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By Venkatesh Nayak*
In its bid to undo and outdo everything that the United Progressive Alliance (UPA) Government did between 2004 and 2014, the National Democratic Alliance (NDA) Government has proposed to amend the Whistleblowers Protection Act, 2011 (WBP Act) in the Lok Sabha. Parliament enacted the WBP Act in February 2014 and it was gazetted later in May. The Government has not implemented this law which aims to create a statutory mechanism for whistleblowing about corruption, abuse or misuse of power or authority or discretion to cause undue loss to the public exchequer or undue gain to a third party or any offence recognised under any law.
While debating the Bill in the Rajya Sabha in February 2014, the UPA Government had promised to introduce tighter restrictions on whistleblowing if it relates to matters of national security. The NDA Government has now proposed to make amendments which will ensure that the law will continue to remain stillborn as it has for a year now. A preliminary analysis of the proposed amendments is given below.
(a) Under the original Act a whistleblower was immunised from prosecution under theOfficial Secrets Act, 1923 (OSA) for blowing the whistle on wrongdoing in government. The Amendment Bill seeks to take away this immunity- so in theory, no officer or RTI user may come forward to blow the whistle for fear of prosecution under the OSA. This amendment trashes the principle of ‘safe alternative to silence’ which should underpin all whistleblower protection laws.
(b) A whistleblower is prohibited from making a complaint about wrongdoing if the information is covered by 10 categories listed in Clause 4. These 10 categories are copy pasted from Section 8(1) of the Right to Information Act, 2005 (RTI Act) by the Government’s own admission in the Statement of Objects and Reasons attached to the Bill. So now apart from national security which was the major reason why UPA Government wanted to amend this law, a whistleblower will be prevented from making a complaint on all grounds under which information can be refused under the RTI Act- including privacy, trade secrets, foreign relations, fiduciary relationship etc.
In other words, unless the whistleblower is able to prove that he/she obtained his evidence of wrongdoing under the RTI Act, he/she can be punished for attaching such records to his whistleblower complaint (a mandatory requirement for the competent authority to take a whistleblower complaint seriously)- so no officer or RTI user will come forward to blow the whistle on wrongdoing unless he obtains the information after the concerned Information Commission orders its disclosure in public interest under Section 8(2) of the RTI Act. In some States like Madhya Pradesh this process could take a few decades, due to the huge pendency of appeals and complaints before the State Information Commission. Even before other Information Commissions there is no certainty that such information will be disclosed under Section 8(2) of the RTI Act. 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.
(2) Section 5 is to be amended to prevent the Competent Authority from inquiring into whistleblower complaints relating to matters specified in the newly proposed Section 4(1): Once a Competent Authority such as the Central Vigilance Commission (CVC) receives a whistleblower complaint from any person relating to any category mentioned in the new Section 4(1), it is required to refer the matter to an designated authority in the concerned public authority to obtain a clearance to inquire into the matter. If the designated authority certifies that such matter falls under any category in the new Section 4(1), the CVC will not inquire further into that matter and such certificate will be the final decision in that case. Further, the proposed amendment does not stipulate a time limit within which clearance should be given by the designated authority. So such whistleblower complaints may simply gather dust if the designated officers want to stall the inquiry process endlessly.
This proposed amendment creates further absurdities. For example, 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 Act is common to all competent authorities. If the new amendments are approved by Parliament, then 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 matters falling under the new Section 4(1). 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 amendment that the Government has proposed to the WBP Act.
(3) Section 6 is to be amended to prevent any person from even giving evidence or rendering any kind of assistance to the competent authorities if the matter falls within the new Section 4(1): In order to round off the plan of inaction in relation to a whistleblower complaint about any matter falling under the new Section 4(1), every person is barred from providing any kind of assistance including giving evidence or disclosing official records if the subject matter of the complaint falls under any of the categories proposed under the new Section 4(1).The competent authorities will have no option but to drop such whistleblower complaints.
Nothing in the WBP Amendment Bill indicates why the new Section 4(1) is being introduced to curtail whistleblowing in such a wide spectrum of public activity. I effect the amendments amount to a negation of India’s national motto : SATYAMEVA JAYATE (meaning – “truth alone shall triumph” – from the Mundaka Upanishad). That hoary statement has a corollary- “NA ANRTAM” meaning- “and not falsehood or the unrighteous”. If enacted by parliament in this form the amendments may actually end up supporting the triumph of corruption and falsehood over the truth.
The NDA Government cannot afford to be seen as negating the fundamental value recognised by the nation: ‘the truth’.
(2) In the matter of the Indirect Tax Practitioners Association vs R K Jain [(2010) 8SCC 281] the Supreme Court of India recognised whistleblwoing to the media as a legitimate exercise if all other available options proved to be useless or uninterested. The proposed amendments do not legitimise whistleblowing to the media. In fact journalists will continue to be prosecuted under OSA for blowing the whistle on wrongdoing with no protection under the WBP Act.
(3) In the matter of Centre for PIL & Ors vs. Union of India & Ors. (also known as the CBI diarygate scandal) in November 2014, the Supreme Court recognised anonymous whistleblowing. The proposed amendments do not permit anonymous whistleblowing. The original provision requiring the whistleblower to disclose his/her identity to the competent authority remains. The only saving grace is that the whistleblower’s identity will not be revealed to anybody without his or her written consent.
All righteous minded citizens who share a vision of a corruption-free India must demand that this amendment Bill be referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for detailed deliberation so that citizens may provide inputs to the MPs as to why the major amendments will defeat the very purpose of the WBP Act.
(2) Section 3: The name of the old law- Companies Act, 1956 is to be replaced by its successor- Companies Act, 2013 – no dilution of the original Act.
(3) Section 3(ii)(d) : The word ‘complaint’ in the original Act is to be replaced with the word ‘disclosure” – no dilution of the original Act.
(4) Section 14: The language of this provision in the original Act is being tightened to ensure that the competent authority issues specific orders to stop any corrupt practice while inquiring into a whistleblower complaint.
(5) Section 18(2): The language of this in the original Act is being tightened to differentiate it from Section 14(1) which relates to punishing the Head of the department for conniving or consenting to the corrupt practice. Section 14(2) is for punishing other officers in the department for conniving with or consenting to corrupt practices about which a whistleblower complaint has been found to be true.
(6) Section 20: The language of Section 20 is being tightened to apply only to such orders of penalty as may be imposed by the competent authorities under Section 16. In the original Act the provision included a reference to Sections 14 and 16 under which the competent authorities had no power to impose any penalty.
(7) Section 23: A couple of minor typographical errors relating to the preparation and the tabling of Annual Reports by the competent authorities is being corrected – no dilution of the original Act.
(8) Section 31: A minor correction relating to the syntax is being made in the original provision – no dilution of the original Act.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
In its bid to undo and outdo everything that the United Progressive Alliance (UPA) Government did between 2004 and 2014, the National Democratic Alliance (NDA) Government has proposed to amend the Whistleblowers Protection Act, 2011 (WBP Act) in the Lok Sabha. Parliament enacted the WBP Act in February 2014 and it was gazetted later in May. The Government has not implemented this law which aims to create a statutory mechanism for whistleblowing about corruption, abuse or misuse of power or authority or discretion to cause undue loss to the public exchequer or undue gain to a third party or any offence recognised under any law.
While debating the Bill in the Rajya Sabha in February 2014, the UPA Government had promised to introduce tighter restrictions on whistleblowing if it relates to matters of national security. The NDA Government has now proposed to make amendments which will ensure that the law will continue to remain stillborn as it has for a year now. A preliminary analysis of the proposed amendments is given below.
A snapshot view of the proposed amendments that will dilute the WBP Act:
(1) Section 4(1) is to be amended to place unreasonable restrictions on whistleblowing: The substantive provision that permits whistleblowing about wrongdoing in a public authority is diluted in the following ways:(a) Under the original Act a whistleblower was immunised from prosecution under theOfficial Secrets Act, 1923 (OSA) for blowing the whistle on wrongdoing in government. The Amendment Bill seeks to take away this immunity- so in theory, no officer or RTI user may come forward to blow the whistle for fear of prosecution under the OSA. This amendment trashes the principle of ‘safe alternative to silence’ which should underpin all whistleblower protection laws.
(b) A whistleblower is prohibited from making a complaint about wrongdoing if the information is covered by 10 categories listed in Clause 4. These 10 categories are copy pasted from Section 8(1) of the Right to Information Act, 2005 (RTI Act) by the Government’s own admission in the Statement of Objects and Reasons attached to the Bill. So now apart from national security which was the major reason why UPA Government wanted to amend this law, a whistleblower will be prevented from making a complaint on all grounds under which information can be refused under the RTI Act- including privacy, trade secrets, foreign relations, fiduciary relationship etc.
In other words, unless the whistleblower is able to prove that he/she obtained his evidence of wrongdoing under the RTI Act, he/she can be punished for attaching such records to his whistleblower complaint (a mandatory requirement for the competent authority to take a whistleblower complaint seriously)- so no officer or RTI user will come forward to blow the whistle on wrongdoing unless he obtains the information after the concerned Information Commission orders its disclosure in public interest under Section 8(2) of the RTI Act. In some States like Madhya Pradesh this process could take a few decades, due to the huge pendency of appeals and complaints before the State Information Commission. Even before other Information Commissions there is no certainty that such information will be disclosed under Section 8(2) of the RTI Act. 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.
(2) Section 5 is to be amended to prevent the Competent Authority from inquiring into whistleblower complaints relating to matters specified in the newly proposed Section 4(1): Once a Competent Authority such as the Central Vigilance Commission (CVC) receives a whistleblower complaint from any person relating to any category mentioned in the new Section 4(1), it is required to refer the matter to an designated authority in the concerned public authority to obtain a clearance to inquire into the matter. If the designated authority certifies that such matter falls under any category in the new Section 4(1), the CVC will not inquire further into that matter and such certificate will be the final decision in that case. Further, the proposed amendment does not stipulate a time limit within which clearance should be given by the designated authority. So such whistleblower complaints may simply gather dust if the designated officers want to stall the inquiry process endlessly.
This proposed amendment creates further absurdities. For example, 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 Act is common to all competent authorities. If the new amendments are approved by Parliament, then 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 matters falling under the new Section 4(1). 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 amendment that the Government has proposed to the WBP Act.
(3) Section 6 is to be amended to prevent any person from even giving evidence or rendering any kind of assistance to the competent authorities if the matter falls within the new Section 4(1): In order to round off the plan of inaction in relation to a whistleblower complaint about any matter falling under the new Section 4(1), every person is barred from providing any kind of assistance including giving evidence or disclosing official records if the subject matter of the complaint falls under any of the categories proposed under the new Section 4(1).The competent authorities will have no option but to drop such whistleblower complaints.
Nothing in the WBP Amendment Bill indicates why the new Section 4(1) is being introduced to curtail whistleblowing in such a wide spectrum of public activity. I effect the amendments amount to a negation of India’s national motto : SATYAMEVA JAYATE (meaning – “truth alone shall triumph” – from the Mundaka Upanishad). That hoary statement has a corollary- “NA ANRTAM” meaning- “and not falsehood or the unrighteous”. If enacted by parliament in this form the amendments may actually end up supporting the triumph of corruption and falsehood over the truth.
The NDA Government cannot afford to be seen as negating the fundamental value recognised by the nation: ‘the truth’.
Other major lapses in the proposed amendments
(1) Last year, the Government provided for a mechanism for inquiring into whistleblower complaints internally through the mechanism of the Chief Vigilance Officers. This system is not provided for in the WBP Amendment Bill. So with the repeal of the Whistleblower Policy Resolution (PIDPIR, 2004), that internal mechanism will be lost.(2) In the matter of the Indirect Tax Practitioners Association vs R K Jain [(2010) 8SCC 281] the Supreme Court of India recognised whistleblwoing to the media as a legitimate exercise if all other available options proved to be useless or uninterested. The proposed amendments do not legitimise whistleblowing to the media. In fact journalists will continue to be prosecuted under OSA for blowing the whistle on wrongdoing with no protection under the WBP Act.
(3) In the matter of Centre for PIL & Ors vs. Union of India & Ors. (also known as the CBI diarygate scandal) in November 2014, the Supreme Court recognised anonymous whistleblowing. The proposed amendments do not permit anonymous whistleblowing. The original provision requiring the whistleblower to disclose his/her identity to the competent authority remains. The only saving grace is that the whistleblower’s identity will not be revealed to anybody without his or her written consent.
All righteous minded citizens who share a vision of a corruption-free India must demand that this amendment Bill be referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for detailed deliberation so that citizens may provide inputs to the MPs as to why the major amendments will defeat the very purpose of the WBP Act.
Minor amendments to correct drafting errors in the original Act:
(1) Section 2: The words “armed forces of the Union” are to be omitted – no substantial dilution of the original Act. But in the original Act, the Special Protection Group (SPG) which guards the present and past incumbents of the office of the Prime Minister and their families was excluded from the Act for the purpose of whistleblowing about any wrongdoing. The Amendment Bill makes no change in this insulation of the SPG. So in theory, if the SPG witnesses a PM or his/her family member accepting a bribe or committing any offence or abusing or misusing power or discretion, they will have to follow a revised version of Gandhiji’s 3 monkeys- “hear not, speak not, and forget that you saw anything wrong”.(2) Section 3: The name of the old law- Companies Act, 1956 is to be replaced by its successor- Companies Act, 2013 – no dilution of the original Act.
(3) Section 3(ii)(d) : The word ‘complaint’ in the original Act is to be replaced with the word ‘disclosure” – no dilution of the original Act.
(4) Section 14: The language of this provision in the original Act is being tightened to ensure that the competent authority issues specific orders to stop any corrupt practice while inquiring into a whistleblower complaint.
(5) Section 18(2): The language of this in the original Act is being tightened to differentiate it from Section 14(1) which relates to punishing the Head of the department for conniving or consenting to the corrupt practice. Section 14(2) is for punishing other officers in the department for conniving with or consenting to corrupt practices about which a whistleblower complaint has been found to be true.
(6) Section 20: The language of Section 20 is being tightened to apply only to such orders of penalty as may be imposed by the competent authorities under Section 16. In the original Act the provision included a reference to Sections 14 and 16 under which the competent authorities had no power to impose any penalty.
(7) Section 23: A couple of minor typographical errors relating to the preparation and the tabling of Annual Reports by the competent authorities is being corrected – no dilution of the original Act.
(8) Section 31: A minor correction relating to the syntax is being made in the original provision – no dilution of the original Act.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
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