Whistleblowing in India

HISTORICAL BACKGROUND:

Taking note of the harassment and victimization suffered by whistleblowers in India, especially by superiors in their very own organizations, on account of disclosing improper conduct / malpractices in the system, the paramount importance of protecting whistleblowers was felt. Upon the request of the then Central Vigilance Commissioner, Mr. N. Vittal in August 1999, the Law Commission of India prepared a report on “Public Interest Disclosure Bill” . A draft Public Interest Disclosure (Protection of Informers) Bill, 2002 was then circulated in January 2003. In November 2003, one Mr. Satyendra Dubey, was murdered after he exposed corrupt practices prevalent in the National Highways Authority of India (NHAI). The incident led to widespread media outrage and impetus for the enactment of a whistleblowers bill. In May 2004, the Government of India, vide a Resolution on Public Interest Disclosure & Protection of Informers, authorized the Central Vigilance Commission (CVC) as the ‘Designated Authority’ to receive written complaints for disclosure of any allegation of corruption or misuse of office and recommend appropriate action. The CVC then issued a Public Notice (through an Office Order) in relation to the said Resolution, which provided the following: • The jurisdiction of the CVC in this behalf would be restricted to any employee of the Central Government or of any corporation established by or under a Central Act, government companies, societies or local authorities owned or controlled by the Central Government. Personnel employed by the State Governments and activities of the State Governments or its Corporations etc. will not come under the purview of the CVC. • The CVC will have the responsibility of keeping the identity of the complainant secret. • General public was informed that any complaint, which is to be made, under the Resolution, should comply with those aspects that were mentioned in the Notice. This Office Order and the Public Notice are still in force. In 2006 however, the erstwhile draft Public Interest Disclosure Bill was updated and the same was renamed as “The Whistleblowers (Protection in Public Interest Disclosures) Bill, 2006. The said Bill was introduced in the Rajya Sabha (Upper House of the Parliament of India) on March 3, 2006. Over the last few years, the Bill has undergone several changes based on comments and suggestions received. The latest version of the Bill, styled as “The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010” (“the Bill”), was introduced in the Lok Sabha (House of the People), Parliament of India on August 26, 2010. The revised Bill has several new provisions which were added with a view to make a robust legislation on the subject. The Bill is yet to be notified.

A BRIEF SUMMARY OF THE BILL AND ITS PROVISIONS:

Purpose: • To establish a mechanism to receive complaints relating to disclosure on any allegations of corruption or wilful misuse of power or wilful misuse of discretion against any public servant • To inquire / cause an inquiry into such disclosure • To provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith or incidental thereto. Coming into Force: • The Act, “Public Interest Disclosure and Protection to Persons Making the Disclosures Act, 2010” shall come into force on such date as the Central Government may, by Notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of the Act . Public Interest Disclosure – What is: • Public Interest Disclosure means a complaint made by any person relating to – (i) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988; (ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss if caused to the Government or demonstrable gain accrues to a public servant; (iii) an attempt to commit or commission of a criminal offences by a public servant. The complaint has to be made in writing or electronic mail / electronic mail message, against the public servant . Public Servant – Who is: • Public Servant means any employee of the Central or State Governments, or any corporations established by or under any Central / State Act, any government companies, societies or local authorities owned or controlled by the Central / State Governments and such other categories of employees as may be notified by the Central / State Governments from time to time . Public Interest Disclosure – Who can make and to whom: • Any public servant or any other person including any non-governmental organization may make a public interest disclosure before the Competent Authority . • The Competent Authority, in relation to any public servant employed with the Central Government or any Central Government Authority, is the Central Vigilance Commission or any such authority that the Central Government specifies by way of a Notification . In the case of State Government employees, the Competent Authority is the State Vigilance Commissioner or any other authority as specified by the State Government by way of a Notification . Requirements of Disclosure: • It is necessary that any disclosure made under the Act is made in good faith and the person making the disclosure is required to make a personal declaration stating that he / she has reasonable belief that the information disclosed by him / her and the allegation contained therein is substantially true . • In order than action is taken on a public interest disclosure, it is necessary that the identity of the complainant / public servant is accurately mentioned in the complaint . Inquiry in relation to Public Interest Disclosure: • After ascertaining from the complainant / public servant whether he / she was the person / public servant who made the complaint, the Competent Authority shall conceal the identity of the complainant unless the complainant has himself / herself revealed his / her identity to any other office or authority while making the disclosure in the complaint or otherwise . • An inquiry into the disclosure shall then be made by the Competent Authority. Powers of the Competent Authority: • For the purposes of an inquiry under the Act, the Competent Authority has been granted the powers of a civil court (while trying a suit) in respect of the following matters : o Summoning and enforcing the attendance of any person and examining him / her on oath; o Requiring the discovery and production of any document; o Receiving evidence on affidavits; o Requisitioning any public record or copy of it from any court / office; o Issuing commissions for the examination of witnesses or documents; o Such other matters as may be prescribed. • Proceedings before the Competent Authority shall be deemed to be judicial proceedings. While exercising powers of a Civil Court, the Competent Authority has to take such steps as to ensure that the identity of the complainant is not revealed or compromised . Protection to the persons making the Disclosure: • The Central Government shall ensure that no person / public servant who makes a disclosure under the Act is victimized by initiation of any proceeding or otherwise merely on the ground that such person / public servant has made a disclosure or rendered assistance in an inquiry under the Act . • If any person is being victimized or is likely to be victimized, he / she may file an application to the Competent Authority seeking redress in the matter. The Competent Authority may then issue suitable directions for protection of such person. Such directions can be issued to the concerned public servant, or public authority, any other government authority including the police . Offences and Penalties: • If the officials who are required to aid / assist an inquiry into the public interest disclosure upon the request of the Competent Authority, obstruct the inquiry by delaying the furnishing of a report on the matter which is requested for by the Competent Authority, such official(s) shall be liable to pay a penalty which may extend to Rupees Two Hundred and Fifty for each day of delay. However, the total amount of the penalty shall not exceed Rupees Fifty Thousand . • The act of negligently or mala fidely revealing the identity of a complainant is punishable with imprisonment for a term which may extend up to three years and also to fine which may extend to Rupees Fifty Thousand • Making a mala fide, incorrect, false or misleading disclosure is punishable with imprisonment for a term which may extend up to Fifty Thousand Rupees. SOME GENERAL REMARKS: While the Bill is a big leap forward in relation to protection of whistleblowers, there still are some ambiguities that require mending. For instance, while the Bill proposes to protect the identities of those who make a public interest disclosure, protection to such complainants is proposed to be provided only after a complaint or a query is filed under the Right to Information Act, 2005 in which the complainant / applicant must disclose his / her identity. Such protection would not only be too belated but also no protection at all since the risk of information leak may be high. It would be interesting to see how the Competent Authority handles this issue. It is also felt that there aren’t many robust provisions to deal with the issue of accountability of the Competent Authority in the process of conducting an inquiry. The author sincerely hopes that such loopholes will be plugged before the Bill is finally notified as a statute.