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History is witness that there have always been informers who reveal inside information to others. Ancient Greeks talked about whistleblowing centuries before. Lykourgos, the Athenian orator, in his speech against Leokratis said: neither laws nor judges can bring any results, unless someone denounces the wrongdoers.
Even in Ancient India, the concept of a Whistleblower was in existence , Kautilya proposed- “Any informant (súchaka) who supplies information about embezzlement just under perpetration shall, if he succeeds in proving it, get as reward one-sixth of the amount in question; if he happens to be a government servant (bhritaka), he shall get for the same act one-twelfth of the amount.”
Whistleblower Protection Act 2011
There have been multiple instances of threatening, harassment and even murder of various whistleblowers. An engineer, Satyendra Dubey, was murdered in November 2003; Dubey had blown the whistle in a corruption case in the National Highways Authority of India’s Golden Quadrilateral project. Two years later, an Indian Oil Corporation officer, Shanmughan Manjunath, was murdered for sealing a petrol pump that was selling adulterated fuel. A movie/Film has been made based on the said incident titled ‘Manjunath’(2014).
Whistle Blowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might take the form of fraud, corruption or mismanagement.
The Act was approved by the Cabinet of India as part of a drive to eliminate corruption in the country's bureaucracy and passed by the Lok Sabha on 27 December 2011. The Bill became an Act when it was passed by the Rajya Sabha on 21 February 2014 and received the President's assent on 9 May 2014.
Corruption is a social evil which prevents proper and balanced social growth and economic development. One of the impediments felt in eliminating corruption in the Government and the public sector undertakings is lack of adequate protection to the complainants reporting the corruption or willful misuse of power or willful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant.
It was decided to enact a separate legislation to provide adequate protection to the persons reporting corruption or willful misuse of power or discretion which causes loss to the Government or who disclose the commission of a criminal offence by a public servant.
Problems with the Whistleblower Act The Indian Parliament was passed the Whistle Blowers Protection Bill (“Whistleblower Act”), 2011 received President’s nod on May 9 and was notified on May 12, 2014 as a step against corruption. It is supposed to complement the RTI Act and empower people to address corruption and malpractice. However, most of the standard provisions have been left out. For example the Act does not include maladministration as recommended by the Law Commission (also present in similar acts in UK, US and other countries). Therefore the bill has been plagued with serious deficiencies and is expected to fail to cause an impact.
Limited to cover only public servants and not ministers: Instead of empowering the CVC to root out corruption and maladministration from all levels of the Government, the Act has limited the power to public servants. Therefore, politicians (ministers) continue to remain out of grasp of the “any other person). Since the ministers are at the top of the hierarchy and control the working of entire departments, this is a serious lapse.
Inadequate/No incentive for whistleblower: If it is in a country’s best interest to support whistleblower, she should first incentivize it. This will encourage people to turn whistleblowers in the future. Further, whistleblowers will be at a risk of victimization cause of their disclosures and must be compensated for the same.
No time limit for inquiry: In a country notorious for inordinate delay in proceedings, the Act fails to limit the time available for the CVC to complete the inquiry. This allows the CVC to drag on the inquiry for years, which may find the whistleblower being victimized. Further, continuous delays in inquiry will dilute the impact of the bill to deter mal-administration.
Limited the protection against retaliation: The Act does not define Victimization and does not specify the punishment for it either. This is a serious deficiency as there is little or no safeguard for the whistleblower. Further there is no provision to protect the whistleblower or witness during the investigation or trial. Therefore the only protection available to the whistleblower is that his identity is hidden. However, the Act allows the CVC to reveal the identity if it feels that it is necessary to do so. Also, false complaint has a strict penalty of imprisonment extending upto 2 years and fine upto Rs. 30,000.
No provision for anonymous complaint There is no provision for anonymous complaints. While the same may prevent frivolous complaints, it will be at the very high cost to the Government, as it will prevent a lot of genuine complaints. Further, the power of the Act to deter such corruption will also be highly magnified for there will be no scope of victimization. The alleged public servant shall have to fight against the mechanism of the State as opposed to a meek individual (whistleblower). The State should find another way to deal with frivolous complaints, maybe by developing an efficient method to screen complaints. Taking away the provision for anonymous complaint complicates the process of whistleblowing and discourages people from coming forward with their complaints.
No power to punish the public servant The power of the CVC is limited to recommending action against public servants to their concerned department and cannot directly purse action against them. It is essential to take a relaxed and protective approach in drafting the whistleblower policy for it lies in the best interest of the Country. The process of investigation and of judgment may be created in such a manner as to prevent injustice even though it may be complicated. However, it is of utmost importance to take a liberal view and establishing simple procedure for reporting of concerns by whistleblowers.
The Whistleblower Act is thus merely a statutory confirmation of the 2004 Government Resolution, which empowered Central Vigilance Commission (CVC) to take steps to protect whistleblowers. The resolution has been proven inadequate and attracts less than five hundred complaints in a year. Therefore, this Act is expected to make no significant difference.
Suggestions
It has to be seen that the Act does not become a Paper tiger like the Benami Transactions (Prohibition) Act, 1988 and proper rules should be formulated and passed to give better effect and force to the Whistleblowers Protection Act 2011
By: Mona Kaushal ProfileResourcesReport error
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