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WHISTLE BLOWING

Whistle Blowing

Who is a whistle blower? | whistle blowing

  • A whistleblower is a person who comes forward and shares his/her knowledge on any wrongdoing which he/she thinks is happening in the whole organisation or in a specific department. A whistleblower could be an employee, contractor, or a supplier who becomes aware of any illegal activities.
  • The whistle blower believes that the information is about a significant problem for the organization or its business ally.
  • It can be a threat to the public or employees’ health, safety and welfare or a criminal activity, or unethical policies or practices, or an injustice to the workers within the organization.
  • There are two types of whistleblowers: internal and external. Internal whistleblowers are those who report the misconduct, fraud, or indiscipline to senior officers of the organisation

Remember Edward Snowden?| whistle blowing

  • There is one name which comes to our minds about ‘whistleblowers’ and that is Edward Snowden. He was a former CIA employee who leaked classified and restricted information to the public from the United States National Security Agency in 2013.

In which situation should one blow the whistle?

  • When a serious harm is anticipated in the immediate future.
  • When the problem has been detailed to the seniors and no satisfactory response is given by them.

But before one blows the whistle…..

  • He should satisfy himself that he has sufficient proofs, data and records regarding the problem.
  • All routine organisational channels have been exhausted, but no solution is being provided by the senior management.
  • Consult the situation with a legal advisor or a confidante colleague, so as to avoid isolation in the organisation.
  • Avoid confrontation with superiors and convey the problem in a humble yet tactful manner.
  • Be ready for a sacrifice like quitting his project or even his job.

The Whistle Blowers Protection Act, 2011 |whistle blowing

Credits: PRS India

  • The Act, which was passed in 2014, seeks to establish a mechanism to register complaints on any allegations of corruption or wilful misuse of power against a public servant.
  • It also provides safeguards against victimisation of the person who makes the complaint.
  • Various forms of victimizations that a whistleblower is subjected to: suspensions, withholding of promotions, threats of violence and even murders.

 

Some Disturbing figures:

·         More than 15 whistle-blowers have been murdered in India in the past three years.

·         In the last few years, more than 65 people have been killed for exposing corruption in the government on the basis of information they obtained under the Right to Information (RTI) Act.

 

 

Highlights of the Act | whistle blowing

  • The Act seeks to protect whistleblowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offence by a public servant.
  • Any public servant or any other person including a non-governmental organization may make such a disclosure to the Central or State Vigilance Commission.
  • Every complaint has to include the identity of the complainant.
  • The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary.  The Act penalises any person who has disclosed the identity of the complainant.
  • The Act prescribes penalties for knowingly making false complaints.

But the Act has following loopholes:

  • The Act aims to balance the need to protect honest officials from undue harassment with protecting persons making a public interest disclosure.  It punishes any person making false complaints.  However, it does not provide any penalty for victimising a complainant.
  • The CVC was designated to receive public interest disclosures since 2004 through a government resolution.  There have been only a few hundred complaints every year.  The provisions of the Act are similar to that of the resolution.  Therefore, it is unlikely that the number of complaints will differ significantly.
  • The power of the CVC is limited to making recommendations.  Also it does not have any power to impose penalties.  This is in contrast to the powers of the Karnataka Lokayukta and the Delhi Lokayukta.
  • The Act has a limited definition of disclosure and does not define victimisation.  Other countries such as US, UK, and Canada define disclosure more widely and define victimisation.
  • The Act differs on many issues with the proposed Act of the Law Commission and the 2nd Administrative Reform Commission’s report.   These include non-admission of anonymous complaints and lack of penalties for officials who victimise whistleblowers.

Satyendra K. Dubey’s case:

  • Satyendra K. Dubey’s was a manager with NHAI (National Highway Authority of India) in Gaya. He was murdered in 2003 after he exposed the corrupt practices in NHAI in a letter addressed to the PM, even when he had requested that his identity be kept secret.

Whistleblowers Protection (Amendment) Bill 2015 |whistle blowing 

  • Further, some amendments have been introduced in WBP Act, 2011 in the year 2015.

Highlights of the Bill

  • The Bill amends the Whistleblowers Protection Act, 2014.
  • Criticism of Amendments:The Act provides a mechanism for receiving and inquiring into public interest disclosures against acts of corruption, wilful misuse of power or discretion, or criminal offences by public servants.
  • The Bill prohibits the reporting of a corruption related disclosure if it falls under any 10 categories of information.
  • These categories include information related to: (i) economic, scientific interests and the security of India; (ii) Cabinet proceedings, (iii) intellectual property; (iv) that received in a fiduciary capacity, etc.
  • The Act permits disclosures that are prohibited under the Official Secrets Act (OSA), 1923. The Bill reverses this to disallow disclosures that are covered by the OSA.
  • Any public interest disclosure received by a Competent Authority will be referred to a government authorised authority if it falls under any of the above 10 prohibited categories. This authority will take a decision on the matter, which will be binding.
  • The Statement of Objects and Reasons of the Bill states that the 10 prohibited categories are modelled on those under the RTI Act, 2005. However, this comparison may not be appropriate. Unlike the RTI Act, disclosures under the Bill are not made public but in confidence to a high level constitutional or statutory authority.
  • With regard to the 10 prohibited categories, the RTI Act allows (i) the public authority to disclose information if he considers it to be in public interest; and (ii) a two stage appeal process if information is not made available. The Bill does not contain such provisions.
  • A Competent Authority is required to refer a prohibited disclosure to a government authority for a final decision. However, the Bill does not specify the minimum qualifications required or the process of appointment of this authority.
  • Whistleblower laws in other countries also prohibit the disclosure of certain types of information. These include information related to national security and intelligence, received in a fiduciary capacity, and any disclosure specifically prohibited by a law.
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