Whistle Blower Bill, 2015

Who is a Whistleblower?
Whistleblower (whistle-blower or  whistle blower)is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public.
What is WB Protection Act 2011?
WBPA of 2011 plans to trace alleged acts of corruption and misuse of power by public servants, along with protecting the people who report such activities.
The recent amendments have been brought about to address concerns relating to
national security. It would strengthen the safeguards against disclosures which may prejudicially affect the sovereignty and integrity of the country, security, strategic, scientific or economic interest of the state, relations with a foreign state or leads to incitement of an offence.
The salient features of act include
  1. Any public servant or any other person including a non-governmental organization may make such a disclosure to the CVC
  2. Every complaint has to include the identity of the complainant.
  3. The VC shall not disclose the identity of the complainant except to the head of the department if he deems it necessary. penalizes any person who has disclosed the identity of the complainant.
  4. Prescribes penalties for knowingly making false complaints.
Some of the limitations with the act include
  1. The power of CVC is limited to making recommendations and does not have any power to impose penalties
  2. Non admission of anonymous complaints
  3. No provisions for penalties for victimization of complainant
Issues with amendment:
  1. The “national security” related grounds are so broad that a public authority may connect any whistle-blower complaint to these interests and prevent competent authorities like the CVC from inquiring into it. empower the Government to frustrate inquiry into a whistle-blower complaint at every stage on grounds of “national security”.
  2. It will also lead to a lack of transparency, and some matters like, corruption in the defence sector may go unnoticed.
To serve the public interest as well as balance the security concerns, the amendments should be re looked into and the “national security” clause should be as precise as possible
Whistle blowers protection bill 2015:
Positives :
  • The Act provides a mechanism for receiving and inquiring into public interest disclosures against acts of corruption, wilful misuse of power or discretion, or criminal offences by public servants.
  • The Bill prohibits the reporting of a corruption related disclosure if it falls under any 10 categories of information.These categories include information related to: (i) economic, scientific interests and the security of India; (ii) Cabinet proceedings, (iii) intellectual property; (iv) that received in a fiduciary capacity, etc.
  • The Act permits disclosures that are prohibited under the Official Secrets Act (OSA), 1923. The Bill reverses this to disallow disclosures that are covered by the OSA. 
  • Any public interest disclosure received by a Competent Authority will be referred to a government authorised authority if it falls under any of the above 10 prohibited categories. This authority will take a decision on the matter, which will be binding. 
  • The bill in its current format provides a mechanism for receiving and inquiring into public interest disclosures against acts of corruption or criminal offences by public servants. Thus, it excludes private companies and private persons from the applicability of the provisions of the act.
    • Currently, it is the corporates and private individuals that are indulging in the practices of money laundering and tax evasion and they need to be held accountable whether in terms of corporate governance practices or through law which the act neglects.
    • The Indian government by framing such a law has perhaps inadvertently skewed the rules in favour of private companies and individuals by keeping only public servants under the purview of the Whistleblower Protection Bill.
  • The Statement of Objects and Reasons of the Bill states that the 10 prohibited categories are modelled on those under the RTI Act, 2005. However, this comparison may not be appropriate. Unlike the RTI Act, disclosures under the Bill are not made public but in confidence to a high level constitutional or statutory authority. 
  • With regard to the 10 prohibited categories, the RTI Act allows (i) the public authority to disclose information if he considers it to be in public interest; and (ii) a two stage appeal process if information is not made available.The Bill does not contain such provisions. 
  • A Competent Authority is required to refer a prohibited disclosure to a government authority for a final decision. However, the Bill does not specify the minimum qualifications required or the process of appointment of this authority. 
    • The independence of this authority may be at risk if the authority is junior in rank to the public servant against whom the disclosure is made.
  • Whistleblower laws in other countries also prohibit the disclosure of certain types of information. These include information related to national security and intelligence, received in a fiduciary capacity, and any disclosure specifically prohibited by a law.
  • Prohibited categories in the Bill exceed those in the 2013 proposed amendments The 2013 proposed amendments prohibited only two categories of information from being disclosed under the Act: (i) that related to sovereignty, strategic, scientific or economic interests of India, foreign relations, or the incitement of an offence; and (ii) proceedings of the Council of Ministers. However, the 2015 Bill prohibits the disclosure of 10 categories of information. 
Problems faced by Whistleblowers:
  • The world, government, corporates and even society to an extent  do not like whistleblowers and some countries go so far as to call them  ‘traitors’
  • The case of Edward Snowden and Julian Assange of Wikileaks proves the point
  • Whistleblowers face legal action, criminal charges, social stigma, and termination from any position, office, or job.
  • Vindictive tactics to make the individual’s work more difficult and/or insignificant, assassination of character, formal reprimand, and difficult court proceedings 
  • Unemployment
  • Despite the soaring penalties, whistleblowers are still in a legally fragile situation because whistleblower cases often involve very complex set of facts and employment history. 
Related Questions:
  • What problems does whistleblowers face around the world? Comment on India’s Whistleblower’s Protection Bill amended in 2015. (200 Words)

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