Whistleblowing, the RTI and the Tshwane Principles
Introduction to the RTI Whistle-blowers
Whistleblowing is the term used to describe an act where a person discloses any information to another, either to the public or within an organisation, information deemed illegal, unethical or of wrongdoing. In the past years, the Right to Information, guaranteed to us by the RTI Act, 2005, has been an effective tool for whistle-blowers to obtain information about any illegal or unethical activity and make it known to the public at large.
We see that the whistle-blowers, using RTI as a tool, are able to bring to light the corrupt practices of the Government. Many of such whistle-blowers are RTI Activists who aim to bring about transparency within the Government. Such information could be effectively used to bring about social awareness on government’s work and to some extent, seen as a redressal mechanism for the people. These activists, on the other hand, have faced the brunt of the lack of protection with the number of RTI Activist’ death increasing multi-fold in the recent decade. Thus, we see a number of problems within the existing structure of information seeking and disclosure.
Citizens have been facing several problems while they seek information. An important factor for the problems they face is that although the RTI is accessible to many, there is a lack of anonymity for the whistle-blowers and information seekers. Many a time, they are harassed, or even threatened by people, as the information they seek may cause discomfort to the government officials inquired upon. It may also lead to such extreme measure of killing information seekers such as the deaths of Rajendra Prasad Singh in Bihar who exposed several corrupt practices in police recruitment and public health policies of the local government, and of the gruesome death of Amit Jethwa who used RTI to expose illegal mining in the Gir Forest area of Gujarat.
In the latter case, the accused minister was arrested but justice is often not delivered to the families of the deceased. Much of the information they seek is often land-related or information concerning Welfare Schemes, development projects, public services and bureaucracy such as the examples of Lalit Mehta who was murdered after he addressed the discrepancies found through the social audit of the MNREGA project and Satyendra Dubey who was murdered shortly after he wished to address the Corrupt Practice of the NHAI in allocating tenders to contractors.
This new subset of whistle-blowers, the RTI whistle-blowers, have been handed out the last straw. Although as per the Whistle-blower Protection Act, 2014, it is the government’s duty to ensure that the whistle-blowers are to be protected against victimization and to conceal their identity, this legislation has not been operationalized till date. The RTI activists’ deaths have been on the rise, even after the Whistle-blower Protection Act was passed. Some states have passed notifications allowing RTI seekers to obtain police protection if they feel that their life is threatened, however, such has not been useful and the police could decide to give protection unless the information sought was deemed to be anti-national or political in nature under the influence of powerful officials. This arbitrary choice to be made only proves to show how unprotected and vulnerable the people are against any harm for their righteous action against the Government.
The Tshwane Principles on Whistle Blowing Guidelines
The Tshwane Principles on National Security and Right to Information are global standards which stems from the idea to recognise certain standards to protect the right to information and to ensure access to government information simultaneously providing adequate protection to people from any threats to their security. These principles provide guidelines for persons who deal with “drafting, revising and implementing” any legislation which allows the State to avoid furnishing of information on account of national security and to punish people for such unwarranted disclosure.
Recent trends indicate that only a handful of countries allow access to information, however we see the need for the Tshwane Principles as off-late, information concerning high public interest has been withheld on the grounds of national security and secondly, there was a lack of standards on how the State was to balance a person’s right to information and the need of the government to keep certain information secret.
These international guidelines place a responsibility to countries to promote transparency in government offices in all fields and at the same time, ensuring a balance between National Security and Right to information for all its citizens. Although it aims to address National Security, most public grounds for restriction access should meet its standards.
Based on the whistle-blower’s protection, a balance needs to be found between the public at large’s right to access information from the public offices and even private entities which perform public functions and receive public funds and upholding the National Security.
Secondly, it recognizes the protection against victimization, whereupon a public official who has exposed any practice of the Government should be protected against any retaliation. The list goes on however we see there is an inadequacy in the Indian Whistle Blower Protection Act with respect to the Tshwane Principles.
While government is the adjudicator to decide whether an application for information is in consonance with its requirements for National Security, the greater stakeholder here is the individual.
Problems that Exist in the Indian Whistleblowing Structure
The Tshwane Principles state that a whistle-blower, who exposes the government practices without harming its national security for Public Benefit needs to be anonymous. Usually these whistle-blowers through the RTI haven’t put the Security of India at risk.
These Whistle-blowers, who seek information through the RTI have to provide their basic identity to receive the data. A common trend between the RTI Whistle-blowers is that they’re usually civil servants that are trying to fight the corrupt bureaucracy in our country. Once they notice any discrepancy in the public administration sphere, they bring it out to the notice of the public through the news outlets or social media to raise awareness.
This is where the problem lies, as the Whistle-blowers who’ve exposed the government haven’t put the Security of our country at risk but instead it’s their lives that are in danger. Due to the nature of the RTI, it’s very easy for the ones that have been accused here to trace the activists. Once this happens, they receive threats and their families and lives are at constant risk due to the influence of the officials.
This shows the inadequacy of the legislations as even though India has followed through with the Whistle-blower Protection Act that is in consonance with the Tshwane Principles, it defeats the very intent of what the RTI act aimed at. The RTI wants to promote transparency in administration of our country. The laws work in isolation but are defeated when whistle-blowers who seek remedy through them lose their life as the system fails to recognise these activists in the first place and treats them as a normal information seeker.
Solutions to Improve the Position of the Whistle-blowers
The RTI needs to work along with the Whistleblowing Protection Act to set up comprehensive guidelines on the basis of which an application for Information can be denied on the grounds of National Security. But when it comes to the Whistleblowing laws, they fail to look at it from the perspective of the Whistle-blower. The laws in operation seem like a substandard attempt to fulfil the intent of the Tshwane Principles which is the responsibility of the State to understand the balance between what is regarded as national security and life of a whistle-blower and to implement policies to create harmony between its security and whistleblowing laws while conforming to international standards of whistle-blower protection along with effective coordination and protection between the State machinery and the individual.
The Whistle-blower Protection Act needs to specify a pragmatic mechanism through which a whistle-blower can address his issues with the current system. At the same time, the mechanism should not reject the information provided by the Whistle-blower due to political interests or influence.
An important addition to the RTI Act would be to identify Whistle-blowers that report the discrepancies of the Public Administration exclusively and offer them preliminary support. Protection of their anonymity and providing them with Whistle-blower Protection Services that is based on the Witness Protection Model of the United States would be key to improving the Act.
At the same time, it is also important to increase the awareness of these whistle-blowers in the Judicial Sphere. Previously, when an RTI Whistle-blower had lost his life and his counsel sought to remedy through the RTI and the Whistleblowing Protection Act, the court instead decided to apply the Indian Penal code and the Code of Criminal Procedure. It is important to understand that these whistle-blowers do not fall under the lines of conventional murder or assault as the threats they face are often reactionary to a duty that they are bound to do. This is essentially where the legal system fails too as it refuses to consider the background of the case and often rules in the favor of the accused due to circumstantial evidence or remoteness of cause.
The Police too, should be trained and instructed on the nature and consequences of Whistleblowing and must have adequate measures to protect those that seek protection through them. A whistle-blower should not lose his life because the police failed to do the duty that they were employed for.
Finally, with respect to National Security, the Media should not look at Whistleblowing Reports commercially as the stakeholders here have far too much to lose. A whistle-blower losing his life or putting the security of India at risk is not a justifiable trade-off to increase viewership.
The legislation in India must consider all these factors before vetting out such important laws. This essentially means that the Government has failed to recognise the gravity of the situation. The treatment of its Whistle-blowers by the Country signifies the strength and commitment to the democratic ideology of transparency and protection of human life. The International Guidelines such as the Tshwane Principles and the Universal Declaration of Human Rights are the basis through which countries must base such significant protection instruments and if the country fails in its duty to build a comprehensive legal system, then it’s the stakeholders that suffer the most.
1. Suchi Pande, Dying for information: Right to information and whistle-blower protection in India, U4 Brief – Anti Corruption Resource Center, 1-6, 2015
2. ACHR (Asian Centre for Human Rights). 2011. RTI Activists: Sitting Ducks of India. New Delhi: ACHR. http://bit.ly/1I1xXoz
3. Roy, A., and S. Pande. 2010. “Right to Know, Right to Live.” Transparency Review 3, no. 3 (August). http://bit.ly/1C00WIB
4. Nayak, V. 2013. Attacks on Users and Activists of the Right to Information in India: Role of the National Human Rights Commission. Submission to the Independent People’s Tribunal, 15 December. http://bit.ly/1Ev5YtM
5. Rana, Vijay. 2004. Dubey gets global award, his family waits for justice. Indian Express Archives, March 23, 2004. http://archive.indianexpress.com/oldStory/43550/
6. Gupta, AK. 2015. NREGA Activists who paid with their lives Lalit Mehta. Down to Earth. June 7, 2015. https://www.downtoearth.org.in/coverage/nrega-activists-who-paid-with-their-lives-lalit-mehta-jharkhand-4727
7. Open Society Justice Initiative. 2013. Understanding the Tshwane Principles, Open Society Foundations. June 12, 2013. https://www.right2info.org/resources/publications/national-security-page/national-security-principles/understanding-the-tshwane-principles/view
By Rahul Rajasekar and Vishnu Mohan Naidu, School of Law, Christ (Deemed to be University).