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Whistleblower protection act: Ensuring protection of individuals making public interest disclosures

A whistleblower is an individual or a complainant who discloses the illicit conduct of a public servant. Disclosure in this regard means making allegations against a public servant to an appropriate government authority.

A whistleblower discloses information related to violation of law, rules & regulations established by statutory authority, misuse of state funds, abuse of authority, or actions by which it poses a threat to public health and safety.

An individual authorised to make public interest disclosures is called a “whistleblower”. In India, the whistleblower protection act 2014 protects these whistleblowers.

The whistleblower protection act 2014 contains provisions regarding:-

  • public interest disclosures,
  • investigation of such disclosures by competent authorities,
  • powers of the authorities conducting such investigation of the alleged offence,
  • offences and penalties regarding the commission of such offence and,
  • the last and most important provision regarding the protection of the persons(i.e. whistleblowers) making allegations

Applicability of the whistleblower protection act

This jurisdictional application of this act extends to the whole of India. The whistleblower protection act applies to:-

  • The public servants,
  • Members of Parliament,
  • The officers of the lower judiciary or the person authorised by such court to perform any duty,
  • Regulatory authorities,
  • Central and state government employees,

This act is an exception to the official secrets act 1923 as the whistleblower protection act 2014 does not prohibit any information to be disclosed except that revelation should not compromise the nation’s sovereignty.

Amendments in the Whistleblower Protection Act

In 2015, an amendment in the whistleblower protection act was proposed in the Lok Sabha by The Whistleblower Protection (Amendment) Bill, 2015. This bill proposes that disclosures cannot be made under this act if prohibited under the official secrets act.

It prohibits the disclosure of information related to:-

  1. The sovereignty, strategic, scientific or economic interests of India, or the incitement of an offence
  2. Records of deliberations of the Council of Ministers
  3. That which is forbidden to be published by a court or if it may result in contempt of court
  4. A breach of privilege of legislatures
  5. Commercial confidence, trade secrets, intellectual property (if it harms a third party)
  6. The one provided in a fiduciary capacity
  7. The one received from a foreign government
  8. Endangering a person’s safety etc.
  9. Causing obstruction in an investigation etc.
  10. Personal matters or invasion of privacy

However, the information concerning 2, 5, 6, and 10 can get disclosed under the Right to Information Act, 2005. Then it can get disclosed as per the 2015 Bill.

Salient features of Whistleblower Protection Act

There are some salient features of the whistleblower protection act 2014:-

  • The act allows any person to make a public interest disclosure against a public servant before a competent authority
  • The applicability of the act is irrespective of the provisions of the official secrets act 1923
  • The law does not allow anonymous complaints. It states that complaints will not get entertained if the complainant does not reveal his/her identity
  • The limitation period to make a complaint under this act is seven years
  • The provisions of this act do not apply to the special protection groups constituted under the Special Protection Group Act 1988
  • Every proceeding before a competent authority will get deemed to be a judicial proceeding.
  • A person is not obliged to disclose any information to a competent authority if such disclosure is likely to affect the nation’s sovereignty, integrity, security and foreign relations, public order, decency or morality or concerning contempt of court, defamation or defamation or incitement to an offence.
  • The competent authority is authorised to grant protection to the whistleblower and the witnesses associated with him concerning the complaint.
  • The whistleblower’s identity and the documents or information furnished by him needs to be protected unless ordered to be revealed by the court.
  • A person aggrieved by order of a competent authority should file an appeal against such an order to the high court within sixty days.
  • The competent authority needs to prepare a consolidated annual report of the performance of its activities and submit it to the central and state government, which will be further submitted to each house of parliament or state legislature.
  • The whistleblower act has an overriding effect on the provisions of the official secrets act without compromising the sovereignty and integrity of the nation.

Right to Information and Whistleblowers

In India, the right to information is an inherent right of the country’s citizens. The right to information is an implied fundamental right under article 19 of the constitution of India, 1950.

The Right to Information Act 2005 made the government more answerable towards the citizens.

An RTI application can be filed under the RTI Act 2005 by any citizen of India. While filing an RTI application, a person has to reveal his identity and furnish all his details.

But under the Whistleblowers Act, the competent authority must conceal the whistleblower’s identity unless it becomes necessary to be revealed or produced by order of the court.

A whistleblower who files RTI applications to obtain information and, based on that information, can file a complaint is always under threat as his personal details are with the government authority.

RTI Act enables the public authority to disclose the information or data:

  • That falls under the prohibited degree under whistleblowers act
  • Information prohibited to get disclosed under the Official Secrets Act 1923 will prove to be more harmful in the public interest than the damage done to secured interests.

The whistleblower act lays the responsibility upon the competent authority to decide whether the information is under a prohibited degree of harming the sovereignty and integrity of the nation.

So, these two acts will be contradictory in some terms where the revelation of confidential information is subject to the sovereignty and integrity of a nation.

Are whistleblowers protected in India?

Around a decade ago, from coming into the force of the whistleblower protection act 2014, the whistleblower’s life was at stake after making allegations against the authorities and the government employees.

After establishing the Whistleblower Protection Act 2014, the whistleblowers who complain against the ministers and government employees have protection.

Section 11 of the Whistleblower Protection Act 2014 protects the persons making complaints against the illicit conduct of the public servants.

It ensures the protection of a person against victimisation. Victimisation mainly means to harass, threaten or inflict harm on someone to the extent that the person is turned into a victim.

A person can make such an allegation against a public servant or public authority in an application before the competent authority. The competent authority can pass an order as it deems fit to avoid or protect such person from victimisation.

If any public servant or authority is found to be in non-compliance with the orders of the competent authority, then that public servant or authority is liable to get fined with a penalty extending up to thirty thousand rupees.

Even after implementing all the provisions of the act, the contradiction and failure of the provision of the Whistleblower Act come on the face when the RTI and its procedural applicability come into force.

The whistleblowers who want to obtain data through RTI from the state and authorities have to reveal their identity. It is where the conflict arises as to the whistleblowers who made us aware that the irregular practices in the state’s machinery have their own lives at risk.

We have a lot of cases in this regard of the whistleblowers who got victimised, threatened, murdered, etc.

  • Golden Quadrilateral Project case( Satyendra Dubey murder case)
  • Indian Oil Corporation case (M. Shanmugam murder case)
  • RTI activist Lalit Mehta murder case
  • Social activist Satish Shetty murder case

Case Laws Regarding Whistleblower Protection Act

MR. R.K. MISHRA, ADDL. COMMISSIONER OF I T & ORS. (Civil Appeal No. 7914 of 2009)

What is the effect of the revelation of information at a premature stage of an investigation?

The supreme court held that disclosing information at a premature stage will jeopardise and impede the further investigation and allow the real culprits to escape from the law.

Devangana Kalita v. Delhi Police W.P. (CRL) 898/2020

Is the disclosure of information at a nascent stage to affect the credibility of the accused person is permissible?

The Delhi high court held that selective disclosure of information to obtain a public opinion to make them believe that an accused is guilty of an offence or any form of false claim related to the case is impermissible.

Conclusion

Whistleblowing is an act in itself that requires a lot of courage to stand against the system and public authorities. It mainly exposes corruption and malpractices in the government’s system, which is the root cause of poverty, unemployment, and underdevelopment.

Whistleblowing safeguards society against this corruption and malpractices and works in the state and public’s interest. So, the state must grant protection to these whistleblowers to ensure the proper functioning of the machinery even in the future. To achieve this objective, the whistleblower protection act got enacted in 2014.

The protection granted by the state to these whistleblowers will ensure that no person hesitates to make a stand against any malpractices by the public servants and authorities and makes an alarm in the minds of the public servants involved in such practices.

FAQs

What is the provision of penalty for revealing the complainant's identity as prescribed under the whistleblower protection act 2014?

Section 16 of the whistleblower protection act 2014 prescribes a penalty for revealing the complainant's identity dishonestly as imprisonment of up to three years and a fine extending up to fifty thousand rupees.

Which provision of the act mentions the power and functions of the competent authority to inquire into the allegations made in the public interest?

Section 5 of the whistleblower protection act 2014

Which are the allegations a competent authority is not authorised to inquire into under the whistleblower protection act?

A competent authority is not authorised to inquire into the allegations:-

  • Against which an order for inquiry is already made under the public servants (inquiries) act, 1850.
  • referred for allegation under the commissions of inquiry act, 1952

What is the limitation period for conducting an inquiry against a disclosure made?

If an allegation is on a complaint against a public servant beyond seven years from the date when the alleged incident took place, the competent authority should not investigate the offence.

About Author

Ayush Ranjan Jha is a 4th-year law student of Vivekananda Institute of Professional Studies (VIPS), IP University, Delhi.

He is inquisitive towards Corporate law, International law & Constitutional law.

He is very keen on research work and got published a number of Research papers and articles related to legal topics during his previous academic years.

Currently, he is preparing for Judicial services examinations.

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