Whistleblowers India


Whistles, stings and slapps -December-12-2003

Posted by ekavi on June 17, 2006

Whistles, stings and slapps

By Rajeev Dhavan

Corruption in India is a mega industry to which public exposés are no match. Pro-whistle blower laws need to be enacted.


THE POLITICS of expose runs riot in India. Just before the recently concluded State Assembly elections, a sting from an unknown assailant framed the former Union Minister and Bharatiya Janata Party leader, Dilip Singh Judev, for allegedly accepting bribes. Directed to upset the elections, this initiative backfired. The BJP demurred. The Central Bureau of Investigation dragged its feet. Meanwhile, the elections were over. The BJP won in Chhattisgarh and elsewhere. To the sting, there was a counter-sting. The erstwhile Chief Minister, Ajit Jogi, was entrapped ostensibly devising bribes for BJP legislators to defect. The anti-defection law does not apply. The legislators sought to be bribed are not public servants to obviate criminal proceedings. If those who set up stings are conspirators, a sting would itself be impermissible to all but the police. Should the Union Law Minister conduct stings? These are questions for the future. In between lies the heroic story of Satyendra Dubey — an Indian Institute of Technology graduate and Government employee — who blew the whistle on the National Highways Project by writing to the Prime Minister's Office. . He had asked for anonymity. The wish was not granted. In November 2003, he was shot dead.

Corruption in India is a mega industry to which public exposés are no match. Exposés suffer counter-attacks. Those who expose others, complain or criticise, place themselves in danger. Dubey paid for his courage with his life. The building industry is crucial to India. Building contractors conspiring with officials and others are ruthless in protecting their booty. It was at their behest that Sundarlal Bahuguna who was on hunger strike over the Tehri Dam issue was airlifted to Delhi in 1995 supposedly to prevent him from attempting suicide — which, as it happened, was not an offence at the time.

Hired goons and thugs terrorise huge localities. Since they have political patronage at all levels, their perversity, and not the people, is protected. Buildings fall. Roads are rebuilt. But most of the stories of Indian corruption lie hidden — guarded by official secrecy, coercion, conspiracy and corruption. Where secret methods fail, the law is invoked.

The latest trend is to use the law of defamation to silence criticism. One tactic is to use the state machinery to file criminal defamation cases in great numbers to intimidate and punish. But injunctions are also granted in civil defamation suits to silence exposés. Madhu Kishwar's attempt to expose a doctor's clinic in Delhi met with a civil injunction in 1999. More recently in 2002-03, the S. Kumar corporate conglomerate building the Mahabaleshwar dam successfully injuncted the Narmada Bachao Andolan from exposing financial dealings even from public records. The Indian law of defamation with its criminalising posture and gagging writs offends responsible democratic governance founded on free speech. The Americans call this kind of litigation SLAPP (Strategic Lawsuit Against Public Participation). Designed to silence opposition, such suits are increasing. Many American States have enacted laws against slapp suits to protect the democratic voice. In India, the Narmada injunction was a slapp suit; as, indeed, was Pepsi's writ against the Centre for Science and Environment (CSE) over the latter's exposure of pesticides in beverages.

Since 1950, the politics of exposé has shifted. During the Nehru era, it was directed towards good governance. The modus operandi was to expose corruption, secure the appointment of a Commission and seek a political solution. Thus the Kripalani report on railway corruption (1954), the Das Report on Kairon (1962), the Chagla Report on the Mundhra scandal (1959) and the revelation of the Jeeps purchase scandal led to the resignation of prominent Ministers. Corruption was pervasive as evidenced by the Santhanam Report of 1964. But the then governments dealt with it in-house administratively or through political resignations.

After the Emergency, this in-house and political action strategy was abandoned. The post-Emergency Shah Commission (1978) failed to be effective. After Indira Gandhi's triumphant return in 1980, no question arose of in-house or political action. Using commissions and committees proved meaningless. Parliament's Joint Committee on Bofors (1987) was eyewash. Few were embarrassed by corruption or government atrocities. Confidence in commissions waned even though they were appointed from time to time — some good, some bad.

The new view was not to go through the charade of inquiries and commissions but to prosecute for corruption directly. But who would investigate whom? Policing was a State subject. The State police covered up for their political masters. The hawala case hearing in the Supreme Court (1998) suggested that the CBI itself required discipline. The CBI is stretched to its limits. The politics of regime revenge and exposé — sometimes unfounded — continue. Invariably, these cases create party political capital and get caught in their own web.

But, exposé is not just a game to be played by politicians against one another but a matter of public concern. It is in this context that whistle blowing and stings become important. The most famous of whistle blowing stories was Daniel Ellsburg's revelation of the Pentagon Papers in 1971, which was crucial to stopping America's Vietnam War. Equally, Serpico's revelations shook the New York police and led to an Al Pacino film. In India, an increasing number of civil servants have blown the whistle on corruption including Khairnar in Bombay, Alphonse in Delhi and now Dubey in Bihar. Each whistle blower pays his price. Whistle blowing is a democratic activity. In America, Australia and New Zealand laws have been enacted to protect whistle blowers. In India, civil service rules forbid whistle blowing. But Justice Jeewan Reddy's 179th Law Commission Report (2001) on "Public Interest Disclosure and Protection of Informers" wisely projects the importance of protecting whistle blowers.

To whistle blowing can be added investigative journalism and its latest weapon: the sting. Although the Watergate affair has given rise to many exposés being renamed some `gate' or the other, India has a remarkable record of investigative stories relating to Bofors, Bhopal, Sri Lanka, food poisoning, pesticides and of course Tehelka. It is the Tehelka sting that has acquired popular notoriety. But Tehelka paid the price by being bankrupted and harassed by a commission that concentrated on its sting rather than the corruption it portrayed. Entrapment is a well known police technique. But after the Judev and Jogi affairs, this technique has been converted into a political, even electoral, weapon. The very parties that set up a commission against Tehelka claiming that such a sting was journalistically unethical now champion the use of the tactic.

But, where does all this leave Indian governance? Indian democracy is too corrupt, too hidden and too vicious to be left to its own devices. It needs both whistle blowing and stings, not as party-political dramas but as a genuine contribution to governance. The Supreme Court recognises the Indian peoples' right to know what their rulers do with public power, resources and money. Rajasthan's groups have shown how local welfare and development benefits have been hijacked and can be campaigned against. There are going to be some invasions of privacy and confidentiality. But they are outweighed by the public interest. Britain's Calcutt Committee and Press Council make room for public interest exposé over privacy. In the Auto Shankar case (1994), the Supreme Court invoked American free speech doctrine that those who hold public office cannot shut out the transparency of bona fide exposure. The Law Commission rightly welcomes whistle blowers to prescribe protection for them. Pro-whistle blower laws need to be enacted. India needs to go beyond freedom of information statutes. Slapp suits are an affront to the rule of law. Stings prevent the public interest from wandering into private pockets — even if serious evidentiary problems may surface in cases of tampering. Whistle blowers are conscientious objectors. Political games entrapping Mr. Judev and Mr. Jogi contain a warning for all politicians lest these games return to plague their inventors.


One Response to “Whistles, stings and slapps -December-12-2003”

  1. vijay said

    I agree with the comments as above.

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