These days, asking questions about certain matters of immense public interest is being labelled ‘undesirable’ at best or ‘abominable’, at worst. WE, THE PEOPLE, in whose name sovereign power must be wielded, are repeatedly being denied the right to know the cost of the latest fighter aircraft package deal struck with a French company.
Demands for greater transparency both inside and outside Parliament are being admonished repeatedly. Sharing information publicly will endanger national security, we are being told. It does not matter whether every not-so-naya paisa spent on that deal comes from our taxpaying pockets, or that the fighter planes are meant for securing the nation’s sovereignty and territorial integrity. The nosy citizen, made and skilled in democratic India, is expected to play a chastened Gargi to the government’s pontifical Yajnavalkya (of Brhadaranyaka Upanishad fame), or risk her head falling off her shoulders, should she probe any deeper for the truth.
This expectation of mass self-censorship on matters which are decidedly political is not only against the “spirit of inquiry” -- a constitutionally recognised fundamental duty [Article 51A(h)] but also anathema to our hoary intellectual tradition of not taking anything for granted, but to discuss it threadbare.
While hearing a batch of petitions seeking review of its ‘clean chit’ to the government on the procedure adopted in the Rafale deal, the Supreme Court is asking the right questions about information that was not brought to its notice earlier. The court asked whether the plea of national security can be allowed to trump grave allegations of wrongdoing in the deal. Instead of making a clean breast of it, the Attorney General of India, the highest law officer of the land, not a paid counsel of a political party in power, appeared to threaten two media houses and one of the review petitioners with prosecution under the colonial-era Official Secrets Act (OSA) for reporting and relying on what he called “stolen papers”.
It may not be kosher to comment any further on these court proceedings. But the government’s thinly veiled intimidation has a chilling effect on the fourth estate which promotes, protects and fulfils the people’s right to know in a democracy. Public examinability of governmental actions and omissions is indispensable to a functional democracy. People can demand accountability only when they have access to reasonable amounts of accurate information. Freedom of the press and, consequently, democracy have a fair chance of survival where the media is not bludgeoned into revealing its sources.
We have an important failure of the Modi government to thank for in the latest round of sparring on the Rafale deal. Its pending proposal to render the Whistleblowers Protection Act (WBP Act) useless will lapse with the election of the 17th Lok Sabha by May. Had the regressive amendments that the government had sought to bring in been allowed to pass through the Rajya Sabha, like it did in the Lok Sabha in 2015, it would have become next to impossible to blow the lid on wrongdoing in government without risking prosecution under OSA. The WBP Act — the last piece of landmark legislation enacted in 2014 under Manmohan Singh’s UPA-II government, had sought to protect whistleblowers from such prosecution.
That is not all. In its amendment proposals, the Modi government converted the 10 exceptions to transparency permissible under the RTI Act into grounds for prohibiting whistleblowing about corruption and other offences committed by government and private actors. The first of these grounds was, believe it or not, national security!
The Cabinet Note which this author was able to access rightfully under the RTI Act (and not steal!) revealed the government’s justification for these amendment proposals -- no officer, citizen, organisation or media house should have the absolute right to blow the whistle, especially when national security is involved.
Diluted law
Readers will remember, until the old Prevention of Corruption Act was replaced in 1988, citizens had a statutory duty under the Criminal Procedure Code [Section 39(iii)] to report cases of corruption and bribery in government to the nearest Magistrate or the police. This whistleblowing duty applied to such offences committed outside India also. Sadly, in its current avatar, the anti-corruption law, which was considerably diluted in 2018, does not restore this obligation.
The Lokpal, empowered to probe allegations of corruption against the high and mighty, including the Prime Minister, has also not been set up despite the Supreme Court’s prodding. Six years have passed since Parliament enacted this enabling law. The government claimed that a loophole in the composition of the Lokpal selection committee needs to be remedied through an amendment. This proposal to make the leader of the single largest opposition party in the Lok Sabha a member of the selection panel (when nobody is recognised as Leader of the Opposition) will also lapse when that House completes its term in 2019. Had the Lokpal and the Whistleblower protection laws been implemented in letter and spirit, the government could have spared itself the embarrassment of finding details of the Rafale deal-making process in news reports.
A tottering anti-corruption mechanism is all the more reason why the media’s role in publishing facts about possible wrongdoing in government must be protected. It is in the public interest to so do. This is the reason why whistleblowing is known in legal parlance as “public interest disclosure”.
When there is a reasonable suspicion that those sworn to uphold the law might have actually broken the law, the people have the right to know. Launching reprisals against the media, which is only performing a public duty, will make our national motto satyameva jayate (truth alone triumphs) lose meaning. Whistleblowers and transparency are allies of national security, not adversaries.
(The author is with the Commonwealth Human Rights Initiative, New Delhi)