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Dubey may yet inspire Indian whistleblowers

Posted by ekavi on June 18, 2006

Dubey may yet inspire Indian whistleblowers

 http://www.goodnewsindia.com/Pages/support/services/printVersion/184_0_2_0

After all, Satyendra Dubey may not have died in vain. His death was neither the first, nor will be the last that vested interests will perpetrate, but Dubey's death uniquely galvanised nation-wide protest. That he was an alumnus of IIT mattered. IIT-ians across the world demanded action. Now at last, India has taken the first tentative step towards a full-fledged law to protect whistleblowers.
There is no occasion to celebrate any political sagacity or remorse that might have caused this development. It did not. The government –one with those around the world– had to be dragged every inch of the way by angry public opinion. The Supreme Court did considerable prodding. The Hon'ble Court was acting on two public interest litigations seeking a permanent mechanism to protect whistleblowers.
Finally on April 21, the Ministry of Personnel issued a notification granting immunity to all employees of the government except those in armed and intelligence services. For the moment, the protector of whistleblowers will be the statutory office of the Central Vigilance Commissioner. He is vested with the responsibility of protecting the identity of informants, follow-up on information received, investigate if thought fit, and initiate criminal proceedings if required. Once the on-going general elections are over, the new government is expected to apply its mind in framing a bill to supercede the current notification. A robust law is however, some years away.
India is about to join an elite club of just four democracies [USA, UK, Australia and New Zealand] which have whistleblower protection. These democracies have not had these laws in place for too long. The US had its law in place only in 1989 and the other countries have followed after that.
K Ashok Vardhan Shetty has written a fine review [in the Hindu] of the role whistleblowers have played in improving transparency in governments. He suggests that Daniel Ellsberg of the USA would easily be the patron saint of modern day whistleblowers. In 1971, Ellsberg released the so-called Pentagon Papers that blew the cover of successive US governments that went about creating the mess called the Vietnam War. Ellsberg was a war veteran and later as an analyst at Rand Corporation had access to sensitive, classified documents. Stung by his conscience Ellsberg leaked these to the public.

He had to pay a heavy price, recounts Shetty: "The U.S. Government responded by prosecuting Ellsberg on 12 charges, leading to a total sentence of 115 years if convicted. That was not all. The dirty tricks department at the Nixon White House launched a smear campaign against Ellsberg; engaged the Watergate burglars to break into his psychiatrist's office in the hope of finding something defamatory; tapped his telephones; engaged thugs to physically attack him; and tried to influence the trial judge with the offer of the post of FBI Director. When these plots were exposed, the judge had to abandon the trial and acquit Ellsberg. Nixon's machinations against Ellsberg formed the basis of two of the three articles of impeachment against him."
The purpose of this rather long-winded narration of what happened to Ellsberg, is to give heart to Indians. All this happened just some 30 years ago in a USA that today stands on high moral ground and lectures the world. A 50 year-old Indian democracy need not despair too much. There is already a right to information law in place. Between that, and an emerging whistleblower law, citizens may hope for greater accountability and better governance in India.
Shetty in his fine article says both laws work best in tandem. He says that with the right to information act, 'Users would have to specify what they wanted to know. But where there is no reason to suspect that something is amiss, no one may bother to ask.' But whistleblowers could pre-empt disasters. He says,'Without whistleblowers, we may not get to learn about problems until it is time to mourn the consequences.' A great responsibility is therefore, about to devolve on individual Indians. We are notorious for pointing fingers, plead helplessness and acquire a collective alibi for 'us ordinary, powerless people'. Indians must now quit this hand-wringing and organise themselves into groups and enter an activist mode.
The pensive gaze on Dubey's face may not be one of satisfaction due to the fact that he was appreciatively mentioned in the government notification cited in the beginning. He may in fact be beseeching you and me to stop grumbling, complaining and start acting.

Reference:As cited

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Government informs court of steps to protect whistleblowers

Posted by ekavi on June 18, 2006

Government informs court of steps to protect

whistleblowers

By Indo-Asian News Service – Monday April 26, 6:30 PM

http://in.news.yahoo.com/040426/43/2crrd.html

aval said India had thus become the fifth country in the world after Britain, the US, Australia and New Zealand to have a law protecting whistleblowers.

On the direction of the apex court, Raval had framed a scheme for protecting whistleblowers as an interim measure before parliament took up a bill in this regard. After the court approved this scheme, the government notified it through a resolution.

Raval said under this resolution, complaints or disclosure of any allegation of corruption or of misuse of office by any employee of the central government or of any corporation, government companies, societies or local authorities could be received by the CVC.

The resolution, while making the leakage of the name of a whistleblower an offence, had given power to the CVC to conduct preliminary inquiries into the complaints and to initiate proceedings against the government servants.

The court was hearing a petition from advocate Rakesh Upadhyay, who sought a direction to the government to evolve a system as recommended by the constitution review committee in 2002 to protect people complaining about corruption and to keep the complainant's name secret.

Upadhyay had also asked the court to order a probe by the Central Bureau of Investigation into the murder of engineer Satyendra Dubey, who was killed shortly after he complained last year to the Prime Minister's Office about corruption in a prestigious national highways project.

After receiving complaints, the CVC could either conduct a discreet enquiry or officially seek comments or explanation from the head of the government department concerned.

While doing so, the CVC should not disclose the identity of the informant and also request the head of the government organisation to keep the identity of the informant secret.

After receiving the report from the government, the CVC shall order appropriate proceedings to be initiated against the government employee concerned and administrative steps for redressing the loss caused to the government as a result of the corruption or misuse of office.

The court asked the government to give adequate publicity to the resolution in English and vernacular newspapers and adjourned proceedings in the case till July.

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India fifth country to have whistleblowers law

Posted by ekavi on June 18, 2006

India fifth country to have whistleblowers law

NEW DELHI, DHNS:
http://www.deccanherald.com/deccanherald/apr272004/n6.asp

India became the fifth country after UK, USA, Australia and New Zealand to have a law to protect whistleblowers who give information on corruption in public life, Solicitor General Kirit N Raval told the Supreme Court on Monday.

Appearing in the matter pertaining to the murder of Satyendra Dubey, a whistle blower, Mr Raval said that the Ministry of Personnel notified a resolution on April 21 empowering the Chief Vigilance Commission (CVC) as the designated agency to receive all complaints alleging corruption in public life pertaining to the Central Government.

On the direction of the apex court, Mr Raval had framed the guidelines for the protection of whistleblowers as an interim measure before Parliament took up a Bill in this regard. After minor modification, the Centre has accepted the guidelines leading to its notification in the form of a resolution.

The notification made the leakage of the name of the whistle blower an offence and gave power to the CVC to conduct preliminary inquiry into the complaint and initiate appropriate proceedings against the government employees. For this the CVC will devise an appropriate machinery, the notification said.

After making discreet inquiries on a complaint, if the CVC thinks that the matter requires further investigation, it can seek comments or explanation from the Head of the department or organisation concerned. If allegation of misuse of office is substantiated, the CVC shall assess the loss caused to the government, recommend initiation of criminal proceedings against the culprits and corrective measures to prevent recurrence of such events, the notification said.

The CVC may seek the assistance of CBI or local police to complete the investigation. If the complainant is victimised, the CVC would provide protection to him or her. If the complainant is motivated or vexatious, the CVC shall be at liberty to take appropriate steps.

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Protect whistleblowers

Posted by ekavi on June 18, 2006

Protect whistleblowers
There is need for legislation to protect those who expose misdeeds.
  http://www.deccanherald.com/deccanherald/nov252005/

editpage15262820051124.asp

Yet another person has paid with his life for speaking up against corruption. Manjunath Shanmugam, a young manager with Indian Oil Corporation (IOC) and an IIM graduate, was shot dead on November 19 for drawing attention to irregularities in the quality of fuel being marketed in some petrol pumps. Manjunath had ordered the closure of an IOC petrol pump in Lakhimpur Kheri in UP for selling adulterated fuel. Samples of fuel from the pump indicated adulteration. It appears that the owners of the petrol pump decided to act before more of their illegal activities were exposed. They had him shot dead. Manjunath is said to have ordered the shut down of two other IOC dealer’s petrol pumps in Lakhimpur for adulteration of fuel. The IOC has demanded security for its employees. It appears that employees of fuel marketing companies in the country are having to battle a fuel adulteration mafia that presides over a multi-crore business. Those who simply do their duty and speak up against adulteration are living in terror. Some like Manjunath are silenced forever.

The issues that Manjunath’s murder raises are not confined to IOC employees alone. There are thousands of honest people in this country who draw attention to financial and other irregularities in the system and end up paying dearly for this. In December 2003, Satyendra Dubey, an engineer in Bihar, drew the attention of the Prime Minister’s Office to corruption in the Golden Quadrilateral Project. His name was leaked by someone in the official establishment and he was killed.

Public outrage generated by Dubey’s killing triggered demands for legislation to protect whistleblowers. At that time the Supreme Court even got the NDA government to commit to such legislation. But little has moved on the matter since then. A couple of months ago the government said it was preparing a draft bill on the issue. Two years after the death of Dubey, whistleblowers still have no protection in this country. Manjunath’s death could have been prevented had the government acted swiftly and enacted legislation. It did not. This is not an issue on which the government should be procrastinating. People with dreams of cleaning up a corrupt system are getting killed. The least the government can do is protect their identities.

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Saving whistle-blowers

Posted by ekavi on June 17, 2006

Saving whistle-blowers
Dubey’s fate should not befall others

 http://www.tribuneindia.com/2004/

20040428/edit.htm#2

AS expected, the government has empowered the Central Vigilance Commission (CVC) to be the designated agency to receive complaints from government servants or members of the public on any allegation of corruption or misuse of office by any employee of the government or public sector organisation. The CVC would conduct preliminary investigation into the alleged charge and if it was of the opinion that either the complainant or the witnesses needed protection, it would issue directions to the government. The Supreme Court had sought such a mechanism recently. Given the lawlessness prevailing in some parts of the country, it is not certain how effective the step will be in reassuring the potential whistle-blowers. After the murder of National Highway Authority of India’s Satyendra Dubey, there are many misgivings in the minds of those railing against corruption. After all, he had requested none other than the Prime Minister’s Office to protect his identity but this was not done. It will take a lot of cajoling to make those willing to expose corruption to accept that the CVC’s office would not be found to be similarly wanting.

Because of such fears, many persons may not be willing to stick their neck out and disclose instances of corruption. They may like to do so without revealing their names. But there is a hitch. The CVC is not to act on anonymous complaints. This precaution has been taken to avoid the possibility of fake complaints but may deter many people from coming out with facts. Cannot some arrangement be made to have at least a cursory glance at the complaints which do not mention the senders’ names for obvious reasons? There may be a grain of truth in them demanding a full enquiry.

The corruption challenge is so daunting that the CVC may not be able to tackle it fully. Ultimately, the government just has to go in for the Public Interest Disclosure (Protection of Informers) Bill, popularly known as the Whistle Blowers’ Bill if it wants to ensure probity and transparency in the administration.

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Legislating for Whistle-blowers

Posted by ekavi on June 17, 2006

Legislating for Whistle-blowers

http://www.businessworldindia.com/mar2904/web_exclusive.asp

Ranjeev C. Dubey

On 12 March 2004, the Division Bench of the Supreme Court, comprising Justices Ruma Pal and P.V. Reddy, issued notice on yet another petition pertaining to the Satyendra Dubey's murder, this time filed by his father and the NGO Parivartan. What makes this petition different is that it specifically asks for the enactment of a whistle-blower law. But do we really need such a whistle-blower law? Let us understand the issue in relation to the facts.

Satyendra Dubey was a 31-year-old civil engineer from IIT, Kanpur. He was posted as deputy general manager, National Highways Authority of India (NHAI) to the Aurangabad-Barachatti sector of the PM's beloved Golden Quadrilateral Project. Dubey was gunned down in broad daylight in Gaya, allegedly because he wrote a confidential communication dated 11 November 2002 to the PMO claiming that transnational Korean, Russian and Chinese companies collared road-building contracts through pay-offs and then farmed out the jobs to local contractors at knock-down prices, pocketing hefty margins.

It does not matter if this information is correct. What does matter is that around 22 November, the letter containing this 'insider information' was sent to the Ministry of Surface Transport (MOST), where eight officials knocked the letter around before sending it off on 4 December 2002 to NHAI, along with a copy to its Chief Vigilance Officer. The letter was buried there.

After Dubey's death on 27 November last year, MOST stated in a 12 December press release that Dubey also regularly wrote similar letters to NHAI and its consultants without seeking confidentiality. Presumably, this means it was therefore 'okay' for him to get shot. The Bihar police later claimed that he was mugged, not shot, for whistle-blowing. The muggers were arrested and one committed suicide because he couldn't stand the torture. The matter is sub-judice.

Meanwhile, IIT alumni have been incensed and have demanded a whistle-blower law. The Chief Vigilance Commissioner is reported to be sympathetic. Now Parivartan has filed a petition seeking whistle-blower legislation. But will the legislation help?

As far as I am aware, the US is about the only country that has sought to systematically establish a whistle-blower protection regime. As an extension of labour welfare, the movement has been fairly successful and this explains some provisions of the Toxic Substances Control Act, Water Pollution Act, Fair Labor Standards Act, Occupational Safety & Health Act, and so forth. Also, the US has substantive protection for those who blow the whistle in government matters. The major protections the US has are the False Claims Amendment Act, which rewards exposure of a financial fraud against the government with a share of the amount recovered, and the Inspector General Act, which provides immunity to employees if they complain against federal agencies. The US came close to even more success in 1988 when both the Senate and the House passed the Whistle-blowers Protection Bill, but Ronald Reagan vetoed it. No one has made a second attempt since.

It is easy to see why not. If you think about it, whistle-blowing and governance are inextricably interlinked. Both the government and corporate world confront the same conflict. The US Sarbanes-Oxley Act was a reactionary piece of legislative overkill which emerged out of the ashes of the crooked Enron fiasco, but large segments of the American establishment now fear that it must be diluted so business will not be driven out of the country.

In India, the governance issue was substantively addressed in the Companies (Amendment Bill) 2003. Based on the recommendations of the Narayana Murthy committee, the Securities and Exchange Board of India (Sebi) issued a circular on 26 August 2003 revising clause 49 of the listing agreement. An obligation to adopt a whistle-blower policy was part of the amendment.

In the face of industry hostility to the amendment, on 21 October 2003, the Union Cabinet returned the Companies (Amendment) Bill 2003, asking for a redraft. The next day, industry chambers asked the government to amend clause 49 of the listing agreement as well, arguing it would negate growth. The Cabinet rejection of the Bill made large parts of clause 49 'infructuous' anyway, but Sebi has requested Murthy himself to judge whether clause 49 captures the essence of his recommendations!

Whatever be the fate of clause 49, the fact is that if we cannot have truly independent boards, we cannot have truly independent audit committees to whom a whistle-blower can appeal.

Corporate India does have legitimate fears: for one, cohesion, mutual faith and team play are the key to productivity, and institutionalised Orwellian squealing is its antithesis. Second, there are a thousand ways to victimise squealing employees, but such laws only encourage the incompetent to become whistle-blowers to avoid being sacked. Third, whistle-blowing settles extraneous scores, promotes 'political' subgroups, institutionalises internal and external blackmail, and adds to the predatory powers of our predatory state. Lastly, whistle-blowing results in defensive management, proliferates mindless procedures, and ultimately destroys initiative and risk-taking.

The key point here is that what applies to corporate India also applies to the government of India: a whistleblower law may only work to paralyse whatever still functions in the government. Let's face it, the whole corruption racket works on mutual benefits and fair distribution. What you probably will have with a whistle-blower law is a little benefit and a lot of problems.

So why do we need whistle-blower legislation? Laws don't automatically mean law-abiding societies. That apart, what will the law say that is not already covered under existing fair labour practice legislation ('thou shall not victimise') or, as in Dubey's case, the Indian Penal Code ('thou shall not kill')? So let me put it bluntly: to save a life such as Dubey's all you really need is appropriate and sensitive government response to credible information of corruption in high places, and an effective witness protection programme. These are administrative issues, not legislative ones.

This is not an argument for a whistle-blower law. This is only an argument for effective, responsible government. So let us focus on working towards responsible liberal governance and forget about the symbolism inherent in enacting a grand law we cannot and will not implement.

The author is managing partner of New Delhi Law Offices (South), and

can be contacted at ranjeevdubey@yahoo.co.in.

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