The Bill was introduced in the Lok Sabha on August 26, 2010 by the Ministry of Personnel, Public Grievance and Pensions.
Context
Whistleblowing is the act of disclosing information by an employee or any stakeholder about an illegal or unethical conduct within an organisation.
The Law Commission of India2 in 2001 had recommended that in order to eliminate corruption, a law to protect whistleblowers was essential. It had also drafted a Bill in its report. In 2004, in response to a petition filed after the murder of Satyendra Dubey, the Supreme Court directed that a machinery be put in place for acting on complaints from whistleblowers till a law is enacted. The government notified a resolution in 2004 that gave the Central Vigilance Commission (CVC) the power to act on complaints from whistleblowers.
Since 2004, CVC has received 1,354 complaints from whistleblowers. In 2007, the report of the Second Administrative Reforms Commission also recommended that a specific law be enacted to protect whistleblowers. India is also a signatory (not ratified) to the UN Convention against Corruption since 2005, which enjoins states to facilitate reporting of corruption by public officials and provide protection against retaliation for witnesses and experts.
The Bill replaces the 2004 government resolution and sets up a mechanism to receive complaints of corruption or wilful misuse of power by a public servant. It also provides safeguards against victimization of the person making the complaint.
Key Features
Public Interest Disclosure
Any public servant or any other person including a non-governmental organization may make a public interest disclosure to a Competent Authority (defined as the Central or State Vigilance Commission).
“Disclosure” is defined as any complaint made in writing or electronic mail against a public servant on matters related to (a) attempt to or commission of an offence under the Prevention of Corruption Act, 1988; (b) wilful misuse of power which leads to demonstrable loss to the government or gain to the public servant; or (c) attempt or commission of a criminal offence by a public servant.
A “public servant” is any person who is an employee of the central government or the state government or any company or society owned or controlled by the central or state government. However, no public interest disclosure shall be accepted against defence, police and intelligence personnel.
Each disclosure shall be accompanied by full particulars and supporting documents. The Vigilance Commission shall not entertain anonymous complaints.
Procedure of Inquiry
First, the Vigilance Commission has to verify the identity of the complainant, and then conceal his identity (unless the complainant has revealed it to any other authority). Then it shall decide whether the matter needs to be investigated based on the disclosure or after making discreet inquiries. If it decides to investigate, it shall seek an explanation from the head of the concerned organisation. The Vigilance Commission shall not reveal the identity of the complainant to the head of the organisation unless it is of the opinion that it is necessary to do so. The head of the organisation cannot reveal the identity of the complainant.
After conducting the inquiry, if the Vigilance Commission feels that the complaint is frivolous or there is no sufficient ground to proceed, it shall close the matter. If the inquiry substantiates allegation of corruption or misuse of power, it shall recommend certain measures to the public authority (anybody falling within the jurisdiction of the Vigilance Commission). Measures include initiating proceedings against the concerned public servant, taking steps to redress the loss to the government, and recommending criminal proceedings to the appropriate authority.
Every public authority shall create a mechanism to deal with inquiries into disclosures. The mechanism shall be supervised by the Vigilance Commission.
The Vigilance Commission may take the assistance of the Central Bureau of Investigation or police authorities to make inquiries or to obtain information.
The Vigilance Commission shall not entertain any matter (a) if it has been decided by a Court or Tribunal, (b) if a public inquiry has been ordered, or (c) if the complaint is made five years after the action.
The Bill exempts disclosure of proceedings of the Cabinet if it is likely to affect the sovereignty of India, security of the state, friendly relations with foreign states, public order, decency or morality. Such an exemption has to be certified by the Secretary to the central or state government.
A person shall not be victimised or proceeded against merely on the grounds that he has made a disclosure or assisted in an inquiry. The directions of the Vigilance Commission are binding in this regard.
The Vigilance Commission may give directions to a concerned public servant or authority to protect a complainant or witness either on an application by the complainant or based on its own information. It may direct that the public servant who made the disclosure be restored to his previous position.
If the Vigilance Commission decides that a complainant or a witness or a person assisting an inquiry needs protection (either based on an application filed by the complaint or a witness or on its own information), it shall issue directions to the concerned government authorities to protect such persons.
The Vigilance Commission shall protect the identity of the complainant and related documents, unless it decides against doing so, or is required by a court to do so.
The Bill lays down penalties for various offences. For not furnishing reports to the Vigilance Commission, a fine of upto Rs 250 shall be imposed for each day till the report is submitted. The total penalty amount however cannot exceed Rs 50,000. For revealing the identity of complainant negligently or due to mala fide reasons, the penalty is imprisonment for upto 3 years and a fine of upto Rs 50,000. For knowingly making false or misleading disclosures with mala fide intentions, the penalty is imprisonment upto 2 years and a fine of upto Rs 30,000.
Any person aggrieved by an order of the Vigilance Commission relating to imposition of penalty for not furnishing reports or revealing identity of complainant may file an appeal to the High Court within 60 days.
