THE WHISTLE BLOWERS PROTECTION ( AMENDEMENT BILL) 2015

MAYA.S.KUMAR ASSISTANT PROFESSOR DR. AMBEDKAR GLOBAL LAW INSTITUTE, TIRUPATI

CORRUPTION Corruption =(Monopoly)+ (Discretion)-Accountability -Robert klitgard

Corruption drains resources from the local and the national constituencies causing an uncontrollable use in the public expenditure and a distress in the justness and the efficiency of the democratic institutions and it’s a policy contributor to poverty and injustice

Corruption which becomes a plague running the environment and often goes unchallenged when the people are frightened to raise voice about it.

Individuals reporting corruption are facing numerous hurdles including verbal hurts , physical violence and ostracism. Confronted to this many potential people who want to spaek and react against the social evil choose to remain silent

WHISTLEBLOWING:- ( Blow Against Corruption) Whistleblowing can be defined as an act of disclosure of

information by people within or outside an organisation and that which is not otherwise accessible to public , general activities of the organisation that are against the public interest . Whistleblowing is a channel of uneviling information about illegal or unethical activities, thus helping to take a positive steps towards reduction of corruption.

There is a close connection between the public servant willingness to disclose corruption and the protection given to his/her identity. If adequate statutory protection is granted there is every likelihood that the govt. would be able to get substantial information about corruption

Whistleblower can tackle the cancerous growth of corruption .

“I am neither a hero nor a Traitor but I am an american -Edward Snowden

U.S Civic Ralph Nader coined the phrase in the early 1970’s to avoid the negative connotations found in other words such as informers and snitches. The origin of the term is from the practice of English cops who would blow the whistle when they saw the crime being commited (carico 2004)

Whistleblower help to play a role in keeping the power in check , oneside whistleblower is the ultimate act of justice whereas on the other hand it can be seen as an ultimate betrayal

Edward Snowden , the U.S famous Whistleblower is of the view that injustice anywhere is a threat to justice everywhere.

International Convention On Whistleblower Protection:- United Nations Convention Against Corruption

(UNCAC)- Article-8,13 & 33 2009, OECD, Recommendation of the Council for

Further Combating Bribery of Foreign Public Officials in International Business Transaction( Anti-Bribery Recommendation)- section 9iii and section X.CV

OECD 1988, Recommendation on Improving Ethical Conduct in Public Service – Principle 4

Council of Europe Civil and Criminal Law Convention On Corruption – Article 9 & Article 22

Inter American Convention against Corruption (Article III(8) ).

African Union convention on Prevention and Combating Corruption – Article 5(6)

Legislation Across The Countries:-United States Of America:A. Whistleblowers Protection Act, 1989B. The Sarbanes –Oxley Act(SOX)C. False Claims Act United Kingdom :A. The Public Interest Disclosure Act ,1998Where as the Whistleblower is considered as a negative

phenomenon and is discouraged in Australia , Germany, Malaysia, and

South- Africa .They considered as a sin to tattle on colleagues. Some considered them as Heroes (selfless Martyrs) and others as Traitors (Snitches)

Whistleblowers lost their Life in India

Name of the whistleblower

Designation

Murdered by

year case state

Shanmughan Manjunath

Marketting Manager in IOC

Oil Mafia 2005 Check Petrol Adulteration

U.P

Narendra kumar

I.P.S Morena 2009

Mining Mafia

March 2012

Case relating to Corruption Mining

M.P

Sanjiv Bhat I.P.S Gujarat

Politicians

Nov,2013

2002,Gujarat roit

Gujarat

Jayasreee Housewife Govt. officials of taking bribery & kickbacks

Karnataka

Lalita Mehta

Indian RTI activist

No of persons

14th May

Expose scams in National Rural Employement Guarantee ACT

Jharkand

Shashindhar Mishra

Indian RTI activist

Unknown assailments

14th feb 2010

Expose Corruption at the panchayat and Block level

Bihar

Avijit Misra Indian Army Colonel From W.B

Unknown

April 2012

Blowing the whistle over the protection in the unit

W.B

LEGAL HISTORY IN INDIA :- In ancient India the Whistleblower concept was in

existence and kautilya was the one who proposed it and legal form it took place in the year 1993

A bill for the protection of whistleblower was first initiated in the year 1993 by N.Vittal ( then the chief Vigilance Commissioner)

In December 2001 Law Commission recommended in order to eliminate corruption and a law to protect the whistleblowers and submitted its report on Public Interest Disclosure Bill to Arun Jaitley

In january 2003 the Draft of the Public Interest Disclosure(Protection of Informers ) bill 2002 was circulated

Satyendra Dubey outrage led to the demand of the enactement of the Whistleblower’s Bill

Satyendra Dubey Case:-A 31year old IIT-Kanpur Civil Engineering Graduate,

Employee of the National Highway Authority Of IndiaAssigned prime ministers pet project – the Golden

Quadilateral to connect the four corners of India (Delhi, Mumbai,Kolkatta & Chennai)

Was posted at Koderma, Jharkhand as project director and would be in charge of relaesing funds for the under construction highway .Rampant subletting to petty contractors lacked the technical ability to work on this mega project.

Everyone from the govt. engineers to M.N.C companies loot of the public money, wrote a letter to his boss NHAI project Directors S.K Soni and Satish Kapoor there was no action, wrote a letter to Prime Minister . IN 2003 Dubey was found dead in Gaya

In 2004 Supreme Court directed that the machinery be put in a place for acting on the complainants from the Whistleblowers till a law is enacted. Govt of India notified a resolution to enable Central Vigilance Commission .

In 2006 The Public Service Bill 2006 (draft) stated that with in 6 months of the commencement of the act , the Govt must put in to the place mechanism to provide protection to the Whistleblowers

In 2007, the report of the 2nd Administrative Reform Commission also recommend that a specific law be enacted to protect the Whistleblowers.

In August 2010, the Public Interest Disclosure and Protection of person making the Disclosure Bill,2010 was introduced in the Loksabha . The bill was approved by the cabinet in june 2011.

Public Interest Disclosure and Protection of Persons making the Disclosure Bill 2010 was renamed as the Whistleblower Protection Bill 2011 by Standing committee on Personnel, Public Grievances, Law and Justices

Whistleblower Protection 2011 was passed on loksabha on 27th december 2011, Bill was introduced in Rajyasabha on 21st feb 2014, received the presidents assent on 9th May 2014

30 sections divided in to Seven chapters. In the era of transparency , Accountability and

participation in the governance of the country , we need a system, a society where a person can do it’s duty with out fear and head held high .

The Whistleblower Protections Act 2011

The act of the parliament of india which provides the mechanisms to investigate alleged corruption and misuse of power by the public servant and also protect anyone who exposes alleged wrong doing in the government bodies , projects and offices . The wrong doing may take the form of fraud , corruption or mismanagement . Act was approved by the Cabinet of India as a part of drive to eliminate corruption in the country’s bureaucracy

Legislation to address Corruption in Public Office , enforce standards and accountability in Judiciary and protect the Whistleblower

The complaints under this act can be made by any public servant, any other persons and NGO’s but there is no provision for anonymous complaints

What can you blow the whistle about:-Under this act you can file Complaints against

public servants (except judges of SC & HC)relating to the actual commission or attempt to commit ,-

1. An offence under the Prevention of Corruption Act 1988;

2. Wilful misuse of power or willful misuse of Discretion by virtue of which demonstrable loss is caused to the Govt or demonstrable wrongful gain accrues to the public servant (public servant as defined under PCA) or to any third party;

3. A criminal offence.

Indias Whistle blowers Protection Act 2011:- Chapter I(section 1 -3) along with the terms define

“competent authority”, “disclosure” and the “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 the initiation by any proceedings or otherwise whereas the contemporary foreign legislation in U.S.A, U.K and Canada provides an extensive definition of the term. Disclosure is a complaint relating to the commision or an attempt to commit a criminal offences , offences under Prevention of Corruption Act 1988 and wilful misuse of power or discretion causing either demonstrable loss to the govt. or demonstrable gain to the public servant or the third party.

Chapter II (section -4 public interest disclosure requirements) lays down that the requirement of the public interest disclosure and it’s exception “public interest Disclosure” is any disclosure made under this act. Only specific exception is special protection group. No action will be taken on any anonymous complaint irrespective of significance of disclosure.

Chapter III( section 5 &6) prescribes the manner in which inquiry regarding disclosure should be conducted. It has given the discretion of revealing the identity of the complainant to the competent authority for the purpose of seeking comments , explanations, reportsfrom the head of the concerned departement or organization. But the head of the department cannot reveal the identity of the complainant under any circumstances . In sufficient grounds for inquiry will result in closure of the matter by the competent authority. Competent authority shall also not take note of any disclosure to the extent that it seeks to re-open any issue or case already settled. It shall not entertain any disclosure regarding which the inquiry has already been launched under Public Servants Inquiry Act 1850 and the Commission of the Inquiry act 1952. Timeperiod for the disclosure is 5 to 7 years.

Primary regarding section 6(4) suggests that the act has been given an overriding effect over Official Secrets Act ,1923 which will prevent public servant from taking the shelter of obligation to maintain secrecy under the provision 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 , soverignity of the country its security and public order.

Chapter 5( section 11-14,safeguard against victimisation) lays down the provision for the protection of whistleblower against victimization due to disclosure and states that a competent authority may on receipt of the application regarding victimization or its apprehension direct the concerned public authority to direct and prevent victimization. Protection is extended to complainant , pubic servant, witnesses and other persons rendering assistance in inquiry under section11 . It is important to note that the act distinguishes safeguard against the victimization

Sixth chapter( section 15 -22, offences &penalties) prescribes penalties for various offences including penalty for frivilous disclosure that is imprisonment up to two years and fine up to 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 forwarded it to the central govt or state govt under section 22 , chapter seven.(section 23 -31, Miscellenious)

A Comparison with the International Standard :-COVERED PARTIALLY

COVEREDNOT COVERED

Public interest Disclosure must include wrong doings commited by Ministers except P.M

Provide the whistleblower a safe alternative to silence.

Public interst must cover wrong doing in the private sctor

Whistleblowers in the public sector including the members of the armed forces and intelligence service and employees of private sector

Public interest Disclosure must include all bonafide warnings of various types of unlawful acts including all serious Human Rights Violation

Issues in employement , law relating to the protection of Whistleblower against retaliatory action( not codified)

The whistleblowers identity must not be disclosed with out his/her identity

Issues in criminal law and procedure for protecting the whistle blower and other witnesses against criminal prosecution for defamation

Issue in relation to media law –protection of journalistic sources must be codified

Consequences for acquisition made in bad faith

Whistle blowers must be informed about the progress of investigation and provide a final report copy and the recommendation of corrective action

Whistleblower must be provided with Counseling and Guidance

The law must be monitored and evaluated at regular intervals by the independent bodies

The whistle blower believing it to be true disclose the fact in good faith later on investigation it turned out to be false, but no action to be taken on.

The WhistleBlowers Protection( Amendement) Bill, 2015:-The Whistleblowers Protection (Amendement) bill was

taken up for consideration and parliament, the amendements agreed with a view to strengthening the safeguards against Disclosure which may prejudicially affect the soverignity and integrity of the country, security of the state etc and to remove certain drafting errors and errors in the cross referencing of clauses where formulated. However since it become pertinent to amend the said act. The salient features of the bill are:-

To ensure that the act incorporate necessary provisions aimed at strengthening safeguard against the disclosure which may prejudicially affect the soverignity &/integrity of the country (section 4,5 &8)

Amendement in section 4: disclose the prejudicially affecting the sovereignty and integrity of India ,the security, strategy, the scientific or economic interest of the state, relation with the foreign state or lead to incitement of an offence etc these amendments have been modeled on the provisions of subsection (1) of section 8 of the Right To Information act, 2005.

Amendement in section 5 : provides that the competent authority shall not inquire in to any public interest disclosure which involves information of the nature specified in the amended section 4.

Amendement in section 8: provides that no person shall be required to furnish any information or answer any question or produce any document or render any other assistance in an inquiry under the said act if the same is likely to result in the disclosure of any information of the nature specified in the amended section 4

Amendement to correct drafting errors in the said act have also been proposed.

Short comings:- Bill does not permit a whistleblower to complain about

acts of corruption, wilful abuse of power or wilful misue of discretion or offences commited by the Primeminister (centre) or chief ministers (in the states)

Lokpal (National Level Apex Anti- corruption and Grievance Redress Agency) establlished under The Lokpal and Lokayuktaa Act 2013 is not menitioned as a competent authority.

Under the Lokpal and Lokayukta Act complaints of corruption allegedly commited by officers of the three elite All India Services must be made to the Lokpal, The C.V.C cannot inquire in to such complaints without the direction of lokpal

The bill does not recognise whistleblowing against Humanrights violations and unlawful acts affecting the Environment , Public Health and Safety as valid

The bill does not specify for inquiring in to complaints of corruption or offences done by the lower judiciary as the inquiry procedure which will be adopter by other competent authority which is in chapter 3 of the bill is not suitable for the lower judiciary, Inquiring in to the actions of corruptions of judges and judicial officers require the permission of the high court

There is no mention of the case if the inquiry did not finish with in 3 months

The whistleblower does not permit a whistleblowerto publicise the allegations of wrong doingand the related facts through the media when the authorities fail to take adequate action on a complaint

Conclusion:- India’s Whistleblowers Act is unique in the world as it

recognises any individual or any N.G.O as a whistleblower, this means RTI activist, anti-corruption crusades and Human Right Defenders can be potential Whistleblowers

But The WhistleBlowers Protection Act,2011 and The WhistleBlowers Protection (Amendment ) Bill 2015 does not do adequate justice to an important principle that defines Indias vision as a polity aspiring to become a responsible democracy in the world

National motto :-” Sathyameva Jayate” which translates as “ truth alone triumphs “. For attaining this principle cooruption should be washed away.

whistleBlower enables to make disclosure of wrong doing and protecting them are the stated principles of bill but the national motto cannot be realized unless the laccunae is corrected, and india needs a much stronger law to protect WhistleBlower.

Whistleblowing could be effective only if it is followed seriously and sincerely

THINK :-

“ Our Lives begin to end the day we become silent about the things that matters “.

Martin Luther King Jr