the-whistle-blower-bill-2015

Context

  • While the Whistle Blowers Protection Act 2014 (WBP Act), passed to protect the whistle-blowers, has not yet been notified, an amendment Bill has been introduced.
Who is a Whistle-blower?
  • Whistle-blower (whistle-blower or whistle blower) is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public.
Whistle Blower Protection Act, 2014.
  • It protects people who bring to the notice of the authorities concerned allegations of corruption, willful misuse of power or commission of a criminal offence against a public servant.
  • The WBP law has provisions for concealing the identity of a whistle-blower
  • The law affords protection against victimisation of the complainant or anyone who renders assistance in an inquiry.
  • This is critical as whistle-blowers are routinely subjected to various forms of victimisation, suspensions, withholding of promotions, threats of violence and attacks.
  • However, the law empowers the competent authorities to accord them protection, which includes police protection and penalising those who victimise them
The Whistle Blowers Protection (Amendment) Bill, 2015
  • It seeks to remove immunity provided to whistle-blowers from prosecution under the draconian Official Secrets Act (OSA) for disclosures made under the WBP law.
  • Issues involved are:
    • The offences under the OSA are punishable by the imprisonment of up to 14 years.
    • The threat of such stringent penalties would deter even genuine whistle-blowers.
    • If whistle-blowers are prosecuted for disclosing information as part of their complaints and not granted immunity from the OSA, the very purpose of the law would be defeated.
  • Amendment Bill says that complaints by whistle-blowers containing information which would prejudicially affect the sovereignty, integrity, security or economic interests of the state shall not be inquired into.
  • Certain categories of information cannot form part of the disclosure made by a whistle-blower unless the information has been obtained under the RTI Act.
  • And, these exemptions have been modelled on Section 8(1) of the RTI law which lists the information which it cannot be disclosed to citizens.
Positives of the Bill
  • 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.
  • In fact, the Bill prohibits the reporting of a corruption related disclosure if it falls under any 10 categories of the information. These categories include information related to: (I) economic, scientific interests and also the security of India; (ii) Cabinet proceedings, (iii) intellectual property; (IV) that received in a fiduciary capacity, etc.
  • However, 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. 
  • Furthermore, any of the public interest disclosure received by the Competent Authority will be referred to the government authorised authority if it falls under any of the above 10 prohibited categories. Moreover, this authority will take the decision on the matter, which will be binding. 
Negatives
  • The bill excludes private companies and private persons from the applicability of the provisions of the act.
  • 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, the disclosures under the Bill are not made public but in confidence to the high level constitutional or the statutory authority. 
  • However, a Competent Authority is required to refer the prohibited disclosure to a government authority for the final decision. In fact, the Bill does not specify the minimum qualifications required or the process of appointment of this authority. 
    • However, the independence of this authority may be at the risk if the authority is junior in rank to the public servant against whom the disclosure is made.
  • The whistleblower laws in other countries also prohibit the disclosure of certain types of the information. And, these include information which is related to national security and also intelligence received in a fiduciary capacity, and any disclosure specifically prohibited by the law.
Problems faced by Whistle blowers
  • The Government, corporates and even society to an extent  do not like whistle blowers and some countries go so far as to call them  ‘traitors’. The case of Edward Snowden and Julian Assange of Wikileaks proves the point.
  • The whistleblowers face the legal action, criminal charges, social stigma, and also termination from any position, office, or job.
  • Vindictive tactics to make the individual’s work more difficult and/or insignificant, the assassination of character, formal reprimand, and difficult court proceedings 
  • Unemployment
  • Despite the soaring penalties, whistleblowers are still in a legally fragile situation because whistleblower cases often involve very complex set of facts and employment history. 
Suggestions International instances:-
  • Well, in Sweden, for example, a source who divulges information to a journalist on the condition of anonymity is protected under the Constitution, and also to breach this confidentiality agreement is the criminal offence, punishable up to a term of one year or fine.
Technological issues need to be resolved:-
  • India fares even worse when it comes to the protection of the information which may be communicated by the whistle-blowers through different means of technology.
  • Furthermore, the lack of protection provided to the confidential sources is further accentuated by the lack of encryption laws in our India.
Questions
  • Critically analyze the important provisions of the Whistleblower Protection Bill? Why is it pertinent to protect the whistleblowers?  (250 words)
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