Tuesday, September 07, 2010

Whistleblowers’ Bill aims to victimize activists and spare politicians & their kin

Yesterday, when I analyzed the above-named Bill (to which I refer to as Whistleblower’s Bill or Act, or WBA), I got lost in the legalities and missed seeing its biggest faults. After thinking about it all day, and hearing the views of my fellow-activists, I realize that the WBA has its heart in the wrong place! The proposed legislation shows that the government – specifically DOPT and PMO -- is intent on (a) turning a deaf ear to messengers who want to convey bad news, and (b) set up a system for exposing, discrediting and in fact, endangering their lives (c) setting up a sustainable and legal-sounding procedure for achieving aims (a) and (b).

If WBA is passed in its present form, then:

1. The Central or State Vigilance Commissions (CVC or SVC) that are currently supposed to only investigate instances of government corruption will now demand identity proof from people who submit complaints to it. No matter what may the threat to your life, you cannot conceal your own identity; otherwise, no matter how large the public interest involved or the compelling nature of the documentary evidence that you submit, the case will be closed.

2. Currently, people who approach CVC or SVC to make a “public interest disclosure” are seen as friendly citizens helping the Vigilance Commissioners to do the job they are paid for i.e. investigate government corruption. But the WBA will change this, because public spirited citizens will now be termed as “complainants”, be more-or-less ordered to do the dangerous job of an investigating agency at their own risk to collect evidence to support their “allegations”. If they fail to do this, they may be branded as mala fide persons, be imprisoned for two years and get fined Rs 30,000.

3. There is a large distinction between a person who makes a “disclosure” and one who makes a “complaint”. A person who makes a voluntarily disclosure – internationally known as a whistle-blower -- is usually a disinterested person who has nothing to gain from making the disclosure, and indeed may be doing so at great personal risk, purely because of the public interest involved. As opposed to this, a complainant is usually someone who has personal reasons to oppose the activity being complained against, and maybe something to gain from preventing it. The WBA completely ignores this clear distinction.

4. The WBA seeks to pit this public spirited person (who may be a government employee or an outsider) against the head of the department or government organization complained against, even if his complaint is against a lower officer. In the course of the investigation, his identity will become known to not only several employees of the Vigilance Commission, but can possibly also be also be revealed by these employees to the head of the department being investigated. As this departmental head will have to prove that the corruption is happening in spite of his exercising due diligence, he may feel that he is under direct attack from the whistle-blower, and he may act out of hostility.

5. In an indirect way, the WBA directs this public spirited person to bypass or avoid all other forums for seeking justice and action against the corrupt, and lodge a complaint only with the CVC or SVC. If it is felt that by approaching the State Information Commission, the police, the Court, the media etc, the whistle-blower has “blown his cover”, then he will lose whatever little protection and confidentiality he is being offered under this Act.

6. As every common citizen would have experienced, corruption is a nebulous thing, and is both difficult and dangerous to clearly point a finger at. Corruption usually involves multiple players acting together without a formal arrangement on paper. Therefore, it is the job of the CVC to play a proactive role as an investigating agency or information gatherer, and not to play a passive role as a court of law asking for conclusive evidence. The WBA proposes to turn the CVC and SVC into a sort of passive court where each whistle-blower must struggle to prove his point. This violates several fundamental rights of the whistle-blower as a citizen.

7. In most instances of corruption, ministers, elected representatives, leaders of political parties, their close family members, business associates and friends collude with influential and moneyed builders, contractors, land mafias etc. In many cases, pliable public servants are the instruments rather than the doers. But the WBA seems to look at public servants as the main subject of complaints, and ignore all other players. This sort of approach is discouraging to whistleblowers.

However, a positive feature is that complaints under WBA may be made for all offences under Prevention of Corruption Act 1988 (See main features of this Act: http://www.box.net/shared/crs4l5bz7m ), which is a particularly well-drafted legislation. The provisions of PCA 1988 are applicable to a very wide range of persons, including members of the executive, judiciary, election commission and private individuals who participate in acts of corruption.

Now let us analyze the Whistleblower’s Act from a technical and legal perspective. The name of this Act indicates that it is intended to, firstly, facilitate Public Interest Disclosures and secondly, extend protection to the persons making Public Interest Disclosures.

The preamble says that the objectives are:

1) to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant

2) to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto.

Individual sections that are problematic:

i) The two central things -- “public interest” and “protection” -- are not even defined in the definitions i.e. Section 2. So nobody knows what exactly constitutes a “public interest disclosure”, and nobody knows how exactly what “protection” a person making such a disclosure is supposed to receive under this Act. Other than a vague promise of confidentiality and a threat to punish those betraying the whistle-blower’s identity, the Act promises no protection.

ii) The “person making public disclosure” mentioned in the title is defined in the narrowest possible sense as a mere “complainant”. Section 2(c) defines him/her as a person “who makes a complaint relating to disclosure under this Act”. Thus, the “person making public disclosure” against a larger systemic malaise is methodically demeaned to a mere “complainant” who is pointing a finger at a public servant, and he can then be legally victimised. The duty of probing the motives and background of the “complainant” is then cast upon the “competent authority” i.e. CVC or SVC as the case may be. So the competent authority is empowered to: Firstly, put the complainant’s identity under a scanner to comply with Sec 4(1)(a): Secondly, demand supporting documents and use its civil-court like powers to summon his attendance at hearings as per Sec 6, Thirdly, threaten to dismiss his complaint as being “frivolous” or “vexatious” or otherwise not worth investigating as per sec u/s 4(6) OR Finally, find the complainant guilty of false and misleading disclosure, and award up to two years imprisonment and up to Rs 30,000 fine as per Sec 16. In other words, the whistle-blower who approaches the Vigilance Commissioners to help him do his job, namely, clean up the system, must do so at the risk of being branded as a criminal! This is on top of other practical risks that whistle-blowers already face.

iii) Section 2(d) then defines disclosure essentially as a “complaint” that pertains to an offence under the Prevention of Corruption Act 1988, willful misuse of discretion that causes loss to the government, and commission of a criminal offence by a public servant. The WB does not explicitly say in any section to whom this complaint should be addressed, in order to be considered as a “complaint under this Act”. However, the definition of “competent authority” in Sec. 2(b) suggests that only direct complaints to Central and State Vigilance Commissions (CVC/SVC) will qualify for this definition.

iv) For all the above reasons, the Bill perversely gives direct protection to corrupt persons. Section 3(6) expressly disallows anonymous complaints and tip-offs, no matter what evidence the anonymous complainant may be provide. By laying restrictive conditions for complaining and receiving protection and by specifying deterrent penalties and imprisonment to complainants in the event that their complaint “fails”, the proposed Act deters whistle-blowers from making a complaint to Central or State Vigilance Commission.

v) Section 3 (1)(b) excludes from the scope of such complaints the police force, where abuse of discretionary powers routinely happens.

vi) Sec. 4(4) allows the CVC or SVC to disclose the complainant’s identity to the head of the department or organization where he may be working, and Sec. 4(5) shifts the onus of protecting his identity to this head. Worse still, after doing so, if the CVC or SVC is “of the opinion” that there are no “sufficient grounds” for proceeding with the enquiry, then, as per Sec 4(6), it shall close the matter. In such an eventuality, the whistle blower will be left exposed and in a deadly situation with no protection!

For more, read my recent analysis, especially the colour-coded table: http://www.box.net/shared/355pdqp704

Also see official release of this Bill with DoPT’s covering letter: http://www.box.net/shared/suqa2l3n3y

Please email your views to responses to vkvkutty@nic.in

Address letters to:

Shri V.K. Velukutty,
Deputy Secretary (V-Ill),
Department of Personnel and Training,
Room No. 10-8/11, North Block,
New Delhi-110001.

What is a whistleblower? How is a whistleblower different from a complainant or an informer? What is the need for legislation to protect whistleblowers? For answers to such questions, download this international paper: http://www.box.net/shared/2s4hee9blc


Krishnaraj Rao

98215 88114

Tuesday, September 7, 2010

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