‘Had Govt acted on our draft whistleblower Bill, passed law, Dubey wouldn’t have died’

The shocking murder shows India to be a ‘‘soft state’’ more than ever before, said Reddy. For, if earlier India was perceived to be a soft state for not displaying political will to enforce its laws, ‘‘this (Dubey’s murder) shows India has not been able to muster the political will to even enact the law, let alone enforce it.’’

Reddy’s draft Whistleblowers Act, formally called The Public Interest Disclosure (Protection of Informers) Bill, was the last of the 20 reports he submitted in December 2001 as chairman of the Law Commission of India.

‘‘Had our draft bill been acted upon and a law passed, Dubey would not have died,’’ said Reddy, a former Supreme Court judge. ‘‘The recommended Bill specifically provides for keeping the whistleblower’s identity confidential to let him disclose information without putting his life at risk.’’

Since the first Whistleblower Act came in 1989 in the US, the idea has spread to other advanced democracies such as the UK, Australia and New Zealand. ‘‘The basic premise of this law is, no corruption takes place without somebody somewhere coming to know about it. Hence, the measures to encourage and protect the whistleblowers,’’ said Reddy.

Key to these measures is the idea of a ‘‘competent authority’’ in every government organisation set up under the law to receive and probe complaints of corruption and maladministration.

The authority would be an outsider, posted by the Central Vigilance Commissioner, to ensure independence. All inquiry proceedings would be confidential. But, in keeping with the principles of natural justice, the authority concerned would be generally expected to divulge to the accused all the contents of the complaint, including the identity of the whistleblower.

But the law provides for the contingency of holding back the whistleblower’s identity. On two conditions: the whistleblower would have to ask for his identity to be kept confidential (which is exactly what Dubey did) and the authority will have to be satisfied that ‘‘such a request may be acceded to in public interest or (for) the safety of such person.’’

Given the nature of Dubey’s complaint, it is reasonable to assume that the authority would have acceded to his request of confidentiality. But if he had disclosed his identity—which happened in Dubey’s case—the authority would have been hard pressed to justify his decision after the murder.

There is, however, no provision in the proposed law fixing any accountability on the authority for such misjudgments.

The only punitive provision the draft Bill contains is, ironically, against whistleblowers if they make ‘‘any disclosure which was false…reckless or malicious.’’ Then, the complainant could get a three-year prison term.

The Bill also contains safeguards against victimisation of the whistleblower by his superiors and to protect witnesses assisting the inquiry. Again, such safeguards against the whistleblower being given a ‘‘punishment posting’’ or his service records being spoiled can be applied only in situations where his identity is not completely confidential.

At the end of the inquiry on the whistleblower’s complaint, the competent authority is expected to give a finding and accordingly initiate disciplinary action or, in more serious cases, criminal proceedings against the public servants concerned and their accomplices.