Too little, too late?

accountability

16 August 2012

In the few months that I have been assessing the relationship between government and businesses, several grey areas have emerged that have often left me wondering, wandering, and wanting, to dig deeper. Information is power, it is said. Information, however, presents a deep paradox. In one sense, it empowers people to demand their rights, to access the services promised by the state and to hold their elected leaders accountable for any mishaps in service delivery. On the other hand, for some, information may lead to more vulnerability and greater insecurity. The intensity and the degree with which horrific incidents against civil society members and even prominent government officials (for knowing too much and for taking action against those in power) have increased is mindboggling. If you have been following the news in the last few weeks, you may have read of at least one such incident (At the end of this post, you will find a list of some not-so-well known incidents that have been captured by the media). A central theme that runs through these incidents is the occurrence of inept or in most cases, refusal of action (a report by the Asian Centre for Human Rights captures this theme).

There are two main points that come to my mind:

1) Despite several efforts from the government to make documents and scheme-related information more accessible, (be it e-budgets, mobile VAS to update and access records, employing officers as Public Information Officers for the RTI etc) a common person is usually unable to access enough information/ facts that may give them the confidence to demand high quality public services. Reasons for this are many- income disparities, location, information not communicated properly to the beneficiaries and in some cases, missing information at the government level itself (please refer to Avani Kapur’s blog).

The Right to Information Act has brought in some relief in this regard. It has not only laid provisions regarding the ‘obligation of the government to publish information

proactively, as well as to respond to requests’ but also to disseminate information in a manner which is easy to comprehend and accurate[1]. Earlier this year, the number of RTI applications against central government public authorities went over 3.74 lakh (filed during 2011-12).[2] This is no small feat. However, even the RTI Act faces several challenges that cannot be removed so easily (of these there are many, but this blog isn’t about these challenges. To know more, please refer to this article by Shibani Ghosh).

It is obvious that when people do not have valid proof to hold against politicians who are involved in dubious, wealth-creating projects, it provides these politicians with ample incentive to go down the rent-seeking path.

2) The second challenge, something that has been gnawing at my patience, is the problem faced by those individuals who unearth evidence to implicate politicians in power. They not only come to know of the extent to which resources are being misused but also usually find the people who are at the core of these scams. However, while going public with their findings, they not only face the incessant scrutiny of the government in proving the authenticity of claims, but also have to deal with problems of safety and security for themselves, their families, friends and colleagues. The RTI Act does not attempt to set up safeguards/ protection for the individuals filing the application.

The RTI route is not the only means to uncover facts- there are also those who expose politicians/ bureaucrats from within the system and they are also extremely vulnerable. Examples come in hundreds, be it the attack on a Karnataka government official (S.P. Mahantesh) and an environmentalist in Chhatisgarh (Ramesh Agrawal) in the same month or other such cases around the country.

While violence against these individuals as well as individuals using the RTI is on the rise[3], the legal safeguards are still in limbo. A recommendation by The Law Commission of India in 2001 for the protection of whistleblowers and the government notification made after the death of Satyender Dubey in 2004[4] led to the rise of The Whistleblower Bill (Public Interest Disclosure and Protection for Persons Making the Disclosure Bill, 2010), which is yet to be passed.[5] The Bill, in short, “seeks to protect whistleblowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offence by a public servant”.[6] It was tabled at the Lok Sabha on 26^th August, 2010. It seems, however, that the legal provisions assigned for their safety are still sitting in the Rajya Sabha catching dust.

The Central Vigilance Commission is the recognised authority within The Whistleblower Bill to accept and review applications but their role in providing recourse to the applicants is at best, minimal.[7]

1. The Commission does not seem to possess any penalty-seeking authority- ‘filing recommendations’ will be a long drawn process of little help to the whistleblower

2. The Commission can disclose the identity of the whistleblower if it wants to- this can immediately jeopardize the safety of that individual.

3. If the Commission is ‘of the opinion’ that the case requires no further inquiry, it can shut the case- to what extent will this opinion be transparent? Will the person who makes a disclosure be given the reasons for dismissal? (If anyone has more information on this aspect, do let me know)

4. Chapter IV (16.) states that ‘Any person who makes any disclosure mala fidely and knowingly that it was incorrect or false or misleading shall be punishable with imprisonment for a term which may extend up to two years and also to fine which may extend up to thirty thousand rupees’. This has been under debate for a while now(read link). This not only puts more pressure on the whistleblower, but can dissuade them completely from coming forward.

5. There is a clear dismissal of the private sector under the Commissions purview regarding this matter

Though the specifics of the Whistleblower Bill are still to be debated and improved upon, it is only when it comes into effect that a wholesome discussion on revisions can be made. Why is there a constant misuse of time? If given the green light, and if implemented from the word ‘go’, this Bill could have a greater impact that one can presently envision. But the question remains, if the system is so paralysed in the analysis stage itself, what is the level of expectation that whistleblowers should maintain when it finally comes around?

Information can be a weapon. However, fear, death and facing the wrath of criminals (many of which, sadly, are part of our political system) puts most of whistleblowers in our country at critical crossroads. However, the problem of terminal indifference, over-analysis and lethargy in the system that has led to the number of lives lost is definitely worth more than a thought. Good intentions will not save lives and doing nothing is not an option.

Links to a few recent incidents

1. http://indiatoday.intoday.in/story/karnataka-officer-pays-with-life-for-exposing-land-scam/1/189555.html

2. http://www.uttarpradeshlive.com/2012/01/nrhm-scam-accused-officer-dies.html

3. http://content.ibnlive.in.com/article/09-Jul-2012india/army-officer-dies-during-probe-family-claims-torture-270175-3.html

4. http://indiatoday.intoday.in/story/nrhm-scam-missing-up-health-department-clerk-found-dead/1/173899.html

5. http://www.ndtv.com/article/cities/activist-who-tried-to-expose-pds-scam-allegedly-shot-dead-by-police-232751

6. http://www.timesnow.tv/2nd-Chief-Medical-Officer-killed-in-UP/videoshow/4369508.cms

[1] World Bank. Governance Working Paper Series. http://siteresources.worldbank.org/EXTGOVACC/Resources/DarbishireProactiveTransparency.pdf

[2]The Economic Times. http://articles.economictimes.indiatimes.com/2012-05-16/news/31726954_1_applications-central-public-authorities-central-information-commission. May 16th, 2012

[3] RTI Activists: India’s sitting ducks. http://www.achrweb.org/ihrrq/issue3-4/India-Sitting-Ducks-2011.pdf

[4] http://www.prsindia.org/theprsblog/2011/06/17/standing-committees-recommendations-on-the-whistleblowers-bill/

[5]Whistleblower Bill is captive to high-profile Lokpal debate. The Asian Age