Protection of the Whistleblower’s Protection Bill, 2011 receives Presidential assent

The Preamble of the Bill read “to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto”. It is hoped that the bill would help those who expose corruption in government or irregularities by public functionaries without any fear of victimisation.

The Whistleblower's Protection Act, 2011, provides for:-

·         a mechanism for protecting the identity of whistleblowers (a term given to people who expose corruption)

·         a system to encourage people to disclose information about corruption or the wilful misuse of power by public servants, including ministers.

·         lays down punishment of up to two years in prison and a fine of up to Rs 30,000 for false or frivolous complaints.

·         The provisions of this Act shall not apply to the armed forces of the Union, being the Special Protection Group constituted under the Special Protection Group Act, 1988.

·         It extends to the whole of India except the State of Jammu and Kashmir.

Competent Authority

Any person can make a public interest disclosure on corruption before the “Competent Authority” which is the Central Vigilance Commission (CVC) in case of central government officers. The Competent Authority shall not entertain or inquire into any disclosure—

(a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850; or

(b) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952.

Further, the Competent Authority shall not investigate, any disclosure involving an allegation, if the complaint is made after the expiry of seven years from the date on which the action complained against is alleged to have taken place.

The Competent Authority has been granted the powers of a Civil Court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, and every proceeding before the Competent Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code.

The Competent Authority has the powers to issue appropriate directions to the concerned Government authorities (including police) which shall take necessary steps, through its agencies, to protect such complainant or public servant or persons concerned.

The Competent Authority shall not reveal the identity of the complainant and the documents or information furnished by him.

If the Competent Authority is of the opinion that any corrupt practice required to be stopped during the continuation of any inquiry, he has the powers to issue interim orders for this purpose.

Disclosure

“Disclosure” means a complaint relating to,—

(i) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988;

(ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party;

(iii) attempt to commit or commission of a criminal offence by a public servant, made in writing or by electronic mail or electronic mail message, against the public servant and includes public interest disclosure referred to in sub-section (2) of section 4

The Act says that every disclosure shall be made in good faith and the person making the disclosure shall provide a personal declaration stating that he reasonably believes that the information disclosed by him and the allegation contained therein is substantially true.

Exemption

Section 8 (1) exempts certain information “No person shall be required or be authorised by virtue of provisions contained in this Act to furnish any such information or answer any such question or produce any document or information or render any other assistance in the inquiry under this Act if such question or document or information is likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence,—

(a) as might involve the disclosure of proceedings of the Cabinet of the Union Government or any Committee of the Cabinet;

(b) as might involve the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet, and for the purpose of this sub-section, a certificate issued by the Secretary to the Government of India or the Secretary to the State Government, as the case may be, or, any authority so authorised by the Central or State Government certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive.

(2) Subject to the provisions of sub-section (1), no person shall be compelled for the purposes of inquiry under this Act to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a court.

The Bill was first passed by the Lok Sabha in 2011 and passed by the Rajya Sabha in February this year. It is hoped that the law will supplements the Right to Information Act in fighting corruption and pave the way for successful prosecution of corrupt individuals.