Sunday, September 19, 2010

Who will protect the whistleblower?

Who will protect the whistleblower?
Times of India By Manoj Mitta

About a month after activist Amit Jethava was murdered, the Central government came up with a legislative proposal to prevent such tragic killings. The dead man was an environmentalist and died because he campaigned to save Gujarat's Gir lion reserve from the ravages of illegal mining. The Bill introduced in the Lok Sabha on August 26 expanded the definition of whistleblower. It said anyone who makes a "public interest disclosure" is a whistleblower.

It was a great leap forward from where we stood till then. Under the 2004 Cabinet resolution, only a public servant could be a whistleblower. But the expanded definition is the only real positive change in the official attitude towards whistleblowing. In other respects, "the public interest disclosure and protection to persons making the disclosure Bill, 2010", to call it by its real name, is anodyne. The Bill's biggest weakness is that it retains the Central Vigilance Commission (CVC) as the designated agency or "competent authority" to deal with complaints filed by whistleblowers. The CVC is also meant to protect whistleblowers. Both provisions are carry-overs from the 2004 Cabinet resolution on whistleblowing.

Both carry over the problems of the past into an era meant that is meant to be more free and fair. The CVC, the apex body for all vigilance cases at the Centre, is embroiled in controversy. Moreover, it is a toothless body and can only ever give advice rather than registering a criminal case or issuing any direction to CBI. The CVC's recommendations are routinely rejected by many government departments. The CBI too pays it little heed. In its current form then, the Whistleblower Bill, will make no difference to the culture of impunity in corruption cases. The CVC can only make recommendations when instances of corruption are brought to light by whistleblowers. What use will that be to anyone, particularly a society that wants to clean up?

But there is an even bigger problem with making the CVC the Bill's designating agency. Of late, there is a question mark over its independence. Telecom secretary P J Thomas's September 7 appointment as its head triggered the row. There were allegations that the government appointed Thomas to the CVC in order to shield telecom minister A Raja in the 2G spectrum scam. Just a month before Thomas arrived in his new job, he signed a document that claimed the spectrum allocation was impervious to investigation by any agency because "revenue considerations play a secondary role" in government policy on telecommunications.

Clearly, the Whistleblower Bill's expectations of the CVC are misplaced when it deems the agency trustworthy enough to recommend "appropriate administrative steps for redressing the loss caused to the government as a result of corrupt practice or misuse of office or misuse of discretion". Given the way Thomas sought to justify revenue losses in the 2G spectrum scam, what recommendation would the CVC he heads make if the public servants named by whistleblowers came up with similar arguments in their own defence?

But there is one area in which the Bill empowers the CVC to issue binding orders – protecting whistleblowers from victimization and/or physical attack. It also gives the CVC the authority to issue interim orders to stop any corrupt practice highlighted by the whistleblower. But these limited powers are likely to prove inadequate as long as the CVC remains no more than an advisory body when it comes to sensitive matters such as whether or not a corruption case is to be registered against a public servant.
Experts, the enlightened and the eminent — a loose coalition of concerned citizens — have been asking that the government call a spade a spade and redress the many problems in the anti-corruption mechanism. The group, which includes the Karnataka Lok Ayukta, Santosh Hegde, said nomenclature was irrelevant. Call it CVC or Lok Pal or anything else, but it should have the necessary authority and resources to register cases based on whistleblower complaints. They have a point. The scale of corruption in India calls for an ambitious rethink. Sadly, this Bill is only a tiny step in the right direction. There is a long way to go.

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