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

This analysis is based on the 2002 Draft and news reports. Review of the 2010 Bill here
  1. Rationale and Need
  2. Summary of Bill
  3. Suggested Amendments

Rationale and Need: The RTI Act has been seminal in improving transparency and state accountability. Complementary to the citizens right for information is an employee’s right to proactively expose institutional wrongdoing (also known as whistleblowing). Whistleblowing also has potential to fill the lacunae left by the RTI Act due to its scope (public authorities), organizations exempt under Section 24 and uneven implementation (denials, harassment, high pendency, inconsistent orders etc).  This will also allow employees to make public information of wrong doing not ordinarily accessible under RTI Act because it’s not been brought on official record or where a deliberate attempt has been made to falsify records.

However since all organizations have explicit/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 protection to the whistleblower in order to encourage the honest employee to report corruption[1]. There is widespread consensus both internally within the government and externally on the need for a whistleblower’s bill.

Mr. N. Vittal (then Chief Vigilance Commissioner) first initiated a whistleblower bill in 1999[2]. At the instance of Mr. N. Vittal, the 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) in December 2001. A draft, “Public Interest Disclosure (Protection of Informers) Bill 2002” was circulated in January 2003. In November 2003, Satyendra Dubey was murdered after exposing corruption in NHAI, leading to widespread public and media outrage, and impetus for the enactment of a whistleblower’s bill. In May 2004, a GoI resolution authorized CVC to receive written complaints of corruption for Central authorities. 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. The draft Public Interest Disclosure (Protection of Informers) Bill was updated again in 2009, and was one the 63 bills listed for introduction in the Budget 2010 session of the Parliament. News reports indicate that the Bill (Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010) has been approved by the Cabinet and will now be tabled in the Parliament. The draft Bill is not in the public domain but based on news reports[3], there doesn’t seem to be significant change from the 2002 draft.

Public Interest Disclosure (Protection of Informers) Bill, 2002[4]

Scope: The bill will apply to authorities and companies (with least 51% government stake) under Central government control and cover all public servants and ministers.  There will be separate Competent Authorities (CA) to receive complaints against Ministers (Authority notified by the President) and Public Servants (CVC).

Note: News reports state “The bill, which has provisions to prevent victimisation or disciplinary action against whistleblowers will cover, Central, State and Public Sector Employees[5]”; however, given that the designated nodal agency, CVC’s jurisdiction extends only to Central government, the scope of the Bill is not clear.

Exclusions: Public servants of organizations referred in Article 33 (armed forces and intelligence) and the Prime Minister

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, trivial, 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 three years and fine up to Rs. 50, 000 (Changed in current draft: “A senior government official said it stipulated a two-year jail term and a maximum fine of Rs 30,000 for people who were found to be levelling false and frivolous complaints against officials[6]”)

Disclosable conduct:  Misuse of power and/or discretion; any offense under laws in force; mal-administration

Exclusions: Matters where inquiry has been ordered under the Public Servants Inquiries Act, 1850 or Commissions of Inquiry Act, 1952. Authority will also reject disclosures made after 12 months from the date on which the complainant became aware of action complained against or 5 years after commission of alleged action

Enquiry: The Competent Authority will forward copy of disclosure (including name of complainant) to accused public servant and his superior to provide opportunity for rebuttal. CA may keep identity of complainant confidential from accused if safety risk is perceived. The authority may close enquiry after investigation and inform concerned persons of reasons. The enquiry and identity of person making disclosure will not be open to the public.

If disclosable conduct is established, CA will inform authority competent to take disciplinary action against public servant; in case of minister, send findings to the Prime Minister. Both must take appropriate action immediately (including criminal proceedings if offence punishable under any law).

The Competent Authority will have powers of a civil court for its enquiry, excluding matters of defense, security, international relations, and Union Cabinet (as certified by Secretary of GoI).

All enquiries must be completed within 6-months, up to a maximum of two-years.

Every Competent Authority must prepare an annual consolidated report of its performance for presentation to both Houses of the Parliament.

Protections to Complainant: Physical protection, restoration of status quo or transfer to another office or department

Suggested Amendments

Scope: The Act should apply to all Central and state public authorities (as defined by RTI Act 2005) including defense and intelligence agencies (maximum number of human rights violations here). In addition, publicly listed companies and private organizations with significant impact on public good (e.g., news media) should be brought in ambit (See note on scope in previous section).

All covered organizations should mandatorily institute internal reporting mechanisms including independent ombudsman and protection from reprisal for those reporting misconduct. In the absence of an internal reporting mechanism, the (private) organization will face increased punishment than one without, if disclosable conduct is established.

Competent Authority: CVC is not a suitable Competent Authority for three reasons:

  1. It’s jurisdiction extends only to the Central government; however for any meaningful protection and investigation of complaints, State governments must necessarily be in ambit. News reports are citing murders of many RTI activists as rationale for the Bill; however murders happened due to corruption/illegal activity at the State level.
  2. 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)
  3. 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 Mnister and the Leader of the Opposition. The candidate pool and appointment process is susceptible to the appointment of loyalists. As noted by the ex-CJI, Lahoti, all whistleblowers who went to CVC (as per April 2004 GoI resolution) suffered[7].

Disclosures: There should be no time criteria, either for when the complainant became aware of information or for the commission of action. For excluded organizations (Article 33), disclosures related to human rights violations should be covered.

Protections to whistleblower: Identity of the whistleblower must be kept confidential, especially from the accused. If identity is leaked, then person(s) responsible must be punished with immediate dismissal, loss of pension and mandatory, non-bailable imprisonment. (Changed in current draft: “Revealing the identity of a whistleblower can invite up to three years in jail and a fine of up to Rs50,000[8]”)

Punitive action against those guilty of reprisal should include immediate termination, loss of pension and mandatory imprisonment.

Physical security, if needed, should be extended not just to the whistleblower but also to immediate family.

There should 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 (based on one or more of the following: human rights violations; systemic undemocratic actions; closing of complaint without investigation by CVC).

For RTI activists, identity protection is not very relevant given that most information will already be in the public domain (e.g., RTI application). A more useful protection/deterrent would be the automatic initiation of independent transparent investigation in case of of unnatural death of RTI activist, and investigation of issue that was being probed by the activist

Accountability of Competent Authority

Since investigations will be exempt under RTI, all disciplinary action will be taken internally, and even the courts won’t have any jurisdiction over the CVC[9], the following checks should be instituted.

  1. All employees of the Competent Authority must make asset declarations at the time of joining, to be updated annually. The IT department should verify returns on priority basis, and provide compliance report (public)
  2. All investigations should be open for review by a small Committee consisting of all sections of the society appointed through some credible appointment process
  3. A consolidated report should be made public suo motu (can be the same one as that presented to the Parliament). The report should include:
    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

Note: The Bill stipulates imprisonment and fine for individuals found making false/frivolous complaints. There is risk of misuse of this clause to act as a deterrant to the whistleblower if strict accountability measures aren’t instituted for the Competent Authority.

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

[2] In a letter dated August 24th 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

[3] http://news.google.com/news/story?pz=1&cf=all&ned=in&hl=en&ncl=dggj6rau0LCr_uMfguFXbeBB4lL3M

[4] 2010 Bill is not in the public domain however based on news reports, the main provisions appear unchanged with only minor changes in fine amounts, length of imprisonment etc from the 2002 draft. Changes if any have been noted in individual provisions

[5] http://www.indianexpress.com/news/cabinet-approves-bill-to-protect-whistleblowers/657959/

[6] http://www.hindustantimes.com/Armour-ready-for-whistleblowers/Article1-584146.aspx

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

[8] http://www.dnaindia.com/india/report_cabinet-clears-bill-to-protect-whistleblowers_1421158

[9]The Bill also proposes that no court can interfere in the case and can have any powers over the decision made by CVC”, http://timesofindia.indiatimes.com/india/Cabinet-approves-bill-to-protect-whistleblowers/articleshow/6283361.cms


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