THE WHISTLE BLOWERS PROTECTION ACT, 2011 – AN OVERVIEW – PART I

[Mr. M. GOVINDARAJAN]

Introduction

A ‘whistle blower’ is a person who exposes any kind of information or activity that is deemed illegal, dishonest, or not correct within an organization that is either private or public.  The information of alleged wrongdoing can be classified in many ways: violation of company policy/rules, law, regulation, or threat to public interest/national security, as well as fraud, and corruption. Those who become whistleblowers can choose to bring information or allegations to surface either internally or externally. Internally, a whistleblower can bring his/her accusations to the attention of other people within the accused organization. Externally, a whistleblower can bring allegations to light by contacting a third party outside of an accused organization. He/She can reach out to the media, government, law enforcement, or those who are concerned. Whistleblowers also face stiff reprisal/retaliation from those who are accused or alleged of wrongdoing.  Whistleblowers face legal action, criminal charges, social stigma, and termination from any position, office, or job.

The demand to enact a law to protect whistle blower has gained momentum after a National Highways Authority of India engineer Satyandra Dubey was killed in 2003 after complaining of corruption.  To protect the whistle blowers the Government enacted an Act viz., ‘The Whistle Blowers Protection Act, 2011’.  The whistleblowers Act seeks to protect whistleblowers who report corruption, abuse of power or a crime to the designated authority.   The whistleblowers have to send their disclosures to the competent authority.   The Act prescribes various competent authorities to whom the complaint is to be made.  The Act prescribes the procedure for conducting the inquiry and the powers of the competent authority.  It also provides for punishment for contravention of the provisions of the Act.

Objective

The objective of the Act is-

• to establish a mechanism to receive complaints relating to

• disclosure on any allegation of corruption; or
•  willful misuse of power; or
•  willful misuse of discretion

against any public service;

• to inquire or cause an inquiry into such disclosure;
• to provide adequate safeguards against victimization of the person making such complain; and
• for matters connected therewith and incidental thereto.

Applicability

This Act extends to the whole of India except Jammu and Kashmir.   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.

Competent Authority

Section 2(b) gives the list of competent authority which is given in the following table:

Sl. No	Category	Competent Authority
1	In relation to a Member of the Union Council of Ministers	The Prime Minister
2	In relation to a Member of Parliament, other than the a Minister- -if such a member is a Member of the Council of States; -if such Member is a Member of House of People.	The Chairman of the Council of States; The Speaker of the House
3	In relation to a Member of the Council of Ministers in a State or Union Territory	The Chief Minister of the State of Union Territory
4	In relation to a Member of Legislative Council or Legislative Assembly of a State or Union Territory, other than a Minister- -if such Member is a Member of the Council;   -if such Member is a Member of the Assembly	-the Chairman of the Legislative Council; -the Speaker of the Legislative Assembly
5	In relation to- any Judge (except a Judge of the Supreme Court or of a High Court) including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; or any person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; or any arbitrator or other person to whom any cause or matter has been referred for decision or report by a Court of Justice or by a competent public authority	The High Court
6	In relation to- any person in the service or pay of the Central government or remunerated by the Central Government by way of fees or commission for the performance of any public duty except Ministers, Members of Parliament and members or persons referred to in clause (a) or clause (b) or clause (c) or clause (d) of article 33 of the Constitution, or in the services or pay of a society or local authority or any corporation established by or under any Central Act, or an authority or a body owned or controlled or aided by the Central Government or a Government company as defined in Section 617 of the Companies Act, 1956 owned or controlled by the Central Government; or any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election in relation to elections to Parliament or a State Legislature; or any person who holds an office by virtue of which he is authorized or required to perform any public duty (except Ministers and Members of Parliament); or any person who is the president, secretary or other officer bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or from any corporation established by or under a Central Act, or any authority or body or a Government company as defined in Section 617 of the Companies Act, 1956 onwards or controlled or aided by the Central Government; or any person who is a chairman, member or employee of any Central Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; or any person who is a Vice-Chancellor or member of any governing body, professor, associate professor, assistant professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University established by a Central Act or established or controlled or funded by the Central Government or any person whose services have been availed of by such University or any such other public authority in connection with holding or conducting examination; or any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any local or other public authority	The Central Vigilance Commission or any other authority, as the Central Government may, by notification in the Official Gazette, specify in this behalf.
7	In relation to- any person in the service of the State Government or remuneration by the State Government by way of fees or Commission, for the performance of any public duty except Ministers, Members of Legislative Council or Local authority or any corporation established by or under a Provincial or State Act, or an authority or a body owned or controlled or aided by the State Government or a Government company as defined in Section 617 of the Companies Act, 1956, owned or controlled by the State Government; or any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election in relation to municipality or Panchayats or other Local body in the State; or any person who holds an office by virtue of which he is authorized or required to perform any public duty in relation to the affairs of the State Government (except Ministers and Members of Legislative Council or Legislative Assembly of the State); or any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the State Government or from any corporation established by or under a Provincial or State act, or any authority or body or a Government company as defined in Section 617 of the Companies Act, 1956 owned or controlled or aided by the State Government; or any person who is a Chairman, member or employee of any State Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; or any person who is a Vice-Chancellor or member of any governing body, professor, associate professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University established by a Provincial or State Act or established or controlled or funded by the State Government or any person whose services have been availed of by such University or any such other public authority in connection with holding or conducting examination ; or any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the State Government or any local or other public authority.	The State Vigilance Commission, if any, or any officer of the State Government or any other authority, as the State Government may, by notification in the Official Gazette, specify in this behalf under this Act.
8	In relation to members or persons referred to in clause (a) or clause (b) or clause (c) or clause (d) of article 33 of the Constitution.	Any authority or authorities as the Central Government or the State Government, as the case may be, having jurisdiction in respect thereof, may, by notification in the Official Gazette, specify in this behalf under this Act.

Disclosure

Section 2(d) of the Act defines the term ‘disclosure’ as a complaint relating to-

• an attempt to commit or commission of an offence under the Prevention of Corruption act, 1988;
• willful misuse of power or willful 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;
• attempt to commit or commission or a criminal offence by a public servant

made in writing by electronic mail or electronic mail message, against the public servant and includes public interest disclosure. 

Public Interest Disclosure

Section 4 of the Act provides for the requirement of public interest disclosure.  This section provides that notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, any public servant or any other person including any non-governmental organization, may make a public interest disclosure before the competent authority.  Any disclosure made under this Act shall be treated as public interest disclosure for the purposes of this Act and shall be made before the Competent Authority and the complaint making the disclosure shall, on behalf of the Competent Authority, be received by such authority as may be specified by regulations made by the  Competent Authority.

Every disclosure shall be made in good faith and the person making disclosure shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true.  Every disclosure shall be made in writing or by electronic mail or electronic mail message in accordance with the procedure as may be prescribed and contain full particulars and be accompanied by supporting documents, or other materials, if any.   The Competent Authority may, if it deems fit, call for further information or particulars from the person making the disclosure. 

No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure or the identity of the complainant or public servant is found incorrect or false.

Exemption from disclosure

Section 8 provides that certain matters are exempt from disclosure.  According to this section no person shall be required or be authorized by virtue of provisions contained in the Act to furnish any such information or answer any such question or produce any documents 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-

• as might involve the disclosure of proceedings of the Cabinet of the Union Government or any Committee of the Cabinet;
• as might involve the disclosure of the proceedings of the Cabinet of the State Government or any Committee of that Cabinet;

and for the purpose of this 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 authorized by the Central or State Government certifying that any information, answer or portion of a document is of the nature specified above, shall be binding and conclusive.

No personal 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.