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The Whistle Blowers Protection Bill 2011

To establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith.

Earlier References –

1. In 2001, Law Commission recommended and drafted a Public Interest Disclosure
(Protection of Informers) Bill, which provides protection to whistleblowers. The Bill has provisions for providing safeguards to the whistleblowers against victimization in the organization
2. Second ARC - There is a very close connection between the public servant’s willingness to disclose corruption in his organization and the protection given to him and his/her identity. If adequate statutory protection is granted, there is every likelihood that the government would be able to get substantial information about corruption. Legislation should be enacted immediately to provide protection to whistleblowers exposing false claims, fraud or corruption by ensuring confidentiality and anonymity, protection from victimization in career, and other administrative measures to prevent bodily harm and harassment. The legislation should cover corporate whistleblowers unearthing fraud or serious damage to public interest by willful acts of omission or commission.
3. In 2004, a resolution was passed, empowering CVC to protect whistle blowers.

Features of Bill –

1. Applicable to whole of India except Jammu and Kashmir.
2. The Act not to be applicable for Special Protection Group(SPG).
3. "Disclosure" means a complaint relating to,—
(i) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988;
(ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party, or demonstrable wrongful loss or harm is caused to any person
(iii) attempt to commit or commission of a criminal offence by a public servant.

Main Provisions -

• Any public servant or any other person including any non-governmental organisation, may make a public interest disclosure before the Competent Authority.
• Every disclosure shall be made in writing or by electronic mail or electronic mail message in accordance with the procedure as may be prescribed and contain full particulars and be accompanied by supporting documents, or other materials, if any.
• No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the indentify of the complainant or public servant making public interest disclosure or the identity of the complainant or public servant is found incorrect or false.
• The Competent Authority shall , on receipt of a public interest disclosure conceal the identity of the complainant unless the complainant himself has revealed his identity to any other office or authority while making public interest disclosure or in his complaint.
• If the Competent Authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them on the public disclosure, become necessary to reveal the identity of the Complainant or public servant to the Head of the Department of the organisation or authority, board or corporation concerned or office concerned, the Competent Authority may, with the prior written consent of the Complainant or public servant, reveal the identity of the complainant or public servant to such head of the Department of the organisation or authority, board or corporation concerned or office concerned for the said purpose. In case the complainant or public servant does not agree to his name being revealed to the Head of the Department, in that case, the complainant or public servant, as the case may be, shall provide all documentary evidence in support of his complaint to the Competent Authority.

Exemptions –

1. No person shall be required by virtue of provisions contained in the Act to furnish any such information or answer any such question or produce any document or information or render any other assistance in the inquiry under this Act if such question or document or information is likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
2. Disclosure of proceedings of the Cabinet of the Union Government or any Committee of the Cabinet or of the Cabinet of the State Government or any Committee of that Cabinet.

Protection to Whistle Blower –

• The Central Government shall ensure that no person or a public servant who has made a disclosure under this Act is victimised by initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act.
• The power to give directions under sub-section (2), in relation to a public servant, shall include the power to direct the restoration of the public servant making the disclosure, to the status quo ante.
• Any person who wilfully does not comply with the direction of the Competent Authority, shall be liable to a penalty which may extend up to thirty thousand rupees.
• If the Competent Authority either on the application of the complainant, or witnesses, or on the basis of information gathered, is of the opinion that either the complainant or public servant or the witnesses or any person rendering assistance for inquiry under this Act need protection, the Competent Authority shall issue appropriate directions to the concerned Government authorities (including police) which shall take necessary steps, through its agencies, to protect such complainant or public servant or persons concerned.
• Penalty for not reporting within time limit mala-fidely.
• Penalty for negligently or mala-fidely revealing the identity of complainant.
• Penalty for making false or incorrect disclosure mala fidely.

Analysis –

• The Bill provides that the Competent Authority shall not investigate, (i) any disclosure which is made after the expiry of twelve months from the date on which the action complained against becomes known to the complainant. This provision is not just unnecessary but it will be used by the bureaucracy to deter the investigation on the basis of technical ground, i.e. whether or not the complainant had come to know of the disclosure within a period of twelvemonths or not and whether the date of commission of offence was within a period of five years or not ,rather than the merits of the case.
• It is a matter of grave concern that an exception has been created in favour of the armed forces and intelligence agencies and that too without cogent reasons. It is important to note here that the Right to Information Act, 2005 does not create an exception in favour of armed forces and even the intelligence agencies have not been fully exempted from its purview and such organizations are fully disclosable in relation to human rights violation and corruption.
• The Bill does not define what constitutes victimisation. There is no penalty against the public servant who may be victimising the complainant.
• The Bill does not provide for witness protection programme to protect witnesses during investigation and trial.
• The public official may appeal to the High Court against penalty for revealing identity or obstructing investigation. However, the Bill also penalises any malafide complaint, but does not specify an appeal process.
• The Central and State Vigilance Commissions shall be the nodal body to receive complaints from whistleblowers. However, their power is restricted to recommend corrective action to the public authority (including any penal action) on public officials after investigation.
• Private sector not covered in this Bill. The Companies Bill, 2009 addresses this issue.
• No time limit prescribed for discreet inquiry. Time limit for explanation to be given by the concerned head of department has been prescribed.

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