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.

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++ 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.

Is democracy incongruent with good governance?

The populist choice | Economist.com

SPECTACULAR success followed by tragic failure. That might seem the verdict of the weekend’s general election in Slovakia, where one of the best-regarded reforming governments in the post-communist world was booted out of office amid big votes for left-wing and populist parties.

Yesterday evening I had an interesting discussion whether democracy inevitably leads to vote-block populism at the expense of good governance, common sense and helping the very weaker sections the populists pretend to protect. Turns out dividing society is a favorite tool of not just democratically elected rulers but also dictators and colonial rulers.

The populists under discussion are the ascending leftists in Indian politics and the secularists (more commonly known as baiters of the mainstream hindu religion) of India's ruling congress party. They start with the widely accepted premise India's age-old caste system has oppressed lower castes and the untouchables -- defined as the scheduled castes and tribes (the SC & ST), comprising about 20% of the population. The SC & ST are fairly well-protected under the Indian constitution and continue to be given preferential treatment in everything under the government's control.

The contemporary divide-and-rule geniuses of India don't stop here. They are now saying the caste system was equally, if not more, oppressive towards Other Backward Classes, the OBCs. The last time OBCs were counted was the 1931 decennial census under the British raj. The proposed revision comes with the lure that roughly two-thirds of India's Hindu population might qualify as OBC! Predictably, the race to be classified as an inferior caste is already in motion, reminiscent of the jockeying a century ago when every caste raced, no pun intended, to be counted as a superior one:

Ghurye, G.S. 1979:278 (first published 1932) "Caste and Race in India. Bombay: Popular Prakashan" observed: Various ambitious castes quickly perceived the chances of raising their status. They invited conferences of their members, and formed councils to take steps to see that their status was recorded in the way they thought was honourable to them. Other castes that could not but resent this "stealthy" procedure to advance, equally eagerly began to controvert their claims. Thus a campaign of mutual recrimination was set afoot.

At stake today is not just preferred access to schools, universities and public sector jobs, but also hiring decisions to be made by every private company operating on the Indian soil.

The electoral calculus is self evident. The historical evidence being cited to justify the divisive policies is highly suspicious but hardly unprecedented.

It takes off on the revisionist history the British undertook in order to convince higher caste Hindus of their superiority by virtue of an alleged racial heritage with invading europeans. The challenge before the communists and the congress party today is to convince two out of every three Hindus of their inferiority by virtue of being oppressed in the past and thus deserving preferential treatment against the remaining 20% Indian population. The tools employed by both dividers are the same: mid-nineteenth century euro-centric history that led to the Aryan Invasion Theory and the scientifically questionable basis in the 1931 census of shades of skin, nasal index, and such wonderful techniques that were in vogue then just as eugenics was in Europe.

The British were desperate to assert their racial superiority over the natives. They did so out of the exigencies of ruling a distant subcontinent by co-opting certain classes, the superior Aryans, as native ruling agents. They played linguistic commonalities of Indo-European languages to the hilt.

The communists and the secularists are desperate to be seen as agents of social equality in order to strenghten democratic control on emerging India. The caste divisions in the 75-year old colonial census come very handy in the quest for new voting blocks. As usual, a vast majority of meek Indian academics is ready to rewrite history.

Together, they will milk the shameful past of caste discriminations while ignoring the more important issues of development of human capital regardless of the family one is born into.

Leading by Example

Rajinder Puri urges India to take the lead in spreading democracy around the world. But only after putting its own house in order.

After 9/11 the quality of American democracy plummeted. ... Many of [the Bush administration]'s actions destroyed American values and even attracted threats of impeachment. The administration deliberately falsified intelligence inputs and lied to the nation for justifying its invasion of Iraq. During the war, it initiated systematic torture of prisoners which violated American law and human rights. The President authorized illegal wiretapping of private conversations of citizens without following due process. ... The President got away with his excesses because mainstream US media failed to fulfill its responsibility.

India's condition is no better. The failure of the system and the need to reform it is a recurring theme in these columns. ... [There is] an alarming breakdown in the rule of law. Liberty therefore has degenerated into license. The rich and the powerful can and do get away with murder. Hopefully, the public will bestir itself before the system disintegrates.

These facts must be kept in mind if a serious effort to spread democracy across the world is undertaken.

The author makes excellent points. However, he is no exception to the general tendency in America and India to play up increasing prosperity and depth of democratic values and to remind readers how lucky they are compared with assorted autocratic regimes before addressing the serious deviations from democracy.

The US President clearly violated the FISA by wiretapping citizen without a prior judicial warrant. India has no laws, whatsoever, to protect its people from violation of privacy by the State. All that any Indian government needs is a confidential executive order signed by a bureaucrat so it can spy on citizen and political rivals with plausible deniability. Invariably, it's one of the first privileges every government exercises upon swearing in.

At first blush, the Indian press might appear cantankerous, and therefore free, but it lacks full freedom of press. Nor does it particularly push the limits of the considerable freedom it enjoys. Its hands are tied by draconian libel laws without the recourse to a First Amendment protection or truth as defense. It operates in an environment journalists are regularly roughed up. The end result is a free press that stays away from anything that may remotely violate the colonial Official Secrets Act or breaching the privilege of any elected house or inviting contempt of court from the prickly judges that don't take kindly to criticism, especially to accusations of quid pro quo in letting the powerful get away with murder.

Many of India's laws are more fit for the religious courts of Shariat-following countries, for countries that elect leaders with 100% polled votes, and in medieval societies than for a vibrant democracy that includes 600 million globally-aware, pulsating youth. Combined with unbelievable corruption in every sphere of the justice system, they are a lethal deterrence for the most fearless journalist. That results in a free press that won't needle the executive, the legislative or the judiciary where it really matters.

The Indian audience, like most patriotic people, does not like to read much about its soldiers running their own Abu Ghraibs in Kashmir or the North East or for that matter in the heart of Mumbai for accused terrorists.

At present, these serious flaws in the democratic norms do not seem to bother the administrations of India or the US. Perhaps they are flirting with a system that gives the citizen just enough freedom to prosper but keeps them from extreme frustration of repressive regimes. As a result, the ruling mob prefers to hold the reigns of power very close in the name of security.

The only difference might be the federal writ doesn't extend much into the states and cities that run their own law enforcement and judicial systems in the US. Whereas in India, those functions have a strict reporting hierarchy to the central government. The silver lining is all it takes in India is the will of the ruling government to reform.