The right to inform

Many public servants are privy to a good deal of information that may offer evidence of public interest being seriously compromised for pe...

Many public servants are privy to a good deal of information that may offer evidence of public interest being seriously compromised for personal or partisan gain in their organisation. However, many of them remain silent spectators for fear of the consequences of disclosure, or due to notions of loyalty favoured by the traditional public service ethics, as codified in the conduct rules. If only the state could empower them to lawfully disclose serious corruption or illegalities to an appropriate outside agency, or to the public, corruption would go down drastically due to fear of such disclosures and the attendant consequences for the wrongdoers. A government serious about curbing corruption may go a step further, and even provide officers with appropriate incentives to make such disclosures.

It is a long-debated question whether loyalty to the country or to the employer comes first. The Public Interest Disclosure Act 1998, which came into force on July 21 last in the UK, dealt a major blow to the principle of loyalty in the traditionally accepted public service ethics. Implied in every contract of employment is a duty of fidelity owed by the employees to his employer. This duty includes keeping the employer8217;s affairs confidential. Most contracts of employment reinforce this duty expressly. However, there are situations when an employee comes into possession of information on serious wrongdoing by his employer or his colleagues which are against public interest and which, in his view, should be reported. An employee spilling the beans8217; on his employer, or his colleagues, risks dismissal or other penalty for breach of confidence.

The Act gives employees specific protection against dismissal and other penalties, with no limit on the compensation that may be awarded to him for suffering adverse consequences for making the disclosure. The Act covers employees in both private and public sectors, though it understandably excludes those in the police force, the security service, and the secret intelligence service. The fact that certain information may be confidential does not stop it from being disclosed where it falls with one of the categories of qualifying disclosures8217;. With the Act taking effect, now all confidentiality provisions in an employment contract or elsewhere in the UK are void insofar as they purport to prevent the employee from making a qualifying disclosure. The Act does not allow him to do so for trivial or personal reasons, and lays down specific conditions under which the employee would be protected for making a public interest disclosure.

Developments of a similar nature have been taking place even in countries emerging from a communist past where freedom of expression was highly restricted, and the idea of public officials being allowed to speak against their own governmental hierarchy was beyond imagination only a few years ago. Read Article 16 of the Code of Ethics of Public Officials of Hungary and find the flavour of the emerging public service ethics: 8220;Particular care has to be devoted to ensure that the use of data and facts acquired in the course of official activities do not threaten the confidence vested in the neutrality of the college of public officials to party-politics. At the same time, the freedom of expression of public officials should also be protected, in particular when loyalty to the public interest proves stronger than the conspiracy of silence8217; demanded by the employer.8221; The Article asks the public officials to turn to publicity when absolutely necessary, only when 8220;proofs required for alarming8217; the public areavailable8221;.

The bureaucratic objections to this kind of arrangement in India may be threefold: first, it would make functioning of the government impossible due to distrust among colleagues, and bring governance to a grinding halt; second, there would be victimisation of officials who do not play an active role but are forced to acquiesce in a decision; and third, vexatious and motivated complaints against officers by persons who have an axe to grind would make the life of a large number of officials hell. The first objection is misplaced because it would only bring corrupt governance to a halt. The second apprehension has some substance and, therefore, the law will have to initially take a kind view of the acts of officials peripherally connected with the matter, and let them off with a warning. The third fear is unfounded because a law of this kind will have to exclude minor matters from its purview, and require a public interest disclosure to be backed by reasonable evidence.

In India, politics is yet to come of age. Therefore, when protected public interest disclosures shall be allowed by the law, the political parties in the opposition would exploit these to the hilt to embarrass the party in power, and to bring an elected government down on the ground of moral responsibility. The prime minister or the chief minister will be pressurised to step down when a minister8217;s complicity is revealed, and a minister may be pressured to relinquish office even when only officials are found guilty.

In the present state of probity in the country today, few governments in states or at the Centre would be able to survive a public interest disclosure Act after it comes into force. The ensuing hullabaloo, mudslinging and instability brought about by the Act will force the nation8217;s attention away from development and constructive programmes, making the costs of the Act higher than its benefits. Therefore, certain measures would be necessary if the Act is to serve a constructive purpose. The Actshould not cover any action taken before its coming into force. It should also expressly state that the responsibility for the qualifying disclosed acts would not extend beyond those found directly involved.

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Making such a novel law is no easy job, since the requisite majority is not always available to support legislation, especially of this nature. While efforts to draft such a law and debate it should begin in due course, the government should lose no time to amend the conduct rules for civil servants working outside the police, the defence services and intelligence agencies to enable them to make public interest disclosure to specified agencies, after the head of the department has failed to respond satisfactorily, or when he and his bureaucratic or political superiors are suspects themselves.

It is possible to combine such an Act with the Bill on the right to information, reportedly to be tabled shortly in Parliament. The Rill deals with the people8217;s right to information, while the proposed Act gives the public servants the right to inform. Ultimately, both of them deal with freedom of information, and are aimed at preventing the cover of confidentiality from being misused for private gain through public office.

The writer is national secretary, citizens8217; commission for national issues