Governance Now, Sept 16-30
Ronald Reagan was right. The nine most terryfying words in the English
language are indeed, “I’m from the government and I’m here to help”!
Seven years in the making, the whistleblower bill or the ‘Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010’ was finally introduced in Lok Sabha on August 26. This long preparation has been a waste. There are several provisions that defeat the very purpose for which it is being legislated.
These provisions are as follows:
* No action shall be taken if the disclosure is anonymous. (Clause 3(6))
The purpose of the exercise is to get credible information to fight corruption. So what if it is anonymous? In any case, as the very name of the bill suggests, it is about “protection” to the whistleblower, not his identity.
* No complaint can be entertained against any member of the armed forces or anything related to the armed forces, not even when they are involved with “maintenance of public order”. (Clause 3 (1))
This is nothing short of blasphemy, given the growing number of scams involving even generals and brigadiers in land deals, diversion of petrol, diesel and liquor, purchase of arms and ammunitions, uniforms and other equipment in recent years. Incidents of rape of women and killing of innocent civilians in the name of fighting militancy by the men in uniform in Jammu and Kashmir and the Northeastern states are not exactly rare. That is why a debate is on in the country about restricting powers given to the armed forces in troubled areas under the Armed Forces (Special Powers) Act.
* If information is found worthy of investigation, the “competent authority”, that is, central or state vigilance commissioners, would need to take “comments or explanation or report” from the “head of the department (HoD) of the organisation or authority, board or corporation concerned” before proceeding further. (Clause 6(3))
What if the HoD is involved in the wrongdoing, which is often the case? Or his close confidants? Will he cooperate and confirm the charges of corruption? Whistleblowers face threat not because they seek to expose clerks but the high and the mighty. This is an obvious contradiction and will kill the bill, says RTI activist Arvind Kejriwal.
* The identity of a complainant can be disclosed “if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, becomes necessary to reveal the identity of the public servant to the HoD of the organisation or authority, board or corporation concerned or office concerned, the competent authority may reveal the identity…” (Clause 4)
This defeats the whole purpose of the proposed law. There is absolutely no need for the bill as this provision provides sufficient excuse to blow the cover of the whistleblower.
* In the course of inquiry the competent authority, which will have powers of a civil court, can’t force anyone to part with any information or document if it is “likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign state, public order, decency or morally…” (Clause 7(1))
What if the corruption charges are against a person or persons holding such information or documents? Kejriwal wonders if the government’s position is that our national interest is safer in the hand of the crooks. He says there is no such bar on any other court or the information commissioners and there is no reason why that should be the case with the CVC/state vigilance commissioners.
* No complaint can be made “after the expiry of five years from the date on which the action complained against is alleged to have taken place.” (Clause 5)
This will lead to a situation in which the time of the offence will be investigated first and if found to be five years’ old or more, the matter will be dismissed. Are we to understand that corruption too has an
expiry date?
* In case a person is found to have made a disclosure “mala-fidely” he would be punished for up to two years of imprisonment. (Clause 15)
It is not rare for the vigilance or other investigating agency to do a shoddy job. Now that the bill provides for punishment for “mala fide” disclosure, there is an additional reason to do a shoddy job and punish the whistleblower.
* The bill is silent on the private sector.
Are we to understand that there is no corruption in the private sector? Or that corruption in the private sector is none of our business? What about the public-private partnership (PPP) projects that the government is promoting in a big way, not only in the infrastructure sector but also in the social sector?
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