Whistle-Blower Protection Law Should Not Be Weakened
Bengaluru: 26 July 2018 3:28 pm
Indian lawmakers must reject amendments to a whistle-blower protection law that would dilute its safeguards and deter people from disclosing information in the public interest, Amnesty International India said today.
“Unjustifiably hidden information never reveals itself,” said Shailesh Rai, Law and Policy Director at Amnesty International India. “Whistle-blowers often brave enormous risks to disclose information in the public interest. If the Indian government is serious about delivering good governance and promoting transparency and accountability, it should enforce the whistle-blowers protection law, not damage it.”
The Whistle Blowers Protection Act, 2011, sets up a mechanism for authorities to receive and investigate disclosures about corruption, abuse of power or criminal offences by government officials, and protect whistle-blowers who reveal such information. The Whistle Blowers Protection (Amendment) Bill, 2015 – which has been passed by the Lok Sabha (lower house) and is pending before the Rajya Sabha – seeks to remove whistleblower protection for the disclosure of certain kinds of information and exempt it from being investigated. This includes information which would “prejudicially affect the sovereignty and integrity of India, the security of the State, the strategic, scientific or economic interests of the State, [and] friendly relations with foreign States”.
The Bill states that a government authority will decide whether the disclosure falls under the prohibited categories, and if it decides that it does, the information revealed will not be investigated, even if the disclosure would be in the public interest. Individuals deemed to be disclosing such information would not be protected under the law from legal proceedings or other forms of victimization.
The Bill would also remove safeguards against prosecution for people disclosing information covered by India’s Official Secrets Act, 1923. This colonial-era law imposes severe criminal penalties on the disclosure of official information of almost any kind, without requiring that the disclosure pose a real risk of harm.
“The public’s right to freedom of expression includes a right to access information held by public bodies or entities carrying out public functions,” said Shailesh Rai. “In particular, overly broad terms like ‘security of the state’ or ‘economic interests’ should not be used to prevent the disclosure of information about human rights abuses or other information in the public interest.”
“Whistle-blowers in India have been harassed, threatened and killed for exposing wrongdoing. These amendments, coupled with the lack of witness protection programmes in India, will leave whistle-blowers even more vulnerable.”
The Whistle Blowers Protection Act was passed in 2014, but the central government has not yet passed rules which would make the law operational. The Amendment Bill was passed in the Lok Sabha in May 2015, without any public debate on its contents. Civil society organizations are calling for the Bill to be sent to a parliamentary committee in the Rajya Sabha so that it can be discussed in greater detail in consultation with civil society organizations and the public.
Under international human rights law and standards, exceptions to disclosure should be narrowly defined, clearly provided by law, and be only what is demonstrably necessary and proportionate to achieve certain specific legitimate objectives such as national security and public order. Whistle-blowers should be protected from criminal or other liability when they make disclosures in which the public interest outweighs any harm caused.
The UN Special Rapporteur on freedom of expression has stated that disclosure in matters such as human rights violations, corruption, public safety, environmental harm, and abuse of public office should be presumed to be in the public interest. The Global Principles on National Security and the Right to Information (also known as the Tshwane Principles), which have been welcomed by international experts on freedom of expression, underline that there is “an overriding public interest in disclosure of information regarding gross human rights violations”.
The UN Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights – to which India is a state party – has stated that governments must ensure that laws relating to national security are not invoked “to suppress or withhold from the public information of legitimate public interest that does not harm national security”.