Wikipedia defines Whistle-blowing as “The act when a person tells the public or some public authority about an alleged dishonest or illegal activity occurring in a government department, a public or a private organisation or a company.” The reported activity can be a violation of a law, rule, regulation and/or a direct threat to public interest. It can also be a fraud or corruption. It can be internal i.e. to other in the organisation, or externally i.e. to regulators, law enforcement agencies, to media or to a group concerned with the issue.
United States of America was one of the first countries to pass a legislation about whistle-blowing. It was called the United States False Claims Act in 1863. At present, India has no legislation about Whistle blowing. The Law Commission of India, in 2001 had recommended that in order to eliminate corruption, a law to protect whistleblowers was essential. In 2004, in response to a petition filed after the murder of Satyendra Dubey, the Supreme Court directed that some machinery be put in place for acting on complaints from whistleblowers till a law is enacted.
Enter “The Public Interest Disclosure and Protection of Person Making the Disclosure Bill, 2010.”
It is also known as The Whistle-blower Bill. It will protect the whistle blower from any consequences that may arise due to his/her act. The Bill seeks to strike a balance between protecting persons making a public interest disclosure and preventing undue harassment of public officials. Corporate Whistle blowing is not included in this Bill as it will be taken care of by Companies Bill, 2009.
The disclosures can be made to the Central or the State Vigilance Commission. Every complaint has to include the name and address of the complainant. The Commission will not accept or act upon anonymous complaints. This is to make sure that only genuine complaints are reported.
It is the duty of the Vigilance Commission to protect the identity of the complainant and related documents, unless it decides against doing so, or is required by a court to do so. The complainant may also be given protection for this purpose. The Central Government and the Vigilance Commission have to take care that no private individual is harmed in any way. If a public servant is harmed then they have to see to it that he/she is restored back to his old position.
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) wilful 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.”
The definition recommended by the Law Commission was wider and included actions which are unjust, cause undue delay or negligent, leading to waste of public funds.
Public Servant is 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, no public interest disclosure shall be accepted against defence, police and intelligence personnel.”
Victimisation is not defined by the Bill. The Law Commission had proposed that victimisation should include suspension, transfer, dilution of power, adverse entries in the service record and punishments under disciplinary rules.
What procedure is to be followed?
First of all the Vigilance Commission will verify the identity of the complainant. This is done to filter out frivolous complaints which are made only to harass a department or an institution.
Once the identity is verified, the Vigilance Commission will look into the authenticity of the claims in the complaint. If the complaint is found to be genuine then further discrete inquiries will be made.
If the Vigilance Commission wishes, it can ask the head of the department to give an explanation regarding the complaint. Here the head of the department may or may not be told the name of the complainant based on the circumstances. The head of the department is forbidden to disclose the name to anyone.
If the complaint lacks merits then it will be set aside, otherwise the head of the department will take action. Every public authority has to create a machinery to deal with inquiry into disclosures. The machinery shall be supervised by the Competent Authority.
There are a few exception when the complaint cannot be made. They are:
- When the subject matter of the complaint is already decided by a court.
- When a public inquiry has been ordered in that matter.
- When the complaint is registered after 5 years of the commission of the wrong.
- Disclosure of proceeding of the Cabinet is barred if it is likely to affect the sovereignty of India, security of the state, friendly relations with foreign states, public order, decency or morality.
The Bill has laid down penalties for various offences. If the reports are not submitted to the Vigilance Commission then a fine of Rs. 250 per day is imposed till the day the report is submitted. A total of Rs. 50,000 is the highest fine anyone can be made to pay. If the identity of the complainant is revealed due to any negligent or mala fide reasons then penalty will be imprisonment of up to 3 years and a fine of up to Rs. 50,000. If a person knowingly makes a false or misleading disclosure then he/she will be sentenced to up to 2 years imprisonment and a fine of up to Rs. 30,000.
If a public official wants, he can appeal to the High Court with regard to a decision against him within 60 days.
Thus we can see that the Bill is very exhaustive in nature. It is the first of its kind and will definitely be amended and improved upon through practice. There are a few changes that can be made to the Bill.
The power of the Vigilance Commission is very limited. It can only recommend corrective action to the public authority. It cannot force the public department to take action. According to CVC’s data, between 2004 and 2008, there were 946 cases in which the department did not comply with the CVC’s recommendation on penalty.
The name of the complainant should remain with the Vigilance Commission and should not be disclosed under any circumstances. The lesser the number of people who know about the complainant, the safer the complainant will remain.
A time limit should be set within which time the Vigilance Commission has to completely the inquiry. It will help speed up the process and avoid backlog.
There should be provisions which expressly explain the process for protection against victimisation and discrimination.
Student, Gujarat National Law University
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]