Whistle Blowers Act: Review of Legislation, Proposed Amendments and Issues

What are the key objectives of the proposed amendments to the Whistle Blowers Act, 2011? Do these changes defeat the very purpose of the legislation and make it even more irrelevant?

The Whistle Blowers Protection Act, 2011 was passed in 2011 in Lok Sabha and then 2014 in Rajya Sabha. It received president’s assent on May 9, 2014. This legislation was enacted to provide a mechanism to investigate the corruption allegations, misuse of power by bureaucrats and also protect the person who exposes such corruption and misuse of power. This act also ensures punishment for frivolous complaints. Before we discuss various issues, lets have a look on main features of this act:

Salient Features of the Act

Applicability

This act is applicable to entire India except Jammu & Kashmir.  This act is NOT applicable to the Special Protection Group (SPG) personnel and officers.

Competent Authority

This act allows any person, including a public servant, to make to make a “public interest disclosure” before a “competent authority”. Here, the law has elaborately defined various competent authorities, for example:

• Competent authority to complaint against union minister is Prime Minister
• Competent authorities for MPs other than Ministers are Lok Sabha Speaker (in case of Lok Sabha member) and Chairman of Rajya Sabha (in case of Rajya Sabha member).
• Competent authority for ministers in states and UTs (where there is a CM), is a CM.
• Competent authority for MLA and MLCs (other than ministers) is Speaker of Assembly and Chairman of MLCs.

The above is a small list. The law has enlisted different competent authorities to whom a person can make public interest disclosures. These include Supreme Court, High Courts, CVC, State Vigilance commissions etc.

Public Interest, Identity of the complainant and grounds of inquiry

The law has made specific provisions for requirement of “public interest disclosure”. It says any person in good faith can make a complaint, provided such complain has some public interest. The law does not allow anonymous complains and clearly states that no action will be taken by competent authority if the complainant does not establish his identity.

The identity of the complainant can be opened by the “competent authority” to concerned department or organization but the head of that department or organization can not reveal the identity of complainant further under any circumstances. Further, the competent authority can close the matter if it does not get enough ground for inquiry. Further, if the complain is related to something already under investigation under the Public Servants Inquiries Act, 1850 or Commission of Inquiry Act, 1952, there shall be no further action. Lastly, the maximum time period for making complain is seven years.

Whistle Blower Act and Official Secrets Act, 1923

The Whistle Blower act has overridden the Official Secrets act, 1923 which implies that the complain will not be violating of the later. However, such information should not jeopardize the sovereignty, security and public order of the country.

Protection of Whistle Blowers

The law has provided a mechanism against victimization of the complainant. It says that upon victimization, the complainant can make application to competent authority which in turn would order appropriate public authority (for example police) to protect the complainant.

Penalties

The law provides punishments for frivolous and false complaints as  imprisonment up to two years and fine up to Rs.30,000. The penalty for revealing identity of the complainant includes fine up to Rs.50,000 and jail up to five years.

Annual Reports

The Competent Authority is needed to create a consolidated Annual Report of the performance of its activities and send it to central or state government, as the case may be.

Performance of the Act and Criticism

The law was created after years of efforts and deliberations but the final bill did not went through public consultations. It is called a “paper tiger” because despite having good intent, has not been able to stop the murders of whistle blowers. Further, some of the specific criticism of the law are as follows:

• It covers only government employees. Does not cover private/ corporate whistle blowers.
• It does not provide any incentives for whistle blowing.
• Powers of competent authorities are limited.
• Victimization is neither properly defined nor covered.

Whistleblower Protection Act (Amendment) Bill, 2015

In the above discussion, we have studied that the Whistle Blowers Act overrides the Official Secretes Act, 1923 and allows the complainant to make revelations before competent authority even if they are violative of the later act but not jeopardizing sovereignty of the nation. The current government had moved a bill in 2015 to make some changes into these overriding provisions of the act. This bill was passed in Rajya Sabha and is pending in Lok Sabha currently.  The key objective of this bill, is that whistleblowers should not be allowed to reveal any documents classified under the Official Secrets Act of 1923, even if the purpose is to disclose acts of corruption, misuse of power or criminal activities. Further, it also puts a bar on disclosure of any information that could prejudicially affect the interest of sovereignty and integrity of India, friendly relations with foreign State.

Thus, the bill puts bars on the activity of whistle blowing in such a way that only some information obtained through RTI etc. has been kept in its ambit. The bill says that the whistleblowers would be entitled to official protection only if these conditions are met; and they could face action if they are not.

The bill has come under heavy criticism from RTI activists and anti-corruption crusaders. They say that the bill has created huge area of exceptions and due to this, the state authorities would be out of reach of whistle blowers. They also claim that the proposed amendments were drafted without any kind of public consultation and participation. It is also said that if the amendments to Whistle blowers Act, 2011 tabled in the Parliament is passed, there may be no one left to protect. These amendments will increase the insecurity amongst the whistle blower as their life will be endangered due to certain changes in the act. This is totally against the spirit of the act and may cause the dilution of the very spirit of the act.