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A case for whistle-blower anonymity

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By EMN Updated: Sep 24, 2014 11:14 pm
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Suhrith Parthasarathy

[dropcap]A[/dropcap]nonymity can protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society
The Supreme Court of India has, thankfully, decided to reconsider an earlier order calling for revealing the identity of the whistle-blower while hearing a petition alleging gross misconduct against the Director of the country’s foremost police agency, the Central Bureau of Investigation (CBI). On September 15, a bench comprising Justices H.L. Dattu and S.A. Bobde had made an egregious demand on the petitioner, Centre for Public Interest Litigation (CPIL) that it would accept an affidavit filed on the NGO’s behalf only if it revealed the source of its information. Earlier, CPIL had submitted to the court, among other documents, what it alleged to be the visitor’s register to the CBI Director Ranjit Sinha’s residence, exposing several persons accused of crimes in the 2G-spectrum and coal scam cases having met him. These meetings, according to the NGO, showcased the Director’s complicity with the accused, which compromised trials of critical public importance.In response to the Supreme Court’s original demand for the name of the whistle-blower, CPIL filed a fresh affidavit informing the court that it was loath to revealing the name of its source. “Several whistle-blowers have unfortunately been killed after their identity was revealed,” the affidavit states. What’s more, along with its new affidavit, CPIL filed a fresh plea requesting the court to recall its earlier order. The Bench will now consider CPIL’s petition, after hearing the opinion of the Special Public Prosecutor Anand Grover, when it reconvenes on October 10.
Why anonymity matters
Any decision from the court on the admissibility of CPIL’s plea could have, in the judges’ own words, “great ramifications.” At a time when laws around the world are being strengthened to encourage whistle-blowing of corruption at the highest levels, it would be grossly pitiable were the court to disregard CPIL’s petition purely on the basis of the NGO’s failure to reveal the name of its informant. If the court persists with its original demand for the name of the whistle-blower — albeit in a sealed cover — as a pre-condition to taking the document on record, it will only serve to further weaken the state of whistle-blower protection laws in India, potentially closing the door on future crusades against corruption. Unless the anonymity of whistle-blowers is preserved and protected, it is likely that instances of dishonesty by public officials will become not merely the norm — if it isn’t already so — but also virtually undetectable.
Anonymity, as John Paul Stevens, a former justice of the U.S. Supreme Court wrote, by evoking J.S. Mill’s On Liberty, in his majority opinion in McIntyre v. Ohio Elections Commission (1995), can be “a shield from the tyranny of the majority.” It can “protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” No doubt Mr. Stevens’ views were expressed in the context of protecting political speech under the First Amendment of the U.S. Constitution. But the basis for such right to anonymity equally applies to whistle-blowers. To accord them such freedom would provide them a protection from retaliation. As the affidavit filed by CPIL informs us, whistle-blowers, whose identities have been revealed, have often faced the wrath of the real offenders: Satyendra Dube, S. Manjunath, Amit Jethwa and Shehla Masood are but a few informants killed after their identities became public.
The argument against the protection of anonymity canvassed by Mr. Sinha’s counsel, that the Supreme Court was originally inclined to accept, is that the identity of the source is integral to a proper adjudication on the genuineness of the claims, in this case, the veracity of the logbook. But such a position is both misconceived and dangerous. As CPIL’s affidavit reveals, there are a number of ways in which the Supreme Court can probe into the authenticity of the logbook. Just by way of example, says the NGO, the 23 Indo-Tibetan Border Police (ITBP) and CBI guards, who were stationed at the residence of the CBI Director can be examined by Mr. Grover, and, if they so deem fit, can be cross-examined by Mr. Sinha’s lawyers.
There are numerous other ways in which the veracity of the logbook can be verified. The CBI is hardly in need of tutoring on such endeavours. In numerous instances, the bureau itself has taken pains to protect the anonymity of its sources, prosecuting the accused based on confidential information, where even the complainant has, at times, been kept unidentified.
Admissibility of evidence
It might well be the case that the logbook from Mr. Sinha’s residence was obtained through illegal, or even unethical, means. But the law of evidence in India, quite contrary to the American position, does not proscribe the admissibility of evidence illegally obtained. India’s rules of evidence are modelled on English law, where courts consistently refuse to exclude evidence obtained through an illegal search or seizure. The only test of admissibility is the relevancy of a document. Although these are arguments to be made and countered at a subsequent stage of the proceedings against Mr. Sinha, there can be little doubt that a register comprising the names of the visitors to the CBI Director’s residence is relevant in determining his alleged complicity with the accused in matters of such enormous public significance.
What’s more, the Supreme Court’s original objection to CPIL’s affidavit on the basis of Order IX Rule 13 of the Supreme Court Rules, 2013, appears not only pedantic but also incorrect. Order IX comprises the rules of filing an affidavit in the Supreme Court. Rule 13 specifically states that an “‘affidavit’ includes a petition or other document required to be sworn or verified; and sworn includes affirmed. In the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information, the deponent shall disclose the source of his information, including official records.”
Here, CPIL’s assertion about Mr. Sinha’s complicity with the accused appears to be based on a visitor’s register to his residence. The assertion is admittedly a statement based on information and belief. But all that CPIL was required to disclose in its affidavit, and the verifying petition to its affidavit, in order to maintain consonance with the rules, is that its statements were based on the logbook; this is so, because the source of the information that CPIL has asserted in its affidavit is the logbook by itself, and not the person who secured the logbook from Mr. Sinha’s residence. In this case, the information in question is the meetings held by Mr. Sinha with numerous persons accused of crimes in the 2G spectrum and coal block cases, and the source of that information is the visitor’s logbook. The NGO is, under law, mandated to disclose no additional evidence.
Furthermore, as CPIL has highlighted in its new affidavit, the Supreme Court in public interest litigation has often relaxed the rules of procedure where questions of enormous national significance are at play. Ensuring a fair, uncompromised trial of the accused in the 2G spectrum and coal block cases, given the enormity of the alleged crimes committed, is of particular public importance. Even if the document presented to the court by Mr. Bhushan appears on the face of it to be forged, the court must allow the petitioner, possibly with the aid of the special public prosecutor, an opportunity to establish the veracity of the document independent of an examination of the whistle-blower’s authenticity.
A democracy — where the meekest deserve protection from the majority — ought to accord its whistle-blowers the highest protection, including the safeguard of anonymity; whistle-blowers, as the history of other democracies have shown us, represent a strong check on unbridled government power. If the shield of anonymity is allowed to wither, the jurisprudence of our courts will only serve to encourage the worst forms of governmental transgression. The attention of the Supreme Court ought to be on the message, and not the messenger.

(Suhrith Parthasarathy is an Advocate in the Madras High Court.)
Courtesy:The Hindu

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By EMN Updated: Sep 24, 2014 11:14:24 pm