Despite the Supreme Court last week terming Bhushans allegations as grave and serious, it accepted Sinhas stand that its rules and earlier judgments mandate that such applications, annexing classified information and privileged documents, should be entertained only after revealing the source.
Terming the direction as unfortunate and against public good, Supreme Court lawyer R Chandrachud said that this will discourage people to uncover any such wrongdoings. He said that disclosing the identity of a person who has exposed corruption, otherwise hidden from public eye, in government or irregularities by public functionaries, will pose threat to his security. Statistics on number of deaths establish that a whistleblowers life will be in danger the moment his identity is disclosed.
However, he added that the court has to be careful of vested litigation which has been coloured as a PIL and must discourage the filing of these. If doubts are being raised on the authenticity of the documents, then the source will have to prove bonafides. But such disclosure of whistleblower will depend on the facts of each case, he said.
Supreme Court lawyer Harish Salve also felt that the apex courts order should be taken in the right spirit in this case. Sinha has claimed that 90% entries in the logbook are bogus and have entries from a time he and his wife were away. If that is the case, then one cannot create evidence to embarrass the CBI chief. The whistleblower should equally know that he cannot use the court for his own purpose and also seek protection, Salve added.
However, some legal luminaries believe such disclosure will not be in consonance with the very concept of whistleblowing. They feel that the order discourages future whistleblowers because submitting their names in a sealed cover is no fool-proof protection and their names can be leaked. Bhushan said that maintaining the anonymity of the source will encourage conscientious insiders to expose corruption without fear of reprisal.
Despite a strong Whistleblowers Protection Act, passed by Parliament in May this year, the rules required to implement the law have not yet been framed. The whole purpose of the legislation was to provide adequate safeguards against victimisation of the person making such complaint. Almost 20 people have died exposing irregularities. In this regime of transparency, the court should check the veracity of the documents, including visitors logbook giving details of the goings-on at the residence of the CBI chief, rather than insist on disclosure of an individuals identity, says senior lawyer Gopal Jain.
All over the world the name of the whistleblower is kept secret as no one wants to endanger his life. The Supreme Court has all the right to seek such info but it should probe the authenticity of the record first and concentrate on why the top cop was meeting accused at his residence, feels Supreme Court lawyer Prashant Kumar.
Even activists look at the direction as a huge setback, saying it was the Supreme Court that upheld the need for the protection of whistleblowers in 2004. The Gazette notification of the Whistleblowers Protection Act, 2011, which provides a mechanism for protecting the identity of whistleblowers was issued on Monday. The murder of Satyendra Dubey (a young engineer working with the National Highways Authority) led to public outcry at the failure to protect him and, thus, in April 2004 the Supreme Court pressed the government into issuing an office order, the Public Interest Disclosures and Protection of Informers Resolution, 2004, designating the CVC as the nodal agency to handle complaints on corruption.
Ashok Khemka, an IAS officer, was transferred innumerable times and suspended after his revelations of various corruption and misuse of power activities within the government. Another Indian Forest Service officer Sanjiv Chaturvedi, who took on Haryana Chief Minister Bhupinder Singh Hooda in the multi-crore plantation scam in 2009, was removed from the post of Chief Vigilance Officer (CVO) at the AIIMS recently.
Given the hardships faced by the whistleblowers, statutory protection for them is a must. The governments should be prompt and sincere in implementing the law. Even listed companies are gearing up to put in place a whistleblower policy with effect from October 1.