India Law Journal

Legal Articles

The Whistleblower Protection Bill, 2011: A Review Saksham Dwivedi and Prachi Agrawal review and analyze the Whistleblower Protection Bill 2011.



Introduction The Whistleblower Protection Bill, 2011 (hereinafter referred to as “the Bill”) is a novel legislation that provides for the public interest disclosure and protection to whistle blowers.Whistle blowing is the act of disclosing information by an employee or any stakeholder about an illegal or unethical conduct within an organization. Oxford dictionary defines a whistleblower as a person who informs about a person or organization engaged in an illicit activity.TheWhistleblower ProtectionBill is a bill that seeks 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 and incidental thereto. The Law Commission of India in 2001 had recommended that in order to eliminate corruption, a law to protect whistleblowers was essential. It had drafted a Bill too on this issue . In 2004, in response to a petition filed after the infamous murder of NHAI Official SatyendraDubey, the Supreme Court directed that 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 willful misuse of power by a public servant. It also provides safeguards against victimization of the person making the complaint. Objective and Reasons Corruption is a social evil which prevents proper and balanced social growth and economic development. One of the impediments felt in eliminating corruption in the Government and the public sector undertakings is lack of adequate protection to the complainants reporting the corruption or willful misuse of power or willful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant. It has been felt that the persons who report the corruption or willful misuse of power or willful misuse of discretion which cause demonstrable loss to the Government or commission of a criminal offence by a public servant need statutory protection as protection given to them by the said Resolution of the Government of India of 2004 would not suffice. In view of the position stated in the forgoing paragraphs, it was decided to enact a separate legislation to provide adequate protection to the persons reporting corruption or willful misuse of power or discretion which causes loss to the Government or who disclose the commission of a criminal offence by a public servant. Furthermore, it aims at providing the procedure to inquire into such disclosure and to provide adequate safeguards against victimization of the whistle-blowers and persons reporting matters regarding the corruption by a public servant punishment for revealing the identity of a complainant, negligently or malafidely and also to those who file false or frivolous complaints. Features of the Bill Public Interest Disclosure The Bill, under section 3, provides that any public servant or any other person including a non-governmental organization may make a public interest disclosure to a Competent Authority i.e. the Central or State Vigilance Commission. “Disclosure” has been 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) willful 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” has been defined as 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, the bill restricts the public interest disclosures accepted against defence, police and intelligence personnel. Furthermore, each disclosure shall be accompanied by full particulars and supporting documents. The Vigilance Commission is not to entertain anonymous complaints. Procedure of Inquiry The Bill, under section 6 provides for the procedure of inquiry. The Vigilance Commission, at first, should ascertain the identity of the complainant and has to protect such identity unless the complainant has revealed it to any other authority. It shall then decide whether the matter needs to be investigated based on the disclosure or after making discreet inquiries. On the decision of the investigation, it should seek an explanation from the head of the concerned department, office, or as the case maybe. The Commission has to protect the identity of the complainant to the head of the organisation or department unless itbecomes imminently necessary to do so. Even then, the head of the organisation cannot reveal the identity of the complainant. After conducting the inquiry, if the commission feels that there is no substantial matter or merit in the case, it shall close the case or if the inquiry substantiates allegation of corruption or misuse of power, it shall recommend certain measures to the public authority within the jurisdiction of the Commission. The bill also provides or the measures to be taken such as it can initiate proceedings against the concerned public servant or it can take steps to redress the loss that has been caused to the government. It can also recommend the initiation of criminal proceedings against the official or necessary corrective measure. Other than these, it can take any other action which is imminent for the purpose of the Act. Exemption from Inquiry The bill exempts certain matter under section 11 from inquiry of the Vigilance Commission such as when it has been decided by a Court or Tribunal, if a public inquiry has been ordered, or if the complaint is made five years after the action. The Bill also 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 which has to be certified by the Secretary to the State or Central Government. Safeguards for Persons Making Disclosure The name of the Bill itself makes it very clear that the purpose of this act is the protection of the persons who make public interest disclosure or have assisted in such matters from possible victimization or harassment and the Central Government has to ensure such protection . The Commission has been empowered to give proper direction to the concerned authorities for the protection of complainant or witness either on an application by the complainant or based on its own information. It can also direct that the public servant who made the disclosure may be restored to his previous position .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. Furthermore, the Commission is empowered to pass interim orders to prevent any ac of corruption continuing during inquiry. Penalties The Bill,under section 16, lays down that for not furnishing reports to the Vigilance Commission, a fine of up to Rs 250 shall be imposed for each day till the report is submitted. The total penalty amount however cannot exceed Rs 50,000. The penalty for revealing the identity of complainant negligently or due to mala fide reasons, the penalty is imprisonment for up to 3 years and a fine of up to Rs 50,000. When a person knowingly makes false or misleading disclosures with mala fide intentions, the penalty is imprisonment up to 2 years and a fine of up to 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. Flaws, recommendations and conclusion While the Government of India has vowed to curb corruption, its methods have not yet been testimonial to its declaration. No doubt, the introduction of this bill is a welcome step towards the fight against corruption and protection of those who provide for the public interest disclosure but the first step is itself suffering from various deficiencies and flaws. The Bill provides that the Competent Authority shall not investigate,(i) any disclosure which is made after the expiry of twelve monthsfrom the date on which the action complained against becomesknown to the complainant; and(ii) any disclosure involving an allegation, if the complaint is madeafter the expiry of five years from the date on which the actioncomplained against is alleged to have taken place. 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 thecomplainant had come to know of the disclosure within a period of twelvemonths or not and whether the date of commission of offence was withina period of five years or not,rather than the merits of the case. On the contrary, it is required that the cases of corruption be investigated on the sole ground of merit and it should not make any difference whether the complainant had come to know of the disclosure within a period of twelve months or not. A case of corruption does not become pardonable after five years. It is high time that the government takes a serious note of the noble fight against corruption. Furthermore, it is a matter of grave concern that an exception has been created in favor 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 favor 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. This bill aims at tackling corruption and thus, there seems no reasonable excuse for such outright exemptions. However, certain matters such as those in relation of national security and others may be exempted for obvious reasons. Also, this bill exempts the Private Sector but considering the recent cases like the Satyam fraud case, the Indian Premiere League scandal, etc. it seems only just and reasonable that the same be brought within the purview of this legislation along with the various NGOs. Corruption in higher judiciary and the various levels of the government i.e. the ministries, regulatory authorities etc is growing out of proportion. Thus, it is of utmost necessity that the council of ministers, judges of the higher judiciary and others be brought within the ambit of this bill. Another important aspect is regarding the efficacy of the CVC/SVC being the sole authority to receive the disclosure.Thisseems absurd considering the vast stretches of this country. Thus, it is necessary that a smooth and convenient system for the receipt of the various complaints be formulated instead of the authorities being at the national or state capital only. However, it is pertinent to note here that the formulation of such system must not weaken the system by creating loopholes so that the identity of victim is protected for sure. The Bill provides for receiving complaints even through electronic method which is quite necessary in modern times. However, the use of electronic methods may not be so safe for the whistleblower and thus it is important that stringent rules and regulations be framed in this regard such that the identity of the whistleblower is kept secret at any cost. An absence of a fool proof mechanism in this respect would definitely deter prospective complainants due to fear of victimization which would then defeat the very object of this law. Another suggestion would be that an anonymous complaint should not be rejected on the sole ground of anonymity in a case where the facts mentioned in the case and various supporting documents provide for a prima faciecase. An important recommendation in this regard is that the identity of the complainant should not be revealed even to the head of department concerned without the complainant’s consent as the protection of identity of the complainant is pivotal for the successful implementation of this statute. Another observation is that the main intention of the complainant while making a disclosure is the protection of public interest and undue burden should not be put on the person for providing substantial proof to support his/her case. It would be unreasonable to expect an ordinary citizen who is at the receiving end of the minimal resources and the sufferer of corruption to provide sufficient proof to substantiate his/her complaint. It is suggested that the Competent Authority should take reasonable steps so that when a prime facie case is made out, he should be able to follow up the complaint to its own logical conclusion. In India, we find that there is not absence of statutes or proper laws in our country rather the effective execution and implementation of such laws. The Right to Information Act 2005 has been quite successful in India mainly due to the time bound limitations on the officials to provide the information. Thus, it is essential for this bill to follow the same lead so as to have a proper implementation. Thus, a particular time limit should be provided within which the Competent Authority has to complete the investigation. And it could also be provided that if the time period is to be extended, it cannot go beyond a certain point. This bill, however, does not provide any rule in case of non-adherence to the recommendation of the Competent Authority. In absence of such provision, the implementation of the recommendation cannot be ensured. If such a provision is missing, then one excuse or other defeating the very objective of this legislation will definitely delay the implementation. Thus, it becomes necessary that a proper mechanism be ensured so that direction of the Competent Authority is not avoided to protect the wrong doers. Also, this bill empowers the Competent Authority to recommend initiation of criminal proceedings under relevant provisions and considering the fact the there is no limitation period under our criminal system, the statutory time limit of five years be dissolved. Further, limiting cases older than five years doesnot sound well even on the ground the relevant records may not be available. It is of general practice that records are properly kept for much longer period than of five years. Another important aspect is that the Bill does not define victimization thus leaving a gray area which could definitely be exploited for the benefit of those in power. An important feature of any law is the faith of the people in that law. In this case, an effective mechanism to ensure protection of life, liberty and property of complainant will be proportional to the faith of the people in our system that strives to ensure accountability and transparency. In this bill, the onus to protect the whistleblower is on the central government. However, this poses a serious problem in a federal set up like India because it cannot be possible for the central government alone to provide for protection of employees of the state government and the state government will have to ensure the protection in such cases. Another important deterrence against whistle blowing may emerge in the form of quantum of punishment for frivolous or mala fide complaints. While it is necessary that such complaints be punished, the possibility of exploiting this provision for the harassment of the innocent whistleblowers cannot be avoided. In cases where the accused is all powerful, this provision will have a great deterrent effect on the public. Thus, it is of imminent necessity that the quantum of punishment be substantially reduced. Also, the Competent Authority should exercise great caution while labeling a complaint as frivolous or mala fide. It cannot be termed so merely on the ground that the allegations are not proved beyond reasonable doubt. The focus has to be on the intention and not on the outcome. Another important recommendation is that the word ‘recommendation’ of the Competent Authority be replaced by ‘directions’ such as to provide greater emphasis. Furthermore, the establishment of proper and special courts for this specific law will be a great supplement to this enactment. It is true that corruption cannot be totally driven out of any society but it is also true that proper laws and effective implementation of such laws will definitely reduce the ever rising levels of corruption. The Whistleblower Protection Bill, 2011, in reality, seems to be a knee jerk reaction to the various gruesome and cruel cases such as Satyendra Dubey murder case where Mr. Satyendra Dubey, a project director at the National Highways Authority of India (NHAI) was murdered after fighting corruption in the Golden Quadrilateral highway construction project. Similar to this was the Manjunath case in which Mr. Shanmughan Manjunath, an Indian Oil Corporation employee was brutally murdered by the oil mafias in 2005 when he tried to check petrol adulteration in Uttar Pradesh. There have been various other cases of whistleblower victimization which have shocked the conscience of the society at large and led to huge public outcry. Unless the above recommendations are properly introduced in this legislation, it will be not be able to achieve the object of this Bill. As on 1st September 2013, The Bill is still pending even though it has been passed by the Lok Sabha. The lack of public debate on this Bill is itself evident of the attitude of the government as it is customary that a new piece of legislation is sent to the state governments and views and opinions of the public are also invited, which has not been done in this case. It is time that the government takes a tough stance against rising corruption.
SAKSHAM DWIVEDI & PRACHI AGRAWAL are law students pursuing B.A. LLB (Hons.) from Chanakya National Law University, Patna. They may be reached at sakshamdwivedi@gmail.com and prachi.agr03@gmail.com.

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