On 10 August 2010 the Union Cabinet of India approved Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, also known as Whistleblowers act to provide protection to Whistleblowers and punishing those who expose identity of Whistleblowers.

Under the Whistleblowers act anybody who reveals the identity of Whistleblowers would be punished with 3 years imprisonment or fine up to Rs. 50,000. In case of any information leakage regarding the Whistleblower’s identity the head of the department is to be held liable by (Central Vigilance Commission) CVC. At the same time there is also the provision that if anyone makes a false charge, he would be equally punishable with equal amount of imprisonment and fine.

 Under the Whistleblowers act, Central Vigilance Commission (CVC) will have jurisdiction over all the ministries and institutions. CVC’s directives in protecting the identity of Whistleblowers can override any government’s directive. According to the Whistleblowers act, the CVC can seek clarification from any ministry or person who is charged with corruption. If they fail to do so or delay, then CVC has the authority to impose fine on the ministry or person concerned.

CVC’s jurisdiction will be absolute. No other civil court would have jurisdiction over the act where CVC is empowered. Any appeal can be filed only in High Court.
The killing of several Whistleblowers and RTI (Right to Information) activists—for instance, the killing of RTI activist Amit Jethwa— by the anti-social elements of the society was the reason behind that the government of India drafted the Whistleblower act. Because of recent increase in attacks on Whistleblowers and RTI activists it was needed to empower the CVC to protect the lives of Whistleblowers and to deal with corruption.

• Whistleblower is a term commonly used for a person, who discloses information about the corruption in an organisation. Usually that person belongs to the same organisation.
• Whistleblowers act also defined the word Corruption in government for the first time. Corruption is defined as willful misuse of power or willful misuse of discretion by which there is a demonstrable loss to government or a demonstrable gain to the public servant using that power. The Prevention of Corruption act, 1988, does not define corruption but puts down various actions which can be constituted as corruption.

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. 

Exemption from Inquiry

 

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. 

Safeguards for Persons Making Disclosure 
 

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. 

Penalties

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.

Indian Law: The Whistleblower Protection Law

The whistleblower protection law has been enforced in various countries. Now, the government of India is planning to enact such a law, particularly after the murder of Satyendra Dubey, an engineer with the National Highways Authority of India (NHAI). Dubey was killed after he wrote to the ex-Prime Minister, A.B. Vajpayee’s office about the corrupt practices in the construction of highways.

Dubey had specified in his letter that his identity should remain concealed. True to word, the letter was forwarded to the concerned departments, without an attempt to conceal his identity. Dubey was murdered and his death led to a public outcry. 

Indian Law: Will these New Laws Empower or Endanger Citizens?

A similar case is that of Manjunath Shanmugham, a sales manager of the IOC. He was killed in 2005 for uncovering a racket that dealt in petrol adulteration. Following the public outrage surrounding his murder, the government proposed a bill pertaining to the matter.

The Department of Personnel and Training (DOPT) developed the Public Interest Disclosure (Protection of Informers) Bill. The bill provides that anyone can file a complaint of corruption, with the Central Vigilance Commission (CVC), against any employee of the Central Government or organizations backed by the Central Government.

The CVC is an authorized nodal agency for addressing complaints. It has powers similar as of civil court, such as powers to issue summons, order police investigation and provide protection to the whistleblower. However, the CVC is not authorized, by Indian laws to address the complaints regarding matter that are already in court’s purview, prejudicial to national security, international relations and proceedings of the Union Cabinet.

The bill is officially known as the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010. The proposed Indian law intends to protect the whistleblowers, facilitate the disclosure of information and uncover corruption and deceptive practices that exist in government organizations. 

Indian Law: Key Features of the Whistleblowers Protection Bill

Some of the key features of the proposed Indian law are as follows:

• It will protect the whistleblowers from any discrimination or victimization in their workplace.
• It provides for concealing the identity of a citizen who discloses information about the misuse of power and money. Those who reveal the identity of the whistleblower will be held liable and penalized, by the Central Vigilance Commission (CVC).
• The offenders will be liable for imprisonment up to 3 years and a fine up to Rs.50, 000.
• There will be penalization in case of delays in response, under the Right to Information Act. A fine of Rs.250 will be imposed for every day of delay beyond the set deadline.
• There will be penalization for officials who try to mislead the CVC.
• The bill provides for addressing complaints against public sector employees and employees of the Central and the State Government.
• The bill also ensures the honest government officials are not harassed in anyway but those individuals who file false complaints and charges will be liable for imprisonment up to 2 years and fine up to Rs.30, 000.

Indian Law: Criticism on the Whistleblowers Protection Bill 

According to Indian law reports, the bill has faced considerable criticism because its jurisdiction is restricted to the government sector and encompasses only those who are working for the Government of India or any of its agencies. It does not cover the employees of State Governments. The draft Bill aimed at protecting whistleblowers is a welcomed move. Given the fact that this bill, if it becomes law, is a very important legislation, the lack of public debate and consultation on the Bill seems to indicate the danger of it becoming another ‘paper tiger.’ 

Typically, the Ministries that propose draft legislations involve an elaborate process of public consultation to give the public a fair opportunity to criticize and scrutinize the provisions carefully. In this case, such an opportunity has been denied to the public and there is considerable criticism about it.

No doubt, the proposed law to protect whistleblowers will assist to detect corruption, ensure better information flow and pave the way for successful prosecution of corrupt individuals through clear and protected processes. However, the public in India have poor levels of confidence in fighting corruption because they fear retaliation and intimidation against those who dare to make complaints. Another worry pertains to the delay in disposing off these cases. Without public debate on the provisions of this proposed law, it is clear that there is no way for people to measure its effectiveness when the draft bill comes into force as law.

A whistleblower is a person who raises concern about frauds, corruptions, wrongdoings and mismanagement. For instance, a government employee who exposes corruption practices, within his department is a whistleblower. So is an employee of a private organization, who raises his voice against misconduct, within the company. 

The misconduct can be classified in several ways, such as:

• Violation of Indian laws.
• Posing direct threat to public interest.
• Violation of health or safety norms.
• Deceptive practices.

 A whistleblower may approach an external agency, such as law enforcement officers, media or social groups. He may also report the matter to other members of the organization.