Whistleblowers Protection Act, 2011 Anjali Bhardwaj & Amrita Johri National Campaign for Peoples’ Right to Information

The Whistleblowers Protection Act, 2011 An Act to provide protection to whistle blowers and provide safeguards against their victimization. Alternative mechanism to inquire into complaints made while invoking the WBP Act.

Who can make a complaint under the Act? Any public servant Any other person Any non-governmental organisation However, no provision for anonymous complaints.

What can you blow the Whistle about? Under this act you can file complaints against public servants (except judges of SC & HC) relating to the actual commission or attempt to commit,— (i) an offence under the Prevention of Corruption Act, 1988; (ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party; (iii) a criminal offence Public servant as defined under the PCA

To whom can a complaint be made? Complaint in writing or electronically to the designated competent authority under the Act – The PM/CM for Ministers – Chairman/ Speaker of legislature for MPs/MLAs – High Court in relation to any subordinate judge – Central/State Vigilance Commissions/other designated authority, for employees of Central & State Government organizations – Appropriate CA to be designated for Armed Forces/ forces charged with the maintenance of public order/ any intelligence organisation or any person connected with the telecommunication systems for these organisations.

What protection is available? Concealment of identity of complainant Protection against victimisation of complainant or anyone who has rendered assistance in inquiry Protection (including police protection) for complainant, witness or anyone who has rendered assistance in inquiry However, imprisonment up to 2 years, and fine up to thirty thousand rupees, for mala fidely and knowingly filing incorrect/false/misleading complaint

Complaint (Identity concealed) Discreet Enquiry Seek Report from HoD (CA has powers of civil court) Close the complaint Recommendations to the public authority Victimisation Opportunity of hearing Directions of CA ! Penalty for non- compliance ! Prison and penalty for revealing identity ! Penalty up to fifty thousand for not furnishing report ! Prison & fine for false complaint Process Protection Directions of CA !

Identity Protection for Complainant Competent Authority (CA) to conceal identity Identity can only be revealed with prior written permission of complainant (5(4)) However, identity may be revealed at discretion of Competent Authority (S 13) Seeming inherent contradictions and dangers Imprisonment up to 3 years, and fine up to fifty thousand, for negligent or mala fide revelation of identity.

Inquiry CA may seek assistance of the CBI/ police authorities/ any other authority to carry out inquiries under the Act For the purpose of inquiries, CA shall have all the powers of a civil court:— – summoning and enforcing the attendance of any person and examining him on oath; – requiring discovery and production of any document; – receiving evidence on affidavits – requisitioning any public record – issuing commissions for the examination of witnesses or documents; – such other matters as may be prescribed.

Protection against Victimization CA to take action and give directions to prevent or avoid victimisation on receipt of application seeking redress Opportunity of hearing to the complainant and the public authority/servant before issuing directions Burden of proof on the public authority Directions of CA are binding Penalty up to thirty thousand rupees for non compliance with CA directions CA may direct restoration of status quo ante in relation to public servants

Recommendations to PA Recommendations to PA: – Initiate proceedings against concerned public servant – Take administrative steps to redress loss caused to Government; – Initiate criminal proceedings – Take corrective measures – Any other measures PA to act on recommendations within 3 months (max. 6 months) or record reasons in writing for disagreement

Problems No action on complaints made after expiry of seven years from the date of offence Arbitrary exemptions: Provisions of this Act do not apply to the Special Protection Group (SPG), Judges of Supreme Court & High Court What constitutes victimisation is not comprehensively defined No appeal u/s 20 against penalty imposed on complainant u/s 17 CA for PM/CM?

Rules to be prescribed for: Procedure for disclosure Manner and time-frame for discreet inquiry Form of annual report of CA Additional matter in respect of which the CA may exercise the powers of a Civil Court Any other matter which is required to be, or may be, prescribed.

Competent Authorities Government may by notification specify CA for 3(b)(vi) and 3 (b)(vii)