference between these two remedies is very crucial. In the former case the process of Whistleblowing safeguards the interest of public at large whereas in the latter case invoking various Constitutional Remedies redresses personal violation of Fundamental Rights. The Constitution of India is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it. It is really the poor, starved and mindless millions who need the court’s protection for securing to themselves the enjoyment of Human Rights.
The Constitution precedents cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face the death and destruction. Then, neither the court nor the Constitution will save the country.
This line of thinking has been now recognised and adopted by various social reformers, lawyers, judges and social workers. Even, general public now knows that the court has constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness and administrative deviance. The Socio-Justice tool through which these aspirations of the Constitution and people of India are achieved is known as “Public Interest Litigation” (PIL). Lexically the expression PIL means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights and liabilities are affected. The evolution of PIL in India has an interesting background. In the famous case of Kesavananda Bharati v State of Kerala the Supreme Court ultimately put a brake on the arbitrary and unreasonable power of Legislature to destroy the “Basic Features” of the Constitution. Thus, the seeds of PIL could never have been planted had the Supreme Court not brought justness and fairness in the “Indian Legal System” in the year1973, by formulating the “Doctrine of Basic Structure”. Justice Krishna Iyer sowed the seeds of the new dispensation in Mumbai Kamgar Sabha v Abdulbhai Faizullabhai and used the expression PIL and “Epistolary Jurisdiction” in Fertilizer Corporation Kamgar Union v U.O.I. In between, the Supreme Court interpreted the expression “Procedure Established by Law” as a procedure which must be “Just, Fair and Reasonable” in the year 1978. This led to the testing of any “Law” on the touchstone of Articles 14, 19 and 21 “Collectively” and thus brought Justness and Fairness in the State’s dealing with the general public. The Supreme Court in the year 1993 declared “Independence of Judiciary” a “Basic Feature” and acquired autonomy in the selection and appointment of judges. This made the interference of “Executive” in the appointment of judges a forgotten practice and made the judges more free and impartial to render justice. In the year 1993 the Supreme Court held that judicial review U/A 32 and 226 is a Basic Feature of the Constitution, which is beyond the pale of “Amendability”. Thus, the discretion to entertain a dispute or petition was reserved exclusively with the Judiciary. This was a landmark judgment since all the PILs are either filed U/A 226 or U/A 32. This means that the discretion to entertain a PIL itself can be considered to be a part of Basic Feature and the only limitation could be the self-imposed restriction by the court itself. To supplement all this, the collective powers of Articles 32, 136, 141 and 142 made the Indian Supreme Court one of the most powerful court of the World. The court treated even a simple letter as a PIL. Since the coffers of the State were not burdened by this practice, the “Executive” did not object to the growth of PIL as a measure for emancipation of the poor and the weaker sections. Even the public at large supported the PIL drive. Thus, volunteer social activists are allowed standing; a simple letter can be accepted as a writ petition, the court itself will shoulder much of the burden of establishing the facts through the commissions, and whenever possible the case will move swiftly to the issue of remedy, by-passing the time-consuming and costly process.
The substantial accomplishments of Indian PIL surely prove that it is a development worthy of the most serious consideration by jurists, lawyers and judges from all societies, and particularly from the United States where the parallel and contrasts are so striking. The instrument of PIL has been used in India as the most frequent and effective mode of Whistleblowing. The same is accompanied with the enforcement of “Public Law Remedies” for the enforcement of Fundamental Rights. For instance, in Chairman, Railway Board v Chandrima Das the Supreme Court observed: “When rape was committed by railway employees on a woman in a building belonging to railways, a writ petition filled by the victim against Government for compensation would be maintainable and it cannot be said that she should have approached a civil court for damages and the matter should not have been considered in a writ petition U/A 226 of the Constitution. Where public functionaries are involved and the matter relates to the violation of the Fundamental Rights or the enforcement of public duties, the remedy would still be available under the “Public Law” notwithstanding that a suit could be filed for damages under the “Private Law”. It was more so when it was not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which was involved as the petitioner was a victim of rape which is violative of the Fundamental Right of a person as guaranteed U/A 21 of the Constitution”. Thus, the collective force of PIL and “Public Law Remedies” provides us the medium of “Constitutional Whistleblowing”. (ii) The statutory enactments: The statutory enactments like Indian Penal Code, 1860, the Prevention of Terrorism Act, the Code of Civil Procedure, 1908, etc also provided means for fighting against civil and criminal wrongs and the same also proved effective deterrent for the commission of further wrongs. The same are, however, incomplete without the means of “information technology” that can provide the safest, secure and strongest form of Whistleblowing. This takes us to the contemporary modes of Whistleblowing.
(B) The Contemporary Modes
The instrument of Whistleblowing can be invoked most effectively by combining it with the Information and Communication Technology (ICT). This is because the medium of ICT is not only speedier and economical but equally the safest and strongest. It must be appreciated that the evils of corruption, delinquencies, scams, etc are intangible in nature and they breeds due to lack of transparency and accountability. The use of ICT in the form of E-Governance will eliminate these evils by bringing transparency and accountability. With the enactment of the Information Technology Act, 2000, more and more transparency is expected in governmental functioning by keeping people aware of the state’s plan, policies, objectives and achievements. The Act facilitates e-governance by accepting electronic records and digital signatures in the government offices and its agencies. These techniques are intended to involve the use of alternatives to paper-based methods of communication and storage of information, and to facilitate electronic filing of documents with the government agencies. This will make the government offices hassle free and transparent. The aim of chapter III of the Information Technology Act, 2000, which deals with E-Governance is to shift the focus of governance from being government centric to citizen centric. It further aims at providing quality services to the citizens. The goal is to provide services to the citizens anytime and anywhere through a number of channels at a reasonable cost and in an efficient manner. With the help of ICT, the daily matters can be effectively taken care of irrespective of the field covered by it.
The beneficial concept of e-governance can be utilized for the following purposes:
(1) To have access to public documents.
(2) For making online payments of various bills and dues.
(3) To file statutory documents online.
(4) To file the complaints, grievances and suggestions of citizens online.
(5) The online facility can be used to enter into a partnership the appropriate government in cases of government contracts.
(6) The citizens can use the online facility to file their income tax returns.
(7) The citizens will enjoy the facility of online services.
(8) The various departments of the government can be computerized and centralized and the responsibility for its proper maintenance can be fixed on an agency like National Informatics Centre.
This sort of arrangement will definitely help in establishing a better state-citizen relationship. It will, further, result in bringing transparency in governmental functioning and reduction of corruption. The threats to life and limbs that is generally associated with real space disclosures are also missing. The informants and witnesses are better protected and this result in smooth and hassle free disclosures of social evils. In fact, the mere use of e-governance results in automatic scrutiny of various social evils as the medium of information technology recognises no pressures and approaches. Further, any manipulation in the same can be directly attributable to the persons having control over the information technology.
III. Justification for Whistleblowing
The strongest justification for allowing the use of Whistleblowing is that the people of India have the right to impart and receive information. The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the constitution of India. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity. The right U/A 19(1)(a) is, however, available only to the citizens of India and non-citizens can claim only right to know U/A 21 of the Constitution of India.
Thus, the Whistleblowing gets its legitimacy under the following:
(i) Freedom of information under Article 19(1)(a), and
(ii) Right to know under Article 21.
(1) Freedom of information under Article 19(1)(a): Article 19(1)(a) of the constitution guarantees to all citizens freedom of speech and expression. At the same time, Article 19(2) permits the State to make any law in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by Article 19(1)(a) of the constitution in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation and incitement of offence. Thus, a citizen has a right to receive information and that right is derived from the concept of freedom of speech and expression comprised in Article 19(1)(a). It must, however, be noted that freedoms under Article 19, including Article 19(1)(a), are available only to citizens of India. An alien or foreigner has no rights under this Article because he is not a citizen of India. Thus to confer protection upon non-citizens one has to depend upon and apply Article 21 which is available to all persons, whether citizen or non-citizen.
(2) Right to know under Article 21: Article 21 enshrines right to life and personal liberty. The expressions “right to life and personal liberty” are compendious terms, which include within themselves variety of rights and attributes. Some of them are also found in Article 19 and thus have two sources at the same time. In R.P.Limited v Indian Express Newspapers the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy. In view of transnational developments when distances are shrinking, international communities are coming together for cooperation in various spheres and they are moving towards global perspective in various fields including Human Rights, the expression “liberty” must receive an expanded meaning. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. Article 21 confers on all persons a right to know which include a right to receive information. The ambit and scope of Article 21 is much wider as compared to Article 19(1)(a). Thus, the courts are required to expand its scope by way of judicial activism. In P.U.C.L v U.O.I the Supreme Court observed that Fundamental Rights themselves have no fixed contents, most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation. There cannot be any distinction between the Fundamental Rights mentioned in Chapter-III of the constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court.
Further, it is well settled that while interpreting the constitutional provisions dealing with Fundamental Rights the courts must not forget the principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. The courts are under an obligation to give due regard to the international conventions and norms while construing the domestic laws, more so when there is no inconsistency or conflict between them and the domestic law. The courts in India can take clue from various foreign laws concerning Whistleblowing by moulding the same as per the requirements of Indian conditions. The courts can also recognise the rights of the government to restrict the flow of information to general public. For instance, in P.U.C.L. v U.O.I the Supreme Court specified the grounds on which the government can withhold information relating to various matters. The Supreme Court observed: “Every right- legal or moral- carries with it a corresponding objection. It is subject to several exemptions/ exceptions indicated in broad terms. Generally, the exemptions/ exceptions under those laws entitle the government to with hold information relating to the following matters:
(1) International relations;
(2) National security (including defiance) and public safety;
(3) Investigation, detection and prevention of crime;
(4) Internal deliberations of the Govt;
(5) Information received in confidence from a source outside the Govt;
(6) Information, which, if disclosed, would violate the privacy of the individual;
(7) Information of an economic nature (including Trade Secrets) which, if disclosed, would confer an unfair advantage on some person or concern, or, subject some person or Govt, to an unfair disadvantage;
(8) Information, which is subject to a claim of legal professional privilege, e.g. communication between a legal adviser and the client; between a physician and the patient;
(9) Information about scientific discoveries”.
Thus, if a given case does not fall within the restrictions contained U/A 19(2) or abovementioned restrictions, the same cannot be withheld from the public scrutiny.
IV. Safeguards to Whistleblowers
The existing laws contain various provisions that restrict the access to the whistleblowers and thereby prevent their disclosure. For instance, under section 173 (6) of Cr.P.C the police officer can form an opinion that any part of the statement recorded under section 161 of the Code of a person, the prosecution proposes to examine as its witness, need not be disclosed to the accused if it is not essential in the interests of justice or is inexpedient in the public interest.
Similarly, though section 273 of the Code requires the evidence to be taken in the presence of the accused, section 299 indicates that in certain exceptional circumstances an accused may be denied his right to cross-examine a prosecution witness in open court. The concerned person or witness may be the whistleblower, whose identity can be concealed by the courts in the interest of justice. Further, the Law Commission of India and other Commissions have also contributed significantly for the protection of whistleblowers. The 14th Report of the Law Commission (1958) examined, inter alia, the question of providing adequate facilities to witnesses attending cases in courts. The 4th Report of the National Police Commission (1980) acknowledged the troubles undergone by witnesses attending proceedings in courts. The 154th Report of the Law Commission (1996) particularly noted: “Necessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality.” In its 178th Report (2001), the Law Commission recommended the insertion of section 164A in the Cr.P.C to provide for recording of the statement of material witnesses in the presence of Magistrates where the offences were punishable with imprisonment of 10 years and more. On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha and is pending enactment. The Law Commission’s 179th Report on Public Interest Disclosures and the Protection of Informers, states thus: “Good-faith whistleblowers represent the highest ideals of public service and challenge abuses of power. They test loyalty with the highest moral principles but place the country above loyalties to persons, parties or Governments”. The same also seems to be stress of the “consultation paper on witness identity protection and witness protection programmes” issued by the Law Commission. These provisions must be construed in a liberal manner by the courts to protect the whistleblowers.
V. Judicial Response
The response of the Supreme Court for providing protection to witnesses and whistleblowers is positive and justice oriented. The Supreme Court, in Gurbachan Singh v State of Bombay upheld a provision of the Bombay Police Act, 1951 that denied permission to a detenue to cross-examine the witnesses who had deposed against him. It was held that the law was only to deal with exceptional cases where witnesses, for fear of violence to their person or property, were unwilling to depose publicly against bad character. In Naresh Mirajkar v State of Maharashtra the Supreme Court recognised the validity of the procedure of holding an in-camera trial. The Supreme Court was of the opinion that in certain circumstances, the identity of the witness can be kept secret and concealed by holding an in-camera trial. The decision of Maneka Sanjay Gandhi v. Rani Jethmalani stressed the need for a congenial atmosphere for the conduct of a fair trial and this included the protection of witnesses. Similarly, in A.K. Roy v Union of India, stressing on the need to protect the identity of the informant, the Supreme Court held that the disclosure of the identity of the informant may abort the very process of preventive detention because, no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross-examination. In Kartar Singh v. State of Punjab the Supreme Court upheld the validity of ss.16 (2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which gave the discretion to the Designated Court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the names and addresses of witnesses in its orders. The court held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions. The same reasoning was applied to uphold the validity of Sec. 30 of the Prevention of Terrorism Act, 2002 (POTA) in People’s Union of Civil Liberties v. Union of India. In State of Maharashtra v Dr.Praful.B.Desai the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice. In Zahaira Sheikh v State of Gujarat (the Best Bakery Case), in the context of the collapse of the trial on account of witnesses turning hostile as a result of intimidation, the Supreme Court reiterated that “legislative measures to emphasise prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day. In Sakshi v U.O.I the Supreme Court referred to the 172nd Report of the Law Commission and laid down that certain procedural safeguards had to be followed to protect the victim of child sexual abuse during the conduct of the trial.
The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade, that decision cannot be allowed to operate. The primary responsibility for bringing such affairs before the courts lie with the whistleblowers. This process, however, has its own perils and deleterious effects. Thus, the life and limb of these whistleblowers should be duly protected. The traditional methods of protection of these whistleblowers though are effective but are not free from risks and lacunas. The use of information technology, particularly a sound e-governance base, can safeguard the interest of justice in the most benign manner. The whistleblowers are protected, as they are not exposed to the retaliatory tactics of the persons exposed by them. At the same time valuable evidences are also made available to the courts to do complete justice. The use of video- conferencing and web-meetings can solve most of the problems associated with the evidence giving. The whistleblowers can be testified by using these technological devices that are readily available at the disposal of the courts. It is no bravery to expose the crucial witnesses and whistleblowers to the risks of retaliatory tactics adopted by hard-core criminals. The prudent judicial system should maintain a balance between the interest of justice on the one hand and the interest of the whistleblowers on the other. A crucial witness or a whistleblower need not to be taken to the court premises if a sound e-governance base are in vogue. The time, money, efforts and resources consumed in bringing the whistleblowers is on a much higher footing as compared to the use of e-governance for the same. The evidence of these whistleblowers can be recorded and its recorded version can be transmitted to the court along with a copy of the same. The evidence so recorded is of durable nature and can prevent the miscarriage of justice. Thus, the maintaining of e-record is also important in maintaining an apposite judicial system and for meeting the ends of justice. For instance, if the records of the proceedings are destroyed due to natural calamities and their reconstruction is not possible, then the court has no other option but to acquit the accused. An electronic record is not only durable but can be easily stored as well. It must be noted that in majority of cases the witnesses do not come forward to give evidence and many important pieces of evidences are lost forever. This results in acquittal of the accused and a miscarriage of justice. If the identity of the witnesses is concealed and their evidence has been obtained by the use of e-governance, then justice can be administered in its most judicious manner. A sound judicial system requires proper evidencing and the same is a risky affair on all counts. This is not a case of dissatisfaction with either the justice administration system or the law enforcement system but the natural and human tendency that must be recognised and accepted. The courts must stress on obtaining as much evidence as possible. The same can be done by primarily relying upon a sound e-governance base, though traditional methods of evidencing can be also be used to supplement it. A court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a “purposive, updating and an ongoing interpretation”. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable, which the Indian Judiciary is capable of tackling effectively and efficiently. Thus, the future of Whistleblowing is very bright in India, as the “electronic justice delivery system” has already found a place in the Indian legal system.
 © Praveen Dalal, Managing Partner, Perry4Law, New Delhi, India. All Rights Reserved. Contact at email@example.com, firstname.lastname@example.org .
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