Speaking without fear

One of the key legislations initiated by the government to tackle corruption is the Whistleblowers’ Protection Bill, 2011, tabled in the Rajya Sabha on August 14. The Lok Sabha had already passed the bill in December 2011, along with the Lokpal bill.

Whistleblowing is the act of disclosing information by an employee or a stakeholder on illegal or unethical conduct within an organisation. Currently, whistleblowers may make a complaint against a Central government employee to the Central Vigilance Commission (CVC), which can then conduct an inquiry and recommend appropriate action against the guilty to the head of the organisation. This mechanism was established in 2004 through a government notification, which was issued on the direction of the Supreme Court after the murder of Satyendra Dubey, a whistleblower. Over the years, various committees have recommended that a law be enacted to protect whistleblowers. In 2001, the Law Commission of India drafted a bill on the subject. In 2007, the second Administrative Reforms Commission (ARC) recommended that a law be passed to shield informants from retribution. India is also a signatory to the UN Convention against Corruption, which includes provisions for protecting whistleblowers.

The whistleblowers’ bill sets up a mechanism to receive complaints of corruption, wilful misuse of power or a criminal offence committed by a government employee. It empowers the CVC and state vigilance commissions (SVCs) to receive disclosures from whistleblowers, and includes provisions to protect them from victimisation. The matter was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice.

Some of the standing committee’s suggestions were accepted by the Lok Sabha. First, that disclosures against ministers, MPs, lower court judges and armed forces should be allowed. Second, that other authorities, such as the prime minister, the Speaker and high courts be allowed to receive disclosures. Third, during the inquiry, the consent of the whistleblower must be taken if his name were to be revealed to the head of the organisation. Finally, the organisation would have to act on the recommendation made by the CVC/ SVCs within a certain time limit.

However, does the bill provide genuine protection to whistleblowers? Consider the issue of identity protection. The bill does not allow anonymous complaints. However, it protects the whistleblower by not allowing the CVC/SVCs to reveal his name, without his consent, to the head of the organisation. However, if the whistleblower does not consent, he has to provide full documentary evidence. The standing committee recommended that undue burden should not be placed on the complainant to substantiate his disclosure as long as he puts forward a prima facie case. Internationally, opinions on anonymous complaints are divided. Countries like the US, the UK, Canada and Australia allow anonymous complaints; Italy and Slovakia do not.

The bill does not define victimisation, neither does it provide for a witness protection programme during investigation and trial. Although the public servant who victimises a whistleblower is not penalised, the whistleblower is penalised with imprisonment of up to two years and a fine if he knowingly or with mala fide intent makes a disclosure that is false or misleading. The standing committee recommended a reduction in penalty so as not to deter whistleblowers.

Further, since the power of the CVC and SVCs is restricted to recommending corrective action to the organisation, its effectiveness remains a question. In fact, the ARC report pointed out that there are few cases where the CVC was able to initiate disciplinary action against government servants or impose major penalties.

Although recommended by the standing committee and the Law Commission, the grounds for disclosure do not include mal-administration, that is, any action which is unjust, causes undue delay or negligence, leads to waste of public funds. Countries such as Canada and the US have a wider definition of disclosure.

Some MPs have asked that issues of national security or public safety be excluded from the purview of the bill. The efficacy of the legislation will depend on how many whistleblowers find it safe to make disclosures. The record so far is not encouraging: the number of complaints received by the CVC from whistleblowers runs into a few hundreds per year. It remains to be seen whether this bill, if enacted, is able to assure potential whistleblowers that they will be protected from victimisation.