Wednesday, May 13, 2015

Lok Sabha nod to 'regressive' whistleblower bill: Complainant against Government functionary required to pass 32 tests

By Our Representative
The Lok Sabha on Wednesday passed the controversial Whistleblower Protection Amendment Bill, 2015, which, say critics, would require a whistleblower to go through as many as 32 different tests before a complaint is opened up for inquiry by the "competent authority" in government. Says top right to information (RTI) activist Venkatesh Nayak, the bill's "regressive proposals" would "effectively prevent most whistleblower complaints from even being inquired."
In fact, he says, most people may not even come forward to the blow the whistle on corruption or wrongdoing for "fear" of prosecution by the government under the archaic Officials Secrets Act (OSA), 1923. This is because the bill takes away the "immunity from prosecution of genuine whistleblowers", as a result of which, "any whistleblower inside or outside government is in danger of being prosecuted under the OSA."
According to Nayak, even on the "slightest doubt" about whether the whistleblower complaint attracts the grounds mentioned in Section 4(1) -- containing information exempted from disclosure under the RTI Act, 2005 -- it would be referred to an "authorised officer" in the department complained against.
This would put the complaint to a "32-way test", and only after the the authorised officer certifies that any of the grounds mentioned in Section 4(1) are attracted, "he/she may issue a certification which will effectively bar the chief vigilance commissioner (CVC) from even launching an inquiry.
"Given the track record of the CVC, it would not be surprising if it would send every whistleblower complaint to the concerned department for vetting before launching an inquiry, saving itself the trouble of applying the 32 tests", Nayak said.
Giving details of the 32 grounds under Section 4(1), Nayak says, seven are relating to national security, three to courts, two to Parliament and State Legislatures, three to trade secrets and intellectual property rights, six to law enforcement, three to fair investigation and trial procedures, three to Cabinet papers, three to privacy of a natural person, one each to fiduciary relationships and foreign relations.
The Opposition Congress MPs walked out of the House after its demand to refer the bill to a Parliamentary Standing Committee for detailed deliberation was rejected. The bill was approved through a voice vote. Now it will go to the Rajya Sabha for approval in July-August.
The Union minister of state for personnel, reasoning in favour of the bill, said it was a measure of "increased transparency" if the Prime Minister as a 'competent authority' is required to take clearance from a bureaucrat to inquire into a whistleblower complaint against a minister. Nayak comments, this in fact is "probably the first instance anywhere in the world of a government undermining the authority of its own head to inquire into whistleblower complaints against his own colleagues."
In effect, he says, the bill takes away a whistleblower's power "to complain about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by the Prime Minister (at the Centre) or any of the Chief Ministers (in the States)", adding, "There must be a mechanism for this in the manner provided in the Lokpal and Lokayuktas Act."
In such scheme of things, Nayak -- who is with the Commonwealth Human Rights Initiative -- underlines, the Lokpal (the national level apex anti-corruption and grievance redress agency), to be established under the Lokpal and Lokayukta Act, "will have no role to play in protection of whistleblowers unless the Central and State government notify them as competent authorities."

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