Whistleblower refers to any person who exposes information within an entity or misconduct carried out by a person that is illegal or unethical. “In a room where people unanimously maintain a conspiracy of silence one word of truth sounds like a pistol shot”.
The concept of whistleblower has been in existence since ancient times. Kautilya, an Indian statesman and philosopher, proposed; “Any informant (suchaka) who supplies information about embezzlement just under perpetration shall, if he succeeds in proving it, get as reward one- sixth of the amount in question, if he happens to be a government servant, he shall get for the same act one twelfth of the amount”.
In the year 2001, the Law Commission of India commended that in order to eradicate corruption, a law to safeguard whistleblowers was necessary. In response to a petition filed in 2004, the Supreme Court of India directed the central government that, ‘administrative machinery be put in place for acting on complaints from whistleblowers till a law is enacted’. Consequently, in 2004, the government in response notified a resolution called Public Interest Disclosure and Protection of Informers Resolution. The Second Administrative Reforms Commission published a report in 2007 and recommended that a legislation to protect the whistleblowers should be enacted at the earliest.
Public Interest Disclosure and Protection of Informers Resolution:
The resolution authorizes the Central Vigilance Commission as a designated authority to receive written complaints or disclosure of any allegation of corruption or of misuse of office by an employee of the central government, or of any corporation established under central or state act, or government companies, societies or local authorities. The resolution also seeks to provide adequate protection to the persons reporting corruption or willful misuse of power by a public servant. It seeks to provide punishment for revealing the identity of a complainant.
NEED FOR LEGISLATION
A country’s success is not only dependent on its economic progress but should be accompanied with effective governance, administration and transparency. However, we can observe that there is always some degree of corruption at various levels, irrespective of how developed a country is. Corruption can be repressed by systematic and effective changes in governance.
The right to good governance is an essential part of the citizen’s rights mentioned under article 21 of the Indian Constitution. The government has introduced a number of initiatives to incorporate citizens’ concerns as inputs in formulation policy. These can be brought through various tools such as Citizen’s Charter, Right to Information, e- Governance, whistle blower protection and many more. One of the barriers in eradicating corruption in the government and public sector undertakings is the lack of adequate protection to the people reporting corruption or the willful misuse of power by a public servant
The law on whistleblower’s protection is a welcome step towards good governance and transparency. There have been various instances of threatening, harassment and even murder of numerous whistleblowers.
HIGHLIGHTS OF THE ACT
Extent and Applicability:
The Act extends to the whole of India excluding the state of Jammu and Kashmir. The provisions of this Act do not apply to the armed forces of the Union, being the Special Protection Group constituted under the Special Protection Group Act, 1988.
The Act has elaborately defined various competent authorities for various levels-
The Prime Minister at the Centre and the Chief Minister in the States against ministers of the Union or State respectively.
The respective chairpersons of the house against members of Parliament or the State Legislatures
The High Court in relation to any judge or judicial officer or arbitrator in the States.
The Central Vigilance Commission or such other authority as the central government may notify for all other public authorities and public sector undertakings at the union level.
The State Vigilance Commission or such other authority as the state government may notify in due course to receive complaints against public authorities and state level public sector undertakings.
The Competent Authority cannot entertain or inquire into any disclosure with respect to
– a formal and public inquiry that has been adjured under the Public Servants Inquires Act, 1850
-any matter which has been alluded for inquiry under the Commissions of Inquiry Act, 1952
-disclosure involving an allegation, if the complaint is made after the expiry of 7 years from the date of occurrence.
The Competent Authority prepares an annual report of the performance of its activities and duties discharged and submits it to the Central or State government. The report is further laid before each House of Parliament or State Legislature, as the case may be.
Public Interest Disclosure:
Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, any public servant or any other person including any non- governmental organization, may make a public interest disclosure before the competent authority.
Every disclosure shall be made in good faith and person making the disclosure shall issue a personal declaration stating that he believes in the information disclosed by him and the allegation is true.
The Act requires that disclosure shall be made in writing or by electronic means in the prescribed format along with the supporting evidence.
The Act further provides a time duration of 7 years to report any wrongdoing from the date of occurrence of the instance.
One of the most significant elements of this provision is that, no action shall be taken on the public interest disclosure by the competent authority if the disclosure does not mention the identity of the complainant or public servant making the disclosure. The identity of the complainant will not be revealed without their written consent.
Protection to persons making disclosure:
Section 11 of the Act provides a layout for safeguard against victimization of the complainant. It is the duty of the Central Government to ensure that no citizen or public servant who has made disclosure under the Act is victimized by the initiation of any proceedings.
If the witness or other persons associated with the case under this Act need protection, the Competent Authority shall issue appropriate directions to the concerned authorities who shall take necessary steps to protect such complainant, public servant or concerned persons.
Offences and Penalties:
Any person who negligently or mala fidely reveals the identity of the whistleblower may be imprisoned for up to three years and fine of Rs. 50000.
Any person who knowingly or mala fidely makes a false complaint may be imprisoned for two years and fine of Rs. 30000.
Any person aggrieved by an order of the Competent Authority can make an appeal to the concerned High Court within a period of 60 days from the date of the order.
Official Secrets Act, 1923:
The Whistleblowers Act overrides the Official Secrets Act, 1923. This enables the complainant to make a public interest disclosure before the competent authority even if they are violative of the later but not harming the sovereignty of the nation.
Case 1: Satyendra Kumar Dubey Case
Satyendra Kumar Dubey was a project director in the National Highway Authority of India at Jharkhand. He had written a letter to the then Prime Minister Shri Atal Vajpayee complaining of corruption in the Golden Quadrilateral NHAI project. The government kept silent on the issue and fair justice could not be delivered.
Case 2: Manjunath Shanmugam Case
Manjunath Shanmugam was working with the Indian Oil Corporation. He was refused to take bribes and took actions to seal two petroleum stations for selling defiled fuel. Consequently, he paid the price.
In the wake of these murders and many more others, the Whistleblowers Protection Act has grabbed even more attention. These cases highlight the need for a legislation that can protect whistleblowers, facilitate the disclosure of information and uncover corruption at various levels.
The increasing number of corruption cases and scams make a strong whistleblowing act the need of the hour. The Act provides safeguards for whistleblowers who make disclosures on issues of corruption and abuse of power. However, the Act does not seem to acknowledge and provide for whistleblowers acting within private employment. Even otherwise, while the said Act received the President’s assent, it remains yet to be implemented.
A suitable legislation must be enacted to provide protection to the whistleblowers and the dilution of the act that is proposed by the 2015 Amendment Bill must be abandoned. Strengthening of the whistleblower protection mechanism will help in ensuring that the integrity of democracy is protected, cherished and upheld.
Author: Arisia K,