Whistle Blowers Protection Act, 2011: Proposal for an Independent Body

There are a lot of factors which contribute for the functioning and growth of an organisation. Of the many factors which ensure proper functioning, the role of an employee who brings to light the identity of an employee who engages in unlawful act cannot be understated. Keeping this in mind, the rights and identities of these whistle blowers need to be protected to ensure that activities which normal regulatory mechanisms fail to bring to light are disclosed by these whistle blowers. The Whistle Blowers Protection Act, 2011 (hereinafter 'The Act') is one such legislation which aims at protecting the rights of the employees who help in disclosing such unlawful activities in public interest. The Whistle Blowers Protection (Amendment) Bill, 2015 seeks to amend the existing Act, which was passed in 2014. It has been scheduled for discussion in Rajya Sabha during the Monsoon Session of the Parliament. There are certain loopholes in the existing Act which the Amendment Bill, 2015 seeks to rectify. However, there is one issue in the existing Act which creates a sense of ambiguity and has the potential to defeat the very purpose of the Act.

The purpose of the original Act is to conceal the identity of whistle blowers, protect their rights and prevent any consequences from accruing for making such public interest disclosure. The existing Act provides for the establishment of ‘Competent Authority’ (hereinafter 'CA') based on the ranks of public servants. The CA shall deal with the matters of ‘public interest disclosure’ for allegations of willful misconduct by any public servant. However, Section 3(b) of the Act confers the power on the Central Government to appoint a CA based on the ranks of public servants against whom the allegations have been raised. For example, the Central Vigilance Commission or any other authority as the Central Government may, by notification in the Official Gazette, specify in this behalf under this Act, shall be the ‘CA’ for the class of public servants who are in service and paid remuneration by the Central Government (the Act,  S 3(c)(vi)). On the other hand, the provision enshrined under Section 4(6) states that:

no action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure... (the Act, S 4(6))

This prerequisite makes it mandatory for the complainants to disclose their identity to the CA. However, the problem with this condition is that since the CA is not a fixed and independent body, but rather varies for different ranks of public servants, the disclosure of the identity as per Section 4(6) of the Act to the CA formed might result in the identity of the whistle blower being revealed. Moreover, the possibility of an accused person attempting to unduly influence the varied CA to extract the name of the whistle blower also looms large. Thus, the possibility of exercising coercion, undue influence and other such means is a very real threat to the fulfillment of the object of the existing Act. A revelation of the identity of the whistle blower would not only discourage other employees from pointing out unlawful activities being carried out in the organization, but would also put the disclosed person at risk from the accused.

Other Jurisdictions

A comparison with other jurisdictions would show that the formation of an independent body to deal with such matters is the commonly followed practice. For instance, the Whistle blower Protection Act of 1989 of United States and Public Servants Disclosure Protection Act, 2005 of Canada. The former legislation has a similar objective, as per Section 1211, which states that there shall be an establishment of an Office of Special Counsel headed by the Special Counsel (Whistle Blower Protection Act of 1989, Section 1211, U.S. Legislation).
It shall act as the Competent Authority, having the duty to decide upon the matters of wilful misconduct of the public servants. It is a fixed body which looks after the complaints filed by any person against any public servant of any rank. The Canadian Government has also adopted a similar legislation called Public Servants Disclosure Protection Act, 2005. The Act requires appointing a Commissioner, called the Public Sector Integrity Commissioner, whose duty is to receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action as given under Section 22(b) of the Act (the Act, S 4(6)). The Commissioner shall be appointed by the Governor in Council after consultation with the recognized parties in the Senate and House of Commons for a term of seven years.

Proposal for an Independent Body

These foreign Statutes suggest that an independent body should be appointed which deals with matters of public interest disclosure. And, having one independent body reduces the possibility of disclosure of the identity of the complainant to the public servant against whom the complaint has been lodged. It is because an independent body entails greater sense of responsibility and integrity than several CAs. When a single and independent body is appointed by the Government, specifically to deal with such complaints, it becomes their sole function and duty to receive, review and adjudge upon the matters of public interest disclosure. Further, the presence of a member of the judiciary in the composition of the independent body is more efficient for proper adjudication because of the experience and knowledge he has gathered through the years of his service as a judge.

It is difficult to effect these changes immediately. However, recognizing the shortcomings with respect to the objective of this Act, certain short term measures can be taken. Organizations today have become more complex than ever before in history. It is practically impossible for the law to prevent the commission of every unlawful activity. However, the law most certainly can utilize the information provided by a pro-active citizenry. The only way forward is the protection of the identity of these citizens so as not to harm the effective enforcement of law