Sunday, July 06, 2014

"Disregarding" Whistleblowers Act, Central govt creates "internal mechanism" for receiving complaints

A campaign for whistleblowers bill
By Our Representative
A senior civil society activist brought to light an alarming development. Circulating a resolution of the Government of India, issued by the Department of Personnel and Training amending the Public Interest Disclosure Resolution (PIDPI Resolution), the activist has said, the Government of India has sought to create an “internal mechanism” to receive complaints from government employees wanting to blow the whistle on corruption instead of the one that existed earlier. Previously, the whistleblowers could send their complaints directly to the Central Vigilance Commission (CVC).
The earlier PDPIR Resolution was promulgated in August 2013 “in the wake of the murder of two young, honest and responsible employees -- late Satyendra Dubey and late S. Manjunath -- who tried to expose alleged corruption in the affairs of the National Highways Authority of India (NHAI) and the Indian Oil Corporation (IOC), respectively”, said senior activist Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI).
“The latest amendment to the PIDPI Resolution creates an internal mechanism namely, Chief Vigilance Officers (CVOs), for receiving complaints from whistleblowers in Central government departments and Central public sector undertakings. Earlier, under the original resolution, whistleblowers could send their complaints only to the Central Vigilance Commission (CVC). The Union Cabinet had approved this amendment to the PIDPI Resolution in August last year”, Nayak explains.
Posing the question as to “what is wrong with this amendment”, Nayak says, “Parliament enacted the Whistleblowers Protection Act in 2014 after keeping it pending for almost three years. The Rajya Sabha approved this legislation on the last day of the last session of the 15th Lok Sabha. The President signed this Bill into law on May 9 and it was gazetted on May 12 this year.”
“However”, he underlines, “the Central Government has not yet enforced this law. Unless Parliament sets a time limit for enforcement of a law that it enacts (as was the case with the Right to Information Act, 2005), enforcement of that law is left to the discretion of the Central Government”.
Nayak especially questions the new change in view of the fact that “Section 31(1) of the Whistleblowers Protection Act repeals the PIDPI Resolution. So the question that arises is whether the Government can amend a Resolution after Parliament has repealed it.”
Pointing out that “none of the provisions of the Whistleblowers Act have come into force till date”, the activist says, “So the repeal provision is also not in force”. Hence, “technically, the amendment to the PIDPI Resolution may have legal cover. The government's actions must not only be legal, they must also be legitimate.”
Nayak further says, “Parliament had clearly indicated its intention by repealing the PIDPI Resolution and replacing it with a comprehensive statute that contains a reasonably complete mechanism for protecting whistleblowers. The only latitude Parliament gave to the government was to fix the date for its enforcement after making appropriate arrangements such as notifying the rules and regulations under this law.”
“However, the Government seems to be delaying the implementation of this law and instead is pushing for the strengthening of its own resolution which in theory stands repealed. This amounts to an affront to the the dignity and will of Parliament”, the activists says, wondering if “constitutional experts and Parliament-watchers may point if this is correct and if this action of amending a resolution which Parliament repealed would constitute a breach of privilege of Parliament”.
Pointing towards options available, Nayak says, “Section 2(b) of the Whistleblowers Act empowers the Central Government to declare any authority other than the CVC and a handful of other authorities mentioned in that clause as 'competent authorities' to receive whistleblower complaints.”
The government could have enforced this law and designated the CVOs as competent authorities without any reference to the repealed PIDPI Resolution. Doing so would have been not only legal but also legitimate.”

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