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Maul The Messenger

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September has been a cruel month for victims and whistleblowers. On 28 September 2011, J.S. Verma, General Manager of Essar Steel, found himself in the slammer accused of funding Naxal groups in Dandewada area of Chhattisgarh. The same day, Sudheendra Kulkarni, former aide of BJP stalwart L.K. Advani, was also taken into custody, accused of bribing his own party's MP's to help the Congress Led UPA government survive a vote of confidence in July 2008. Neither the extortionist, nor the primary beneficiary of the intended bribe, suffered any consequence. Does this make any kind of sense at all?

Let's deal with the facts.The Chattisgarh police have been very active in arresting people who hand money over to the Maoists. As part of this tit-for-tat campaign, they caught up with a contractor called B.K.Lala who they accused of paying off the Maoists to protect Essar's267 km pipeline from Bailadila to Vizag.Lala reportedly told the police that the money came from the General Manager's office so Verma was booked under Section 121 of the CPC for waging war on the State and other sections of the Unlawful Activities (Prevention) Act. Essar of course denies that they ever pay anyone off.

How does one read this situation? The Essar pipeline has been damaged 15 times since Oct 2005 and the police can't do very much about it. We can safely assume that leading industrial houses do not willingly gives money to terrorist. If we assume that everything the police say is true, what is the storyline? The police could not protect the people from the terrorist's demands so the people met the terrorist's demands and now the police accuse the people of supporting the terrorists. That sounds a lot like my security guard arresting me for not using his services while admitting that he cannot provide me security. It seems the main choice is to get the pipe blown up or get arrested. Would it help to report the upcoming extortion to the police and help them nab the criminal?Is whistle blowing a solution? We come to that in a moment but hear another story first.

On 24 August, the police filed a charge sheet in court accusing famed deal maker and former Samajwadi Party leader Amar Singh and L.K. Advani's aide Kulkarni of conspiring to bribe three BJP Members of Parliament to help the Congress led UPA survive a vote of confidence in the Lok Sabha in 2008.Amar Singh allegedly used Kulkarni to deliver the money to the MPs. We know that these three MPs accepted the money, took the money to parliament and chucked it about to show how the UPA was engaging in skulduggery. The charge sheet does not name anyone in the UPA government, so the beneficiaries of this scheme remain blameless. Kulkarni doesn't understand how he is in jail because as far as he is concerned, he is a whistle blower. No doubt he will agree that he did not blow the whistle - the three MPs did -but he worked for a BJP leader and other BJP MPs were being bribed, so you can see the argument that he was one of the good guys. In any case, these three MPs are also in jail too. I would say that these three MPs are whistle blowers because if they were in it for the money, the MPs would have kept the money rather than display it in Parliament. The moral of story then is clear. If you are a victim or a whistle blower, you are going to get it in the neck. If you are the beneficiary of the scheme, all you need is credible deniability.

I hasten to add that I am not blaming the police for anything. I am also not blaming the magistrate for anything. Since the two cases address the same issue but span two different laws, we need to look at them separately. Consider first the Essar case. If someone squeezes you, or threatens to explode a bomb under your butt, what are your choices? You have four. First, you can go to the cops and hope someone takes you seriously. This country is full of people who scream death threat in order only to get a free gun toting body guard they can then flaunt as a status symbol. You would have to work hard before the cops would take your seriously. Even if they do take you seriously, do they have the capacity to protect 267 km of pipeline? Your second choice is to buy protection from the hoods. This is not outrageous: protection is a significant part of urban life in a significant portion of the urban world around the globe. However, if you get caught, Verma will tell you what happens to you. You do have a third choice: you could go to the police and say, I have to pay the extortionist and so help me nab him while I pay him. Considering how the local police has been infiltrated around the world, leave alone India, what are the chances the extortionist won't know in advance that they have been set up? Do you expect to nab the culprits or stop a bullet? Finally, you could pay the extortionist off and then go to the police and say, "this is the guy I paid. Now go catch him." This option would be viable if the cops were capable of catching him. Considering the numbers of Maoists on the loose in Chhattisgarh, what would you rate the chances? The way I see it, your only realistic option is to pay him off in any case: then you can pour yourself a stiff one and ask yourself if you should turn whistleblower. In truth, this question is only worth asking if we haveeffective whistle blower legislation in place. As things now stand, you are going to get arrested for paying a terrorist because you are too afraid to die for a nation that will not protect you. You need effective whistle blower legislation.

This same argument can be made in the Cash for Votes case. Someone offered BJP MPs some serious money to abstain from voting in Parliament. This would have helped the Government of the day survive. The MPs could have refused, the Government may have fallen but the legislators would have supressed information relating to a potential crime. Alternatively, the MPs could have gone to the local police, complained that they were being corrupted, set up a sting operation and nabbed the bribe givers. When a policeman hears that he is expected to nab the emissary of a major political party, someone who just may be in power next week, what do you think he is likely to do? Your third option is to turn whistle blower, take the money, take it to parliament and then tell the country what the ruling party is trying to do. As the law now stand, it seems if you do this, you can expect to enjoy some R&R in Tihar jail for your social service. Isn't there something wrong with a law like this?

It obvious solution to this problem is to grant immunity to whistle blowers. At the height of the Anna hunger strike and its attending tamasha, I was as strident as anyone in drawing attention to the Governments effort to legislate an appropriate whistle blower law (see Melas with Missions). These two cases now reveal that my optimism was misplaced because the Public Interest Disclosure and Protection of Persons Making Disclosure Bill, 2010 would not help the whistle blower in either case. First, it applies only to central government employees, not to public servants generally and most certainly not to terrorists. This may not make much sense. Not everyone who puts the squeeze on you is a civil servant because he may well be the power of attorney holder of a civil servant. The agent who shows up to make a 'settlement' after the finalisation of your income tax returnhas been indefinitely delayed isn't a civil servant either.

Second, this bill does not decriminalise bribe giving whistle blower. As often as not, to bribe and then squeal is your only option. If you do it and squeal, you're screwed. This seems to be a popular view. The Chief Economic Advisor to the Finance Ministry Kaushik Basu has recommended immunity for bribe givers. Infosys founder Narayana Murthy has endorsed this view. It seems to me that while this is a good idea, it is not enough because in the Cash for Votes case, the bribe takers were the whistle blowers! This takes us to the inescapable conclusion that it does not matter who is the taker and who is the giver: all we want is that in all cases, the whistle blower must receive immunity. You may wonder if this is going to lead to competitive squealing! Frankly, if we end up in a world where everyone is dying to squeal and no one wants to give or take a bribe, would you be complaining?

This takes us to the third critical leg of the whistle blower stool: a witness protection program. Section 10 of the bill states that if a man fears victimisation, he can file an application before the Competent Authority! That is outrageously laughable but it is not funny at all. If you do not have an effective obligatory right-off-the-bat witness protection program, the only whistle blowers would be dead ones. How many Satyender Dubeys need to die before we figure this out?

At the end of the day, it comes down to this: If you do not give complete immunity to the whistle blower, regardless of whether he is a giver, taker or just the facilitator, you are not going to get too many whistle blowers. If you do not give complete protection to the whistle blower, you are not going to get very many whistle blowers who will live long enough to finish the whistle blowing.

The author is managing partner of the Gurgaon-based corporate law firm N South and author of the pioneering business book "Winning Legal Wars. He can be contacted at [email protected]