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Amendment to the Public Interest Disclosure Resolution by the government

8 Jul, 2014

A civil society activist has recently circulated a Resolution of the Government of India issued by the Department of Personnel and Training amending the Public Interest Disclosure Resolution (PIDPI Resolution below). Readers will remember that the Government issued the PIDPI Resolution in 2004 to provide a mechanism for government employees to blow the whistle on corruption, in the wake of the murder of two young, honest and responsible employees - the Late Satyendra Dubey and the Late S. Manjunath who tried to expose alleged corruption in the affairs of the National Highways Authority of India and the Indian Oil Corporation, respectively.

What is this Amendment?

The latest amendment to the PIDPI Resolution creates an internal mechanism namely, Chief Vigilance Officers (CVOs), for receiving complaints from whistleblowers in Central Government Departments and Central Public Sector Undertakings. Earlier, under the original Resolution, whistleblowers could send their complaints only to the Central Vigilance Commission (CVC). The Union Cabinet had approved this amendment to the PIDPI Resolution in August last year.

What is wrong about this Amendment?

Parliament enacted the Whistleblowers Protection Act in 2014 after keeping it pending for almost three years. The Rajya Sabha approved this legislation on the last day of the last session of the 15th Lok Sabha. The President signed this Bill into law on 9th May and it was gazetted on 12th May this year. However the Central Government has not yet enforced this law. Readers may note that unless Parliament sets a time limit for enforcement of a law that it enacts, (as was the case with the Right to Information Act, 2005), enforcement of that law is left to the discretion of the Central Government.

Section 31(1) of the Whistleblowers Protection Act (Whistleblowers Act) repeals the PIDPI Resolution. So the question that arises is whether the Government can amend a Resolution after Parliament has repealed it. In theory, none of the provisions of the Whistleblowers Act have come into force till date. So the repeal provision is also not in force. Technically, the amendment to the PIDPI Resolution may have legal cover. However Government's actions must not only be legal, they must also be legitimate. Parliament has clearly indicated its intention by repealing the PIDPI Resolution and replacing it with a comprehensive statute that contains a reasonably complete mechanism for protecting whistleblowers. The only latitude Parliament gave to the Government was to fix the date for its enforcement after making appropriate arrangements such as notifying the Rules and Regulations under this law. However, the Government seems to be delaying the implementation of this law and instead is pushing for the strengthening of its own Resolution which in theory stands repealed. This, in my humble opinion amounts to an affront to the dignity and will of Parliament. Constitutional experts and Parliament-watchers may point out if my view is correct and if this action of amending a Resolution which Parliament repealed would constitute a breach of privilege of Parliament.

What other option was available?

Section 2(b) of the Whistleblowers Act empowers the Central Government to declare any authority other than the CVC and a handful of other authorities mentioned in that clause as 'competent authorities' to receive whistleblower complaints. The Government could have enforced this law and designated the CVOs as competent authorities without any reference to the repealed PIDPI Resolution. Doing so would have been not only legal but also legitimate.

The National Campaign for People's Right to Information has called a meeting to discuss draft rules for the Whistleblowers Act tomorrow at the National Law University. I hope this issue of transgression of the will of Parliament will also be taken up for discussion.

Other Important Gazette Notifications issued during the last few weeks

1) The Central Government has issued a notification placing 'onion' and potato' in the list of commodities notified under the Removal of (Licensing Requirements, Stock Limits and Movement Restrictions) on Specified Foods Order, 2002 issued under the Essential Commodities Act, 1955. This action has been motivated by the Government's intention to check the rising prices of onion and potatoes. Contrary to popular belief, these commodities have not been declared 'essential commodities'. Instead they have been inserted in the Order mentioned above. This Order actually permits a dealer to supply, transport, stock or consume such commodities in an 'unrestricted manner'. However the application of this Order to onion and potato has been kept in abeyance for one year. So under this arrangement it is said that State Governments may take action against hoarding by unscrupulous traders. This is an interesting roundabout way of preventing the hoarding of essential commodities. I request readers well versed in the implementation of the Essential Commodities Act to enlighten us on the pros and cons of such action.

2) The Government of India has reconstituted the Environmental Impact Assessment Authority (EIAA) of Madhya Pradesh. The EIAA is constituted under Section 3(3) of the Environmental Protection Act, 1986 to perform a range of functions in order to protect and conserve the environment.

3) While civil society activists and academics are clamouring for the repeal of the Armed Forces Special Powers Act, 1958 because it has often afforded impunity to the violators of human rights in areas where it operates, the Central Government has once again declared the whole of Nagaland as a 'disturbed area' for a period of one year under this law. The Central Government has stated in the notification that it is of the opinion the entire area of Nagaland is in "such a disturbed or dangerous condition that the use of armed forces in aid of the Civil power is necessary".

4) The Central Government has constituted an Unlawful Activities (Prevention) Tribunal under Justice G P Mittal - a judge of the Delhi High court to determine whether or not there is sufficient cause for declaring the Liberation Tigers of Tamil Elam (LTTE) as an 'unlawful association' under the Unlawful Activities (Prevention) Act, 1967. The LTTE has already been declared an unlawful association in 2012. With the Central Government's renewed interest in the South Asian Association for Regional Cooperation (SAARC), it remains to be seen what action will be take on the basis of the report of recommendation of the Tribunal- whether the decimated LTTE would continue to be declared an unlawful association or not.

Venkatesh Nayak

No. 371/4/2013-AVD-III

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel and Training

North Block New Delhi

Dated the 16th June, 2014

OFFICE MEMORANDUM

Subject: Amendment of Government of India's Resolution No. 89 published in the Gazette of India Part I Section 1, Extraordinary dated 21 St April, 2004 (read with corrigendum dated 29th April, 2004) commonly known as the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution-regarding In continuation of this Department's OM of even No. dated 3"1 September, 2013 on the above subject, the undersigned is directed to enclose herewith a copy of Procedure for handling of complaints under Public Interest Disclosure and Protection of Informers (PIDPI) Resolution to be followed by the Chief Vigilance Officers of the Ministries/Departments of the Government of India who have been authorized as the Designated Authority to receive written complaint or disclosure on any allegation of corruption or misuse of office by or under any Central Act, Government companies, societies or local authorities owned or controlled by the Central Government and falling under the jurisdiction of that Ministry or the Department.

2. The CVOs in the Ministries or Department, either on the application of the complainant or on the basis of the information gathered, is of the opinion that either the complainant or the witnesses need protection, they shall take up the matter with the Central Vigilance Commission (CVC), of issuing appropriate directions to the authorities concerned.

3. It is requested to give wide publicity to the Procedure for handling of complaints under PIDPI Resolution by placing it along with the name and designation of the designated authorities on the website of Ministries as well as of the organizations under the Ministries. A copy of the PIDPI Resolution No. 89 dated 21 5' April, 2004 and Amendment Resolution No. 190 dated 29.8.2013 is also enclosed

Encl: As above.

(M.M. Maurya)

Under Secretary to the Government of India

Tel. No. 23094541

To,

CVOs in the Ministries/Departments of the Government of India.

(By name as per enclosed list)

Copy for information to:

1. All the Ministries/ Departments of the Government of India.

2. The Cabinet Secretariat, New Delhi.

3. The Secretary, Central Vigilance Commission, Satarkata Bhavan, New Delhi. It is

requested that the content of this OM may be uploaded on the website of the

Commission and wide publicity may be given. The CVOs of the

Ministries/Departments may also be addressed by the Commission.

4. PS to Hon'ble MOS(PP), PPS to Secretary(P)/EO&AS/AS(S&V), DOPT.

5. The CVO, Department of Personnel and Training, New Delhi.

6. NIC, DoP&T for uploading on DoP&T website.

7. Order folder/Guard file

Press Information Bureau

Government of India

Ministry of Personnel, Public Grievances & Pensions

02-August-2013 13:31 IST

Amendment to the Government's Resolution on the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution

Cabinet Decision

The Union Cabinet today gave its approval for amendment in the Resolution No. 89 dated 21st April, 2004, commonly known as the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution to designate the Chief Vigilance Officer (CVO) of each Ministry/Department of the Government of India as the "Designated Authority" in addition to the Central Vigilance Commission to receive complaints under the PIDPI Resolution.

The Central Vigilance Commission is the designated agency to receive complaints from whistle blowers under the PIDPI Resolution No. 89 dated 21.4.2004. The workload of the Commission has increased and the number of complaints under the PIDPI Resolution has also increased. The Government has therefore, felt a need to designate additional authorities for receiving complaints under PIDPI. Accordingly, the Chief Vigilance Officer (CVO) of each Ministry/Department of the Government of India has been now designated as the 'Designated Authority' to receive complaints under the PIDPI Resolution.

The proposed amendment would enable speedy disposal of the complaints and would make the public servants more responsible and accountable in their efforts in helping the Government towards combating and eradicating corruption.

***

SC/NK/SKS

Amendment to the Public Interest Disclosure Resolution by the government

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