Our friend, Venkatesh Nayak has brought to light a disturbing fact regarding the Government’s move to amend the PIDPI Resolution, a predecessor to the Whistle Blower Protection Act, passed (but not yet notified after the President’s assent) by Parliament. He also brings to our notice some of the other recent developments missed by the media. The following has been copied and pasted from his mail, which he wants to be widely circulated: I have taken the liberties to edit the mail, for the purpose of this post.
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). 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 whistle blowers in Central Government Departments and Central Public Sector Undertakings. Earlier, under the original Resolution, whistle blowers could send their complaints only to the Central Vigilance Commission (CVC). The Union Cabinet had approved this amendment to the PIDPI Resolution in August lat year.
What is wrong about this Amendment?
Parliament enacted the Whistle blowers 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 its 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 Whistle Blowers Protection Act (Whistle Blowers 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 So the question that arises is whether the Government can amend a Resolution after Parliament has repealed it.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 Whistle Blowers 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 whistle Blowers. 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 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 Whistle Blowers 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 whistle blower 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.
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) 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”.
3) 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 taken 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.
The facts of this case are almost identical to the House of Lords' judgment in the Fire Brigades Union case: http://www.bailii.org/uk/cases/UKHL/1995/3.html
It held that although there is no duty on the Executive to bring the law into force on any particular date, there is a duty to keep considering from time to time to bring it into force. It cannot do anything which frustrates this duty to consider.
On onions and potatos being placed under the 2002 Order, it seems like this is in tandem with the argument about removing restrictions under APMC Act. The APMC Act has led to artificial barriers to movement of agri commodities, which in turn has a causal link to food inflation. See: http://indianexpress.com/article/opinion/columns/constricted-by-law/
Following Tarunabh's post also see the Altemesh Rein Case (http://indiankanoon.org/doc/127880/)
In this case also the Supreme Court made a similar observation that "every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way …. In these circumstances, we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring section 30 of the Act into force of not. If on such consideration the Central Government feels that the prevailing circumstances are such that section 30 of the Act should not be brought into force immediately it is a different matter. But it cannot be allowed to leave the matter to lie over without applying its mind"
This was in relation to a petition seeking that the government bring into force a section of the Advocates Act.