Whistling away your life

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Whistle-blowing in India is likely to be rendered comatose unless it is enabled differently. An independent body, which does not have to depend on Government for either funds or staff, with the authority and the means to extend legal protection to whistleblowers, is needed

An empowered group of Ministers is reported to be finalising the Whistleblowers Bill with the intention of tabling it in the Budget session of Parliament. This article recounts how 29 other countries encourage whistle-blowing. Second it explains why whistle-blowing in India is likely to be rendered comatose unless it is enabled differently.

Whistle-blowing essentially belongs to a culture where public officials have confidence in the system and feel motivated and fearless enough to report their concerns. In most OECD countries, public officials are now obligated by law to report suspected misconduct and corruption. In effect this places the onus on the bureaucracy to proactively report instances of corruption coming to notice. The French Penal Procedure Code even makes it compulsory for public officials to report suspected cases to the Public Prosecutor. In return all OECD countries extend legal protection, anonymity and safeguards against retaliation to the whistleblower. Some countries like Korea also give financial incentives to encourage whistle-blowing.

The trouble with the Indian system is that even the Supreme Court could unearth the Central Vigilance Commission as the best available repository to handle whistleblowers grievances — for the time being. This despite the CVC having no counterpart agency at the State level, exposing the whistleblower to divulge volatile information to a faceless, Delhi-based organisation. Added to this is the fact that CVC does not have the authority or the means to investigate and launch prosecution and has perforce to depend on an agency like CBI, the Central Ministries and the State Governments. This exposes the whistleblower to either a generally suspicious and unsympathetic police mindset or the ambivalence that typifies the reaction of Government Ministries where fear of political ramifications take precedence over all else.

If Satyendra Dubey instead of writing to the Prime Minister, had written to any of the watchdog agencies of the Government, his letter would have been marked ‘down’ with a curt ‘confidential, process urgently’ scribbled on it. But nothing in the system would have required anyone to actually ‘process’ anything, until the paper had found its way, first down, then up the organisational hierarchy, transcribed on to green Government stationery and submitted ‘for orders’. On the upward journey, several questions would no doubt get raised about the credentials of the writer, his own reputation and the unkindest cut of all — what’s in it for him making these complaints?

Seeking comments from State Government is an even more futile exercise. Serious complaints are usually addressed to the Chief Secretary of the State who, despite commanding vast paraphernalia of officers has no way of giving an opinion, except by seeking the comments from the very organisation reported against. If the complaint involves a political functionary, the answers would take that much longer to be sent. Consultations with the political executive (Chief Minister) would definitely take place having their own ramifications. This makes a mockery of the poor whistleblower’s efforts and prevents others who might be inclined to place the public interest before everything else, from ever taking up cudgels.

If the proposed Whistleblowers Act or what the Law Commission called the Public Interest Disclosure (Protection of Informer’s) Bill 2002 is to have real teeth, it would have to be implemented not just by a Government created ‘competent authority’ but by an independent body which does not have to depend on Government for either funds or personnel. The structure of the organisation should necessarily be different from all other constitutional and statutory bodies because of the highly personalised and dangerous ground it is expected to cover.

First, the selection of the chairman and members of the organisation should be through a process of nomination by civil society organisations that have worked in the area of exposing corruption, assisted by the Central Vigilance Commission in narrowing down the selection. Ten names should be presented before a multi-party committee of Parliament which should select five, including the chairman, to function for a five year term-extendable only by the Parliamentary Committee.

Second, the organisation should have the authority to investigate and prosecute independent of any Government organisation.

Third, the organisation should have the authority and the means to extend legal protection to the whistleblower and where necessary, police protection to the whole family.

Fourth, the members should not be answerable to the income tax authorities, RTI, the C&AG or CVC for the limited period of five years. Accountability should, however, lie to an oversight committee appointed by the Supreme Court but to no one else. However, since taxpayers money would be used, the chairman and members should remain accountable for expenditure related decisions for five years after completion of their tenures. On all other matters they should be immune from investigation.

To avoid even the smallest revolving door from opening, members should be debarred from public office and acceptance of private employment should be open to public scrutiny wherever conflict of interest is alleged.

What’s the need for this extraordinary dispensation as yet unavailable in the annals of our institutions? Only because, to quote Thomas M Devine, “Whistleblowers protection is a policy that all Government leaders support in public but few in power tolerate in private.”