Defending the whistle-blower

The Supreme Court prompts the government to draft a resolution seeking to protect whistle-blowers.

in New Delhi

A CONDITION that can encourage corruption is the absence of mechanisms by which instances of fraud and malpractice can be brought to light by a public spirited person, without risking his or her interest or safety. Such a person, a `whistle-blower' in legal parlance, needs institutional protection against victimisation by the target of his or her action. Ensuring the anonymity of the whistle-blower, therefore, is essential for any such mechanism to be meaningful.

The murder of Satyendra Dubey, a young engineer working for the National Highways Authority of India (NHAI), on November 29, 2003, after he confidentially complained against the corrupt practices in the execution of the Prime Minister's Golden Quadrilateral road project in Bihar, came as a stark reminder of the absence of such a mechanism. He had sent a memorandum to the Prime Minister's Office complaining of corruption in the construction of the highway in Bihar, with a copy to the chairman of the NHAI with a specific request that his identity be not disclosed as he feared for his life (Frontline, February 27, 2004). He wrote again to the Chairman complaining that his identity had been leaked to the authorities concerned. After a few days Satyendra Dubey was found dead with bullet injuries.

While the Central Bureau of Investigation (CBI) is investigating the murder, two public interest petitioners sought the Supreme Court's directions for the immediate creation of a mechanism to protect whistle-blowers. The petitioners also sought a proper probe into Satyendra Dubey's murder and the various allegations of corruption in the project. On April 21, under pressure from the Supreme Court Bench comprising Justices Ruma Pal and P.V. Reddy, which heard the public interest litigation on the Dubey murder case, the National Democratic Alliance 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, empowering the Central Vigilance Commissioner (CVC) to act on the complaints of whistle-blowers and to protect them.

Through the resolution, the government authorised the CVC to act as the `designated agency' to receive written complaints of corruption or misuse of office and recommend appropriate action. The jurisdiction of the CVC in this regard is restricted to any employee of the Central government or public sector companies. Personnel employed by State governments will not come under its purview.

The CVC has announced that it has the responsibility of keeping the identity of the complainant secret, even though it cannot stop the complainant himself from disclosing his identity or making the complaint public. Therefore, it asked the would-be complainants to comply with certain requirements:

* The complaint should be in a closed/secured envelope;

* The envelope should be superscribed "Complaint under The Public Interest Disclosure" and the complainant's name and address should not be written on the envelope, but in an attached letter along with the complaint;

* The Commission will not entertain anonymous complaints;

* The text of the complaint should be carefully drafted so as not to give any details or clue about the complainant's identity. However, the details of the complaint should be specific and verifiable;

* Whistle-blowers are advised not to enter into any correspondence with the Commission seeking acknowledgement, which it will not issue, as a precaution; however, the Commission will get in touch with the complainant if any clarification is required. The CVC, under the resolution, is also expected to ascertain from the complainant whether he or she was the person who made the complaint.

THE CVC, however, warned that it could take action against complainants making motivated or vexatious complaints. The resolution says that in case the designated agency (the CVC) 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 would find out whether a complaint is motivated or vexatious, or what "appropriate steps" it would to take against the complainant in such cases.

The resolution admits that the government is examining The Public Interest Disclosure and Protection of Informers' Bill, 2002, drafted by the Law Commission and annexed to its 179th report. Section 16 of the draft Bill is more specific: "Any person who makes any disclosure which was false to his knowledge or reckless or malicious, shall be punishable with imprisonment for a term which may extend up to three years and also to fine which may extend up to Rs.50,000." But neither the Law Commission's report nor its draft Bill throws any light on how the designated authority can find out the genuineness of the complaint. The report, on the contrary, adds that it will not be constitutionally or even otherwise permissible to punish a person merely because the facts and allegations mentioned in the disclosure could not be proved in the inquiry conducted by the `competent authority'. It is possible to suggest that the draft Bill and the resolution have granted the "designated authority" unjustifiable discretion in this matter, which could discourage a potential whistle-blower.

The resolution is an improvement on the draft Bill to the extent that it guarantees confidentiality to the whistle-blower, whereas the Bill seeks to empower the designated agency to determine whether the whistle-blower's identity needs to be kept a secret. However, the resolution suffers from another serious incongruity: it says that only if the designated agency is of the opinion that either the complainant or the witnesses need protection, it shall issue appropriate directions to the authorities concerned. The designated agency has to be "convinced" about the need for the whistle-blower's protection.

One major lacuna in the resolution is it does not make the recommendation of the CVC 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 Central Bureau of Investigation 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 recurrence of such cases. The CVC, P. Shankar, has deplored this aspect of the resolution, as, in his view, the Commissioner needs sanction before he can order prosecution. Yet, he has called the resolution a good beginning.

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

Entrusting the CVC as the `designated authority' under the resolution is itself debatable, considering the fact that the limited powers they enjoy have constrained their performance.

There is a political consensus on the need for legislation to protect whistle-blowers. Sadly, however, the NDA government neither had the time nor the political will to debate and enact the Law Commission's draft Bill which was submitted to it in December 2001. Proper legislation could have saved the life of Dubey.

With the resolution, India has joined the select band of four democracies protecting whistle-blowers: the United States, the United Kingdom, Australia and New Zealand. As and when Parliament enacts a law to replace the resolution, it will get an opportunity to debate afresh problems arising out of the perceived deficiencies in the draft Bill and the resolution and set them right by learning from the experience of the countries that have similar laws.