Analysis of the proposed amendments to the Whistleblowers Protection Bill, 2011
The Government of India has recently given notice to the Rajya Sabha (RS) about its intention to amend the Whistleblowers Protection Bill, 2011 (WBP Bill). The readers will remember that the Lok Sabha passed this Bill without much discussion during the heated debate around the Lokpal and Lokayuktas Bill in December 2011. The WBP Bill is pending in the Rajya Sabha.
I. Amendments drafted in complete secrecy:
Neither has the Government bothered to upload the text of these amendments on its website nor has the Rajya Sabha Secretariat bothered to upload this notice of amendments on its website. In the age of the Right to Information while MPs get to know about these amendments well in advance, WE THE PEOPLE who elect them and pay taxes to cover their salaries and the expenditure involved in running Parliament have to wait until they are tabled in the House.
II. Content of the amendments:
The Government seeks to amend the WBP Bill in 11 places (3 major changes and 8 rectification of errors). The proposed amendments dilute the WBP Bill in a significant manner. Here’s how:
1) The amendments take away the right of any public servant, person or NGO (henceforth ‘any person’) to make a public interest disclosure (i.e, a whistleblower complaint) about corruption, wilful misuse of power or wilful abuse of discretion or criminal offences committed in a public authority if it will prejudice the country’s sovereignty and integrity and the security, defence, scientific, economic or strategic interests of the State.
2) The amendments take away the right of any person to make a public interest disclosure (i.e., a whistleblower complaint) about corruption, wilful misuse of power or wilful abuse of discretion or criminal offences committed in a public authority if it is likely to prejudicially affect relations with a foreign State.
3) The amendments take away the right of any person to make a public interest disclosure (i.e., a whistleblower complaint) about corruption, wilful misuse of power or wilfiful abuse of discretion or criminal offences committed in a public authority if it is likely to lead to incitement to an offence.
4) A potential whistleblower will not be able to attach to his/her complaint Cabinet papers and records of deliberations of Ministers and bureaucrats relating to any matter, as evidence, until a final decision is reached on it or the matter is treated as complete or over in terms of the Right to Information Act, 2005 (RTI Act).
5) Competent authorities such as the Central Vigilance Commission (CVC) or similarly placed agencies in the States are prohibited from inquiring into whistleblower complaints that relate to any of the interests mentioned in paras #1-4 above. They will have to first take a clearance from a designated authority in the concerned department and organisation that the matter does not fall into any of these categories before launching an inquiry.
6) If such a designated authority certifies that a whistleblower complaint relates to any of the interests mentioned in paras #1-4 at any stage of the inquiry, the competent authorities cannot proceed any further on such complaint. It will be dropped.
7) A public servant may be prosecuted under the Official Secrets Act, 1923 for blowing the whistle on corruption, wilful abuse of power or wilful misuse of discretion or criminal offences committed in a public authority if he/she sends copies of official documents as probable evidence along with the complaint.
III. A preliminary analysis of the proposed amendments:
a) The ‘national security’ related grounds (abbreviated phrase denoting #paras 1-3 mentioned above) are so broad that a public authority may connect any whistleblower complaint to these interests and prevent competent authorities like the CVC from inquiring into it. These grounds are copied from the RTI Act which is itself under threat of dilution. As the proposed amendments do not contain any other mechanism for inquiring into complaints belonging to this category, it appears that the Government is willing to throw them all into the dustbin. This is a blatant negation of the twin principles of ‘rule of law’ and accountable governance that underpin our constitutional democracy.
b) The designated authority is empowered to certify that any information that a competent authority may call for or summon during the course of an inquiry relates to the ‘national security’ grounds mentioned at para #1-3 above. As this certificate is to be treated as binding and conclusive, the competent authority will have to proceed without access to these restricted records or drop the inquiry into the whistleblower complaint altogether. Thus the proposed amendments empower the Government to frustrate inquiry into a whistleblower complaint at every stage on grounds of ‘national security’.
c) According to the WBP Bill approved by the Lok Sabha, the Prime Minister is the ‘competent authority’ to launch an inquiry into a whistleblower complaint against his/her Ministers. Similarly the Chief Ministers in the States are the ‘competent authorities’ to inquire into whistleblower complaints against their Ministers. The procedure for inquiry described in the WBP Bill is common to all competent authorities. If the new amendments are approved by Parliament, the PM and the CMs will have to seek clearance from the designated authority of the department/organization before inquiring into whistleblower complaints relating to national security. So even an Under Secretary grade officer, if appointed as the designated authority, can in theory prevent the PM or the CM from ordering an inquiry into a whistleblower complaint if he/she certifies that the matter relates to ‘national security’. This is the ridiculous implication of the amendments that the Government has proposed to the WBP Bill.
d) Clause 4 of the WBP Bill passed by the Lok Sabha permitted a bureaucrat to make a public interest disclosure about corruption, wilful misuse of power or wilful abuse of discretion without fear of prosecution under the Official Secrets Act, 1923 (OSA). The proposed amendments seek to drop the reference to OSA from this clause. This will effectively discourage any bureaucrat from coming forward to make a public interest disclosure even about wrongdoings that have nothing to do with national security. The potential for victimising a whistleblower is built in to this provision even though the WBP Bill’s stated aim is to prevent such victimization of persons who speak the truth. This amendment trashes the principle of ‘safe option to silence’ which should underpin all whistleblower protection laws.
e) If the Cabinet papers-related restriction is approved by Parliament, a potential whistleblower has no option but to obtain copies of these records by making a request under the RTI Act if he/she wants to attach them as evidence of his/her complaint. No other whistleblower protection law in the world contains such a restrictive provision.
f) If the national security grounds for prohibiting inquiry by competent authorities are approved by Parliament, they are likely to send every complaint to the designated authority in the concerned department/organization for vetting in order to play safe. As the amendments do not prescribe any time limit for issuing clearances, whistleblower complaints may gather dust piled up on the designated officers’ desks instead of being inquired into in all earnestness.
IV. Other lacunae in the WBP Bill:
The Lok Sabha passed the WBP Bill in 2011 after the Government incorporated several amendments to strengthen it based on the recommendations of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. The Parliamentary Committee made these recommendations after holding consultations with representatives of civil society and the bureaucracy. Nevertheless the WBP Bill is weak in many respects as it falls short of international best practice standards on whistleblower protection for the reasons given below:
- The Bill does not permit a whistleblower to complain about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by the Prime Minister or any of the Chief Ministers;
- Lokpal and Lokayuktas that will be established if the Lokpal & Lokayuktas Bill 2011 becomes law, will have no role to play in the scheme of the WBP Bill.
- The WBP Bill does not recognize whistleblowing against human rights violations and unlawful acts affecting the environment, public health and safety as valid. This remains as a major despite strong civil society demand for its inclusion.
- The WBP Bill does not specify a procedure for inquiring into complaints of about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by members of the lower judiciary because the inquiry procedure that other competent authorities will adopt under Chapter III of the Bill is not suitable for the lower judiciary.
- Many States have not established the institution of Lokayukta or State Vigilance Commission. Where such bodies do not exist, the WBP Bill permits the State Government to designate any authority to inquire into complaints of wrongdoing and protect the whistleblower. This is an unsatisfactory arrangement because these bodies are likely to be government-controlled and their effectiveness in inquiring into complaints and protecting whistleblowers may be compromised.
- There is no time limit for the competent authorities identified in the WBP Bill to complete inquiries into whistleblower complaints. This is left to the respective Governments to stipulate in the Rules using their rule-making power. This may lead to endless delays and pendency of complaints with the competent authorities.
- The WBP Bill however, does not include a definition of ‘victimisation’ of the whistleblower despite the Parliamentary Committee recommending one.
- The WBP Bill does not contain any mechanism for protecting RTI users who turn whistleblowers despite the Parliamentary Committee’s recommendation that such a mechanism be included in the law.
- The WBP Bill does not protect persons who volunteer to give additional information related to a whistleblower complaint that is under inquiry.
- The WBP Bill does not cover the private sector despite the Second Administrative Reforms Commission recommending its inclusion in a comprehensive whistleblower protection law.
The WBP Bill does not permit a whistleblower to publicise the allegations of wrong doing and related facts through the media when authorities fail to take adequate action on a complaint.