and/or www.mantra.com/jai (Dr. Jai Maharaj)
2010-04-02 12:17:20 UTC
Whistling away your life
By Shailaja Chandra
Op-Ed
The Pioneer
Friday, April 2, 2010
Whistle-blowing in India is likely to be rendered comatose unless it
is enabled differently. An independent body, which does not have to
depend on Government for either funds or staff, with the authority
and the means to extend legal protection to whistleblowers, is needed
An empowered group of Ministers is reported to be finalising the
Whistleblowers Bill with the intention of tabling it in the Budget
session of Parliament. This article recounts how 29 other countries
encourage whistle-blowing. Second it explains why whistle-blowing in
India is likely to be rendered comatose unless it is enabled
differently.
Whistle-blowing essentially belongs to a culture where public
officials have confidence in the system and feel motivated and
fearless enough to report their concerns. In most OECD countries,
public officials are now obligated by law to report suspected
misconduct and corruption. In effect this places the onus on the
bureaucracy to proactively report instances of corruption coming to
notice. The French Penal Procedure Code even makes it compulsory for
public officials to report suspected cases to the Public Prosecutor.
In return all OECD countries extend legal protection, anonymity and
safeguards against retaliation to the whistleblower. Some countries
like Korea also give financial incentives to encourage whistle-
blowing.
The trouble with the Indian system is that even the Supreme Court
could unearth the Central Vigilance Commission as the best available
repository to handle whistleblowers grievances -- for the time being.
This despite the CVC having no counterpart agency at the State level,
exposing the whistleblower to divulge volatile information to a
faceless, Delhi-based organisation. Added to this is the fact that
CVC does not have the authority or the means to investigate and
launch prosecution and has perforce to depend on an agency like CBI,
the Central Ministries and the State Governments. This exposes the
whistleblower to either a generally suspicious and unsympathetic
police mindset or the ambivalence that typifies the reaction of
Government Ministries where fear of political ramifications take
precedence over all else.
If Satyendra Dubey instead of writing to the Prime Minister, had
written to any of the watchdog agencies of the Government, his letter
would have been marked 'down' with a curt 'confidential, process
urgently' scribbled on it. But nothing in the system would have
required anyone to actually 'process' anything, until the paper had
found its way, first down, then up the organisational hierarchy,
transcribed on to green Government stationery and submitted 'for
orders'. On the upward journey, several questions would no doubt get
raised about the credentials of the writer, his own reputation and
the unkindest cut of all -- what's in it for him making these
complaints?
Seeking comments from State Government is an even more futile
exercise. Serious complaints are usually addressed to the Chief
Secretary of the State who, despite commanding vast paraphernalia of
officers has no way of giving an opinion, except by seeking the
comments from the very organisation reported against. If the
complaint involves a political functionary, the answers would take
that much longer to be sent. Consultations with the political
executive (Chief Minister) would definitely take place having their
own ramifications. This makes a mockery of the poor whistleblower's
efforts and prevents others who might be inclined to place the public
interest before everything else, from ever taking up cudgels.
If the proposed Whistleblowers Act or what the Law Commission called
the Public Interest Disclosure (Protection of Informer's) Bill 2002
is to have real teeth, it would have to be implemented not just by a
Government created 'competent authority' but by an independent body
which does not have to depend on Government for either funds or
personnel. The structure of the organisation should necessarily be
different from all other constitutional and statutory bodies because
of the highly personalised and dangerous ground it is expected to
cover.
First, the selection of the chairman and members of the organisation
should be through a process of nomination by civil society
organisations that have worked in the area of exposing corruption,
assisted by the Central Vigilance Commission in narrowing down the
selection. Ten names should be presented before a multi-party
committee of Parliament which should select five, including the
chairman, to function for a five year term-extendable only by the
Parliamentary Committee.
Second, the organisation should have the authority to investigate and
prosecute independent of any Government organisation.
Third, the organisation should have the authority and the means to
extend legal protection to the whistleblower and where necessary,
police protection to the whole family.
Fourth, the members should not be answerable to the income tax
authorities, RTI, the C&AG or CVC for the limited period of five
years. Accountability should, however, lie to an oversight committee
appointed by the Supreme Court but to no one else. However, since
taxpayers money would be used, the chairman and members should remain
accountable for expenditure related decisions for five years after
completion of their tenures. On all other matters they should be
immune from investigation.
To avoid even the smallest revolving door from opening, members
should be debarred from public office and acceptance of private
employment should be open to public scrutiny wherever conflict of
interest is alleged.
What's the need for this extraordinary dispensation as yet
unavailable in the annals of our institutions? Only because, to quote
Thomas M Devine, "Whistleblowers protection is a policy that all
Government leaders support in public but few in power tolerate in
private."
http://dailypioneer.com/246225/Whistling-away-your-life.html
More at:
http://www.dailypioneer.com
Jai Maharaj, Jyotishi
Om Shanti
o Not for commercial use. Solely to be fairly used for the educational
purposes of research and open discussion. The contents of this post may not
have been authored by, and do not necessarily represent the opinion of the
poster. The contents are protected by copyright law and the exemption for
fair use of copyrighted works.
o If you send private e-mail to me, it will likely not be read,
considered or answered if it does not contain your full legal name, current
e-mail and postal addresses, and live-voice telephone number.
o Posted for information and discussion. Views expressed by others are
not necessarily those of the poster who may or may not have read the article.
FAIR USE NOTICE: This article may contain copyrighted material the use of
which may or may not have been specifically authorized by the copyright
owner. This material is being made available in efforts to advance the
understanding of environmental, political, human rights, economic,
democratic, scientific, social, and cultural, etc., issues. It is believed
that this constitutes a 'fair use' of any such copyrighted material as
provided for in section 107 of the US Copyright Law. In accordance with Title
17 U.S.C. Section 107, the material on this site is distributed without
profit to those who have expressed a prior interest in receiving the included
information for research, comment, discussion and educational purposes by
subscribing to USENET newsgroups or visiting web sites. For more information
go to: http://www.law.cornell.edu/uscode/17/107.shtml
If you wish to use copyrighted material from this article for purposes of
your own that go beyond 'fair use', you must obtain permission from the
copyright owner.
Since newsgroup posts are being removed
by forgery by one or more net terrorists,
this post may be reposted several times.
By Shailaja Chandra
Op-Ed
The Pioneer
Friday, April 2, 2010
Whistle-blowing in India is likely to be rendered comatose unless it
is enabled differently. An independent body, which does not have to
depend on Government for either funds or staff, with the authority
and the means to extend legal protection to whistleblowers, is needed
An empowered group of Ministers is reported to be finalising the
Whistleblowers Bill with the intention of tabling it in the Budget
session of Parliament. This article recounts how 29 other countries
encourage whistle-blowing. Second it explains why whistle-blowing in
India is likely to be rendered comatose unless it is enabled
differently.
Whistle-blowing essentially belongs to a culture where public
officials have confidence in the system and feel motivated and
fearless enough to report their concerns. In most OECD countries,
public officials are now obligated by law to report suspected
misconduct and corruption. In effect this places the onus on the
bureaucracy to proactively report instances of corruption coming to
notice. The French Penal Procedure Code even makes it compulsory for
public officials to report suspected cases to the Public Prosecutor.
In return all OECD countries extend legal protection, anonymity and
safeguards against retaliation to the whistleblower. Some countries
like Korea also give financial incentives to encourage whistle-
blowing.
The trouble with the Indian system is that even the Supreme Court
could unearth the Central Vigilance Commission as the best available
repository to handle whistleblowers grievances -- for the time being.
This despite the CVC having no counterpart agency at the State level,
exposing the whistleblower to divulge volatile information to a
faceless, Delhi-based organisation. Added to this is the fact that
CVC does not have the authority or the means to investigate and
launch prosecution and has perforce to depend on an agency like CBI,
the Central Ministries and the State Governments. This exposes the
whistleblower to either a generally suspicious and unsympathetic
police mindset or the ambivalence that typifies the reaction of
Government Ministries where fear of political ramifications take
precedence over all else.
If Satyendra Dubey instead of writing to the Prime Minister, had
written to any of the watchdog agencies of the Government, his letter
would have been marked 'down' with a curt 'confidential, process
urgently' scribbled on it. But nothing in the system would have
required anyone to actually 'process' anything, until the paper had
found its way, first down, then up the organisational hierarchy,
transcribed on to green Government stationery and submitted 'for
orders'. On the upward journey, several questions would no doubt get
raised about the credentials of the writer, his own reputation and
the unkindest cut of all -- what's in it for him making these
complaints?
Seeking comments from State Government is an even more futile
exercise. Serious complaints are usually addressed to the Chief
Secretary of the State who, despite commanding vast paraphernalia of
officers has no way of giving an opinion, except by seeking the
comments from the very organisation reported against. If the
complaint involves a political functionary, the answers would take
that much longer to be sent. Consultations with the political
executive (Chief Minister) would definitely take place having their
own ramifications. This makes a mockery of the poor whistleblower's
efforts and prevents others who might be inclined to place the public
interest before everything else, from ever taking up cudgels.
If the proposed Whistleblowers Act or what the Law Commission called
the Public Interest Disclosure (Protection of Informer's) Bill 2002
is to have real teeth, it would have to be implemented not just by a
Government created 'competent authority' but by an independent body
which does not have to depend on Government for either funds or
personnel. The structure of the organisation should necessarily be
different from all other constitutional and statutory bodies because
of the highly personalised and dangerous ground it is expected to
cover.
First, the selection of the chairman and members of the organisation
should be through a process of nomination by civil society
organisations that have worked in the area of exposing corruption,
assisted by the Central Vigilance Commission in narrowing down the
selection. Ten names should be presented before a multi-party
committee of Parliament which should select five, including the
chairman, to function for a five year term-extendable only by the
Parliamentary Committee.
Second, the organisation should have the authority to investigate and
prosecute independent of any Government organisation.
Third, the organisation should have the authority and the means to
extend legal protection to the whistleblower and where necessary,
police protection to the whole family.
Fourth, the members should not be answerable to the income tax
authorities, RTI, the C&AG or CVC for the limited period of five
years. Accountability should, however, lie to an oversight committee
appointed by the Supreme Court but to no one else. However, since
taxpayers money would be used, the chairman and members should remain
accountable for expenditure related decisions for five years after
completion of their tenures. On all other matters they should be
immune from investigation.
To avoid even the smallest revolving door from opening, members
should be debarred from public office and acceptance of private
employment should be open to public scrutiny wherever conflict of
interest is alleged.
What's the need for this extraordinary dispensation as yet
unavailable in the annals of our institutions? Only because, to quote
Thomas M Devine, "Whistleblowers protection is a policy that all
Government leaders support in public but few in power tolerate in
private."
http://dailypioneer.com/246225/Whistling-away-your-life.html
More at:
http://www.dailypioneer.com
Jai Maharaj, Jyotishi
Om Shanti
o Not for commercial use. Solely to be fairly used for the educational
purposes of research and open discussion. The contents of this post may not
have been authored by, and do not necessarily represent the opinion of the
poster. The contents are protected by copyright law and the exemption for
fair use of copyrighted works.
o If you send private e-mail to me, it will likely not be read,
considered or answered if it does not contain your full legal name, current
e-mail and postal addresses, and live-voice telephone number.
o Posted for information and discussion. Views expressed by others are
not necessarily those of the poster who may or may not have read the article.
FAIR USE NOTICE: This article may contain copyrighted material the use of
which may or may not have been specifically authorized by the copyright
owner. This material is being made available in efforts to advance the
understanding of environmental, political, human rights, economic,
democratic, scientific, social, and cultural, etc., issues. It is believed
that this constitutes a 'fair use' of any such copyrighted material as
provided for in section 107 of the US Copyright Law. In accordance with Title
17 U.S.C. Section 107, the material on this site is distributed without
profit to those who have expressed a prior interest in receiving the included
information for research, comment, discussion and educational purposes by
subscribing to USENET newsgroups or visiting web sites. For more information
go to: http://www.law.cornell.edu/uscode/17/107.shtml
If you wish to use copyrighted material from this article for purposes of
your own that go beyond 'fair use', you must obtain permission from the
copyright owner.
Since newsgroup posts are being removed
by forgery by one or more net terrorists,
this post may be reposted several times.