Analysis: The Whistle Blowers Protection Act, 2014

Introduction:

The Whistle Blowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power or willful misuse of discretion against any public servant  (including any Ministers, Members of Parliament, the lower judiciary, central and state government, etc) and to provide adequate safeguards against victimization of the person who exposes alleged wrongdoing in government bodies, projects and offices.

 The wrongdoing nights be a fraud, corrupt activity, or mismanagement. The Act also envisages punishment in case of fabricated or false complaints. Also it consists of 7 Chapters and 31 sections.

The Act was approved by the Cabinet of India and passed by the Lok Sabha on 27 December 2011. The Bill was passed by Rajya Sabha on 21 February 2014 and received the President’s assent on 9 May 2014.

Highlights of the Act

1. This Act also provides safeguard against victimization of the person making such complaints.
2. It doesn’t allow any anonymous complaint to be made. But clearly states that a competent authority will not take any action; is the complainant and doesn’t establish his or her identity.
3. The act does not apply to the special protection group personnel and officers. It is constitute under The Special Protection Group Act, 1988.
4. Any person aggrieve by an order of the competent authority can appeal to the concerned High court. It must be within 60 days from the date of the order.
5. If any person or complainant makes an erroneous or false complaint will be punished with imprisonment; for a term extending up to two years of fine extending up to Rs. 30,000.
6. If any person negligently or mala fidelity reveals the Identity of a complainant will be punish. The imprisonment will be for a term extending up to three years and a fine which may extend up to Rs. 50,000.

Background

• There have been numerous cases report of harassment and even murder of the people who raise their voice against the government officials engage in corrupt activities.

• In 2001, the Law Commission of India recommend that to eradicate corruption, a law should be devise to protect whistleblowers.

• An infamous case of killing of Satyendra Dubey (2003), was an engineer in National Highways Authority of India (NHAI) report as he blew the whistle on corruption in the construction of highways. The killing enraged the public and demanded for a statutory mechanism to protect people who put their lives in grave peril.

• In response, the Supreme Court notified a resolution in 2004 named, ‘Public Interest Disclosure and Protection of Informers Resolution (PIDPIR). This resolution gave the Central Vigilance Commission(CVC)the power to act on complaints from whistleblowers. The power of CVC is limit to making recommendations only as it cannot impose penalties.

• A similar case came into public notice 2 years later of Dubey’s murder. An Indian oil corporation officer, was murder for sealing a petrol pump which was selling adulterat fuel.

The Whistle Blowers Protection (Amendment) Bill, 2015

The Bill amend the Whistle Blowers Protection Act, 2014 and After 2014 Act pass as a Bill by Lok Sabha, the government introduce amendments in Rajya Sabha to prohibit disclosure if it contains information relate to:

1. The sovereignty, strategic, scientific or economic interests of India, or the incitement of an offense;
2. Records of deliberations of the council of Ministers;
3. That which is forbidden to be published by a court or if it may result in contempt of court;
4. A breach of privilege of legislatures;
5. Commercial confidence, trade secrets, intellectual property (if it harms a third party);
6. That relayed in a fiduciary capacity,
7. That received from a foreign government;
8. That which could endanger a person’s safety etc.;
9. That which would impede an investigation etc.;
10. Personal matters or invasion of privacy.

However, if information related to 2., 5., 6., and 10. Is available under the Right to Information Act, 2005, then it can be disclosed under the Bill.

The Bill also prohibits disclosure of the information prohibited under the Official Secrets Act (OSA), 1923.

Shortcoming of the Amendment

The Whistle Blowers Act overrides the Official Secrets Act, 1923,and allow the complainant to reveal before competent authority even if they are violative of the later but not harming the sovereignty of the nation.

But the Bill introduced a different provision that disallows to reveal any documents classified under the OSA, 1923 which dilute the whole purpose of the Act in the first place. Offenses under the OSA,1923were made punishable by imprisonment of up to 14 years. The threat of such stringent action would even dissuade the bona fide whistleblower and defeat the very purpose of the law which is to encourage people to come forward and report the wrongdoing.

Law not Operational Yet

Even though, Centre brought in the Whistle Blowers Protection (Amendment) Bill, 2015 and got approval by Lok Sabha in May, 2015. But Bill did not clear Rajya Sabha and lapsed upon the dissolution of the 16^th Lok Sabha before the 2019 general elections. The government thereafter told Lok Sabha the framework of existing law is adequate to provide security and safety to all citizens, including whistleblowers and activists.

Conclusion

The Act was to as a part of a drive to eliminate corruption in the country’s bureaucracy but face considerable criticism. Because its jurisdiction is restrict to the government sector and encompasses only those working for the Government of India And also it doesn’t cover the State Government employees.

The proposed law has neither made the provisions to encourage whistleblowing, nor deals with corporate whistleblowers; it doesn’t extend its jurisdiction to the private sector.

The bill aims to balance the need to protect honest officials from harassment with also protecting the person making the disclosure. Though it highlights the punishment for false complete but it doesn’t provide a penalty for attacking a complainant.

The definitions of disclosure or victimization are not clearly defined in the bill but on the contrary in other countries like the USA and UK define disclosure more widely and vividly.

The proposed law if enacted will help in strengthening the whistleblower protection mechanism but also ensure that the integrity of democracy is protected, cherished, and upheld.