Whistleblower Protection Bill 2011: failing anti-corruption crusaders | S N Tripathy

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The issue of corruption exists in varying degrees in many countries and is often referred to as cancer that eats away at the fabric of society. However, in India, the gravity of the problem is particularly alarming, with its overwhelming presence and detrimental impact on the economy. There is no need for empirical investigation to confirm this fact, as it is evident from India’s consistent ranking as one of the highest players in global corruption indices.

This paper explores the Whistle-blower Protection Bill 2011, examining its origins, provisions, and complex ramifications, as it aims to combat corruption in India. It argues that in a democratic society, citizens have the right to know about the functioning of the government, necessitating transparency and active engagement beyond the electoral sphere. Whistle-blowers, therefore, play a crucial role in providing valuable information regarding the hydra-headed monster of corruption in India and maladministration. Consequently, their Protection becomes indispensable for ensuring good governance.

Furthermore, it is essential to recognise that good governance is a powerful tool for governments and civil societies to eradicate corruption. As a social menace, crime poses significant obstacles to achieving proper and balanced socio-economic development and good governance. To counteract this, systematic transformations in governance must be implemented, focusing on effective participation, transparency, and accountability in administration. Whistleblowing is when the insiders go public with their malpractice claims by or within the organisation, generally after failing to remedy the problems from the inside.

Whistle-blowers expose corruption by disclosing illegal, immoral, or illegitimate practices to those who can take necessary action. Whistle-blower represents someone who exposes wrongdoings, fraud, corruption, or mismanagement and promotes accountability by allowing for the disclosure by any person of information about misconduct while at the same time protecting the person against sanctions of all forms. Over time, many valiant whistle-blowers in India lost their lives in their quest to wipe out societal corruption. These courageous heroes were the unsung heroes of the present who endangered their lives and endeavoured to transform society’s unfortunate functioning. Since whistle-blowers, by embarking on their struggle against the evils of corruption, are not safeguarded against the acts of victimisation within the organisation, they hesitate to come forward to report instances of corruption and maladministration. Hence, to ensure the Protection of these anti-corruption crusaders, and to remove rampant corruption, in India, the Whistle-blowers Bill 2011 was passed by the Lok Sabha.

The objective of the draft was to create a system for lodging complaints regarding corruption, misuse of power, or abuse of discretion by public officials. It aimed to investigate these allegations, protect complainants from retaliation, and address related issues.

Before we delve deep into the whistle-blower Bill of 2011, it is pertinent to focus on its genesis and the sequence of events that culminated in the execution of the whistle-blower Bill. The enactment of the Bill is a gradual development. Still, it dates to the extraordinary martyr made by the whistle-blowers like Satyendra Dubey and Lalit Mehta, who lost their lives in their combat against the corrupt practices in government undertakings.

A bill for the Protection of whistle-blowers was first initiated in the year 1993 by Mr N. Vittal (the then Chief Vigilance Commissioner); no attention was paid to this draft bill until Law Commission came into the picture on his request letter to protect those who disclosed malpractices in the government functioning. In the year 2001, the Law Commission of India’s 179th Report recommended eliminating corruption, a law to protect whistle-blowers was essential and recommended an Act through a proposed bill on "Public Interest Disclosure and Protection of Informers" and submitted its report on the proposed ’Public Interest Disclosure Bill, to Mr Arun Jaitley (the then Minister of Law, Justice, and Public Affairs) on December 14, 2001.

The Supreme Court of India desired that pending enactment of suitable legislation, suitable machinery should be put in place for acting on complaints from "whistle-blowers". It is in this background and pending the consideration/examination of “the Public Interest Disclosure and Protection of Informers Bill, 2002" drafted by the Law Commission, the Government of India, Ministry of Personnel, Public Grievances and Pensions, was pleased to bring in force a Resolution dated April 21, 2004, namely "the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution". The draft designates the Central Vigilance Commission (CVC) established under the Central Vigilance Commission Act, 2003, as the "Designated Agency" to receive written complaints regarding corruption or misuse of office by employees of the Central Government, corporations, government companies, societies, or local authorities under Central Government control.

The murder of Satyendra Dubey 2003 (a Civil Engineering Graduate from IIT Kanpur and working as Deputy General manager of the National Highway Authority of India (NHAI)) for unveiling corruption and contractor mafia in NHAI by writing to the Prime Minister’s office and the subsequent public and media outrage led to the demand for the enactment of a whistle blower’s Bill. Supreme Court, while hearing writ petition (C) no. 536/2003 on the murder of Satyendra Dubey, directed that machinery be put into place for acting on complaints from whistle-blowers until a law was enacted. A resolution was notified on April 24, 2004, enabling the Central Vigilance Commission (CVC) as the designating agency to receive complaints of corruption from the central government employees. Subsequently, in 2005, the RTI Act was enacted to ensure more transparency and accountability in governance. In 2007, the Second Administrative Reforms Commission recommended that a specific law be enacted to protect the whistle-blower.

The Whistle-blowers’ Protection Bill, previously known as the Public Interest Disclosure and Protection of Persons Making the Disclosures Bill 2010, was renamed in 2011. The bill aimed to establish a mechanism for receiving complaints of corruption or misuse of office by public servants, with the Central Vigilance Commission (CVC) appointed as the designated agency. It also aimed to provide safeguards against victimization of whistleblowers. The bill was passed by the Lok Sabha in December 2011, with amendments. India ratified the UN Convention against Corruption on May 24, 2011, reaffirming its commitment to combat corruption and undertake administrative legal reforms.

Thus, the whistle-blower protection bill of 2011 envisages the Protection of whistle-blowers from the public sector. The definition of ’victimisation’, which forms an integral part of whistle-blower protection, must be included within the ambit of the Bill. Law Commission Report defined "victimisation" with all its grammatical variations concerning public servants other than a Minister, shall consist of:

The Whistle-blower Protection Bill 2011 encompasses a wide range of actions that can be considered as victimisation, including suspension pending inquiry, transfer, dilution or withdrawal of duties, powers and responsibilities, recording adverse entries in service records, issuing memos, verbal abuse, and imposing various types of major or minor punishments as per disciplinary rules, orders, or regulations applicable to the public servant in question, along with other forms of harassment. Furthermore, the Bill covers acts committed by the person against whom disclosure is made and any other person or public authority at their behest. The Standing Committee, recognising the need for an inclusive definition, also advocated for providing similar Protection to witnesses and other individuals supporting the whistle-blower.

It is crucial to broaden the definition of victimisation to align with global best practices. This should include comprehensive Protection against discriminatory or retaliatory actions, both direct and indirect, such as disciplinary measures, dismissal, discrimination in terms of remuneration, training, classification, reclassification, assignments, qualifications, professional promotions, transfers, contract renewals, as well as safeguarding against exclusion from recruitment, internships, or training opportunities. This Protection should extend even to less severe disciplinary actions like admonishments or reprimands. It should guard against financial or administrative disadvantages such as permits, license cancellations, or contract revocations.

Although the Bill grants overriding effect to include "public servants" like ministers, elected representatives, and judiciary members (except judges of the Supreme Court and the High Court), thereby allowing various competent authorities to receive complaints where Central Vigilance Commission or State Vigilance Commission cannot be instituted, the prominence given to the Official Secrets Act promotes secrecy and discourages whistle-blowers from coming forward. Moreover, a significant flaw lies in the provision that anonymous complaints will be dismissed, which can deter potential whistle-blowers from fearing job loss, vindictive actions, or threats to their lives.

In Chapter Five, which deals with Protection for whistle-blowers, the burden of proving that victimisation occurred falls upon the public authority. This places the onus on the whistle-blower to substantiate their claim of victimisation. The Standing Committee recommended reversing the burden of proof, making it the responsibility of the concerned public authority to prove that victimisation did not occur. The Bill also highlights the need for all parties involved to be heard before the Competent Authority makes a recommendation regarding victimisation complaints. However, due to the absence of a detailed and comprehensive definition or scope of victimisation, it becomes an arduous task to overcome the victimisation process, thus undermining the effectiveness of the safeguards provided in the Bill.

Several provisions that align with international best standards must be incorporated to strengthen the Whistle Blower Protection Bill. Firstly, the Bill should extend its scope to encompass the private sector, as the Second Administrative Reforms Commission recommended. This inclusion is crucial in recognising corruption and wrongdoing in non-governmental entities.
Secondly, the Bill currently only allows one authority at the Central and State levels to receive complaints of corruption or wrongdoing. However, international best practices advocate for multiple sources to be empowered to receive and investigate public interest disclosures. This approach ensures a broader range of oversight and accountability.

Thirdly, in cases where the authorities take no credible action against a complaint received, it is considered an international best practice to allow disclosures to be made to the mass media. By disregarding this critical standard in its amendments, the government has overlooked a vital avenue for whistle-blowers to expose corruption and wrongdoing when other channels fail.

Currently, whistle-blowers in India face dire consequences in their fight against maladministration and corruption, often resulting in untimely deaths. Despite its noble intentions, the existing Whistle Blower Protection Bill has proven to be an impotent tool in safeguarding anti-corruption crusaders. This situation calls for urgent rethinking, redefinition, and overhauling of the current anti-corruption laws.

The Central Vigilance Commission (CVC), which holds significant constitutional authority and is entrusted with eradicating corruption through stringent action, often fails to deliver justice. This raises concerns about the efficacy of the elaborate mechanism established by the CVC for lodging corruption complaints and protecting whistle-blowers.

Whistle-blowers in India are akin to artists without hands, yearning to paint a complete picture of the truth. However, their rights and protections are denied as they threaten the offenders. It is disheartening to witness their victimisation while the culprits remain untouched. The question arises: If anti-corruption crusaders are subjected to such a plight, what purpose does the CVC serve?

It is imperative to rectify these deficiencies and provide comprehensive Protection to whistle-blowers to ensure their safety and encourage them to come forward with vital information to combat corruption and maladministration.

*(Author: Prof (Dr.) S. N. Tripathy Former Professor of Economics, Gokhale Institute of Politics and Economics, Pune, currently at 4th Bijoy Bihar, Berhampur-760004 (Odisha). He can be contacted at e-mail: sn_tripathy2004[at]yahoo.com)