Sunday, March 31, 2013

Whistleblower protection

Whistleblower protection in India refers to provisions put in place in order to protect someone who exposes alleged wrongdoing. The wrongdoing might take the form of fraud, corruption or mismanagement.
As of August 2012, India does not have a law to protect whistleblowers; however, the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 was approved by the Cabinet of India as part of a drive to eliminate corruption in the country's bureaucracy.

Need of legislation
There have been multiple instances of threatening, harassment and even murder of various whistleblowers.
An engineer, Satyendra Dubey, was murdered in November 2003; Dubey had blown the whistle in a corruption case in the National Highways Authority of India’s Golden Quadrilateral project.
Two years later, an Indian Oil Corporation officer, Shanmughan Manjunath, was murdered for sealing a petrol pump that was selling adulterated fuel.
A Karnataka official SP Mahantesh, said to be a whistle-blower in controversial land allotments by societies was murdered in May 2012. Mahantesh was working as Deputy Director of the audit wing in the state’s Cooperative department and had reported irregularities in different societies involving some officials and political figures.
A senior police officer alleged that Mayawati's government was corrupt and had embezzled large amounts of money. Shortly thereafter, he was sent to a psychiatric hospital.
Activists are seeking a quick passage of the Whistleblowers Protection Bill in Parliament. The demands are that a law should be framed to protect whistleblowers, facilitate the disclosure of information and uncover corruption in government organisations.

Legislative progress
IntroductionAugust 26, 2010
Standing Committee referralSeptember 16, 2010
Standing Committee reportJune 09, 2011
Lok SabhaPassed on 27 December 2011
Rajya SabhaIntroduced on 29 March 2012

In June 2011, a parliamentary panel recommended that ministers, the higher judiciary, security organisations, defence and intelligence forces and regulatory authorities be brought under the whistleblowers' protection bill to check corruption and the willful misuse of power.

Analysis of the legislation
According to Indian law reports, the bill has faced considerable criticism because its jurisdiction is restricted to the government sector and encompasses only those who are working for the Government of India or its agencies; it does not cover the state-government employees. However, the draft bill aimed at protecting whistleblowers is seen as a welcome move.
The lack of public debate and consultation on the bill seems to indicate the danger of it becoming another "paper tiger". Typically, ministries proposing draft legislation involve a process of public consultation to give the public an opportunity to carefully critique its provisions. In this case, such an opportunity has been denied to the public, which has not gone unnoticed.
The proposed law has neither provisions to encourage whistleblowing (financial incentives), nor deals with corporate whistleblowers; it does not extend its jurisdiction to the private sector (a strange omission, after the fraud at Satyam). The Directorate of Income Tax Intelligence and Criminal Investigation is one of the only agencies empowered for whistle blower protection.
The bill aims to balance the need to protect honest officials from harassment with protecting persons making a public-interest disclosure. It outlines sanctions for false complaints. However, it does not provide a penalty for attacking a complainant.
The Central Vigilance Commission (CVC) was designated in 2004 to receive public-interest disclosures through government resolution; there have been a few hundred complaints every year. The provisions of the bill are similar to that of the resolution. Therefore, it is unlikely that the number of complaints will differ significantly. The power of the CVC is limited to making recommendations. It cannot impose penalties, in contrast to the powers of the Karnataka and Delhi Lokayuktas.
The bill has a limited definition of disclosure, and does not define victimisation. Other countries (such as the United States, United Kingdom and Canada) define disclosure more widely and define victimisation.
It differs on many issues with the proposed Bill of the Law Commission and the Second Administrative Reform Commission’s report. These include non-admission of anonymous complaints and lack of penalties for officials who victimise whistleblowers.
If enacted, the law to protect whistleblowers will assist in detecting corruption, ensuring better information flow and paving the way for successful prosecution of corrupt individuals through clear and protected processes. However, the public in India have a low level of confidence in fighting corruption because they fear retaliation and intimidation against those who file complaints. Another worry pertains to the delay in disposing of these cases. Without public debate on the provisions of this proposed law, it is clear that people cannot measure its effectiveness when the draft bill comes into force as law.


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