Author Name:   lipi.thapliyal

An analysis of the current form of Public Interest Disclosure and Protection of Persons making disclosure Act, 2010, pending in Rajya Sabha...

Whistleblower Protection In India: A Shaky Start

Whistle blowing is a form of dissent (Redding, 1985; Kassing, 1997). It is defined as "an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity." Apparently, the term owes its origin to the way referees stop a foul play or misconduct in a match and English Bobbies (policemen) caution the general public and authorities of a fleeing criminal i.e. by blowing a whistle. One of the oldest laws on whistleblower protection was the U.S False Claims Act, 1863. The law was "enacted to prosecute Civil War manufacturers who substituted sawdust for gunpowder in Union army supplies."

Whistleblower Protection in India- Background
A bill for protection of Whistleblowers was first initiated in 1993 by Mr. N. Vittal (the then Chief Vigilance Commissioner). In December 2001, Law Commission recommended that in order to eliminate corruption, a law to protect whistleblowers was essential and submitted its report on ‘Public Interest Disclosure Bill’ to Mr. Arun Jaitley (then Minister of Law, Justice and Public Affairs) along with the draft bill. In January 2003, the draft of Public Interest Disclosure (Protection of Informers) Bill, 2002 was circulated. The murder of Satyendra Dubey in 2003 for exposing corruption in NHAI and the subsequent public and media outrage led to the demand for the enactment of a whistleblower’s bill. Following the event, in 2004, the Supreme Court directed that machinery be put in place for acting on complaints from whistleblowers till a law is enacted. Government of India notified a resolution to enable Central Vigilance Commission to receive complaints of corruption for Central Authorities in May 2004. Right to Information Act was notified in October, 2005. In 2006, The Public Services Bill 2006 (Draft) stated that within six months of the commencement of the act, the government must put into place mechanisms to provide protection to 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. On August 26, 2010 Union Minister of State for Personnel, Public Grievances and Pensions Prithviraj Chavan introduced the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, or the Whistle-blower Bill, in the Lok Sabha. Since 2010, at least 12 RTI activists have been murdered for seeking information to “promote transparency and accountability in the working of every public authority” of India. Ms. Shehla Masood, a prominent woman RTI activist of Bhopal, Madhya Pradesh was murdered on 16 August 2011. The Bill was passed in Lok Sabha on December 27, 2011 along with proposed amendments. Most recent is murder of Premnath Jha, who was shot dead in Virar area of Mumbai on 26th February, 2012. His life was the price for seeking details regarding construction projects in Vasai-Virar area. He reportedly exposed several cases of corruptions and received threats on regular basis. IPS officer Narendra Kumar was ran over by a tractor loaded with illegally mined stones in Banmore district (Madhya Pradesh) on March 8th, 2012, for his efforts to stop mining mafia. Owing to the incident, Anna Hazare also called for a ‘dharna’ on Jantar-Mantar on 25th March, 2012 demanding for enactment of a strong whistleblower’s protection law. Investigation of death of Delhi based RTI Activist Ravinder Balwani in a suspicious hit and run case on 23rd April, 2012 has been handed over to crime branch by Delhi High Court. He was an aide of Team Anna and associated with Arvind Kejriwal’s NGO Parivartan since 2005.

Main Provisions of the Bill
The object of the act states that it is a bill to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful 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 and incidental thereto. It is quite evident that the bill only intends to receive complaints and inquire and does not suggest any specific penal action. It is applicable to public servants including companies and societies owned and controlled by central or state governments. The Bill has 30 sections divided into 7 chapters.

The first chapter along with the other terms defines ‘Competent Authority’, ‘Disclosure’ and ‘Public Servant’. Interestingly, the term ‘victimization’ (against which the bill is supposed to safeguard) has not been defined except for an implied reference in Section 10 (1), as ‘by initiation of any proceedings or otherwise’ whereas, contemporary foreign legislations in U.S.A, U.K and Canada provide an extensive definition of the term. ‘Disclosure’ is a complaint relating to commission or an attempt to commit a criminal offence, offence under Prevention of Corruption Act, 1988 and wilful misuse of power or discretion causing either demonstrable loss to government or demonstrable gain to the public servant or third party.

Second chapter lays down requirements of public interest disclosure and its exceptions. ‘Public interest disclosure’ is any disclosure made under this act. Only specific exception is ‘Special Protection Group’. No action will be taken on an anonymous complaint irrespective of the significance of the disclosure.

Third chapter prescribes the manner in which inquiry regarding disclosure will be conducted. It has given the discretion of revealing the identity of the complainant to the competent authority for the purpose of seeking comments, explanation or report from the head of concerned department or organization. But, the head of the department cannot reveal the identity of the complainant under any circumstances. Insufficient grounds for inquiry will result in closure of matter by the competent authority. Competent Authority shall also not take note of any disclosure to the extent that it seeks to reopen any issue or case already settled. It shall not entertain any disclosure regarding which inquiry has already been launched under Public Servants Inquiries Act, 1850 and Commission of Inquiry Act, 1952. The time period for making disclosure has been raised from 5 years to 7 years.

Primary reading of Section 6 (4) suggests that the act has been given an overriding effect over Official Secrets Act, 1923 which will prevent public servants from taking shelter of obligation to maintain secrecy under provisions of the said act, while providing any information or document regarding disclosure, provided that such information or document does not jeopardise the interest of the integrity and sovereignty of the country, its security, public order.

Fifth chapter lays down provisions for protection of whistleblowers against victimization due to disclosure and states that a competent authority may on receipt of application regarding victimization or its apprehension, direct concerned public authority to protect and prevent victimization. Protection is extended to complainant, public servant, witnesses and other persons rendering assistance in inquiry under section 11. It is important to note that the act distinguishes safeguard against victimization from protection, seemingly police protection. Safeguards against victimization are available only to complainant.

Sixth chapter prescribes penalties for various offences including penalty for frivolous disclosures i.e. imprisonment up to two years, fine up to Rs. 30,000 and penalty for revealing identity of the complainant which is imprisonment up to five years and fine up to Rs. 50,000.

The Competent Authority shall prepare a consolidated Annual Report of the performance of its activities and forward it to the Central Government or State Government under Section 22, chapter seven.

Major Shortcomings of the Bill:
1. It is assailing that the bill does not even recognise the term ‘whistleblower’, even after passing an amendment to the effect that the bill may alternatively be called ‘Whistleblower’s Protection Act, 2011’. Consequentially, no definition has been provided.

2. The term ‘Victimization’ has not been defined; making it highly susceptible to manipulation. No penalty for victimization has been prescribed. Punishment for revealing the identity of whistleblower is insufficient.

3. The definition of ‘Disclosure’ is significantly constricted and does not include negligent acts and omissions of public servants.

4. No action on anonymous complaints and disclosures.

5. Penalty for frivolous disclosures will discourage the persons reporting corruption. ‘Frivolous disclosure’ has not been defined anywhere.

6. No reward for the whistleblower (parliamentary standing committee recommended cash rewards).

7. Provisions made for protection of whistleblowers are inadequate. Besides, there should have been separate provisions for safety of women whistleblowers as they will be more vulnerable to harassment. Time magazine dubbed 2002 the "Year of the Whistleblower," and named Watkins, Cooper, and Rowley as its "Persons of the Year." Their stories fuelled the observation that women are more likely to become whistleblowers not for the potential for fame and financial gain, but out of a sense of duty. Sherron Watkins was Enron vice-president who blew the lid on accounting scandals in 2001 which led to downfall of energy trading giant. Cynthia Cooper exploded bubble at Worldcom when she informed its board that the company had covered up $3.8 billion in losses through the prestidigitations of phony bookkeeping. Coleen Rowley was an FBI staff attorney who caused a sensation with a memo to FBI Director Robert Mueller about how the bureau brushed off pleas from her regarding investigation of Zacarias Moussaoui, later indicted as a 9/11 co-conspirator.

8. Period of limitation for filing a complaint though increased from five to seven years yet is inadequate for cases involving gross negligence pertaining to public interest, safety and health.

Conclusion:
The bill seems like a paltry gesture for protection of whistleblowers. It was uploaded on the website of Ministry of Personnel, Public Grievances and Pensions for receiving public opinions only after its introduction in Lok-Sabha so that the government can provide shoddy excuse of protecting parliamentary privilege for evading the responsibility to reveal the suggestions received and considered. This will help the government keep a significant stage of law-making away from the public gaze, even while keeping up the pretence of involving the public. The bill clearly falls short of international best practices. Important suggestions made in 179th Report of Law Commission, by 2nd Administrative Reforms Commission and Parliamentary Standing Committee were excluded, public opinions received were ignored. The bill has been passed by Lok-Sabha and transmitted to the Rajya Sabha for concurrence. Unfortunately it was stalled by the opposition on 29th March, 2012 by stating that the bill was highly technical, full of legal jargons and its provisions need further study.

But till any concrete steps are taken in this direction, whistleblowers will continue to be smothered and suppressed in one way or the other. Bill’s predictable ineffectiveness lies in the fact that it is an incoherent piece of legislation, another addition to the seething mass of existing acts, bills and laws unless it is made effective by introducing such changes which actually serve the purpose of the bill. Ergo, it is expected of our government to stop clinging to its chronically flawed notions of governance and act in consonance with the situation since the characteristic of a progressive country is the right to exercise democratic rights and integrity for a dignified human existence not the amount of funds held illegally in swiss accounts.

# Ralph Nader, Peter Petkas, Kate Blackwell: Whistle-blowing, 1972, Bantham Press, page 28
# M.P. Glazer and P.M. Glazer, The Whistle-blowers: Exposing Corruption in Government & Industry, Basic Books, Inc., New York, 1989
# UN Convention Against Corruption see http://www.unodc.org/unodc/en/treaties/CAC/index.html
# Asian Centre for Human Rights, September 2011,
# http://articles.timesofindia.indiatimes.com/2012-02-26/mumbai/31101108_1_rti-activist-shot-vasai-virar-vasai-virar-municipal-corporation
# Time, "Interview: Cynthia Cooper, Sherron Watkins, Coleen Rowley.”. N.p., 2002. Web. 5 May 2012. http://www.time.com/time/magazine/article/0,9171,1003994,00.html
# V.Venkatesan, Restricted Reach: Frontline, September 11, 2010

The  author can be reached at: lipi.thapliyal@legalserviceindia.com

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