The sustained campaign by the civil society organisations has resulted in the introduction of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. The bill seeks to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption, wilful misuse of power or wilful misuse of discretion against public servants.
The bill needs to be fine tuned in the light of the similar laws available elsewhere. It has ignored some of the recommendations of the Administrative Reforms Commission and the Law Commission. It was expected that the bill will take care of the security concerns of those who are using the Right to Information Act (RTA).
During 2009 at least nine RTI users have been murdered and many cases of physical attacks have gone unreported. The bill belies such expectations.
The bill is applicable to Central as well as state government departments, institutions, local bodies, societies and institutions that may be notified by the governments. The Central Vigilance Commission (CVC) will be the nodal agency to receive information from whistleblowers in respect of offices under the Central government.
The states are expected to set up similar bodies. Perhaps the existing lokayukta or anti corruption bureaux may be designated for this purpose. The bill calls such institutions a 'competent authority.'
When it comes to the nature of 'disclosure', the bill tries to restrict it to certain offences and lay down conditions for others. Under the bill, a disclosure means a complaint relating to an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988. In case a citizen wants to blow the whistle he can do so only when the misuse of power or misuse of discretion has lead to loss to the government or gain to the public servant.
Information about an attempt to commit or commission of a criminal offence by a public servant can also be disclosed to the competent authority. Here again the bill does not indicate the issues on which information could be disclosed. The Law Commission Bill said that 'disclosable conduct' include 'mal-administration', meaning any action taken or purporting to have been taken or being taken or proposed to be taken in the exercise of administrative or statutory power or discretion can be a ground for disclosing information.
The word 'mal-administration' included any action which is (a) unreasonable, unjust, oppressive or discriminatory (b) where there is negligence (c) where there has been reckless or unauthorised use of power (d) where such action amounts to breach of trust (e) where action would result in wastage of public funds and or (f) where such action is outside the authority of law or amounts to violation of systems and procedures.
The present bill is woefully inadequate in its coverage of offences relating to environment, health, safety and economic crimes. The UK Public Interest Disclosure Act 1998 aims to protect whistleblowers from victimisation and dismissal, where they raise genuine concerns about a range of misconduct and malpractices. For example a worker who blows the whistle will be protected if the disclosure is made in good faith and is about (a) a criminal act (b) a failure to comply with a legal obligation, etc.
Unlike in other countries where whistle blowing is allowed in the private sector, the bill does not contain such a provision. Increasingly private sector participation in many public services is being allowed. Besides, some of the activities of the private sector directly affect the public. It follows that if something goes against public interest within the private sector, it needs to be divulged.
One of the foundations of whistle blowing is the public's right to know. Jeffrey Wigand who was the head of the R&D of Brown & Williamson (a tobacco company) spoke about the company's knowledge of nicotine's addictive properties, its reckless use of harmful additives, its quashing of research on safe cigarettes. He was the witness in the US government's lawsuit against the tobacco industry, which eventually led to the $246 billion federal tobacco settlement. Who knows there may be many Satyams in the pipeline?
According to the bill disclosures can be made only to the Competent Authority, the CVC in this case or any other similar body in the state.
The aim of the bill is to protect the identity of the informers. But section 4(5) of the bill goes against the spirit of the law. It says that the competent authority may reveal the identity of the whistleblower to the head of the department or organisation against which information has been provided. This provision also is enough to make the law remain on paper. This part of law assumes that information will be provided only against the staff or employees of the organisation.
What happens when a citizen has to disclose information which is against the head of the department itself? Finally, the bill is silent about the benefits that may accrue to the whistleblower. Instead it penalises persons who make vexatious and frivolous complaints. The bill needs to be amended to provide for some sort of incentives to whistleblowers. (INAV)
