Five Years of RTI: Battle for Information - Part 1

Though the RTI Act came into force five years back, the government officials supposed to follow the RTI Act in letter and spirit try their bets to avoid providing information. Dainik Jagran, Aligarh, is coming out with a series on the state of implementation of RTI Act.

The following news clipping published in Dainik Jagran (5th October 2010) is first Part of the series and highlights the ongoing battle of information seekers. It shows how Aligarh Muslim University (AMU) avoided providing information to former Member of Parliament (Rajya Sabha) Mr Wasim Ahmed, when he asked for a copy of the Audit Report on financial mismanagement at AMU, prepared by the Principal Accountant General, Uttar Pradesh.

It also shows how AMU has provided misleading information to RTI Group member, Dr Mohammed Naved Khan, when he sought information on withholding of Grant by UGC on account of financial irregularities committed by AMU.

Right to Information -- The Battle for True Citizenship

Dear friends,

The passing of Right to Information Act 2005 was like the unfurling of a flag, heralding the coming-of-age of ‘We the People’. It was not just another mundane event in the life of our nation; it showed a shift in the national psyche.

By winning Independence Struggle I, we sent the British ruler home, but we inherited the baggage they left behind:

(i) A bureaucratic structure that was, as Wajahat Habibullah noted, suited more for colonial slave India than free democratic India

(ii) A legal structure biased towards maintaining the inequality between the rulers and the ruled. Upon the foundation of Official Secrets Act 1923 and other archaic and dysfunctional laws (such as Bombay Municipal Corporation Act 1888), we unthinkingly based our more recent laws. Our Constitution – painstakingly debated and written between 1947 and 1950 -- is forward-looking and seeks to empower citizens

(iii) Our judiciary, with its archaic privileges and untrammeled powers. And now it is like a schizophrenic in character – struggling to retain these privileges, but simultaneously wishing to respond to the common man’s cry for better governance and cleaner administration.

As a result of our inherited historical baggage, our establishment thinks like East India Company. Without any guilt, it is plundering tribal lands with economic policies and at gunpoint, because it believes in the rightness of achieving economic growth at all costs. It guiltlessly goes about facilitating massive land acquisition, suspension of labour laws and massive tax breaks for the wealthy in Special Economic Zones. The government talks about inclusive growth and progress for all without even realizing the irony of what they are doing.

Our own daily public behavior as citizens reflects the slave-citizen’s urge to gather and hoard up undue privileges, influence and power. We seek to encash and leverage every tiny piece of privileged information, every discretionary power and every scrap of political influence that we each have. Like toxic pesticides getting concentrated as it goes up the food chain, each citizen’s greed to pick up the biggest slice of cake gets concentrated thousand-fold as it goes up the local self-government chain. By the time it reaches the level of the ministries, the greed assumes demonic proportions.

Independence Struggle II, which started in the late 90s, and flowered with the passing of the RTI Act 2005, is ongoing. This struggle is against misuse of powers by bureaucracy, the political class and the vested interests. Thousands of us civil-society members are now soldiers, spending time and money to battle against the demon that we ourselves feed in our daily lives. Thousands of us are actively risking their lives to make our system transparent and responsive to the common man. The stepped-up rate of attacks on activists and whistle-blowers in 2010 is testimony to this battle.

This phenomenon has dimensions that we have not yet fully understood and assimilated. The ongoing changes are historical, political, social, cultural and legal. Let us look at these changes.

1) A POLITICAL & HISTORICAL REVOLUTION IS IN PROGRESS. From 1947 till 2005, citizens in general only used to vote and pay taxes. They did not actively participate in governance. Till around 1980, the only citizens who participated in politics were Gandhian-types and independent-minded journalists. Later, there was the growth of NGOs, but as they sought government support and funding, most of them did not oppose the government in a meaningful way. It is only since the passing of RTI Act 2005 that citizens at large have begun to participate in governance, and hold the govt. and administration accountable by asking tough questions and demanding answers. In fact, after RTI ordinances were passed of Maharashtra and other states in 2002, thousands of activist citizens all over the country started filing RTI applications and unearthing dirt and corruption. This number has now swelled to several lakhs. This is a major aspect of Independence Struggle II.

2) THERE IS A SHIFT IN BALANCE OF POWER TOWARDS ORDINARY CITIZEN. The passing of the Right To Information Act in 2005 gave citizens a new locus standivis-à-vis the government and administration, enabling ordinary people to demand access to documents that were hitherto “official secrets” or “marked confidential”. By ending the stranglehold of the pre-colonial Official Secrets Act 1923, the RTI Act changed the balance of power between citizens and bureaucracy. Early pioneers (like late Prakash Kardaley, Late Kewal Semlani and Shailesh Gandhi and Anna Hazare in Maharashtra, Aruna Roy in Rajasthan and Arvind Kejriwal in Delhi region) systematically taught people the logic of RTI, creating a well-informed swarm of citizens to question the government on non-performance, arbitrariness and corruption.

Technology is playing a key role in this sweeping change. Email groups, blogs and mobile technology are acting as hubs in the further education of citizens and media by a second generation of RTI activists and experts. With hundreds of aggressive activists scooping out skeletons, there is now a mass movement that is no longer dependent on the initiatives of a few enlightened persons. Indeed, judicial and administrative reforms today provokes popular emotions that were earlier seen only in issues like river-water-sharing, linguistic borders and reservations.

3) CRIME-FIGHTING IS NOW A SOCIALLY RECOGNIZED ACTIVITY. It is no exaggeration to say that RTI “activists” (as opposed to RTI “users”) are modern-day detectives and crime-fighters. Unlike Phantom, Spiderman and other imaginary super-heroes, they don’t use fists and guns; like Sherlock Holmes and Perry Mason, they use their brains to get expose crime and sleaze. Forced by deliberate failure of authorities to stop ongoing criminal activities, they set out to expose the crimes and the complicity of officials. (Sometimes, crime-fighting originates from personal vendetta, or results in personal vendetta, or both. It can be a vicious death-cycle.)

Unknowingly, the State is itself creating such crime-fighters through its inaction. Agonizingly slow case disposal by Information Commissioners discourages many information seekers. But it also turns substantial numbers of information seekers into experts and hard-boiled activists. During the 6-18 months of waiting for hearings at State and Central Information Commissioners (SICs/CICs), frustrated RTI applicants get lots of free advice from senior colleagues, network together and establish groups. Together, they evolve ingenious ways of challenging the system with a combination of RTI applications to various public authorities, complaints,letter-baazi, sting operations, media exposes etc. They develop various legal, administrative and arm-twisting methods for seeking remedy. The slow-moving system is thus helping to create an army of its own enemies.

Crime-fighting is a dangerous activity. Over recent decades, the power to get an FIR registered with the police or Anti-Corruption Bureau with basic evidence of wrongdoing has slipped out of the common citizen’s hands, and accumulated in the hands of the powerful, influential and rich. CrPC sections 154 and 156 say that for FIR to be registered, cognizable offence must be “made out” by the citizen’s complaint; it is the job of the police investigation to gather enough evidence to later frame a charge-sheet and place it before the court. Due to police officials’ unwillingness to perform their legal duties – no doubt under political and bureaucratic pressures – RTI activists endanger their lives trying to gather more and more documentary evidence to nail the culprits in court -- a dangerous activity, especially when powerful MLAs, MPs, ministers and history-sheeters are involved.

4) WHERE THERE IS A REVOLUTION, THERE IS ALSO A COUNTER-REVOLUTION. The government policy of routinely selecting political appointees and retired babus for the posts of Information Commissioners is an effort to subvert the effectiveness of the RTI Act. Does anybody believe that after decades in the administration, a retired IAS officer will force his former colleagues to give out embarrassing information? Is it likely that bureaucrats or political party workers will compel disclosure of documents that may be used as evidence in court? Appointment of such people as SICs/CICs violates the basic tenet of natural justice, viz. “No one should be judge in his own cause.” While minimizing the chances of timely information disclosure and justice, such appointments maximize the chances of the activist’s strategies being leaked the Information Commissioner or his staff to land and mining mafias etc, leading to threats, attacks and killings. For thousands of activists countrywide, this is not a hypothetical scenario but a regular occurrence.

5) LEGAL AWARENESS OF ORDINARY CITIZENS IS RISING. The RTI Act is seen as the only law that enables a citizen to get a bureaucrat or government servant penalized, or be subjected to departmental enquiry and disciplinary action. This has excited and attracted the common citizen – included semi-educated types – into an effort to take ownership of this law, and understand its workings in the practical world. It has also brought the common citizen closer to laws in general. Lakhs of educated information-seekers and activists spend hours daily exchanging legal notes on the internet. The hits and updates on dedicated RTI websites like RTIIndia.org, or email forums likehumjanenge@yahoogroups.co.in, possibly exceed the hits by lawyers on law websites like vakilno1.com. (In fact, a growing proportion of hits on law websites come from RTI activists looking for Court judgments to cite in their appeals before Information Commissioners!)

Even where internet has not reached, there are, on any given day of the week, a score of activists and NGO workers sitting with villagers and slum-dwellers, patiently explaining the rules of the game and helping to draft requests for information, and appeals against unjustified delay and denial. Through RTI, legal awareness has entered India’s DNA. RTI activists and users are not only studying RTI Act and rules of various States, courts, etc, but also scrutinizing the rules, norms, manuals, guidelines, contracts, penalty clauses, etc. of various government organizations, public works awarded to contractors etc. Also, they are studying and discussing the structure of various other laws such as Indian Penal Code, Criminal Procedure Code etc., which was earlier left only to lawyers and judges.

THE FUTURE LIES IN HYBRID CHECKS & BALANCES

Ultimately, the success or failure of an RTI applicant depends on a clear understanding of the workings and limitations of the RTI Act and the mechanisms for its implementation, and accordingly, in the precise wordings of his RTI application and later, RTI appeals. It also depends on a clear understanding of how administration and government works at its various levels, and how various existing systems of checks-and-balances work. Civil society as a whole, because of its long dormancy and overdependence on administration, had forgotten how to activate checks-and-balances. Large numbers of citizens currently need familiarization with existing mechanisms. They also need some help with thought and reflection to alter their own bad habits of thinking and behaviour.

Hence, there is need for capacity-building and mentoring of active citizens in all these respects to facilitate the ongoing revolution. We cannot afford to wait for NGOs and trusts to do this; individual activists must take it upon themselves to perform this crucial task. It is as important as filing RTI applications, writing complaints and attending appeal hearings.

To remain a few steps ahead of vested interests, we, the active citizens, must innovate and build hybrid checks-and-balance mechanisms using existing legal structures and new communication technologies. Instead of passively waiting for the legislature to pass new laws, let us explore and create new ways of doing things – establishing new behavioural and thought patterns -- to attain clean governance. There will of course be failures… and then there will be successes.

When we build with faith and love, God builds in our midst. So let us build.

Warm Regards,

Krish

98215 88114

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

Video: Mumbai Activists give Mock Sendoff to Chief Info Commissioner

Click on http://www.youtube.com/view_play_list?p=EA9ACD94B7D9C2F4

These are the proceedings of the Mock Sendoff to the Chief Information Commissioner held on Thursday, 9th September, 2010 at Marathi Patrakar Sangh, Mumbai. The sendoff was to show the government what RTI appellants feel about the current batch of Information Commissioners, both in Maharashtra and at the Centre. Despite concerns about propriety, it is necessary and urgent to organize such protests in all towns to give the government something to think about, before they non-transparently appoint the next batch of Information Commissioners.

The Sendoff was held after a press conference organized by G R Vora, Krishnaraj Rao & friends. The press conference was held to highlight the connection between
a) murderous attacks on RTI activists and whistleblowers
b) arbitrary and non-transparent appointment of political stooges as Information Commissioners & Vigilance Commissioners.

Fellow activists, it should be our utmost priority to organize many such sendoff parties for existing Information Commissioners in many towns and villages in Sept-October ’10. We must send a clear message to the government that the era of nepotistic appointments is over.

For organizing details, read: http://www.box.net/shared/r91tch0s3g

If you want to organize this, please call me.

Regards,
Krish
09821588114

Whistleblowers’ Bill aims to victimize activists and spare politicians & their kin

Dear fellow activists,

Yesterday, when I analyzed the above-named Bill (to which I refer to as Whistleblower’s Bill or Act, or WBA), I got lost in the legalities and missed seeing its biggest faults. After thinking about it all day, and hearing the views of my fellow-activists, I realize that the WBA has its heart in the wrong place! The proposed legislation shows that the government – specifically DOPT and PMO -- is intent on (a) turning a deaf ear to messengers who want to convey bad news, and (b) set up a system for exposing, discrediting and in fact, endangering their lives (c) setting up a sustainable and legal-sounding procedure for achieving aims (a) and (b).

If WBA is passed in its present form, then:

1. The Central or State Vigilance Commissions (CVC or SVC) that are currently supposed to only investigate instances of government corruption will now demand identity proof from people who submit complaints to it. No matter what may the threat to your life, you cannot conceal your own identity; otherwise, no matter how large the public interest involved or the compelling nature of the documentary evidence that you submit, the case will be closed.

2. Currently, people who approach CVC or SVC to make a “public interest disclosure” are seen as friendly citizens helping the Vigilance Commissioners to do the job they are paid for i.e. investigate government corruption. But the WBA will change this, because public spirited citizens will now be termed as “complainants”, be more-or-less ordered to do the dangerous job of an investigating agency at their own risk to collect evidence to support their “allegations”. If they fail to do this, they may be branded as mala fide persons, be imprisoned for two years and get fined Rs 30,000.

3. There is a large distinction between a person who makes a “disclosure” and one who makes a “complaint”. A person who makes a voluntarily disclosure – internationally known as a whistle-blower -- is usually a disinterested person who has nothing to gain from making the disclosure, and indeed may be doing so at great personal risk, purely because of the public interest involved. As opposed to this, a complainant is usually someone who has personal reasons to oppose the activity being complained against, and maybe something to gain from preventing it. The WBA completely ignores this clear distinction.

4. The WBA seeks to pit this public spirited person (who may be a government employee or an outsider) against the head of the department or government organization complained against, even if his complaint is against a lower officer. In the course of the investigation, his identity will become known to not only several employees of the Vigilance Commission, but can possibly also be also be revealed by these employees to the head of the department being investigated. As this departmental head will have to prove that the corruption is happening in spite of his exercising due diligence, he may feel that he is under direct attack from the whistle-blower, and he may act out of hostility.

5. In an indirect way, the WBA directs this public spirited person to bypass or avoid all other forums for seeking justice and action against the corrupt, and lodge a complaint only with the CVC or SVC. If it is felt that by approaching the State Information Commission, the police, the Court, the media etc, the whistle-blower has “blown his cover”, then he will lose whatever little protection and confidentiality he is being offered under this Act.

6. As every common citizen would have experienced, corruption is a nebulous thing, and is both difficult and dangerous to clearly point a finger at. Corruption usually involves multiple players acting together without a formal arrangement on paper. Therefore, it is the job of the CVC to play a proactive role as an investigating agency or information gatherer, and not to play a passive role as a court of law asking for conclusive evidence. The WBA proposes to turn the CVC and SVC into a sort of passive court where each whistle-blower must struggle to prove his point. This violates several fundamental rights of the whistle-blower as a citizen.

7. In most instances of corruption, ministers, elected representatives, leaders of political parties, their close family members, business associates and friends collude with influential and moneyed builders, contractors, land mafias etc. In many cases, pliable public servants are the instruments rather than the doers. But the WBA seems to look at public servants as the main subject of complaints, and ignore all other players. This sort of approach is discouraging to whistleblowers.

However, a positive feature is that complaints under WBA may be made for all offences under Prevention of Corruption Act 1988 (See main features of this Act: http://www.box.net/shared/crs4l5bz7m ), which is a particularly well-drafted legislation. The provisions of PCA 1988 are applicable to a very wide range of persons, including members of the executive, judiciary, election commission and private individuals who participate in acts of corruption.

Now let us analyze the Whistleblower’s Act from a technical and legal perspective. The name of this Act indicates that it is intended to, firstly, facilitate Public Interest Disclosures and secondly, extend protection to the persons making Public Interest Disclosures.

The preamble says that the objectives are:

1) to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant

2) to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto.

Individual sections that are problematic:

i) The two central things -- “public interest” and “protection” -- are not even defined in the definitions i.e. Section 2. So nobody knows what exactly constitutes a “public interest disclosure”, and nobody knows how exactly what “protection” a person making such a disclosure is supposed to receive under this Act. Other than a vague promise of confidentiality and a threat to punish those betraying the whistle-blower’s identity, the Act promises no protection.

ii) The “person making public disclosure” mentioned in the title is defined in the narrowest possible sense as a mere “complainant”. Section 2(c) defines him/her as a person “who makes a complaint relating to disclosure under this Act”. Thus, the “person making public disclosure” against a larger systemic malaise is methodically demeaned to a mere “complainant” who is pointing a finger at a public servant, and he can then be legally victimised. The duty of probing the motives and background of the “complainant” is then cast upon the “competent authority” i.e. CVC or SVC as the case may be. So the competent authority is empowered to: Firstly, put the complainant’s identity under a scanner to comply with Sec 4(1)(a): Secondly, demand supporting documents and use its civil-court like powers to summon his attendance at hearings as per Sec 6, Thirdly, threaten to dismiss his complaint as being “frivolous” or “vexatious” or otherwise not worth investigating as per sec u/s 4(6) OR Finally, find the complainant guilty of false and misleading disclosure, and award up to two years imprisonment and up to Rs 30,000 fine as per Sec 16. In other words, the whistle-blower who approaches the Vigilance Commissioners to help him do his job, namely, clean up the system, must do so at the risk of being branded as a criminal! This is on top of other practical risks that whistle-blowers already face.

iii) Section 2(d) then defines disclosure essentially as a “complaint” that pertains to an offence under the Prevention of Corruption Act 1988, willful misuse of discretion that causes loss to the government, and commission of a criminal offence by a public servant. The WB does not explicitly say in any section to whom this complaint should be addressed, in order to be considered as a “complaint under this Act”. However, the definition of “competent authority” in Sec. 2(b) suggests that only direct complaints to Central and State Vigilance Commissions (CVC/SVC) will qualify for this definition.

iv) For all the above reasons, the Bill perversely gives direct protection to corrupt persons. Section 3(6) expressly disallows anonymous complaints and tip-offs, no matter what evidence the anonymous complainant may be provide. By laying restrictive conditions for complaining and receiving protection and by specifying deterrent penalties and imprisonment to complainants in the event that their complaint “fails”, the proposed Act deters whistle-blowers from making a complaint to Central or State Vigilance Commission.

v) Section 3 (1)(b) excludes from the scope of such complaints the police force, where abuse of discretionary powers routinely happens.

vi) Sec. 4(4) allows the CVC or SVC to disclose the complainant’s identity to the head of the department or organization where he may be working, and Sec. 4(5) shifts the onus of protecting his identity to this head. Worse still, after doing so, if the CVC or SVC is “of the opinion” that there are no “sufficient grounds” for proceeding with the enquiry, then, as per Sec 4(6), it shall close the matter. In such an eventuality, the whistle blower will be left exposed and in a deadly situation with no protection!

For more, read my recent analysis, especially the colour-coded table: http://www.box.net/shared/355pdqp704

Also see official release of this Bill with DoPT’s covering letter: http://www.box.net/shared/suqa2l3n3y

Please email your views to responses to vkvkutty@nic.in
Address letters to:
Shri V.K. Velukutty,
Deputy Secretary (V-Ill),
Department of Personnel and Training,
Room No. 10-8/11, North Block,
New Delhi-110001.

What is a whistleblower? How is a whistleblower different from a complainant or an informer? What is the need for legislation to protect whistleblowers? For answers to such questions, download this international paper: http://www.box.net/shared/2s4hee9blc

Warm Regards,
Krish
98215 88114
Tuesday, September 7, 2010

Urgent: Only 3 weeks left for feedback on draft Whistle-blowers’ Act

Dear fellow activists & mediapersons,

About ten days ago, DoPT quietly released India’s draft whistle-blowers act, officially called “The Public Interest Disclosure And Protection To Persons Making The Disclosures Bill, 2010” into the public domain, and requested feedback before September 30. I think most of us failed to notice this and respond, because one is not seeing any discussion happening on this on any forum.

To form an informed opinion, one needs to study this Act for at least 3-4 hours. To make this easier, here is a detailed section-by-section analysis with colour-coding & highlights: http://www.box.net/shared/355pdqp704

Also see official release of this Bill with DoPT’s covering letter: http://www.box.net/shared/suqa2l3n3y

Please email your responses to vkvkutty@nic.in
Address letters to:
Shri V.K. Velukutty,
Deputy Secretary (V-Ill),
Department of Personnel and Training,
Room No. 10-8/11, North Block,
New Delhi-110001.

Please give us your feedback, based on which we will send forceful representations to DoPT.

Warmly,
Krish
98215 88114

Chennai RTI protesters spend a day in police detention

V Madhav, Gopalakrishnan and Siva Elango were picked up this morning for protesting against Non-transparent Appointment of Chief Info Commissioner, were released at 5 pm without any charges. Photos of the trio after arrest: http://www.box.net/shared/xzxi1k76xe

Chennai, 1 September, 2010: Three RTI Activists -- Gopalakrishnan, Siva Elango (Makkal Sakthi Katchi) and Madhav Vishnubhatta (Association for India's Development) -- were picked up Chennai Police at about 11.20 this morning in front of the Raj Bhavan and taken to Guindy police station, detained all day and released in the evening.

“We were originally to have been produced before the magistrate at Saidapet Court and remanded by the police under ‘preventive detention’ provisions of CrPC Section 151 and also Criminal Law amendment (CLA) 71A,” said V Madhav (also known as Madhav Vishnubhatta), a leading campaigner for proper implementation of the RTI Act. “However, after being detained at Guindy and Velachery police stations, we were released in the evening.

The three activists were demonstrating against the unlawful swearing-in of former Chief Secretary K S Sripathy as Tamil Nadu’s Chief Information Commissioner without an open and transparent process. They stood at the entrance to the Raj Bhavan wearing black blindfolds and holding placards that read "Save RTI", "No transparency in Appointments", "Non-transparent appointment to uphold transparency??"

The DMK Government had convened a meeting of the Selection Committee under RTI on 23 August, 2010. RTI activists, including Madhav, met Ms. Jayalalithaa, who is both leader of the opposition and a part of the 3-person selection committee, to highlight the lack of transparency in the selection process. The selection process was not preceded by a call for applications from eligible candidates, and Mr. Sripathy's name was revealed even before the Committee could meet. Ms Jayalalithaa's request for information regarding the various candidates was also not honoured. Mr. Sripathy, who is known to be close to the Chief Minister Karunanidhi, is also known for his non-transparent stance. On one occasion, he appealed a decision of the Tamil Nadu Information Commission directing his office to reveal the details regarding names of IAS officers who had disclosed their assets and those who had not. During his tenure as Chief Vigilance Commissioner, Mr. Sripathy had facilitated the exemption of the Directorate of Vigilance and anti-Corruption from the purview of the RTI Act.

Even the invitation for swearing in of the Chief Information Commissioner sent to the Press and others did not even mention the name of the person being sworn in to uphold the RTI Act, which seeks to enforce transparent and accountable governance. Activists believe that this was done to thwart any attempt to bring a stay order against the appointment. See invitation: http://www.box.net/shared/i70ozc9hpg

"How can there be a non-transparent process to appoint the keeper of the Right to Information Act. This is cronyism at its worst and spells ill for the RTI Act's implementation in Tamilnadu," says Madhav.

For details & enquiries:

· Activist Nityanand Jayaraman 9444082401 (Chennai)

· Activist Vijay 9840618948 (Chennai)

· Activist Krishnaraj Rao (Mumbai) 98215 88114

· Activist Arvind Kejriwal (Delhi)

· Director General of Police, TN 094440 77553

· Commissioner of Police, Chennai, 095009 83832

· Mr Adayar, Deputy Commissioner of Police 94450 20990

· Governor Surjit Singh Barnala Raj Bhavan-Chennai. Phone: +91-44-22351313 Fax : +91-44-22350570 E-mail : governor @ tn.nic.in

· Chief Minister Dr M Karunanidhi Office 91-44-25672345 Fax 91-44-25671441 E-Mail: cmcell@tn.gov.in


Recent hi-res photos of V Madhav at a national-level consultation of RTI activists and bureaucrats that he organized at IIPA in Delhi on 4th August 2010, concerning due procedures to be followed for selection of Information Commissioners: http://www.box.net/shared/je2g9tzyn8

Background Material
Related recent media coverage: http://www.box.net/shared/8bcj0051f2
1. Over the past several months, V Madhav has been spearheading a national level campaign for transparent appointment of State Information Commissioners. See this web link: http://www.box.net/shared/g5icdroeyj

2. Madhav had unearthed a racket of some top-level bureaucrats in Tamil Nadu who had virtually selected themselves for the post of State Information commissioners. See details here: http://www.box.net/shared/ajntbqc8ik

3. Madhav had led a delegation of activists on 12th Feb 2010 from around the country to hold a meeting with DoPT Officials about transparent CIC selections. Brief report: http://www.box.net/shared/ays6e12vbo The delegation had formally submitted a representation to DoPT in this regard: http://www.box.net/shared/d20x2f35uk

Krishnaraj Rao