Speech : Shri Ravi Shankar Prasad on whistle blower Bill in Rajya Sabha

Speech by Shri Ravi Shankar Prasad,
MP, BJP General Secretary and Chief Spokesperson

On whistle blower Bill in Rajya Sabha

SHRI RAVI SHANKAR PRASAD (BIHAR): Mr. Vice-Chairman, Sir, I am really grateful to you that on a crucial Bill like the Whistle Blowers Protection Bill, 2011, you have given me the privilege and honour to speak and initiate the debate. Today is a very unique day in the pursuit of our democratic polity. Democracy means accountability. Democracy means equity. And democracy means good governance. Good governance can never come about if there is corruption. I shall be dealing with that issue separately a little later. But in exposure of corruption in a conclusive manner an insider plays a very crucial role. An insider takes a great risk in seeking to expose corruption. When I am speaking today let me at the very outset pay my profound homage to Satyendra Dubey, the courageous engineer of the National Highways Authority of India who was exposing corruption in the construction of national highway in my own State of Bihar; and was killed. When I am speaking on this Bill, let me pay my homage to Manjunath, Sales Executive of the Indian Oil Corporation, a graduate of IIM who was exposing adulteration of fuel near Lucknow in Uttar Pradesh and was killed. Let me pay my homage to Col. Sood, the brave Block Development Officer of Bengal who was exposing the scam in our AG and was found to be dead in very mysterious circumstances. About 9 or 10 RTI activists had to pay with their life for exposing scams. Therefore, I begin with my homage to them.

Sir, our democracy day after tomorrow would become exactly 65 years old. As I see, these 65 years have been years of learning. These 65 years have been years of ups and downs. If I may briefly reflect upon the growth of our democratic process there had been one party rule for a good measure. Then, in States, non-Congress (I) Party started occupying the political space; and thereafter the people realised the worth of their vote. Today, they know that they can defeat any political party howsoever powerful, any political leader howsoever popular through the power of their vote. I always feel as an activist from the very beginning, this has led to a very sobering impact on our democratic polity. It has stabilised our democracy. The people of the country know that there should be no military coup in India. The people of the country know that in view of the very, I would say, extraordinary experience of the seventies, no leader howsoever popular would seek to impose Emergency in the country, impose Press censorship, address people without trial in a very brazen way. Now with this establishment of our democratic polity the voters recognise that they support a political party consistent with their ideology of support base; and they in turn try to understand the identity of India. Sir, I am a great believer in the democratic power of our people; and the best thing I recognise, I was present in the Lok Sabha when I was a Minister in Vajpayee's Government, that from Punjab a political activist had been elected who never believed in the identity of India, who never believed in the Indian Constitution, but the day people gave him the mandate, he took oath in the Lok Sabha under the Indian Constitution.

(Continued by 2R/VK)

VK/2R/2.50

SHRI RAVI SHANKAR PRASAD (Contd.): This is the great sobering experience of the working of our democracy which we have had. Therefore, we are very proud of our democracy. Sir, democratic process cannot survive only in the context of an opposition party and a Government. Democracy means political process; democracy means non-political process. All those processes, in one way or the other, strengthen the cause of democracy. I remember the time when a Public Interest Litigation came up. There was a lot of doubt as to what was happening and why it was happening. I remember, Sir, in my days in Patna, when I used to practise law there, I was a whistleblower myself. This whole fodder scam case was argued by me. Then I was a small known lawyer, not a known political leader. The entire bitumen scam was argued by me. (Interruptions). All right, I stand corrected. Will you allow me to speak? It is a serious matter. We will talk about the Goa issue separately.

Then there was a lot of apprehension. But both, the political process and the non-political process, were working together. Therefore, I also salute a large number of NGOs, who, over the years, have articulated because of our democracy. People used to say that the court was interfering too much. Maybe, they were right to some extent. I have always felt that the court has got no business to intervene in the executive Government of the day. The right to govern the country has been given to the Government of the day, whether in a State or in a country. Yes, in cases of violation of fundamental rights, violation of human rights and gross corruption, the courts must intervene. That is how the democracy has strengthened over the years.

In this whole quest of governance, accountability is important. For accountability, transparency and integrity are equally important. You cannot have the element of good governance; you cannot have constructive accountability, if you jettison integrity and probity. Yes, today India is growing very well. We see a very aspirational India. Young people are having a dream; young graduates are working very hard and there is a lot of perseverance. But they also get disheartened when they see the present image of the country. Sir, I keep on travelling in the country and interact with young people. I keep on going abroad. Hardly, a month ago, I was in the United States. The kind of writings I heard about, the kind of negative image I heard about, was certainly disturbing for me as an Indian. We have to rise above all these things. In the exposure of all these massive scams and corruption cases, whistleblowers have played a very crucial role. Gopikrishna was consistently writing articles In The Pioneer newspaper about what was happening in the 2G. As I was a Member of the Standing Committee on Information Technology, I was following it up closely. We tried to do our best but could not succeed. That is a separate chapter altogether. I will discuss it in the Chamber as to what happened and why. But he kept on writing. He was threatened. Ultimately, when the whole 2G issue became very explosive, people started listening to him. He was also given a CNN- IBN award for the best journalist. I asked him one day, “Gopi, what happened?” He said, “There was a whistleblower in the Department of Telecom, who was my source. He was fed up with the happenings so much that he used to give me this information.” I told him to give my regards to the whistleblower for exposing such a big corruption in contemporary history of India. The same is the case of Commonwealth Games and other things. I am not being partisan today. But what is important is, if mal-administration or corruption or abuse of power is exposed, one should not take it in a negative way as impinging upon the Government of the day. I would see it as a kind of warning that please usher in course correction. Sir, our democracy is very strong today. Today, they are in power; tomorrow we can come to power. Earlier, we were there. This exchange will keep on going. That is the flow of democracy. But there are certain fundamental obligations which we owe to the country, to the people of the country and to posterity.

(Contd. By 2S)

RG/2.55/2S

SHRI RAVI SHANKAR PRASAD (contd.): That is, we must leave an India which is strong, resurgent and accountable. In that process, I see today’s Bill as a moment of great historic opportunity, and it is in that larger context that I was seeking to elevate this debate. And there has been a trinity. The first is the Right to Information Act. The second is the Lokpal Bill. We wish, Mr. Minister, that your Government will bring it at the earliest. Today there is a meeting of the Select Committee. I hope that it is expedited, and in this Session itself, the Lokpal Bill will be brought before the House. And the third is the Whistle Blowers Protection Bill. Therefore, this whole process is very important. Sir, when I was a young student, a school-going boy, the first question of whistle blower, which we heard very vaguely, was about Deep Throat in the Watergate Scandal. There were stories and stories, and finally, the very arrogant, imperial, U.S. President, Nixon, had to bow down from office. But it is truly amazing that after 32 years, they found that the great journalist or insider, whose name was William Mark Felt, was the Deep Throat and the whistle blower who led to the exposure of the Watergate Scandal. Now, world over, it is being recognized. It is important. Sir, I was just going through a literature. In America, the frauds of public and private companies are pursued very strongly. And I learnt, to my amazement, that America has so many regulators, and yet, nearly one-fifth of the frauds are explored by whistle blowers from inside, who keep on fighting. This movement has been recognized world over. And, we have got, in the U.S.A., the Whistle Blowers Protection Act, 1989. Now, there is the Dodd-Frank Wall Street Reform and Consumer Protection Act, 2010. There is a provision of reward for reporting frauds to the Security Exchange Commission. In Canada, we have the Public Servants Disclosure Act for the public sector. Sir, when I was doing my research for this debate, to my utter amazement, I find that there are smaller countries like Romania, South Africa, Uganda, Canada, New Zealand, Australia, etc., which all have some form of protection for whistle blowers. So, why has the esteemed Minister taken so long to bring this Bill? I think it must have been a matter of some priority. And, I would like to say one thing, with profound respect to the hon. Minister, who is a good friend of mine. On a matter of moment like this, allow the House to have a proper debate. I have no grievance. It is your right to bring in a Bill and get it passed. But the manner in which it was passed in the other House – I am not making any comment – leaves much to be desired because this Bill, which we are passing today, is not for your Government or for my Government. This Bill, which we are passing today, is for strengthening of India. Therefore, all the hon. Members, present here, need to share their views so that all the shortcomings may be taken care of and, if need be, they should be addressed.

Sir, I was going through the 2009 Report of the Transparency International, and India’s position was 89. I would like to be enlightened by the hon. Minister as to what the contemporary position is. I am sure that post-2009, in the light of what India has experienced, the number would have gone down.

SHRI TAPAN KUMAR SEN: It is 109.

SHRI RAVI SHANKAR PRASAD: Thank you, Tapanji. Therefore, our position has again gone much down. I think it is very important that we must understand that a corrupt Government, a corrupt governance, saps the morale of the people. I am not making a partisan statement today. I know India is a fine country. I am a chronic optimist. I have not got the slightest doubt that India, in our lifetime, will become the biggest powers of the world, not only economic and military, but also spiritual. That is my confirmed belief. And, when I see this great promise of these young people, who have an idea of a ‘Great India’, and the kind of pessimism which creeps in because of simmering corruption, then, how do we respond? That is, indeed, very important. Therefore, today, when we are seeking to give some kind of statutory cover to a whistle blower, it is a step in the right direction for the strengthening of the accountability process of India.

(Continued by 2T)

SSS/2t/3.00

SHRI RAVI SHANKAR PRASAD (CONTD.): Sir, I was just going through Satyam Computer’s great scam. I was trying to know how this huge scam of 7000 crore plus -- at that point of time it might have gone to 10,000 crore plus for anarth -- had taken place and I learnt, to my great dismay, that it was an insider’s job. His name I have, Sir, but I will not like to disclose so that it may not have any problem for him because I have some questions to ask about the private sector when I come to specifics of the provision. Sir, we have the 179^th Law Commission Report which insisted for a Public Interest Disclosure Bill. We had the Second Administrative Reform Commission Ninth Report; Ethics in Governance, and you talked about the Standing Committee Report. I have to ask certain questions; I will come separately about that. But, let me go to certain very fundamental issues. Hon. Minister, I have tried to find the answer. Correct me if I am wrong. Does this Bill apply to a public disclosure in the private sector or does it not? I want a very categorical answer. I see Section 19. Then, there is a provision for punishment to executives of private companies. But when I see Section 4, as far as the obligation to disclosure is concerned, then I don’t see private sector being there because there is a case of registered cooperative society, there is a case of a Government company; there is a case of a Minister, Departments, MPs, MLAs, universities’ Vice-Chancellors. But does a non-Government, public or private company, come within the ambit of disclosure? It is a little ambiguous. I would like to have clarity on that. The second is, the CVC is the competent authority. Sir, I have the highest regard for the office of the Chief Vigilance Commissioner. But what is the authority of the CVC? At best, it is recommendatory. What happened to Mr. Thomas, we all know. What kind of comments Supreme Court had to offer, we need not go into that. Past is history, but when you discuss a Bill of such seminal importance, you cannot completely ignore as to what has happened in the past. Now, the authority of the CVC is indeed, very important. The CVC should not be merely a recommendatory body. What kind of rights have we given additionally to the CVC, apart from giving direction in the case of a particular whistleblower being victimised? Why is it important? Who is the competent authority before whom complaint can be filed in the event of corruption in a private sector? Hon. Minister, this issue, is indeed, very important that today, private sector is playing a very crucial role in the economic development of India. We welcome that. We have the PPP model, the Public-Private Partnership model. We have other models. Now, if in the award of contract, if in the award of any particular tender, if in the award of any particular work, there has been a lot of corruption in the meaning of the Prevention of Corruption Act. There has been a lot of wilful, I would say demeanor or wilful kind of action which led to a loss to the Government as enshrined in the Prevention of Corruption Act, Section 13. What is the remedy available to a whistleblower under the present Act? This clarity has to be there. Sir, now we are believing in an open Government. Yes, there is a conventional view that RTI is creating problem in administration, whistleblower will create problem in administration, Lokpal will create problems in administration. It may have a logic, but I don’t believe it because the growth of the country has seen that with the activism of judiciary to the instrument of public interest litigation, when Governmental decision became subject to frequent challenges before the court, the growth did not stop. The biggest period of judicial intervention in Governmental decision, as a lawyer, Narayanasamyji, you would recall, is post-1989 or post-1988.

(Contd. by KLS/2u)

KLS/PSV/2U-3.05

SHRI RAVI SHANKAR PRASAD (CONTD): And if you see the growth chart of India, maybe, in coalition Government, the biggest chart began post-1991 as well. Therefore, to say that these kinds of interventions in the form of PIL, in the form of RTI, in the form of Lokpal, in the form of Whistle blower would impede growth, is, I would say, not a correct way of looking at it. Maybe, your discretions would be circumscribed; maybe, your reckless abuse of power would be controlled. If that is controlled, that is good for India. The second thing I feel is that if things get established, some of our political friends say, हम लोगों के सारे अधिकार खत्म हो रहे हैं। I hear that and I can see that. Why should be grudge that? We know that there is pressure on us. We can say that यह काम नहीं हो सकता, this law is a part of the Act. Once the people will come to know about it, I would certainly expect that it is going to be a further maturing of India's democracy that people will know what work we can get, the people will know what work we cannot get. Therefore, all these processes I see as a part of augmentation of our democratic process. That is indeed very important. Therefore, hon. Minister, the private sector is a very important issue about which I would like to know from you because we have a whole range of corruption in many of the private sector companies, not only in their dealings between the companies per se but also in the dealings between them and the Government. You must have seen that in the whole 2G, coal blocks allocation, the private sector was interacting with the Government. They were the people who were the beneficiaries of hurried licences given in a manner buried by the Supreme Court. Ultimately, we saw as to how they make quick money. Tapanbabu, I am opposed to Marxism but, at least, one phrase I have learnt to admire, the crony capitalism. And what India witnesses is crony capitalism. We all are supportive of our enterprise of our people, of companies, of private sector entrepreneurs, but who want to toil and rise in the country through fair means should not be put behind by means foul to the instrument of crony capitalism. That is the real irony of India and that is the real agony of India. ...(Interruptions)... We can agree on some of your issues, no problem. Therefore, these instruments of RTI or the Whistle Blowers or the Lokpal or the amending provisions of the Corruption Act are instruments which in that way strengthen the whole process. Sir, the specific question more on the law itself is that you have clause 4 and you have clause 8. Now I trust that you are coming with some amendments because in clause 4 anything can be disclosed. We are all for a very strong Whistle Blowers Act, we do not want it to be diluted, but I must caution you, Mr. Minister, it should not become an instrument of plaything against India's strategic interests in the hands of those who want to weaken it. Therefore, in our Constitution under article 92 there is a provision of security of India, integrity of India, there is a need to bring it here. ...(Interruptions)... I am grateful. Maybe, this incitement to violence, if some one wants to have some information with a view to incite people to violence, commit communal carnage, these are the issues which need to be addressed. I can also understand friendly relations with foreign countries. But there I have one caveat and that is a very important caveat. I hope Tapanji recognises what I am going to say on that. Bofors came from Sweden. Hon. Minister, you will recognise that and genuine exposure of cases relating to India in a foreign country should not be blocked on the ground of friendly relations with foreign countries. That is the caution I would like to administer at the very outset here. Therefore, now I see clause 7...

SHRI V. NARAYANASAMY: Sir, I have a small submission to make. There is a Bill pending before the Parliament, that is, Prevention of Bribery of Foreign Public Officials and International Organisations. The Bill is in the domain of the Parliament and that will take care of it.

(Followed by 2W/USY)

USY/DS/2W/3.10

SHRI RAVI SHANKAR PRASAD: Alright; I am grateful. Now, I see section 8. Here, you have completely reproduced Article 19(2) of the Fundamental Rights. Hon. Vice-Chairman, Sir, Article 19(2) deals with Right to Freedom of Speech and Expression, Freedom of Movement, Freedom of Residence, Freedom of Occupation. And this freedom is to the citizens of India. That is certainly subject to particular reasonable restrictions which the State must impose. But the right to disclose corruption and mismanagement through the instrument of Whistleblowers Protection Act should not be so much controlled, as is there in 19(2). Yes, I can understand the issues of security, integrity, safety of the country, incitement to violence or public disorder. I can understand all these things. In clause 8, you have said everything – friendly relations with foreign States, public order, decency, morality, contempt of court, defamation. Why all this? I see a politician very much in the news for some wrong reasons. Now, he can say, "Don't expose me in this case of suicide because it is indecent to me." At least, let us not do like this. I have the highest respect for the institution of Judiciary, of which I have been a part, both as a lawyer and as a Law Minister, for some time. But can we deny the fact today that there is corruption in the Judiciary? I hear very disturbing reports about some High Court Judges and also some Supreme Court Judges. Could even the Chief Justice of India have an occasion to comment upon? I am saying this with full sense of responsibility. I know my protection under the law. I know the obligation to give respect to the Judges. I am only commenting as to what the former Chief Justice of India have been commenting. I am not saying anything new. Now, in contempt or in defamation, a truth is a defence. If a whistleblower is exposing some fact, is it a defence? Therefore, let us not deny those rights which you are seeking to impose here. That is one request...(Interruptions)

SHRI V. NARAYANASAMY: I agree with you on that.

SHRI RAVI SHANKAR PRASAD: I am so happy that finally, you are agreeing. Good.

Now, I come to the victimisation of the whistleblower and his protection. Hon. Minister, why have you not explained the meaning of 'victimisation'? 'Victimisaiton' is a defined concept in law. Therefore, it would have been appropriate that the 'victimisation' must have been defined in the Bill itself. So, I would request you to kindly consider the non-definition of this vital clause. That is, indeed, very important. I am happy you have incorporated the recommendations of the Standing Committee that unless the whistleblower himself consents, his name shall not be disclosed. But when we are discussing such an important issue, I would like to put one question here. The ways of governance as they are -- you have eight years' experience of governance, hon. Minister, I hope I am right...(Interruptions)

SHRI V. NARAYANASAMY: Four years.

SHRI RAVI SHANKAR PRASAD: Alright. I cannot wish you five years more. That will be wrong on my part. But good luck in future. (Interruptions)... Come on, let us be honest about ourselves. If an insider complaints against his boss, तो क्या उसका नाम छुपा रहेगा? I expect an honest answer from you. The way of governance, as they are, is that you will send the complaint to the concerned person; his boss is a 'boss'; ultimately, his name would be known. I was going through this whole law. You have given certain protections. But this hidden hand of the process of our bureaucracy would impel the process to reveal the name of the complainant. There is no safeguard against that. How can we address that? That is an issue. I was just reading a write-up on one Abhijit Ghosh. He was a General Manager in a nationalised bank. He had complained against his CMD. And, ultimately, the CMD was found to be wrong; involved in corruption; he was taken to task. But, before that, he had to toil for five years, being suspended and suffering a proceeding. He wrote a very interesting thing. Is fighting corruption in India is a corrupt act in itself?

(Contd. by 2x – PK)

-USY/PK/2x/3.15

SHRI RAVI SHANKAR PRASAD (CONTD.): “If not, then, why are the ones I raised a voice against sitting comfortably and it is me who is running from pillar to post?” I am sure there are many ones like him. So, we will have to address this.

Sir, the last issue I would like to highlight is this. There are other speakers also. I never transcend my time; Sir,you know me. There are certain procedural issues. I think it is a question of not giving enough attention to the details and I would like you to reflect with me. Under clause 15 which is about offences and penalties, you can impose a fine of Rs.250/- or you can go to the extent of Rs.50,000/-. No problem. In clause 16, you say, if any person who negligently or mala fide reveals the identity of a complainant, he can be punished up to three years. Again, there is a fine of Rs.30,000/-. Clause 20 is the appellate forum -- appeal to the High Court. “Any person aggrieved by an order of the Competent Authority relating to imposition of penalty under section 14 or section 15 or section 16 may prefer an appeal to the High Court.” Hon. Minister, you have been an experienced lawyer yourself. Under Cr. PC, any trial up to three years takes place before the Judicial Magistrate First Class or Metropolitan Magistrate in Delhi. An appeal lies to the Additional District Judge. Then, further appeal lies to the High Court.  If the provision of punishment is more than seven years, then, there is conviction by the Session Judge, Additional Session Judge, then, appeal to the High Court.  Here, against a fine of Rs.250/- you are sending it to the High Court. I fail to understand the logic of this whole scenario. Unless it is so special, it should not be sent to the High Court. High Courts are overworked. They are overloaded. Therefore, this is an issue which needs to be considered. Yes, make a fast track court. But make a fast track court at the lower level and subject to appeal before the High Court. That is how I would like to see, Sir.  Sir, these are some of my concerns which I thought I must flag to the hon. Minister. Sir, I would like to make two or three more points. Why doesn’t the benefit to a third party get covered within the scope of the Bill? If an officer is responsible, an executive is responsible, you will recommend action against him. But what happens to the windfall gains of the 2G recipients overnight? Why are they not covered within the mandate of this Bill?

The second issue is, I can understand, Army has been kept away. We have the highest regards for the Armed Forces, for the exemplary work they do to keep India secure. They sacrifice their lives to keep India secure. But can we wish away from the fact that, of late, in the Armed Forces also, a lot of irregularities are reported? We see that even Lieutenant Generals are subjected to court martial. Yesterday, on a prime channel, we saw what is happening in the DRDO. Because of the restricts we have for these institutions, we don’t raise it. But if things go for a long time in this manner, then, surely, it has to be raised. Therefore, are you contemplating to have a separate arrangement for the Armed Forces or the like? I would like to know from you whether some bona fide officers who have got the courage within limitations should be given protection. You have counted anonymous complaints completely out; I can see that. Being a Minister of Personnel, you all know that when a promotion is due, a lot of anonymous complaints come. Therefore, you rightly ignored anonymous complaints. But when the issue concerns corruption, when the issue concerns maladministration, when the issue concerns abuse of power, when the issue concerns corrupt elements impeding the growth of India, then, keep a window for anonymous complaints as well. It may not be in the manner as you have done for a known complaint, so that if a complaint is there, at least, there must be an obligation to have a preliminary inquiry about the nature of allegations made if the offences are made out. Because the whistle blower only initiates the process. Rest is for the Government to consider, being accountable to the people and the Parliament. Sir, with these words, I support the Bill. I am sure the hon. Minister would address the concerns which I have expressed. Thank you.

(Ends)