Is it required to disclose the whistle-blower’s identity?

In the case of Manoj H. Mishra v. Union of India[1] the Court enunciated that a whistleblower is a person whose primary motive is to make disclosure in public interest and not merely for seeking publicity There have been various cases in which disclosure of a whistleblowers identity is questioned. There are two schools of thought, one which says that the identity should be disclosed while the other says it should not be.

At common law, in civil proceedings, a Court may direct the disclosure of information which has been received in a confidential relationship (other than lawyer-client) if it is relevant to and necessary for the attainment of justice in a particular case. However, even if the information is relevant and necessary, where the disclosure would be contrary to public interest, the Court would have to balance the public interest in favour of disclosure as opposed to the public interest of maintaining the confidentiality of the identity of the informer.[2]

At common law, with respect to crimes, where a person discloses information to a police officer regarding a criminal offence, his/her name is required to be kept confidential as a matter of public policy. The only exception where the disclosure of identity becomes a must is when it is necessary for the accused to prove his innocence.[3] This rule has also been incorporated in Section 125 of the Indian Evidence Act, 1872 which states that no Magistrate, police or revenue officer shall be compelled to give information as to where he procured the information as to the commission of an offence.

Thus, the prosecution’s right to maintain the confidentiality of the source should always be weighed with the right of the accused to have a fair trial. Till the time the right to a fair trial is not jeopardized, the prosecution can claim privilege on the identity of the source. The European Court of Human Rights has held that the entitlement to disclosure is not an absolute right and that, in any criminal proceedings, there may be competing interests, such as national security or the need to protect witnesses at risk of reprisal, which must be weighed against the rights of the accused. Further, it was held that it is the duty of the national courts to assess the evidence before it and decide on the issue of non-disclosure. There is no authoritative right to disclosure of the identity of the informant.[4] The Supreme Court of India held that not supplying an anonymous complaint of corruption as well as the non-disclosure of the name of the complainant to the accused does not prejudice the accused and does not violate the principles of a fair trial. It was observed that complaint only triggered investigation but was not the foundation of the case or the FIR as the Anti-Corruption Bureau held its own independent investigation.[5]

To be a participant in democracy every individual has a right to know. It forms the basis of free speech and expression under Article 19(1)(a) of the Constitution.[6] Article 10 of the European Convention on Human Rights, provides that everyone has the right to freedom of expression and this includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This right may be subject to formalities, conditions or restrictions prescribed by law and are necessary in a democratic society, for preventing the disclosure of information received in confidence.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) also provides for the right to freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. This right is subject to restrictions, as are provided by law and are necessary to respect the rights or reputation of others and for protection of national security or of public order, health or morals. Disclosure of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands.[7]

In most of the cases protection of the identity of the whistleblower enables the free flow of information and right to information regarding a public official. Any disclosure of the identity of the whistleblower will have a chilling effect on the free flow of information since it would deter persons acting as whistleblowers from divulging information in relation to malpractices and wrong doings by public officials and the Government. Such right to free flow of information has also been recognized as a First Amendment right by the Supreme Court of the USA.[8]

There is a requirement to balance the constitutional rights. Right to information is a basic fundamental right but it is not uncontrolled. Any attempt to make the whistleblower’s identity available to the public official, would pose serious threat to future free flow of information under Article 19(1)(a) and the whistleblower’s right to life under Article 21.  Article 21 protects life and personal liberty. The term `life is a term of wide connotation and includes the reputation of an individual, right to live with freedom, dignity and the right to basic needs. It is well established that the safety, security and life constitute a pyramid within the sanctity of Article 21.[9]

India signed and ratified the United Nations Convention against Corruption. It aims to promote and strengthen measures to prevent and combat corruption more efficiently and effectively. Article 13(2) of the UN Convention mandates State Parties to provide for anti-corruption bodies to report and act even on anonymous complaints.

In circumstances it is seen that the identity of the whistleblower is relevant, an exercise of balancing the public interest of non-disclosure with that of disclosure would have to be undertaken. An element of public interest is involved in protecting the disclosure of the identity of the whistleblower because it would seriously jeopardize the safety of whistleblower and cause a peremptorily hamper the free flow of information. Moreover, the Right to Information Act, 2005, under Section 8(1) (g) also exempts discourse of information if such disclosure would endanger the life or physical safety of any person or identify the source of information. Hence, it can be safely concluded that ‘life’ as per Article 21 of the Constitution of India, of a whistleblower should be safeguarded and should hold prime importance.

By: Astha Singh, GNLU Gandhinagar

End Notes

[1] (2013) 6 SCC 313.

[2] D v. National Society for the Prevention of Cruelty to Children, [1977] All ER 589 at 618c.

[3] Marks v. beyfus, (1890) 25 QBD 494.

[4] Rowe and Davis v. the United Kingdom, Decision of the ECtHR in Application No. 28901/95, dated 16.02.2000

[5] Manjeet Singh Khera v. State of Maharastra, (2013) 9 SCC 276.

[6] Chief Information Commissioner v. State of .Manipur, (2011) 15 SCC 1.

[7] S. P. Gupta and Ors. v. President of India and Ors.,1981 Supp (1) SCC 87.

[8] Branzburg v. Hayes, 408 U.S. 665.

[9] G. Sundarrajan v. Union of India, (2014) 6 SCC 620.

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