Looming threat in blowing the whistle

Context:

• The proposed amendments to the Whistle Blowers Act contradict the very purpose of the Act.

Whistle Blowers Protection Act:

• Whistle Blowers Protection Act, 2011 is an Act in the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices.
• The wrongdoing might take the form of fraud, corruption or mismanagement.
• The Act will also ensure punishment for false or frivolous complaints.
• The Act was approved by the Cabinet of India as part of a drive to eliminate corruption in the country’s bureaucracy and passed by the Lok Sabha on 27 December 2011. The Bill was passed by Rajya Sabha on 21 February 2014 and received the President’s assent on 9 May 2014.

Key features:

• The Act aims to protect people who bring to the notice of the authorities concerned allegations of corruption, misuse of power or commission of a criminal offence against a public servant.
• Every complaint has to include the identity of the complainant.
• The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary.
• The Act penalizes any person who has disclosed the identity of the complainant.

Need for amendments:

• The act covers only central government employees; it does not include state government / private bodies.
• Whistleblowers commonly face retribution in different ways like, harassment, termination, blacklisting, threats and even physical violence. For instance:
• Many Right to Information Act (RTI) activists, including policemen, have been harassed and even murdered for seeking information to promote transparency and accountability in the working of every public authority in India.
• Many face assaults on a regular basis. People seeking information from their gram panchayat and the local administration also face social ostracism.
• The law lacks specific criminal penalties for these types of physical attacks on whistleblowers—and given the number of violent attacks on complainants in the past, this is not a minor concern.
• Most notably, there is penalty of up to two years imprisonment and a fine of up to 20,000 rupees for individuals that bring false or frivolous complaints.
• There is also a 7-year time limit to bring complaints, dating from the time the alleged corrupt practices occurred.
• Countries like the United States, the United Kingdom and Canada define “disclosure” and “victimization” broadly for purposes of their respective whistleblower protection laws; India’s law does not define “victimization” and has a relatively narrow definition for “disclosure.” This again limits the effectiveness of any complainant safeguards.

Whistleblower Protection Act (Amendment) Bill, 2015:

In 2015, the government had introduced a bill in the parliament to amend the 2011 act. The key criticisms of this bill are as follows:

• 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.
• It also puts a restriction on disclosure of any information that could prejudicially affect the interest of sovereignty and integrity of India and good relations with foreign State.
• 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 are of the opinion that the bill has created huge area of exceptions and due to which the state authorities would be out of reach of whistleblowers.
• They also claim that the proposed amendments were drafted without any kind of public consultation and participation.
• The amendment Bill seeks to remove immunity provided to whistle-blowers from prosecution under the draconian Official Secrets Act (OSA) for disclosures made under the Whistleblower Protection law.
• The basic purpose of the WBP Act is to encourage people to report wrongdoing. If whistle-blowers are prosecuted for disclosing information as part of their complaints and not granted immunity from the OSA, the very purpose of the law would be defeated.

The amendment bill in the light of Right to Information Act:

• To bring the Whistle Blowers Protection Act in line with the Right to Information (RTI) Act, the amendment Bill says that, complaints by whistle-blowers containing information which would prejudicially affect the sovereignty, integrity, security or economic interests of the state shall not be inquired into.
• In addition, certain categories of information cannot form a part of the disclosure made by a whistle-blower, unless the information has been obtained under the RTI Act.
• This includes what relates to commercial confidence, trade secrets which would harm the competitive position of a third party, and information held in a fiduciary capacity.
• The amendments ignore the fact that the two laws have completely different objectives. The RTI Act seeks to provide information to people, while the WBP Act provides a mechanism for disclosures to be made to competent authorities within the government to enable inquiry into allegations of corruption and provide protection to whistle-blowers.
• Combining the two laws is inappropriate and would prevent genuine whistle-blowing in several scenarios.

Way Ahead:

• Effective protection of whistleblowers will support an open enterprise culture where employees not only have confidence in reporting but are also aware of the reporting procedures.
• An effective Whistle Blowing Policy will facilitate a transparency among employees.
• The people must be made aware about the act and its usage.
• Educating people is necessary so that they can understand the benefits of disclosing the wrongdoings.
• Incorporating state government / private bodies will widen the scope of anti-corruption.
• Florida, Hawaii, Minnesota and several other states have considered both public and private sector employers, to be included under the whistleblower’s protection acts.
• Individual’s identity shall not be disclosed at any cost until unless they give their consent on it or it is required in the public interest. Such a mechanism will help to ensure robust protection to whistleblowers identity.