AT the root of every public scandal is a disclosure by an anguished public servant. WikiLeaks could not have acquired masses of damning documents on the US administration’s knowledge of and, therefore, complicity in the killings of innocent civilians in Iraq unless an official or officials outraged by the crimes decided to blow the whistle and alert the public. Similar considerations moved those who provided the Pentagon Papers to The New York Times.

The informants and those who publicised their disclosures were fairly powerful figures. It is the humble honest official who is unprotected. Yet he is the one who knows best. The minister and his accomplice, the senior civil servant, cannot conceal the notes on the file and other doings from officials lower down. If such an honest outraged official is protected against retaliation for disclosing wrongdoing, half the battle against corruption would be won. But the law must be carefully drafted.

In the wake of Watergate, the US enacted the Whistleblower Protection Act, 1989. But it was a graft on the Civil Service Reform Act, 1978 which provided substantial protection to federal employees.

Among the “personnel action” prohibited by the 1978 Act was reprisal, by transfer or otherwise, for a disclosure of information by an employee which he “reasonably believes evidences a violation of any law … or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety”. This is subject to two qualifications. Disclosure will not be protected if it is specifically prohibited by any law or if it is required by an executive order “to be kept secret in the interest of national defence or the conduct of foreign affairs”.Britain enacted the Public Interest Disclosure Act, 1998. The following actions fall within its purview: “(a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged.”

Similar statutes exist in Australia, South Africa, Ghana and New Zealand. The law commission of India submitted in December 2001 a report on The Public Iinterest Disclosure and Protection of Informers.

Any law on the subject must comprehensively, but precisely, define the disclosable conducts which the law would protect. It must set up an authority to which the official can disclose and it must be an independent authority. It must provide deterrent punishment, alike, for reprisal against the whistleblower as well as for complaints made falsely and maliciously. In this day and age, it must cover the private sector in areas where its activities infringe on the lives of the people; for example a private construction company assigned contract to build a bridge, firms which manufacture drugs, etc.

The law commission’s definition of disclosable conduct covered abuse of power, corruption and an omnibus category ‘maladministration’ which was defined in broad terms to rope in acts such as these “(i) where such action is unreasonable, unjust, oppressive or improper discriminatory; (ii) where there has been negligence or undue delay in taking such action; (iii) where there has been reckless, excessive or unauthorised use of power in taking such action; (iv) where such action amounts to breach of trust; (v) where such action involves the conduct of a public servant which would result in wastage of public funds or causes loss or prejudice to the state or is prejudicial to public funds or causes loss or prejudice to the state or is prejudicial to public interest in any manner; or (vi) where such action is outside the authority conferred by law or amounts to violations of systems or procedure”.

A bill was tabled in 2006 in the wake of the murder of National Highways Authority of India’s deputy general-manager, Satyandra Dubey, who raised his voice against the prevalent corruption in awarding road-building contracts under the Golden Quadrilateral Projects. Another officer of the Indian Oil Corporation, A. Manjunath, had to lay down his life for highlighting adulteration and mafia operations in the functioning petrol pumps.

The bill defined ‘public-interest disclosure’ as specific disclosure by an individual involving “illegality, criminality, breach of law, miscarriage of justice, danger to public health and safety and damage to environment, and includes attempt to cover up such malpractices in any governmental establishment, public or private enterprise”.

It lapsed on the dissolution of parliament in 2009. The bill tabled in August 2010 is utterly unsatisfactory. It confines protected disclosure to acts of corruption, criminal offence or deliberate abuse of power. The broad definition of the 2006 bill was dropped. The disclosure must not relate to acts by the police, the armed forces or intelligence services. The facts relating to fake encounters staged by the police or the armed forces in disturbed areas are excluded.

The writer is an author and a lawyer.