The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 was recently tabled in the Lok Sabha. The Law Commission of India had first drafted a bill on providing protection to whistle-blowers in 2001.
Since then the murder of two whistle-blowers (Satyendra Dubey in 2003 and Manjunath Shanmugham in 2007) brought the issue of the vulnerability of those who expose corruption into public focus. Following a Supreme Court order in 2004, the government issued the Public Interest Disclosure and Protection of Informers’ Resolution. Since this resolution is not sufficient to provide statutory protection to people who report corruption, a law was required to provide effective protection to those who expose corruption and wrongdoing. Everywhere in the world whistle-blowers have to be unusually committed and unafraid of risks, but strong protection laws go a long way in reassuring them of safety. However, given the endemic proportions of corruption in public life in India and corruption-related violence (eight Right to Information (RTI) activists have been murdered since January this year), the moot point is how far it will be possible to implement the provisions of the proposed legislation and how far the infrastructure available will support effective implementation.
The bill covers acts of corruption or wilful misuse of power by public servants belonging to the central and state govern ments or any corporations, societies, local bodies and categories under their jurisdiction. It provides for “adequate protection” to public servants or citizens reporting such corruption and a regular mechanism to encourage them to disclose such acts.
It prevents victimisation of such complainants, and empowers the Central Vigilance Commission (CVC) or the designated com petent authority to penalise those who reveal their identity. The CVC which is the nodal agency in all such cases will have the powers of a civil court. It also enjoins punishment for false or frivolous complaints. Protecting the identity of whistle-blowers is always very difficult and in the past few years the United States has witnessed high-profile cases of whistle-blowers who have exposed illegal acts in large corporations being subjected to harassment. Pro tection will require an exceptionally strong legal help mecha nism, a committed and sensitive investigative agency and strong support systems. In the bill introduced in Parliament, the rele vant clause 10 only says that in case of victimisation the compe tent authority shall take action as “deemed fit”, direct the concerned government authorities (including police) to ensure protection and that these directions will be binding. Nothing is spelt out and clearly everything is left to the discretion of the concerned agencies.
The whistle-blowers’ bill does not cover the private sector, concerned as it is with only central and state governments. There is no reason why the private sector should be left out of the purview of the bill. Also, any disclosure of corruption made five years after the corrupt act was allegedly done will not be investigated. This provision is rather baffling and has the potential to encourage fudging of dates and backdating of documents.
Since the CVC has no investigative mechanism of its own, the bill envisages that a public authority (against whom a disclosure is made and to whom the CVC sends an inquiry) will create an “appropriate machinery” to deal with the inquiry which the CVC is empowered to superintend. The CVC can also “take the assistance” of police authorities and the Central Bureau of Investigation for making inquiries. Both these agencies are periodically mired in controversies and are accused of being vulnerable to pressures from the ruling political establishment.
The fight against corruption has many ramifications and has to be carried out on many fronts. The RTI Act has been a particularly effective one not only because it is a strong piece of legislation but also because RTI activists across the country are a vigilant lot. In the US – which has perhaps seen the most high-profile whistle-blowing cases than those of any other country – disclosures of corruption are covered by a number of laws which are constantly being revised to give them more teeth. For example, the US Whistleblowers Protection Act, 1989 to protect federal employees making disclosures was amended in 1994 and an Office of Special Counsel was set up to aid them and prevent victimisation. After the Enron collapse, the Sarbanes-Oxley Act of 2002 was passed giving wide legal protection to disclosures in publicly traded companies, providing for exemplary punishment to anyone retaliating and placing a deadline for completion of investigation.
The Public Interest Disclosure Bill needs to be vigorously debated in the public and thoroughly revised so as to give it more teeth lest it becomes yet another cosmetic exercise. How may the risk involved in blowing-the-whistle be significantly reduced? How best may the anonymity of the whistle-blower be scrupulously maintained? How may the whistle-blower be adequately protected against retaliatory action?