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Mainstream, VOL XLIX, No 24, June 4, 2011

Nailing Corruption Is No Cakewalk

Thursday 9 June 2011, by Nirmalya Biswas

There is a growing worldwide recognition that adequate protection to the whistleblower is a precondition for a corruption-free democratic society. Over the years whistleblowers have been found dead in mysterious circumstances in India for exposing corruption. Their gruesome killings haunt our memory with a harsh reminder that they are hardly offered any protection. The concern for their protection caught the attention of the entire nation after the murder of Satyendra Dubey, Manjunath Shanmugam and many brave hearts. Officially called the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, though approved by the Union Cabinet on August 9, 2010 it is yet to be tabled in Parliament.

Tryst with Destiny

WHILE we all appreciate the illustrious “Tryst-with-Destiny” speech delivered by Pandit Jawaharlal Nehru, our first Prime Minister, it is high time we humbly remember the great contemporary thinker and our first Vice-President, Dr S. Radhakrishnan. Speaking on the historic night of August 14-15, 1947, Dr Radhakrishnan said: “Unless we destroy corruption in high places, root out every trace of nepotism, love of power, profiteering and black marketing which have spoiled the good name of our country in recent times, we will not be able to raise the standards of efficiency in administration as well as in production and distribution of necessary goods of life.”1 The future of the nation is secure only when the nation is corruption-free.

Corruption on the Rise

THE political leaders set by and large a high moral code of conduct and probity in the public life of India after independence. Corruption has, however, over the years grown in potency affecting the daily life of the people crucially. The Indian economy passed through the regime of all-embracing regulation and protection. There was corruption at the core of the Licence Raj, a system of bureaucratic control. While corruption stayed alive all along since 1960 or so, it assumed alarming proportions since the 1970s when one scandal regularly went after the other. The scams and scandals disclosed that among those who were indicted of corruption were high-profile legislators, Ministers and Governors. Since 1991, with economic liberalisation, the much hyped higher growth rates failed to reduce the severity of poverty, hunger, malnutrition, social injustice and corruption.

Blowing the Whistle

UNDENIABLY corruption has become a way of life —something with which many of us do compromise. But few choose to walk down the other lonely lane. They raise their voice against corruption. They are the whistleblowers, the people who ring the alarm-bell. They bear the most conscientious and uncompromising personalities. The use of the term ‘whistleblower’ came from the practice of English police officers, who would blow their whistles when they noticed the incidence of a crime. The whistle would alert other law enforcement agencies and the general public of the impending harm. The word whistleblower commonly signifies a person who is to give a signal to someone to ‘go’ or to ‘start’ or to ‘move’.

Nailing the corrupt is no child’s play. Even then whistleblowers do not stay mute spectators to an act of transgression for fear of vengeance of the powerful authority who may ruin their prospective career or even not be hesitant to put an end to their lives.2 For the whistleblowers, turning a blind eye to corruption is worse than committing it. Whenever they come across any wrongdoing, they protest. Opposing corruption is the true test of patriotism to them. To notice a malpractice and not to disclose it to the public is what they consider a dormant collaborator to its continuance always prefers. It calls for courage to stand up and challenge the corrupt. Sometimes the intrepid efforts of a whistleblower cost dear. Ironically in India exposing corruption means punishment and not reward.

Champions against Corruption

SATYENDRA K. DUBEY, a young civil engineer from IIT, was working as the Deputy GM for the National Highways Authority of India (NHAI) on the Golden Quadrangle Project at Bihar. Dubey sent a confidential letter to the then Prime Minister, Atal Behari Vajpayee, complai-ning to him about corruption in the construction work with a special note that his name should not be disclosed. Dubey did not act recklessly; instead he feared rancorous reaction from the people involved and sent a reminder, requesting anonymity. It is deplorable that the letter was redirected by the Prime Minister’s Office (PMO) to the Ministry of Road, Transport and Highways and then openly tossed between various government departments. Whether the PMO did this deliberately or it happened to be just an act of customary negligence remains unknown. The whistle-blower’s identity was disclosed to the very people against whom the whistle was being blown. With what consequences we all know. On November 29, 2003 he was shot dead by contract killers. Dubey dared to bring out the corruption in the national highway programme. He paid with his life for having done so. The murder of Satyendra Dubey drew widespread condemnation of the growing nexus between the politicians and mafia. Dubey’s killers, though, were convicted of robbery and murder, and surprisingly not for their involvement in a conspiracy to eliminate him for exposing corruption in the NHAI project. But public memory is too short and the matter was forgotten within weeks.

On November 19, 2005, Manjunath Shanmugam, an IIM graduate engaged as an officer in the Indian Oil Corporation, was murdered after he exposed adulteration in petrol pumps in the Lakhimpur Kheri district of Uttar Pradesh. His bullet-ridden body was found on the back seat of his car. His heroic efforts to expose corruption caught the attention of the nation only for a few days. The trial that ensued was completed in a record nine months. All the eight accused were found guilty. The petrol pump owner, the key accused, was given the death sentence. The others were awarded life imprisonment.

Kallol Sur, a 30-year-old Block Development Officer (BDO) in West Bengal, blew the whistle on the ruling party-led Panchayat in the National Rural Employment Guarantee Scheme and exposed the local party leaders who withheld the wages of workers. And, like in countless other cases, the State failed to protect him. Sur was found dead in 2008 under mysterious circumstances soon after. The BDO, who was under immense political pressure, filed an FIR naming Kartik Mondal, the Panchayat Pradhan, and Ajoy Bhowmik, the Job Supervisor, both leaders of the ruling party. He was threatened, gheraoed and even been called ‘mad’.

Satish Shetty, the prominent Right to Information (RTI) activist, was murdered while on his morning walk in January 2010. He exposed several major land scams in and around the country’s first expressway, the Mumbai-Pune Expressway. Vitthal Gite, an educational activist of Aurangabad, who blew the lid off irregularities in a village school in Beed district, was killed. Shashidhar Mishra was killed by unknown attackers in Begusarai in Bihar in February 2010, soon after he exposed corrupt deals at the panchayat and block levels. Amit Jethwa, the social activist was shot outside the High Court in Ahmedabad in July 2010. Jethwa named the BJP’s Junagadh MP, Dinu Solanki, while exposing illegal mining in the Gir forest area in Gujarat. In Maharashtra, RTI activist Datta Patil was found dead in Ichalkaranji in May 2010 for exposing a corruption racket leading to the removal of a police official and punitive measures against the Ichalkaranji Corporation officials.

Consider M.N. Vijayakumar, a 1981 batch IAS from the Karnataka cadre,3 who suffered dearly for revealing corruption in the bureaucracy. In 2006, he became the first IAS officer in the country to make his assets and liabilities public. He faced 50 incidents of direct harassment and threats since June 2006. His wife, Jayashree, started fightcorruption, a website to fight for the same cause. Vijayakumar and his colleagues, 15 IAS officers from across the country, formed cleanias.wikidot.com, a forum of whistleblowers.4 Their crusade continues.

The plight of Lakhyajit Deka is no less. He was appointed the Accounts Officer at the Indian Institute of Entrepreneurship, Guwahati, in December 2007. It was while tallying the balance-sheet at the end of the fiscal year he discovered that the entries of several vouchers were tampered with. However, he found himself isolated in the office and a couple of days later, was suspended. “The same day I came to know that I was going to become a father. Initially, I was scared, but my mother said this is the test of God and you have to pass...honesty needs courage. I decided to brush off the fear,” recollected Deka. He approached the CBI and the Central Adminis-trative Tribunal and also wrote to the Ministry for Micro, Small and Medium Enterprises, as well as the North-East Council. The internal audit report, the reports of CAG and CBI confir-med the charges made by Deka. In September 2008, he was reinstated on duty, only to be terminated again in December 2009 on grounds of an FIR filed by the Director of the institute, alleging that Deka has terrorist connections.

Abhijit Ghosh, who retired as the GM from the Central Bank of India, wanted to know: “Is fighting corruption in India a corrupt act in itself? If not, then why are the ones I raised a voice against sitting comfortably and it’s me who’s running from pillar to post?” Ghosh in February 2008 lodged a complaint with the Central Vigilance Commissioner against the then CMD of the Central Bank of India, who, he alleged, was indulging in a number of financial irregularities. “Under the Whistleblowers’ Resolution, my name should have been kept a secret, but the CVC sent my complaint letter to the one I had complained against. It was baffling,” Ghosh was under suspension. “The reinvestigation conducted by the Deputy GM of the bank found my complaints to be true. I need justice. Justice delayed in my opinion is not justice denied, but justice demolished. Ironically, the Central Bank of India has spent Rs 80 lakhs of the public exchequer’s money to fight the case against me! And now the new management is trying to approach me for a compromise,” he adds. “I have no regrets. I feel proud that I did what I had to do. But yes, I have been lucky, thanks to people who agreed to fight my case free and the Secretary (Personnel), who reinstated me in office just two days prior to my retirement. Otherwise I would have retired in disgrace,” said Ghosh.

Such cases are abounding. Over the years whistleblowers have been found dead in mysterious circumstances in India for exposing corruption in the construction of roads, illegal mining and unauthorised water, electricity connections and other public services. Their gruesome killings haunt our memory with a harsh reminder that the whistleblowers in India are hardly offered any protection. They are left to fend for themselves. Hundreds of others have been assaulted, intimidated or harassed for their fight against corruption. No pen can give its full account.

Whistleblowers’ Protection

WHISTLEBLOWERS’ protection is now recognised as part of international law. In 2003, the United Nations adopted the Convention against Corruption (UNCAC) signed by 140 nations. Article 32 of the Convention endorses protection for whistleblowers. Laws providing protection to whistleblowers exist in the USA, UK, Australia and New Zealand. The US has a Whistleblowers’ Protection Act of 1989 (amended in 1994). It has been strengthened by new laws such as the Sarbanes-Oxley Act of 2002, which contains new protections for corporate whistleblowers and the False Claims Act that was first proposed by Abraham Lincoln way back in 1862 to combat fraud by defence contractors. The Public Interest Disclosure Act, 1998 of the UK, the Public Interest Disclosure Act, 1994 of Australia and the Protected Disclosure Act, 2000 of New Zealand are some effective legislations which ensure anonymity of the whistleblowers and provide protection to them. In the United States, in the post-Watergate era, after the trials and tribulations of Daniel Ellsberg, the man who blew the whistle on the alleged Pentagon Papers, he was not only provided with statutory protection but also highly acclaimed by the state.

Statutory Shield

IN India when illegal activities go on such a regular basis, then one can be sure that the caucus of politicians, officials, police and criminals are involved in it. People at large react reluctantly. But there are few exceptional conscientious uncompromising characters. They raise their voice against corruption. And that too at what cost? They ruin their career, their body and above all their peace of mind. But what else they can do? Should they advise the descendants to be wise to look the other way and never repeat the mistake they have committed? Because what they have learnt from their own experience is that in India the honest are punished and the corrupt are rewarded.

Violence against whistleblowers in India calls for suitable laws to protect them. The persons who report against corruption or abuse of power causing colossal loss to the country need a statutory shield. In July 2010, about 500 activists marched down the streets of New Delhi to protest against the killing and harassment of the whistleblowers and demand effective anti-corruption and whistleblower-protection legislation.

The Whistleblowers’ Protection Bill has been in the tube for many years; much of it is based on a report by the Law Commission in 2001 which evaluated identical regulations of other countries, and put forward a draft law for the country. The plan for the Bill came from N. Vittal, the then Chief Vigilance Commissioner, in 1999. It was brought in following a series of heart-rending cases in the recent past of whistleblowers being targeted, persecuted, and even exterminated after they dared to expose corruption. The concern for protection of whistleblowers caught the attention of the entire nation after the murder of Satyendra Dubey, the NHAI engineer, Manjunath Shanmugam and many activists. Pressure was built upon the government to enact a suitable law. Officially called the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010,5 it was approved by the Union Cabinet on August 9, 2010. The Bill is yet to be tabled in Parliament.

Apprehensions

THE impact of this new statute will be far and wide. The proposed legislation intends to protect the identity of citizens who disclose deceptive practices that tarnish the public services. It will protect the whistleblowers from any discrimi-nation or victimisation in their workplace. According to the draft statute, the Central Vigilance Commission (CVC), as a nodal agency, will have the powers of a civil court to penalise those who reveal the identity of whistleblowers. The maximum penalty under the proposed legislation for the guilty is up to three years of jail and a fine of up to Rs 50,000. Penalties are of course inadequate.

But will the Bill really live up to its promise of protecting the whistleblowers? Or else it would be just showpiece legislation. It covers only the government bureaucracy and not the defence or the corporate sector. It is also silent on those exposing corrupt politicians. The Law Commission, which proposed the original draft of Bill, had allowed anonymous complaints. But the proposed Bill does not allow anonymous complaints. Similar laws in the US, the UK and Canada, however, allow anonymous complaints. The emphasis of the bill is to keep the identity of the whistleblowers undisclosed. The activists against corruption, on the contrary, insist that the Bill should ensure speedy, transparent inquiry and action on the whistleblowers’ complaint so that they are not vulnerable to physical threats and professional harassment.

Conclusion

THERE is a growing worldwide recognition that adequate protection to the whistleblower is a precondition for a corruption-free democratic society. Much remains to be done in India to ensure whistleblowers do not become an endangered class. The call of the hour is to protect whistle-blowers so that their spirit and determination to fight corruption remains strong in a country where corruption is more the rule than the exception. The proposed law pledges protection to whistleblowers. But the people of this country always fear of harassment and intimidation by criminals with powerful links. Anyone having information on an act of malpractice and willing to report it to higher authority is apprehensive of being persecuted or intimidated or worse. Those who dare to fight corruption despite fear of retaliation and intimidation, however, have scant expectation from the law enforcing agencies. Does the Bill infuse a sense of confidence in them and ensure better information flow to prop up prosecution of corrupt individuals? Will it herald revolutionary change in present sorry deplorable state of corruption? Let’s hope so.

FOOTNOTES

1. Constituent Assembly of India debates (proceedings), volume (v). The Fifth Session of the Constituent Assembly of India commenced in the Constitution Hall, New Delhi, at 11 pm on Thursday, August 14, 1947. After the last stroke of midnight, all members of the Constituent Assembly present on this occasion took pledge. The Motion regarding Pledge by Members present was followed by the great speeches delivered by Pandit Jawaharlal Nehru, Dr S. Radhakrishnan and other eminent personalities.

2. List of attacks on RTI activists, http://tinyurl.com/Attacks RTI
3. Website: fightcorruption

4. Website: cleanias.wikidot.com

5. The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 (Bill No. 97 of 2010) to be introduced by the Union Minisry of State for Personnel, Public Grievance and Pensions in the Lok Sabha.

The author is an Associate Professor in Commerce, Bankim Sardar College affiliated under the University of Calcutta. He can be contacted at e-mail: nirmalya.amartya@gmail.com

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