The Whistleblowers Protection Act, 2011

Several instances of assault, harassment and even the murder of whistleblowers have come to light in the recent past. Satyendra Dubey, an engineer was murdered in November, 2003 for his expose on the financial irregularities in the National Highway of India’s Golden Quadrilateral Project. In 2005, Shanmughan Manjunath, an Indian Oil Corporation officer was found murdered months after he had sealed a petrol pump selling adulterated fuel. Even recently, in the ongoing case of the allocation of telecom licenses in the 2G spectrum case, the counsel for CBI director has repeatedly stalled proceedings asking the petitioners to disclose the identity of the Whistleblower. But Mr. Prashant Bhushan, representing the petitioners (a NGO) has firmly resisted the bench and the respondent’s plea to disclose the identity of the whistleblower.

In what was a long overdue legislation, the Whistleblowers Protection Act was first introduced in the Parliament in the year 2011. The act provided mechanisms to enquire into alleged acts of corruption and abuse of power by public authorities and also secured the identity of the individuals who disclosed such acts of wrongdoing in projects and assignments managed by the government. The bill was passed by the Lok Sabha on December, 2011. The bill proceeded to take the shape of an act upon being passed by the Rajya Sabha on 21 February 2014 and received the President’s assent on 9 May, 2014.

The Benefits of the Act

Under section 3 of the act, any person, be it a public servant or a private citizen or a NGO can make a disclosure in public interest to a competent authority. Public Interest Disclosure includes disclosure in any form by a private citizen or a public officer or a NGO to a competent authority notwithstanding any provision of the Official Secrets Act of 1923. Therefore, any disclosure made under the Whistleblowers Act shall be construed as Public Interest Disclosure and be allowed to be made in front of a competent authority.

The title of the act makes it amply clear that the objective of the act is the protection of people making public interest disclosures or lending assistance in such matters from possible victimization and harassment and the onus for the same lies on the State. The Competent Authority enlisted under the act has been given the power to direct the concerned authorities to extend protection to the Whistleblower either on a request by the

Whistleblower or on information available with the authority. It can also reinstate public officers who have made such disclosures to their offices.

It is the responsibility of the Vigilance Commission to protect the identity of the whistleblower and all documents related to the case, unless it decided against doing so or the court orders it to reveal the identity of the individual. To add to that, the Commission has the power to pass interim orders to prevent corrupt practices during enquiry.

If an individual feels victimized or harassed on pretext of him making the public disclosure or providing assistance for the same, he shall have the right to file a complaint with the Competent Authority following which the relevant governmental institutions or public officers shall be instructed to ensure the security of the individual in question.

The Detriments of the Act

The Whistleblowers Protection Act has made no provisions to promote Whistleblowing, such as financial incentives or agreements with Corporate Whistleblowers. Its jurisdiction is limited to the public sector and the term ‘Victimization’ has not been clearly defined. Furthermore, the definition of ‘Competent Authorities’ is watertight and the whistleblower does not have a right of appeal if he is not content with the authority’s decision. The provisions of appeal are only provided for in cases of imposition of penalties.

The procedures for action to be initiated on anonymous complaints have not yet been included under the ambit of the act. The Lokpal, which is the apex body for grievances related to Corruption at the national level and was established under the Lokpal and Lokayuktas Act of 2013 has no role to play in securing the identity of the whistleblowers. Not including the Lokpal under the scope of the Competent Authority for the purpose of dealing with complaints deprives the act of absolute legitimacy.

Furthermore, the specifications for inquiring into acts of corruption or fraud aren’t clearly delineated. Offences such as willful abuse of power, misusing discretionary powers and investigating into offences committed by members of the Lower Judiciary have no established procedure. Such ambiguity can be used by the accused to delay the institutions of justice from carrying out their responsibilities.

Whistleblowers Protection in the International Arena

The United States of America

Whistleblower regulations and laws in USA guarantee freedom of speech and expression for workers and contractors alike in certain situations. Legislations like the Ethics in Government Act cannot be imposed if the free speech provisions of the citizens are not protected. The problem however with free speech rights of whistleblowers are that the data released often affects the national interest and security of a nation. Civilians and military personnel in the field of intelligence gathering therefore often have to sign non-disclosure agreements (Snepp v USA)

Edward Snowden for instance, after leaking classified information from the NSA Database was charged with two counts of violating the Espionage Act of 1917 and theft of Government Property. However, despite such firm deterrents in place, USA has done well to ensure the security of Whistleblowers through acts such as the Sarbanes-Oxley Act, The NO FEAR Act, The Freedom of Information Act and the Whistleblowers Protection Act.

The United Kingdom

On June 25, 2013, The Public Interest Disclosure Act underwent four modifications further strengthening UK’s fight for protecting the Whistleblowers. The changes made were:

The Public Interest Disclosure Agreement consisted of a ‘in good faith’ clause wherein even if the disclosure was made for public interest, if the employer could prove that the employee was not acting in a bonafide nature, the claims of the employee were debunked. The Fifth Report on the Shipman Enquiry and the newly enacted Enterprise and Regulators Reform Act of 2013 did away with this clause.

The Act now makes it compulsory for all disclosures to be Public Interest Disclosures. Earlier, the employers relied on their own grievances of employers violating their individual contracts or failure to follow due process as public disclosure. But through a

landmark judgment (Parkin v Sodexho), such claims would no longer qualify as Public Interest Disclosures.

Following the decision of the Court of Appeals in NHS Manchester v Fecitt (2010), the employees did not have a genuine remedy for being victimized by a colleague in light of the disclosure made. This act now makes an employee being subject to harassment at the hands of a co-worker illegal and punishable under the law.

The Employer furthermore is granted a defence to any claim about a worker’s behavior or conduct if the company can legitimately show that it pursued all steps necessary to prevent the employee form indulging in that act.

South Africa

Laws aimed particularly at protecting Whistleblowers exists today through the Constitution, The Public Disclosure Act 26 of 2000, The Promotion of Access to Information Act 2 of 2000, The Labour Relations Act 66 of 1995 and the Companies Act 71 of 2008. Additionally, there has been a body of jurisprudence evolved on the matter by The Labour Court, The High Court and The Supreme Court of the nation.

In relation to protection of whistleblowers, section 9.1 of the constitution reads “Everyone is equal before the law and has the right to equal protection and benefit before the law.” Section 16.1 b) goes on to state “Everyone has the right to freedom of expression, which includes freedom to receive or impart ideas and exchange information.” Furthermore, section 23.1 reads “Everyone has the right to fair labour practices”.

Suggestions

The act should be amended so as to bring private entities under its fold. A model policy could be established following the guidelines enshrined in the Whistleblower Protection Rules. The policy shall be made mandatory in all private enterprises, retaining the basic structure of the model established under the Whistleblower Protection Rules but supplanted by the rules and regulations of the respective organizations.

Incentivizing the Whistleblowers should be included under the provisions of the act through an amendment, only if the disclosures are proven to be accurate after a proper trial.

Since the core structure of the act hinges on protection of whistleblowers from victimization, a clear and transparent definition of the term should be incorporated under the provisions of the act.

There are no provisions in the act for complete anonymous disclosures. There are certain clauses which allow for the identity of the whistleblower to be made public, thus putting him in direct risk of being victimized. Therefore, a separate Whistleblowing Protection Agency could be established under the Whistleblowing Rules whose mandate shall be to assess the degree of danger the whistleblower shall be putting himself though while making the disclosure.

Since the nature of cases to be handled by the Lokpal and the Competent Authority overlap, incorporating the Lokpal under the Competent Authority provisions would resolve the problem of two different institutions doing the same work.

The witnesses who corroborate the disclosures made by the whistleblower should also be included under the provisions of the act so that the offenders do not get a reprieve based on lack of evidence.

Frivolous complaints should be dealt with by evolving an effective complaint-screening agency. Furthermore, diluting the provision of anonymous complaints will only deter people from coming forward and making public interest disclosures.