Press Release: What features India’s whistleblower’s bill MUST have

Dear fellow activists & whistleblowers,

Let us start this discussion with a common understanding about what whistleblowing is and what it is not. Those who drafted the proposed ‘Public Interest Disclosure & Protection to Persons Making Disclosure Bill 2010’ (PIDP 2010) seem to be unclear in this regard.

DEFINITION: Whistleblowing is defined as a deliberate non-obligatory act of disclosure, which gets onto public record and is made by a person who has or had privileged access to data or information of an organization, about non-trivial illegality or other wrongdoing whether actual, suspected or anticipated which implicates and is under the control of that organization, to an external entity having potential to rectify the wrongdoing.

KEY POINTS ABOUT WHISTLEBLOWING OR PUBLIC INTEREST DISCLOSURE (PID):
1) It is a non-obligatory, voluntary act by a public spirited citizen who has privileged access to information of an illegality or wrongdoing.
2) The disclosure gets onto public record.
3) The act complained against may be actual, suspected or anticipated.
4) It concerns a non-trivial illegality or wrongdoing.
5) The whistleblower makes a disclosure to an external entity having potential to rectify the wrongdoing.

FOUR STAGES OF WHISTLEBLOWING:
· First, a triggering event occurs, involving questionable, unethical, or illegal activities, and this leads an employee to consider blowing the whistle.
· Second, the employee engages in decision making, assessing the activity and whether it involves wrongdoing, gathering additional information, and discussing the situation with others.
· Third, the employee exercises voice by blowing the whistle; alternatively, the employee could exit the organization, or remain silent out of loyalty or neglect.
· Fourth, organization members react to, and possibly retaliate against the whistleblower

WHY WE URGENTLY NEED MORE WHISTLEBLOWERS:
We live in a complex world. Every day, decisions are made that can affect our health, safety, economic and human rights. Some of these decisions are made for the worst of reasons – such as corruption, incompetence, laziness and lack of concern for other human beings. Accidents happen or corruption flourishes because employees or other citizens who know about wrongdoing are afraid to say anything in fear of losing their jobs.

Increasingly, whistleblowing is recognized as a means of reducing corruption and dangerous situations by improving the disclosure of information about illegal, dangerous or unethical activities by government and private organisations. It can also be a means of improving the internal organizational culture in both the public and private sector to prevent or reveal mistakes and accidents, and improve internal management and efficiency.

Around the world, many whistleblowers have been hailed as heroes for revealing corruption and fraud in organizations and preventing disasters. On hindsight, governments, organizations and media are recognizing that large-scale disasters like the Bhopal gas leak and the recent British Petroleum oil-well blowout could have been prevented, if only somebody had spoken up at the right time.

However, many whistleblowers face severe repercussions. They are subjected to disciplinary action, lose their jobs or are ostracized. Some are charged with crimes for violating laws or employment agreements. Frequently, they face physical danger, persecution from the police and prosecution in court. Therefore, countries around the world are now working to develop legal regimes to encourage these important disclosures and protect the whistleblowers from retribution. Many international agreements and treaties on anti-corruption including the Council of Europe Civil Law on Corruption and the UN Convention Against Corruption include requirements that nations adopt these laws. Many organizations are also adopting internal rules to facilitate disclosures.

Over 50 countries have now adopted specific whistleblower protections. Others have adopted protections through other laws such as labour laws or public sector employment rules. A handful of countries have adopted comprehensive whistleblowing laws. These have two major themes -- a proactive part which attempts to change the culture of organizations by making it acceptable and facilitating the disclosure of information on negative activities such as corrupt practices and mismanagement, and a second aspect made up of a series of protections and incentives for people to come forward without fear.

DIFFERENCES BETWEEN INFORMERS & WHISTLEBLOWERS:
Whistleblowers are often equated with informers, who have a generally bad reputation. Perhaps the most important distinction is the legal liability of the person disclosing the information. Informants are often themselves involved in some sort of unethical enterprise and are using the disclosure of information as a means to reduce their legal liability, either voluntarily, or due to pressure. They are in a subordinate place to the body or person they are disclosing to and must follow their orders or face sanctions. By contrast, whistleblowing laws do not affect the liability of those that are involved in criminal enterprises. The focus of whistleblowing legislation must not be on the complex moral posture of the informant and his disloyalties, or even his questionable value as a witness. Focus must be only on the value of his disclosure to society.

Another difference is that informants often seek favours or remuneration for their disclosures. In most cases, whistleblowers seek and receive no benefits for their disclosures. However, a few types of anti-corruption laws (e.g. Income Tax) allow for rewards to be given to those that disclose, typically a part of the black money recovered in corruption cases.

WHISTLEBLOWING IS NOT ABOUT ‘DUTY TO INFORM’:
Whistleblowing should be also distinguished from a legal duty to inform. The non-voluntary duty of individuals to inform superiors or others of any wrongdoing that they discover is also sometimes described as whistleblowing. The functionality is similar - there is a disclosure and the person who made the disclosure requires some protection from possible repercussions. However, the motivation and the type of problems are different. In the case of the required disclosure (i.e. duty to inform), the person faces the possibility of being subject to criminal prosecution or other actions for the act of non-disclosure. By contrast, the whistleblower is only driven by ethical compulsion to set right something for the benefit of the organization, of society, etc. Their disclosure also tends have a broader scope – the act might not be criminal; it could just be that there is inefficiency, waste of public resources or potential accidents.

WHISTLEBLOWING LAWS ARE NOT THE SAME AS WITNESS-PROTECTION LAWS:
Witness protection laws are not the same as whistleblower laws, although there is some overlap between the two, including a promise to keep the identity of the individual confidential.

Whistleblowing legislation is about preventing harm to the career and interests of the individual at the workplace and safeguarding his place in society. In whistleblowing, the focus is on the information, not the person who made the disclosure. Ideally, the person making the disclosure must not be asked to be a witness or to lead evidence before the courts etc. Ideally, whistleblowers must become bystanders once the disclosure is noted by the system. A whistleblower may not necessarily wish to, and should not be forced to, appear in court, considering that his voluntary disclosures are intended to deter malpractices or remedy them at an early stage.

Based on the above discussion, let us now focus on what sort of facilitations and protections a whistleblower’s laws must contain.

WHAT FEATURES WHISTLEBLOWER’S LEGISLATION (PIDP 2010) MUST HAVE?

1) ENABLE MULTIPLE POINTS FOR RECEIVING DISCLOSURES: The whistleblowing legislation must encourage people with privileged information about wrongdoings, waste of public resources, hazardous practices, etc. to make public-interest disclosures before a wide range of authorities, and also to the media (which is a legitimate way of putting the disclosure into public domain). This legislation must empower and mandate a wide range of authorities to receive public interest disclosure, properly record them and quickly initiate corrective action.
Does the proposed PIDP do this? No. PIDP empowers ONLY Central & State Vigilance Commissioners to receive public interest disclosures, and requires the whistleblower to maintain strict confidentiality while submitting disclosures. In short, it goes against the whistleblower’s need for seeking quick and effective remedial measures and for putting the information in public domain. It puts the whistleblower at the end of a lengthy queue, frustrating the need for swift investigation and action.
A major shortcoming of PIDP 2010 is that it ignores the need to make a large number of existing forums responsive to whistleblowers. It overloads everything onto the vigilance commissioners alone, thereby creating a system that is predestined to collapse and fail.

2) HONOUR THE WHISTLEBLOWER: The whistleblowing legislation must recognize and legitimize the whistleblower first and foremost. By its very wording and structure, it must clearly indicate to society and government that the whistleblower is voluntarily performing a valuable role, which must be welcomed and honoured.
Does the proposed PIDP do this? No. The draft bill terms the person who makes a voluntary disclosure in public interest as a ‘complainant’, making ‘allegations’ against a public servant. By making this false assumption, it demeans the whistleblower and his motivation. Furthermore, it mandates the Vigilance Commissioner to question his motives, dismiss his ‘complaint’ if it seems to be ‘frivolous and vexation’ and punish him with legal consequences if it seems that the disclosure was ‘mala fide’. The overall message that goes out from this legislation is that whistleblowers are a nuisance to administration and to society.

3) OFFER CLEAR REMEDIAL MEASURES & PROTECTIONS: The whistleblowing legislation must offer realistic hope to people making public interest disclosures. The real power to make a difference lies at different nodes of the administrative framework. It lies mainly with the heads of relevant public authority and also law-enforcement authorities. These authorities are the only persons who can take remedial measures within a meaningful time-span, and also the ones who can offer substantial protection to the whistleblower within his context and environment. They must be mandated to do so.
Does the proposed PIDP do this? No. The bill only recognizes and mandates vigilance commissioners, whose powers are only investigative and recommendatory. Worse still, it puts heads of relevant public authorities on the defensive vis-à-vis the whistleblower, and locks public servants and whistleblowers in an adversarial role. Thus, far from offering remedial measures and protections, it creates resistance to remedial measures and endangers whistleblowers.

4) AIM TO PUT INFORMATION IN PUBLIC DOMAIN: The whistleblowing legislation must work by putting the public interest disclosure into public domain to enable simultaneous action by many individuals. It must create mechanisms for widely disseminating the disclosed information and for demonstrating to the public the activation of redressal mechanisms in response to the disclosure.
Does the proposed PIDP do this? No. Under the pretext of keeping the whistleblower’s identity confidential, the bill concentrates all the information in the hands of the vigilance commissioners. Given the current pace of such work in India, this will ensure that the public interest disclosure will remain unknown to the public for several years!

HOW TO RESTRUCTURE PIDP 2010 TO MAKE IT COMPLY WITH THESE REQUIREMENTS?

DEFINE A NEW AUTHORITY CALLED “INSPECTORATE OF PUBLIC INTEREST DISCLOSURE” TO INVESTIGATE. (The Central & State Vigilance Commissioners cannot be the nodal authority for PIDP 2010, because their functions and effectiveness is restricted by the Central Vigilance Commission Act 2003.) The new authority must have a multitude of “inspectors” rather than a small number of “commissioners”. These inspectors must not remain seated in one office; they should be on the move, to visit various public authorities concerning the disclosures, and to ensure that these authorities take note of the disclosures and take the necessary remedial and protective actions.

DEFINE CREDITS & REWARDS SYSTEM FOR WHISTLEBLOWERS. The Act must put in place a mechanism whereby outstanding whistleblowers will be honoured with Padma awards, cash rewards and prestigious positions in relevant public authorities.


DEMAND THESE CHANGES! Today, please email and speedpost your feedback letter to DOPT, as tomorrow (30th September) is the last date. Address: “Shri V.K. Velukutty, Deputy Secretary(V-Ill), Department of Personnel and Training, Room No. 10-8/11, North Block, New Delhi-110001.” Email to vkvkutty@nic.in .

NOTES & REFERENCES:

a) This article draws heavily from David Banisar’s ‘Whistleblowing International Standards & Developments’: http://www.box.net/shared/2s4hee9blc

b) Section-by-section analysis of the proposed whistleblower’s bill (PIDP 2010): http://www.box.net/shared/eiy0jf525v

Warm Regards,
Krish
98215 88114