September 01, 2006

Notes for India's Proposed Whistleblower Protection and Public Disclosure Act

Encouraging public disclosures and protecting the whistleblowers--those who take the courageous and sometimes self-harming step of disclosing wrongdoings--are important for a healthy and well-functioning democracy. India lacks any such law that would mandate an investigation when a qualifying disclosure is made and give protection to the whistleblower.

One hears that an internal "whistleblower draft" is circulating in the Indian Law Ministry. It is quite possible the ministry has done its homework. One hopes it isn't just a copy-paste of the four-year old Law Commission report** or of other countries' acts++. A bill was also introduced in the Rajya Sabha in March 2006 that is apparently modeled after the Law Commission report. It has not received any presss coverage since so its present fate is unknown.

If recent history of legislation-making in India is any indicator, extensive public discussions do not usually precede passing an act in the parliament. The 2004 Right to Information Act was an exception, an exception that succeeded so well that the government has now woken up to the need to defang the key provisions that put a little too much sunshine on the doings of the vested interests.

This article summarizes year-old notes from reading the law commission report, from an attempt to coordinate whistleblowers and their wellwishers in India towards a draft proposal and from meetings with motivated government officials in the trenches. It is posted here in the larger public interest of sharing the observations. The hope is that someday motivated people may find these points useful, especially when faced with a surprise draft that is about to be rushed through a parliament session without much discussion.

First, some comments on the Law Commission's report:

  1. Change the title to convey that disclosure and protection are both equally important aspects of the law++.
  2. Under the competent authority, start listing relevant autorities for the center and state public servants. Similarly, list them for the lower judiciary, various tribunals and separately for the higher judiciary, perhaps the Chief Justice of the respective High Court or of the Supreme Court or a proposed National Judicial Commission, and for the central and union ministers in the cabinets.
  3. Introduce and cover the private sector when relevant for either taxpayer contracts or the safety of life and environment. The UK model might be worth looking into here.
  4. Use the term whistleblower under the definition of disclosure.
  5. As malicious complaints (against a public servant who did not commit the alleged wrong) do not harm the public servant beyond the allegations, the punishment should be a fine to recover costs and not imprisonment. That is to say, reporting something a whistleblower reasonably believed is disclosable can't be made a criminal offence, especially considering the prosecution and investigating agencies are political appointees for specific postings.
  6. In the process of enquiring the disclosures, direct the investigating agencies to identify the savings to the public exchequer (as a result of the act of disclosure) and legislate that the first X% of the recovery be granted to the whistleblower within 30 days of such recovery.
  7. It must be recognized that occasionally there is a need for the whistleblower, in his or her opinion, to step out of the shadow and go public. The law ought to recognize an external competent authority to handle such requests.
Now, notes from a meeting in Chennai with a senior IAS officer Mr. K. Ashok Vardhan Shetty:
  1. The Central Vigilance Commissioner (CVC) should delegate investigative powers on whistleblower complaint to the administrative tribunals CAT and SAT.
  2. The competent authority should be split for two different functions. a) for investigative purposes leading all the way to a panel of members of parliament + (NGOs == we are looking to define citizen experts or some such well-defined external body), and b) for protecting function to the law enforcement authorities.
  3. The statute of limitation on disclosure might be limited however that on protection to the whistleblower ought to be without limits.
  4. Public Disclosures may be made in steps and the whistleblower be given the right to appeal to the next authority. Start with a department-level internal authority who would also be the competent authority for both investigative and protective (mainly covering job security) purposes. The internal step may be skipped in certain well defined disclosures of graver (TBD) consequences. The next appellate authority is the CVC or the state VC. (see #1 for more). The whistleblower shall be protected from violations of the Official Secrets Act or any such in cases (s)he appeals, as a last resort, to a panel of Members of Parliament (or, on a murkier grounds here, an external designated NGO such as amnesty international?).
  5. Whistleblower shall be allowed an anticipatory registration (suspecting retaliation) with a competent protective authority.
  6. The type of harms caused by the act disclosed by the whistleblower ought to be well defined such as breach of regulations and harm to environment, particularly when invoked against regulatory bodies.
  7. AI: Write a position paper for members of parliament increasing disclosure and empowering them to regulate the private sector and consumers and shareholders.
  8. For a protecting competent authority, define a new tribunal for private sector management
Again, this is by no means an exhaustive list or a complete position paper on the topic.
++ As the names of the corresponding US and UK/Australian acts suggest, the US model is focused on affording a whistleblower protection from retaliation for exposing wrongdoing whereas the UK and Australian acts are more concerned about the act of public disclosure itself, in the interest of saving public lives or waste of the public exchequer.

** The 179th Report of the Law Commission of India, aka the Public Interest Disclosure (Protection of Informers) Bill 2002.