LAW RESOURCE INDIA

Restricted Reach

Posted in CORRUPTION, DEMOCRACY, GOVERNANCE by NNLRJ INDIA on September 11, 2010

V. VENKATESAN IN THE FRONTLINE

The Whistle-blower Bill, introduced hastily in the Lok Sabha, has provisions that discourage persons who seek to expose corruption.

ON August 26, Union Minister of State for Personnel, Public Grievances and Pensions Prithviraj Chavan introduced the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, or the Whistle-blower Bill, in the Lok Sabha. Soon after, the Department of Personnel and Training (DoPT) under the Ministry uploaded the Bill on its website and invited comments from the public, to be sent latest by September 30, indicating that the Bill is not final and Parliament is open to the idea of amending it in the light of public opinion.

It is intriguing why the DoPT did not circulate a draft Bill and invite comments from members of civil society to improve it before it was introduced in Parliament. An uncharitable explanation is that once a Bill is introduced in Parliament, the government is not bound to reveal, under the pretext of protecting parliamentary privilege, what suggestions or comments it received from the public or whether any suggestions were taken into consideration. This will help the government keep a significant stage of law-making away from the public gaze, even while keeping up the pretence of involving the public.

This lack of concern for public accountability in the process of law-making is evident in the manner in which the DoPT has drafted the Bill. The Bill, as its long title suggests, aims to establish a mechanism to receive complaints relating to disclosures on any allegation of corruption or wilful misuse of power or discretion against any public servant. It also seeks to ensure an inquiry into such disclosures and provide adequate safeguards against the victimisation of the person making such a complaint. But the provisions of the Bill do not match these avowed objectives.

The main problem is with the definition of “disclosure” itself. For anything to be considered a “disclosure” under the Bill, it can be a complaint relating to an offence under the Prevention of Corruption Act, 1988, or against wilful misuse of power or discretion by a public servant (that is, it has to be shown that the public servant wilfully misused his or her power or discretion, as if misuse of power or discretion could be unintentional, too). Thirdly, such misuse should have caused demonstrable loss to the government or helped the public servant to accrue demonstrable gain. In other words, if the loss or gain is not demonstrable, then it does not qualify as a disclosure.

It is not clear whether imposing such near-impossible demands on the potential whistle-blower at the threshold stage is meant to deter him from making a complaint. Neither the Public Interest Disclosure (Protection of Informers) Bill, 2002, drafted by the Law Commission, nor the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, 2004, has such a restrictive definition of disclosure. The Bill also brings within the ambit of disclosure complaints against any attempt to commit, or the commission of, a criminal offence by a public servant. But there may be acts that do not strictly satisfy the ingredients of a criminal offence, yet need to be exposed for the sake of the public interest.

The Bhopal gas disaster, which was a result of a series of negligent acts by Union Carbide Corporation, is an obvious example. Such negligent acts, unless they result in a disaster, cannot be called criminal offences. Yet, they could have been exposed by a whistle-blower employee of UCC before the disaster occurred, had the Indian government and the State of Madhya Pradesh had effective whistle-blower regimes in place at that time.

Ironically, the current Bill does not cover complaints against officials of private corporations or multinational companies, although the Second Administrative Reforms Commission, which was headed by M. Veerappa Moily, the present Law Minister, had recommended in 2007 that the whistle-blower legislation should cover corporate whistle-blowers unearthing fraud or serious damage to public interest by wilful acts of omission or commission. The Department of Administrative Reforms and Public Grievances has accepted this recommendation in toto, in an undated document uploaded on its site.

Limitations

Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI), New Delhi, says: “The list of circumstances under which public interest disclosures can be made under the Bill is woefully inadequate when compared with international best practice standards. The list of improper actions covered in other whistle-blower laws is much more comprehensive and not limited to pecuniary loss or gain to government.”

According to him, the Bill does not consider the possibility of making confidential disclosures about a range of violations of law and wrongful actions that may occur in the public and private sectors. The Bill seeks to protect only complainants against officials of Central and State governments or public sector companies.

While bringing State government employees under the purview of the Bill is certainly an improvement over the PIDPI Resolution, which was confined to Central government employees, the Bill is silent about the process of appointment of the competent authority to whom complaints have to be sent. Considering that the competent authority under the PIDPI Resolution, the Central Vigilance Commissioner (CVC), has not sufficiently inspired potential whistle-blowers, the Bill’s move to restrict the choice of the competent authority to only the CVC and the State Vigilance Commissioners is a serious limitation.

Nayak observes, “In the United Kingdom, whistle-blowers have a choice of making disclosures about wrongdoing to the head of the department, or to a regulatory agency prescribed by the government [like the CVC] or to any other person such as a Member of Parliament or a journalist or even a civil society organisation. Similarly, in the United States, federal and State laws allow disclosures to be made to multiple authorities. Under Ghana’s Whistle-blower Act, confidential disclosures about wrongdoing in government may be made to at least 18 different authorities, including the President, a Minister, the Attorney General, the Auditor-General, an MP, a traditional chieftain, the head of a recognised religious body, or even the head of the whistle-blower’s own family!”

One would assume that guaranteeing anonymity to a whistle-blower is an essential aspect of the whistle-blower legislation. It is amazing that the Bill seeks to dilute even this aspect. The proviso to Sub-section 4 of Section 4 of the Bill says that if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from, become necessary to reveal the identity of the public servant to the head of the department concerned, the competent authority may reveal the identity of the complainant or public servant to such head of the department.

Nayak’s initial analysis has revealed serious flaws in the Bill. He is critical of the Bill’s bar on the members of the armed forces from disclosing wrongdoing in the armed forces. He points out that in the U.S., the Military Whistle-blower Protection Act of 1988, as amended from time to time, allows whistle-blowers in the Army to make confidential disclosures to members of Congress or the Inspectors General or audit officers of the Department of Defence. Whistle-blowers in the U.S. armed forces are entitled to similar protection against reprisals as other whistle-blowers.

Section 3(1) of the Indian Bill excludes not only members of the armed forces but personnel of several other agencies. Members of the forces charged with the maintenance of public order, persons employed in any bureau or other organisation established by the state for purposes of intelligence or counter-intelligence or any matter relating to such bureau or other organisation, and persons employed in, or in connection with, the telecommunication systems set up for the purposes of any force, bureau or organisation are also barred from making public interest disclosures under the Bill. This would suggest that the police force, the Central Bureau of Investigation and the intelligence wings will be outside the purview of the Bill. Thus, if a whistle-blower in any of these organisations wants to expose a fake encounter, he or she cannot do so under the Bill – which is a sad commentary on the Bill’s restricted reach.

Nayak also believes that the Bill criminalises whistle-blowing rather than seeking to reward it. Section 16 of the Bill stipulates a prison term, which may extend up to two years, and a fine, which may extend up to Rs.30,000, for persons who make vexatious and frivolous complaints. But the Bill does not seek to reward a whistle-blower who makes a genuine complaint leading to investigation and conviction.

Nayak points out that the laws in vogue in Britain and Ghana do not penalise frivolous whistle-blowing. In Ghana, the Whistle-blower Act provides for the setting up of a Whistle-blower Reward Fund. If the disclosure leads to the recovery of money, then the whistle-blower is entitled to 10 per cent of the recovered amount as a reward, he says.

Another serious defect in the Bill is in Chapter V, which deals with protection to whistle-blowers. Nayak observes that it merely empowers the Central government to ensure that no proceedings are launched against the whistle-blower merely on the grounds of making a disclosure or rendering assistance to an inquiry as a result of whistle-blowing. He finds the clause on protection too general to inspire confidence among potential whistle-blowers. He suggests that India could benefit by studying similar laws available in South Africa and Ghana, which have specified the remedies and protection that a whistle-blower is entitled to. A clear definition of what constitutes occupational detriment suffered by a whistle-blower will strengthen the Bill, he says.

Source: http://www.frontlineonnet.com/stories/20100924271903200.htm

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