We need to protect whistle blowers

Ignoring the fact that Right to Information users are facing death for keeping democracy alive is a threat to democracy itself

July 30, 2022 01:00 am | Updated 11:17 am IST

“Words, words, words” was Hamlet’s reply to Polonius’ question, “What do you read, my lord?” That is what our Right to Information (RTI) Act, 2005, is being reduced to. The Centre for Law and Democracy classifies it among the top five laws in the world. The RTI empowers us to participate in the policymaking process, by providing access to information relating to the functioning of all public authorities. Ordinary citizens have used the law to make public authorities accountable and transparent in their functioning. In fact, the law has been used extensively by a cross section of citizens including activists, lawyers, bureaucrats, researchers, journalists and most importantly, ordinary folk. They all have been asking simple questions and pursuing answers on the use of public funds, and unearthing corruption of all kinds from the Panchayat level right up to Parliament. The widespread understanding and use of the RTI is a shining example of a participatory democracy in spite of our current realities.

The killing of activists

Unfortunately, the dangerous underside of the RTI is manifesting itself through violent reactions from entrenched interests and powerful lobbies. Since the implementation of the Act, some 100 RTI activists across the country have been killed and several are harassed on a daily basis. This is a reality of one of the strongest laws for democratic accountability that we must systematically address through strong legal and institutional safeguards.

Bihar is turning out to be one of the most dangerous States for RTI activists despite being one of the earliest promoters of the law. The State ranks first in the number of deaths of RTI users. As many as 20 RTI users have lost their lives since 2010 in different districts across Bihar. In 2018, six RTI users were killed for seeking information related to the functioning of public programmes and institutions. These brutal murders have not only raised an urgent question of the protection of people engaging with the system to seek accountability, but also of the state’s responsibility to provide legal assistance, time-bound grievance redressal, compensation, and dignified access to justice to the families of those killed.

Earlier this month, civil society organisations organised a public hearing in Patna where families of the ‘whistle blowers’ disclosed that the whistle blowers had been working on issues of public importance and interest, exposing irregularities and corruption, pursuing transparency in the functioning of the Public Distribution System, the Mahatma Gandhi National Rural Employment Guarantee Act, Anganwadi centers, housing schemes, illegally operating health clinics and so on. They had been requesting information that should have been mandatorily disclosed to the public under Section 4 of the RTI Act. Family members at the hearing also questioned the abdication of responsibility by the State government in assisting them to get justice in each case. After all, the whistle blowers were performing a basic civic duty of public vigilance that the government should encourage and initiate timely action on. The killing of RTI users and the intimidation of their family as they struggle for justice, in Bihar and other parts of the country, are reflective of the lack of action by the government and collusion of the police with powerful vested interests to deny, if not subvert, justice.

A new framework

We are living in a time where the government denies the existence of casualties emanating from its acts of omission and commission. This has prompted civil society to maintain lists of persons who lost their lives on account of demonetisation, COVID-19 and now RTI, so that the lives of the people, particularly the poor, are not remembered merely as numbers. We need to move beyond maintaining a count. We need to advocate for and move towards creating a socio-legal system that recognises RTI users under attack as human right defenders and build a framework that facilitates and protects them in their attempt to pursue issues of public interest. Otherwise, words in the RTI legislation will ring hollow.

There can be multiple components to such a framework, and it is time State governments take the lead without waiting for the Central government to set an example. First, State governments must direct law-enforcement agencies to expeditiously and in a time-bound manner complete investigations in all cases where RTI users are harassed. This must include making proactive efforts to provide adequate compensation to the victim’s family.

Second, available evidence clearly shows that the information requested by the murdered RTI users was information that should have been mandatorily disclosed in the public domain under Section 4 of the RTI Act. Therefore, the State governments must take immediate efforts to institutionalise proactive disclosure of actionable information. Is this possible? Rajasthan has taken the lead in active disclosure. Its Jan Soochna portal subsequently followed by Karnataka’s Mahiti Kanaja are outstanding examples of practical ways of mandatory disclosure.

Comment | The tremor of unwelcome amendments to the RTI Act

Third, in all cases of threats, attacks or killings of RTI users, the State Information Commission must immediately direct the relevant public authorities to disclose and publicise all the questions raised and the answers given to the user. Giving wide publicity to such information may potentially act as a deterrent against attacks on RTI users, as perpetrators get the message that rather than covering up the matter, any attack would invite even greater public scrutiny.

Effective legislation

Last, there is an urgent need to enact an effective legislation to protect whistle blowers. In 2016, a Supreme Court bench of Justice T.S. Thakur and Justice A.K. Sikri came down heavily on the Union government for its reluctance in notify the Whistle Blowers Protection Act of 2014, but unfortunately to no avail. The Supreme Court observed that there was an “absolute vacuum” which could not be allowed to go on. The Central government was called upon to decide on a specific time frame to establish an administrative set-up to protect whistle blowers. The court recognised that the concept of a whistle blower is a global phenomenon and has become a reality. It cannot be wished away. Words, words, words that have no effect on the Central government. Eight years have gone by and the proposed Act has not been notified.

Given this reality, State governments, such as those of Bihar and Maharashtra, which have recorded the highest number of murders of RTI activists, must introduce their own mechanisms for protecting whistle blowers by enacting at least a State-level whistle blower protection law. Ignoring the plight of RTI users facing death for keeping our democracy alive is a threat to democracy itself.

Justice Madan B. Lokur, a former judge of the Supreme Court of India, is presently a judge of the Supreme Court of Fiji

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