Comments on The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill

  1. Rationale and Need
  2. Main Provisions of the Bill
  3. Notable Deficiencies
  4. Potential Measures
  5. Minutes of the Consultation on the Whistleblower Bill at NMML on Sep 19, 2010

 

Rationale and Need: The RTI Act has been seminal in improving transparency and state accountability. Complementary to the citizen’s right to information is the citizen’s right to proactively expose institutional wrongdoing (also known as whistleblowing). However since all organizations have explicit[1]/implicit gag orders against making institutional information public, the whistleblower frequently faces reprisal in the form of dismissal from employment, civil and/or criminal prosecution and even physical harm. It is thus important to provide legal and physical protection to the whistleblower in order to encourage the honest employee to report corruption[2].

While whistleblowing is traditionally associated only with “insiders”, the RTI Act by democratizing access to information has made a potential whistleblower of every citizen – and similarly susceptible to reprisal. This is evident in the spate of attacks on RTI activists, eleven fatal[3] in this year alone. The seriousness and persistence of these attacks necessitates protection for these activists, as well as systemic changes to ensure a favorable climate for activism for state accountability.

The current set of proposed protections are inadequate for this purpose because they are targeted primarily at institutional reprisal (e.g., termination, delayed promotion). Other provisions such as confidentiality of whistleblower’s identity do not apply or need innovative thinking to be feasible (e.g., direct physical protection). It is thus important to expand the current set of protections in a manner meaningful to the scattered army of activists across the country.

Background:

1993: Mr. N. Vittal (then Chief Vigilance Commissioner) first initiated a whistleblower bill

August 1999: Mr. N.Vittal requested the Law Commission to draft a Bill encouraging the disclosure of corrupt practices by public functionaries and protecting persons making such disclosures

December 2001: Law Commission prepared a report on the “Public Interest Disclosure Bill”, and submitted it to Arun Jaitley (Then Minister of Law, Justice and Company Affairs)

January 2003: Draft of “Public Interest Disclosure (Protection of Informers) Bill 2002” circulated

November 2003: The murder of Satyendra Dubey for exposing corruption in NHAI led to widespread public and media outrage and mainstreamed demand for the the enactment of a whistleblower’s bill

May 2004: GoI resolution authorized CVC to receive written complaints of corruption for Central authorities

October 2005: RTI Act notified

2006: The Public Services Bill 2006 (Draft) for the regulation of public services in the country stated that within six months of the commencement of the act, the government must put into place mechanisms to provide protection to whistleblowers

May 2008: First RTI activist (Lalit Mehta, Jharkhand) murdered

2006 – 2010: No progress to enact a whistleblower protection law

January – August 2010: Ten RTI activists murdered plus one dead under mysterious circumstances (see footnote 3 for details)

August 2010: Draft Public Interest Disclosure And Protection To Persons Making The Disclosures Bill, 2010 drawn and approved by Cabinet without public consultation. Bill introduced in Lok Sabha and uploaded on the DoPT website inviting comments up to September 30, 2010[4]

Main Provisions Of The Public Interest Disclosure And Protection To Persons Making The Disclosures Bill, 2010

Scope: The bill will apply to authorities and companies under Central and state government control and cover all public servants and ministers.

Exclusions: Public servants of organizations referred in Article 33 (armed forces and intelligence); private companies and non-governmental organisations such as charities, trusts, voluntary organisations and similarly placed civil society organisations.

Competent Authority (Clause: 1(2)(b)) means in relation to –

  1. Any public servant referred to in sub-clause (A) of clause (i), the Central Vigilance Commission or any other authority as the Central Government may, by notification in the Official Gazette, specify in this behalf under this Act;
  2. Any public servant referred to in sub-clause (B) of clause (i), the State Vigilance Commissioner, if any, or any other officer of a State Government or any other authority as the State Government may, by notification in the Official Gazette, specify in this behalf under this Act

Disclosures must be made in writing, in good faith and should include the identity of person making disclosure. The Competent Authority will dismiss complaints deemed frivolous, vexatious or having been previously dealt with adequately, and inform complainant accordingly. If complaint is found to be willfully false or malicious, complainant is liable for imprisonment up to two years and fine up to Rs 30, 000

Disclosable conduct

  1. Any action which is an offence under the Prevention of Corruption Act, 1988 and/or a criminal offence;
  2. Willful misuse of power/discretion which causes demonstrable loss to the Government or demonstrable gain to public servant

Exclusions: Matters closed by an authorized Court or Tribunal; where inquiry has been ordered under the Public Servants Inquiries Act, 1850 or Commissions of Inquiry Act, 1952. Authority will also reject disclosures made 5 years after commission of alleged action

Enquiry: The Competent Authority (CA) will confirm identity of complainant and make “discreet inquiry in such manner as may be prescribed” to ascertain if any basis for investigation. For further investigation, CA will seek comments from head of the department/organization in question (and will reveal identity of complainant if necessary)

Competent Authority will have powers of a civil court for its enquiry, excluding matters of defense, security, international relations, and proceedings of the Union Cabinet (as certified by Secretary of GoI/state government). CA can take assistance of the CBI or any other authority for investigation

If disclosable conduct is established, CA shall “recommend to the public authority” to initiate/take penal and/or corrective measures

Penalty: For any mala fide delay or incorrect provision of information, a penalty of Rs 250 per day up to a maximum of Rs 50,000 may be levied.

Mala fide or negligent disclosure of complainant’s identity will be punishable by imprisonment up to two years and fine up to Rs 50,000

Reporting: Every Competent Authority must prepare an annual consolidated report of its activities for presentation to both Houses of the Parliament or State Legislature

Protections to Complainant: Concealment of identity (not absolute); physical protection; restoration of status quo ante

Notable Deficiencies Of The Whistleblower Bill[5]

Limited Scope: The private sector, armed forces and intelligence agencies have been excluded. The private sector (including NGOs) is rapidly expanding both in terms of economic resources but also by becoming the primary/co-provider of citizen services (the State retreating in order to become the “facilitator”).  Moreover current scandals such as Satyam, IPL etc show that corrupt practices are either already prevalent or gaining foothold in the Indian private sector as well

A great number of human rights violations can be traced to the impunity granted to armed forces in disturbed areas. Pathribal and Macchil fake encounters in Kashmir have arguably led to the sustained unrest there (Act will not cover J&K). Likewise there is systemic lack of accountability in Left Wing Extremist affected districts. Intelligence agencies are not subject to even parliamentary oversight. The National Technical Research Organisation (NTRO) illegal phone-tapping expose created a furor in the parliament but died without resolution. In a follow-up Outlook story, senior intelligence officers of the NTRO were purportedly willing to provide full details if granted legal immunity[6]

Limited Application: Protection for the whistleblower will kick-in only after s/he makes a complaint. RTI activists who often come under threat just by virtue of filing an RTI application will not be covered unless they file a complaint. For a rural activist working for instance to expose corruption in NREGA, the state vigilance commissioner may not be easily accessible

Narrow Definition of Permissible Disclosures:

  1. There is no catch-all phrase to define the principles (e.g., endangering public health or safety, harming the environment) relying instead on enumerated corruption and criminal offences under existing Acts
  2. Disclosure is time-bound: Landmark cases such as Bhopal gas leak, Delhi anti-Sikh riots, Babri Masjid demolition, Godhra have all exceeded the five-year statute of limitations applied to disclosable conduct; however the seriousness, culpability and need for resolution of these issues is far from diminished
  3. Maladministration is not covered: While it was part of the previous draft (2002), has been removed in this draft. Gross negligence (e.g., callous disaster management) are thus out of ambit
  4. Human rights violations for excluded organizations (Article 33) are not covered as exception (contrary to the provision in the RTI Act)

Single authority to receive disclosures: Bill allows the complainant to make disclosures only to center/state vigilance commissions. Whistleblower legislation in other countries permit a range of options (including media and members of parliament) for the individual to make disclosures

Suitability of Central/State Vigilance Commissions as Competent Authority:

  1. CVC does not have its own investigation capability and must outsource investigation to the police, CBI etc, which are not even statutorily independent (accusations about the misuse of CBI against both Congress and BJP while they are/were in power)
  2. As per The Central Vigilance Commission Act, 2003, CVC Commissioner must be a civil servant or an employee of a Central government and will be appointed by a three member Committee consisting of the PM, Union Home Minister and the Leader of the Opposition. In the absence of a consensus candidate, the appointment is de facto made by the ruling party (as evident from Mr. Thomas’ appointment over serious and sustained dissent by Sushma Swaraj and likely to be a party loyalist. This effectively reduces independence and integrity of the institution. As noted by the ex-CJI, Lahoti, all whistleblowers who went to CVC (as per April 2004 GoI resolution) suffered[7]
  3. Several States in India have not yet set up mechanisms such as the Lokayukta. If this Bill were to become law, potential whistleblowers in such States will not have any means for reporting wrongdoing. However this Bill itself can provide the impetus for setting up Lokayukta type mechanisms in such States (Venkatesh Nayak)

Investigation is not time-bound and thus there is potential to use delay as tactic. The previous draft mandated that all inquiries must be completed within 6-months, up to a maximum of two-years with reasons for delay to be recorded in writing. However there is no such provision in current bill.

Limited Protections to whistleblower:

  1. No protections for RTI activists whose identity will already be in the public domain (through RTI applications)
  2. Identity of the whistleblower can be revealed at multiple junctures, including to the head of the department of purported corruption and/or investigative agencies. Conditions that will necessitate revealing complainant’s identity are not clear – the more number of people privy to this information, the harder it will be to trace source if identity were to be maliciously leaked
  1. No deterrent punitive action (e.g., immediate termination, loss of pension and mandatory imprisonment) is specified against those found guilty of victimization
  2. Intimidation by physical harm need not just be focused on the whistleblower – immediate family could also be targeted

Imprisonment and fine for individuals found making false/frivolous complaints. There is risk of misuse of this clause to act as a deterrent to the whistleblower in the absence of strict accountability measures for the Competent Authority

What Can Be Done? Some Potential Measures…

 

Protections for RTI Activists

For RTI activists, identity protection is irrelevant given that this information will already be in the public domain through the RTI application. Therefore a credible mechanism is needed to ensure protection from physical reprisal

One provision being mooted is fixing accountability on the local police station / Tahslidar / SDM / District Collector / Head of District Police. This could be done by the following: if an activist perceives threat to life or limb, s/he could file a complaint/FIR with the local police station, who must mandatorily take the complaint and the RTI matter into cognizance. In case the activist is still attacked, the onus would be on the policeman to prove due diligence and a failure would result in action against the office. The complaint would also help focus investigation on the named persons

To safeguard against refusal of police to lodge FIR, a draft FIR and complaint against police station could also be mailed to the Lokayukta and/or collector and/or state IC. In case of complaint against the police for refusing to file FIR, policeman could be treated as a conspirator and prosecuted as such

Possible deterrent may include the automatic initiation of independent transparent investigation in case of unnatural death of RTI activist, and transfer of investigation of issue that was being probed by the activist to the Competent Authority

Accountability of Competent Authority

Presumably to ensure protection for the whistleblower and independence for the Competent Authority, enquiry and investigation under this Act will be exempt under RTI, and even the courts won’t have any jurisdiction over the CA[8]. Further all/ most disciplinary action against public officials named in complaint will be taken internally. However the effectiveness of this Act is wholly contingent on the accountability of the CA and thus some external checks must be instituted. Some potential measures include:

  1. Asset declaration by CA employees at the time of joining, to be updated annually. These returns could be verified by the IT department and a compliance report made available to the public
  2. A multi-constituency apolitical Transparency Committee through an open appointment process to review investigation of contentious cases
  3. A consolidated activity report could be made public suo motu (can be the same one as that presented to the Parliament). The report could include aggregate information for:
    1. Complaints: number received; categorization (frivolous, vexatious, genuine etc)
    2. Investigation: organization/department; type (and size if applicable) of corruption; processing time; resolution
    3. Whistleblower: number; designation/level; categorization (genuine/malicious); punishment
    4. Reprisals: number; type; resolution

Other questions

Should whistleblowing be incentivized like the Whistleblower Reward Fund in Ghana, which gives the complainant 10% of monies recovered as result of complaint. If yes, what about non-pecuniary complaints like environment, health? For rewards not linked to recovery, is there a danger of overwhelming the CA by monetarily motivated false complaints?

Should there be an explicit bar against any kind of prosecution against complainant (by involved organization or even state/central government itself) if wrongdoing is established, even if the disclosure is to the media/public (possibly based on one or more of the following: human rights violations; systemic undemocratic actions; closing of complaint without investigation by CVC).

Also read the Standing Committee Recommendations on the Whistleblower Bill


[1] Official Secrets Act, 1923

[2] India has been steadily sliding down the corruption index as tabulated by Transparency International: 72 in 2007; 74 in 2008; and 85 in 2009.

[3] Satish Shetty (Mah), Arun Sawant (Mah), Vishram Laxman Dodiya (Guj), Shashidhar Mishra (Bihar), Sola Ranga Rao (Andhra), Vitthal Gite (Mah), Dattatraya Patil (Mah), Amit Jethwa (Guj), Vijay Pratap alias Babbu Singh (UP), Ramdas Ghadegaonkar (Mah), V Balasubramanian (TN) (List compiled by Nachiket Udupa)

[4] “It is intriguing why the DoPT did not circulate a draft Bill and invite comments […] 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” (Venkatesan, Frontline, September 11, 2010)

[5] All international examples have been referenced from analysis circulated by Venkatesh Nayak, Commonwealth Human Rights Initiative, New Delhi.

[6] “Give Us Legal Immunity, We’d Be Happy To Provide Proof Of Illegal Tapping” (Outlook, May 10)

[7] http://www.indianexpress.com/news/whistleblowers-who-went-to-cvc-suffered-stem-rot-excji-to-sonia/649640/0

[8] “No court shall take cognizance of any offence punishable under this Act or the rules and regulations made there under, save on a complaint made by the Competent Authority or any officer or person authorized by it” (Section VI, Clause (21) (1))

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3 responses to “Comments on The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill

  1. Pingback: LEGAL NEWS 11.08.2010 « Advocate Kamal Kumar Pandey·

  2. Anonymity should be allowed, even though anonymity does not give much protection from retaliation. (Usually the identity of the complainant is evident to the targeted party in all early breaking scams).

    The authorities should look at the information in the complaint and act on it, rather than look at who is providing the information. As long as everything is submitted in good faith, the complaining person should not be liable for any kind of punishment.

    When there is harassment through police, courts etc there should be an authority to whom whistle blowers or their family members can complain and put it on the record. An example of a case of whistle blower harassment is here: http://ow.ly/1G2mO with no time-bound investigation can be a never ending nightmare for the whistle blower.

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