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Secrecy around Bill

Print edition : Sep 10, 2010 T+T-

The Union Cabinet approves a new Bill to protect whistle-blowers, but there is concern whether its provisions will amount to much.

in New Delhi

ON March 22, a special court in Patna pronounced three persons guilty in the murder of Satyendra K. Dubey, a civil engineer from Indian Institute of Technology Kanpur. He was shot dead on November 29, 2003, for blowing the whistle on corrupt practices in the Golden Quadrilateral Project in Bihar. Dubey had sent a memorandum to the then Prime Minister, Atal Bihari Vajpayee, on corruption in the construction of the highway, with a specific request that his identity not be disclosed as he feared for his life. Dubey's killers, though, were convicted of robbery and murder, and not for their involvement in a conspiracy to eliminate him for exposing corruption in the National Highways Authority of India's project.

The denouement in the Dubey case was a disappointment to those who expected the Central Bureau of Investigation (CBI) to unravel the mystery behind his killing, which set off India's first experiment with a mechanism to protect whistle-blowers. On April 21, 2004, under pressure from the Supreme Court Bench comprising Justices Ruma Pal and P.V. Reddy, which heard the public interest litigation (PIL) petition on the Dubey murder case, the National Democratic Alliance (NDA) government announced an interim arrangement to protect whistle-blowers, pending the enactment of a law.

The Ministry of Personnel, Public Grievances and Pensions notified a resolution, called the Public Interest Disclosure and Protection of Informers' (PIDPI) resolution, empowering the Central Vigilance Commissioner (CVC) to act on the complaints of whistle-blowers and to protect them.

Legislation to replace the PIDPI resolution, however, remained elusive for the past six years. Meanwhile, a management graduate from Indian Institute of Management, Lucknow, Manjunath Shanmugham, who was working as a sales officer with the Indian Oil Corporation, was shot dead on November 19, 2005, when he tried to expose an adulteration racket at an IOC petrol pump in Lakhimpur Kheri. While a trial court awarded death sentence to the main accused and life sentence to seven others, last year the Allahabad High Court Bench in Lucknow commuted the death penalty to life sentence and acquitted two of the other seven convicts.

If Manjunath's assassination raised questions about the effectiveness of the whistle-blower protection regime in India, the series of murders of RTI activists across the country only underlined the urgency of a suitable law to replace the PIDPI resolution.

On August 9, the Union Cabinet approved the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, drafted by the Department of Personnel and Training, without sufficient interaction with the stakeholders or making the draft Bill available for public scrutiny. Only the change in the nomenclature (the word Informers', considered in a pejorative sense by many, was replaced by Persons Making the Disclosure) was promising.

The government has not made any attempt to place the Bill in the public domain before it reaches Parliament an instance of its obsession with secrecy. This is a violation of the Right to Information Act, 2005, which requires that every public authority shall publish all relevant facts while formulating important policies or announcing decisions that affect the public.

Meanwhile, there is considerable concern whether the new Bill will at all be an improvement over the PIDPI resolution. This was clear when Justice R.C. Lahoti, a former Chief Justice of India and a member of the Executive Committee of the India Rejuvenation Initiative (IRI), a forum for probity in public life, in a recent letter to United Progressive Alliance (UPA) chairperson Sonia Gandhi, pointed out the glaring lapses of the CVC in administering the PIDPI resolution. He pointed out that two of the three posts in the Central Vigilance Commission had been lying vacant for the past seven months and that the present CVC, Pratyush Sinha, would demit office in two months.

In particular, Justice Lahoti, according to reports in a newspaper, referred to two shocking instances of the CVC not protecting whistle-blowers. In the first case, the former Deputy Chairman of the Kandla Port Trust, Manoranjan Kumar, reported gross wrongdoings to the CVC in 2007 and ended up losing his job, while the guilty went unpunished. In the second case, Raj Kumar, a stenographer in the Sports Authority of India, faced a departmental inquiry after he filed a petition in the Punjab and Haryana High Court alleging corruption in his department.

The PIDPI resolution brought under its purview only complaints against employees of the Central Government or public sector companies. Personnel employed by State governments could not be complained against under it. The resolution suffers from other limitations as well.

The Central Vigilance Commission announced that it had the responsibility of keeping the identity of the complainant secret, even though it could not stop the complainant himself from disclosing his identity or making the complaint public.

The commission, however, warned that it could take action against complainants making motivated or vexatious complaints. The resolution says that in case the commission finds the complaint to be motivated or vexatious, it shall be at liberty to take appropriate steps. However, the resolution is silent on how the agency determines whether a complaint is motivated or vexatious, or what appropriate steps it will take against the complainant in such cases.

According to the resolution, only if the commission is of the opinion that either the complainant or the witnesses need protection, it shall issue appropriate directions to the authorities concerned. In other words, the commission has to be convinced about the whistle-blower's need for protection, which falls short of civil society's expectations.

One major lacuna in the resolution is that it does not make the recommendation of the commission binding on the government. The CVC, either as a result of his discreet inquiry or on the basis of the complaint itself, may find substance in the allegations of corruption. It could use the CBI or the police authorities to investigate the complaint. In that event, the CVC could only recommend appropriate action to the government department or the organisation concerned against the guilty official. The punitive action could include redress of the loss caused to the government, initiation of criminal proceedings, and corrective measures to prevent the recurrence of such cases. The former CVC, P. Shankar, had deplored this aspect of the resolution, as, in his view, the CVC needed sanction before he could order prosecution.

The exclusion of Ministers and other government functionaries from the ambit of the resolution dismayed observers, who questioned the assumption that there could not be any whistle-blowing against the excluded functionaries.

The CVC's annual reports claim that the commission has established a well-defined internal procedure for processing complaints received under the PIDPI resolution in order to ensure that the complainant's identity is not disclosed. The Joint Secretary (Home), Ministry of Home Affairs, has been made the nodal authority to arrange for protection to the complainants wherever required and as directed by the commission. The commission has formed a screening committee headed by the Secretary to the CVC to examine these complaints and decide the further course of action.

The commission received 276 complaints from whistle-blowers in 2008. Of these, 83 complaints were sent to Chief Vigilance Officers or the CBI for investigation/discreet verification of facts/comments, 144 were sent for necessary action and 46 were found to be without a vigilance angle, having been filed by anonymous complainants. This left a pendency of three complaints.

The commission has noted that despite its best efforts, complainants under the PIDPI resolution forward copies of the same complaint or lodge separate complaints containing similar allegations with other authorities concerned, thus revealing their identity. The commission has issued guidelines asking the organisations not to subject any complainant to any kind of harassment because of his/her having lodged a complaint, even if, at any time, the identity of the complainant gets revealed through any source. A study of data carried in the commission's annual reports shows that the number of complaints under the PIDPI resolution has declined steadily since 2004.

There is considerable suspense, therefore, whether the new Bill to replace the resolution can inspire potential whistle-blowers.