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Institutional Response To Corruption And Victimization of Whistle blower

Constitution of India provides for a duty to the holder of public towards public. Nonetheless, the constitutional principles do not depict the reality. Corruption is omnipresent and is one of the reasons for uneven distribution of wealth in India. The public officials are defying constitutional duties by doing rampant corruption. Further, there have been constant victimization of whistleblower in various forms.

Judiciary is also not free from corruption, in courts, corruption is more rampant in the cases of bail. In India, judges are addresses as Lordship, and they influence policies of the country in many ways. Paper seeks to focus on those legislations which were enacted to root out the menace of corruption. Legislation like RTI, CVC, Lokpal Bill and whistleblower protection act will be cynosure in this paper. The paper analyzes how far were these legislation were successful in dealing with the threat of corruption and what were those loopholes and shortcomings due to which they were ineffective to deal with corruption.

Corruption is a very wide and never ending phenomenon, as said by Aristotle Men are always wanting something more and more and never contended until they get to infinity. Corruption is a very wide terminology and it is very difficult to precisely define the term. But, usually all the research work on this issue have defined corruption in a conventional way ‘private gains made from the abuse of public office’. The UN’s Global Programme against Corruption (GAPAC) defines corruption as ‘the abuses of power for private gain and includes thereby both the public & private sector and private Individual’.

There are various kinds of corruption like conflict of interest, embezzlement, fraud, bribery, political corruption, nepotism and extortion. In India corruption is omnipresent in almost every government sector, from sanctioning driving license to framing of policy of NREGA. It is evident from the fact that as per Transparency International, India is ranked 81 amongst 180 countries in corruption index , which is pitiful. Inefficient governance induces corrupt practices.

There are so many laws which are enacted by the parliament to fight against corruption. Institutions have been setup at various levels to specifically deal with this problem. Corruption affects every aspect in the growth and development of the country. Thus, there is negative relationship between corruption and economics growth. Corruption in office manifests itself in many forms, which can broadly be defined under 3 categories . Grand Corruption, where policies and laws are implemented in such a way as to favor the elite or rich class. Bureaucratic corruption, encompasses corruption when they interact with the elite class and common people and legislative corruption is the act wherein voters are induced or bribed to vote for a particular party.

Good governance is not possible until the threat of corruption is present. To fight against these menace, institutions have been setup at national and international level. The organizations at International level includes United Nations, the World Bank, the International Monetary Fund (IMF), the Council of Europe, the European Union (E.U.), the Organization of American States (OAS), the Organization for Economic Co-operation and Development (OECD), and the International Chamber of Commerce.

While at the National Level, India has Central Bureau of Investigation, Enforcement Directorate, Central Vigilance Commission and there are various legislations like Right to Information Act 2015, Prevention of corruption act 1988, Prevention of money laundering act 2002 and Whistle blower protection act 2011. These institutions and various enactments are able to stop only at some extent and their response to stop the corruption is not laudable.

Corruption in Judiciary

Judiciary as the place for last resort for the common people for justice is also not free from corruption. This is very much evident from the latest misfortune events in the judiciary like arbitrary misallocation of benches (as was said in unprecedented press conference held by 4 judges), death of justice loya who was handling the most controversial case of sohrabbuddin, Medical Scam involving Allahabad High Court judge and controversy around the system of collegium. Our own Chief Justice of India Justice Deepak Misra is facing corruption charges in Orissa land allocation case[1].

The case of justice veeraswami[2] was the case where the corruption in higher judiciary was known. The court in this case dealt with many issues viz. whether the definition of public servant given in prevention of corruption act include ‘judges’, if yes than who has the power to prosecute them. To which court has enunciated that definition of public servant includes judges and therefore higher judiciary has no impunity from corruption. President of India with the consultation of Chief Justice of India can initiate the proceedings for the impeachment.

In courts, corruption is more rampant in the cases of bail, where marginalized and downtrodden people are forced to give large amount of money as a bail bond. In India, judges are addresses as Lordship, and they are treated as god as they have the power of final say in a matter. They influence policies of the country in many ways. Thus, there is this gargantuan power that is bestowed to them which makes the judiciary more likely to indulge in the practices of corruption.

Further, the procedure for selection of judges is not transparent and arbitrary. NJAC was formulated by the parliament in 2014, but Supreme Court judges themselves repealed the commission while declaring it unconstitutional[3]. The concurring judges said that it impinges upon the independence of the judiciary. Therefore after NJAC was abolished there was again no consistent procedure for the appointment of judges. They are appointed on arbitrary basis and on the discretion of the judges sitting on higher judiciary, thereby augmenting the contours of corruption. Their impeachment process is also very cumbersome, which might be the reason why not even a single judge was impeached in the history of judiciary.

The power of contempt of court confer by the constitution in the hands of judges are the most misused and judges are using them as a whip. In India it is generally believe that judges are conservative and are not open to criticism. Considering the case of Arundhati Roy, where she was charged with contempt of court when she criticized the judgment of Supreme Court. Even a personal remark on judges would invite the clauses of contempt of court act, 1971 even though it is not in any way lowering the reputation of the judiciary. The discretion is absolutely on the whims and fancies of the judges and the tool to suppress any kind of allegation of corruption.

Institutional response to corruption

A. Central Vigilance Corruption

To fight the phenomenon of corruption, Committee on prevention of corruption headed by Santhanam, recommended to setup CVC, which was created in 1964 as an apex government body[4]. This body was constituted to ensure the effective implementation of Prevention of corruption Act. The role of CVC is very narrowly defined and the commission is unable to exercise its plenipotentiary authority[5]. In 2003, after 40 years of CVC, it was given statutory status by the parliament. The jurisdiction of CVC is restricted to government officials. CVC basically follows three strategy to fight the bureaucratic corruption[6].

First, is the simplification of rules and procedures so that scope of corruption can be reduced. The CVC has a superintendence over central and state authorities and over any government corporation. So, procedures that are likely to lead corruption are modified by CVC. The Second strategy is to bring greater transparency in the bureaucratic and political system. The quintessential of this strategy can be seen from the fact that, this has become the first commission to publish online the list of corrupt officers, who have been proven guilty under prevention of corruption act.

Therefore, an element of transparency was included by making the list public. While, many people who had their name in list were unaware about the charges of corruption against them, which exhibits that department enquiry is very indolent and the need is to expeditiously discharge all the cases. CVC has also filed a claim that every citizen should have right to corruption free service, and this right should be incorporated in fundamental right.

The third strategy for CVC is implementing effective corruption punishment. So, only if strong evidence are present against the accused, only in that case court of law should be approached as burden of proof is ‘beyond reasonable doubt’, whereas in the departmental enquiry it is usually ‘preponderance of probability’, which is lower standard of proof. Still, the CVC is suffering from so many loopholes. The commission does not have power to investigate, rather it is dependent upon CBI. One of the loopholes is that before prosecuting the public servant, prior sanction of the concerned authority is required. The authority is usually senior officer of the accused, and the senior officer advertently procrastinate the sanction in order to protect the accused[7].

B Lokpal

The jan lokpal bill also known as Citizen’s ombudsman bill. This is anti-corruption bill, which sought to punish the government official on their involvement in corrupt practices. The bill received the assent of the president and was duly enacted in 2014[8]. The bill was introduced in the parliament after seeing the public protest against corruption and especially movement launched by crusader anna hazare. It provides for establishing post of lokpal at the central level and lokayukt at the state level.

The bill will cover all categories of people i.e. from prime minister to peon. The act also talk about protecting the interest of whistleblower, which is a redundant provision as there is already whistleblower protection act, 2011 having the same provision. Under the act of lokpal every public servant has to declare his/her assets to public. Investigation relating to corruption charges have to be investigated within 6 months. Lokpal will be appointed by a panel comprising of speaker, leader of opposition, president, prime minister and chief justice of India. Even after 4 years of enactment there is no one appointed as lokpal and pivotal reason is absence of leader of opposition in the parliament[9]. But, again the question arises with respect to the jan lokpal bill[10], as to whether institution and the processes enshrined in the bill sufficiently accountable to people of India? Whether it is adequately bestowed with power to investigate, detect and prosecute the case of corruption? Whether these institution have the plenipotentiary power to take decisions and independent from any government interference[11].

C. RTI

To ensure transparency and participation of populace in the governance, the RTI Act was enacted in 2005. The provision mention in the act are to promote transparency by giving right to the citizen to ask information from any government department (with exceptions), but interpretation of the act is done in such wretched manner as to erode the spirit of the act, which led to confusion amongst public[12]. The RTI activist who seek information which tends to exposed the government official are vulnerable to threat, indeed till now 56 RTI activist have been killed which exhibits the need to protect RTI activist[13].

The RTI act which was enacted with the intention to augment the periphery of participatory democracy, has done a mediocre job in achieving the objective as many shortcomings are still left to deal with. The most laudable achievement so far is that populace recognizes the importance of transparency in governance[14]. With the enactment of RTI, the common mass now demands the accountability of elite class. The RTI movement has offered hope to people striving to generate the culture, institutions and principles necessary for a participatory democracy[15]. There are exemptions in the provisions of RTI which keeps some government officials out of the purview of the RTI act. Section 4 mandates the public authority to make a universally acceptable repository where all the information can be easily accessed by the citizen, but the implementation has been pathetic and no such initiate has been taken by any government department.

Section 8 lists the kinds of information that cannot be disclosed. These include information that might jeopardize the nation’s sovereignty and security, lead to contempt of court, breach of privilege of Parliament or state legislatures, information which could affect the competitiveness of third parties, and more. There is also Clause 9 of Section 7 which allows for not providing information if it disproportionately diverts the public authority’s resources or is detrimental to the safety of the record. Section 7(9) is most misused provision, as department denies information citing this provision, on the ground that they have very less resources.

Political parties, though are not excluded in the act, but when asked information on their political parties they are denied on the ground that affairs of political parties are private and is excluded from the ambit of public scrutiny. Rather, CIC judgment dated 3rd June, 2013 had stated that 6 political parties in India are public, and are under the ambit of RTI. Hitherto, political parties have defied the judgment of CIC and refused to disclose their assets.

Whistleblower protection Act, 2011

The act seeks to provide ‘adequate protection to persons reporting corruption or wilful misuse of discretion which causes demonstrable loss to the government or commission of a criminal offence by a public servant’. The act got assent of the president in 2014, but even now the citizen are waiting for its implementation as is still not operationalize. The present government of BJP said that the act needs amendment before it can be implemented.

The initial work on whistleblower protection act started when the government felt a need to pass a legislation after satyendra dubey[16], was killed when he revealed the corruption in NHAI. A similar case is of manjunath, who was sent to death when he uncovered the corruption practiced in Indian Oil Corporation[17].

There are too many shortcomings in the act, pivotal of them are the non-applicability on the private sector as given the fact that it is common in India that industrialist and business tycoon with the help of politician indulge in the act of corruption. Therefore, non-applicability of the act on them will give impunity to them[18]. The Vohra committee report[19] said that due to the nexus between politicians and industrialist corruption takes place. Some politician may be trapped due to RTI and whistleblower laws, but both the laws are inapplicable to private persons. In 2007, the Second Administrative Reforms Commission (ARC) also recommended to include private sectors under the ambit of whistleblower law.

The example of Dinesh Thakur is very important to see in this context. He was working in Ranbaxy Company and he gave evidence to US authorities about involvement of corrupt practiced going on in Ranbaxy that is related to distribution of certain banned drugs[20]. The company than agreed to pay 0.5 billion $ to settle the dispute and in which Thakur got 48 million $. This episode of whistleblower, whistled an alert that people who are associated in the corporate are require to reveal the ongoing activity in the company that are not only against the basic surface of company but also the law of the land. This calls for a better policy which incentivize the people at grassroots level to reveal about corrupt practices.

The revelation of such complaints have to be made to central or state vigilance commission. The bill by punishing the person who have made frivolous complaints made a balance between incentivizing the whistleblower to disclose information and unnecessary harassing the public officials. The bill also does not allow anonymous complaints, the reason is to that if frivolous complaints is made than they can start investigation against that person, but other side of the view is not allowing anonymous petition than the whistleblower might become vulnerable to threats from the person against whom he/she has revealed corruption. Countries like US, UK, Canada and Australia provides for anonymous complaints.

The bill also lack in not providing the victim protection program. There is no definition given in the act as to what constitute ‘victimization’. In 2001, the Law Commission of India, in its 179th report[21] gave recommendation about whistleblower law. The definitions that were given in the report were much wider than the one given in the act. The legislation, has excluded ministry from the ambit of the law. The bill also recommended to give power to the competent authority to initiate proceedings against guilty official, whereas under the law the CVC can only recommend how and when to initiate those proceedings.

From the current affairs, taking the case of nirav modi, who was charged with bank fraud of around 11 thousand crores, there is overlooked aspect of the whistleblower, Hari Prasad[22]. He in 2016 sent an open letter to PMO regarding irregularities happening in Nirav modi’s partner Gitanjali Gems. But no one took it seriously, which has also become a habit for the authority.
The another aspect of whistleblower law is officials secrets act, which says that information affecting integrity, sovereignty and economic interest of the state of shall not be investigated. Whistleblower act and RTI does not allow to any information to be entertained under official secrets act.

Over the past few decades, public interest has played a pivotal role in the decision-making process of the courts. The judicial ethos of the country roots itself firmly in the welfare of the people. It has been held in the past, that the interest of the public must necessarily outweigh all other interests. The onus is also upon the people to act as vigilante against the corruption and to keep pressuring the government for the effective implementation of law. Further, enacting new legislation might not work until the old ones are properly reformed.

Conclusion
The practice of corruption which has deeply ingrained in the society is very difficult to eradicate. To ensure transparency, role of civil society in the governance should be allowed. Awareness and education through mass campaign should be conducted and people must be informed about their rights and acquaint them about their role in uprooting corruption. Nevertheless so many flaws in the RTI, it can act as good tool to ensure transparency in the governance as all the government officials are bound by the law to furnish the correct information, otherwise they may face the penal consequence. The need is to protect the whistleblowers, with the proper enforcement of the law.

All these politicians and bureaucrats comes from the society, hence the need is to imbibe moral teachings in the society. "Vital though it is to extricate the bad apples from important to prevent them from getting into the barrel at all. This has to be done by simply ensuring that the system does not allow rotten to get in”.

Lokpal act can be said to be the positive step to fight against corruption, but the need is to ensure that right people is appointed as lokpal and lokayukt and the institution must have the proper and efficient staffing to act as a deterrent against corruption.

There are lots of structural weaknesses in the system of law enforcement, regulatory mechanism and too much delay in judicial process.

When these major systems which are supposed to deal with crimes and corruption are riddled with major drawbacks, it is but natural to be skeptical that any whistle-blowers protection law can be effectively implemented and witnesses protected from retribution.

The tool of whistleblower law must be made mandatory to public as well as private sector and also ministry should be included in the ambit of it. Therefore whistleblower protection act is not sufficient to protect the interest of the whistleblower. The government has to sincerely start taking reforms to root out the menace of the corruption and also to protect who reveal the information about the corrupt. The areas related to protecting whistleblowers, witnessing in court cases and RTI activist have to be protected. There is really a need to protect whistleblowers who are also public heroes.

The need is to make the system more transparent and accountable by giving it in the hands of the people. Citizen of India should have a say in function of a system. Correct information demands accountability and transparency, and there must be a proper mechanisms for two way communication process between citizen and the government.

End-Notes
[1] Retieved from < https://thewire.in/law/dont-make-dipak-misra-chief-justice-till-role-in-land-deal-is-probed > last accessed on 15th april
[2] K.Veeraswami v. Union of India, (1991) 3 SCC 655.
[3] Supreme Court Advocates on Record Association Vs. Union of India (1990) 2 S.C.R. 433
[4] Retrieved from < http://cvc.gov.in/node/103 > last accessed on 16th april, 2018
[5] NAGARAJAN VITTAL, ‘Corruption and the State: India, Technology, and Transparency’ Harvard International Review, Vol. 23, No. 3 (FALL 2001), pp. 20-25 Harvard International Review
[6] ibid
[7] Retrieved from < http://www.thehindu.com/opinion/lead/bad-enactment-no-enforcement/article6640407.ece > last accessed on 16th april, 2018
[8] THE LOKPAL AND LOKAYUKTAS BILL, 2011
[9] http://www.thehindu.com/news/national/all-you-need-to-know-about-the-lokpal-bill/article18254568.ece
[10] Amrita Johri, Anjali Bharadwaj ‘The Lokpal Act of 2014: An Assessment’ EPW
[11] ibid
[12] Pankaj K P Shreyaskar, ‘Contestations of the RTI Act : A Labyrinthine Practical Regime’ EPW
[13]Report of Times of India ‘Death toll of RTI activists goes up to 56’ available online at < https://timesofindia.indiatimes.com/india/Death-toll-of-RTI-activists-goes-up-to-56/articleshow/54947268.cms > last accessed 20th April, 2018.
[14] Aruna Roy, Shanker Singh and Nikhil Dey ’Making Truth Powerful’ India International Centre Quarterly, Vol. 33, No. 2 (AUTUMN 2006), pp. 97-107
[15] ibid
[16] “Satyam had a Whistleblower Policy since 2005”, The Financial Express, New Delhi, 29 March, 2009,< http://www.financialexpress.com/news/satyam-had-a-whistleblower-policy-since-2005/440221/2 > last accessed 23rd April, 2018
[17] Avnesh Gupta ‘Sending Whistle-blowers to Their Deaths’ Economic & Political Weekly EPW march 21, 2015 vol l no 12
[18] “Why the whistleblower law doesn’t extend to the private sector”, 17 August 2013, < http://www.firstpost.com/india/why-the-whistleblower-law-doesnt-extend-to-the-private-sector-1040889.html?utm_source=ref_article > last accessed 23rd April, 2018.
[19] The Vohra Committee Report, 1993
[20] “Dinesh Thakur: Meet the man who won Rs. 244-cr for blowing the whistle against Ranbaxy”, ET Bureau, 15 May 2013,< http://articles.economictimes.indiatimes.com/2013-05-15/news/39282156_1_ranbaxy-drugs-rashmi-barbhaiya-largest-drug-maker > last accessed 23rd April, 2018.
[21] 179th Law Commission of India Report, 2001
[22] ‘Empowering the Watchdogs’ FEBRUARY 24, 2018 vol lIii 8 no 8 EPW Economic & Political Weekly

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