Laws on Whistleblower Protection in India
The Whistleblower Protection Act, 2011 (hereinafter referred to as “the act” or “the whistleblower act”) received the accent of the president on May 9, 2014 and in 2015, the Whistleblower’s Amendment Bill was tabled in the parliament, which is still pending for approval of the Upper House, the Rajya Sabha. A whistleblower is a person who raises his voice against any illegal act done by another person or is the person who reports an act of corruption. The act, enables the whistleblower to report the act of corruption or to report against those who misuse their power or discretion or to report an act against criminal offence done by a public servant, by providing him protection under itself. Here, the definition of public servant exclude the High Court judges or the Supreme Court judges.
There is different type of protections for public sector whistleblowers and private sector whistleblowers as there are different type of complaints and different sensitivities in both the sectors. Whereas in private sector, whistleblower’s complaints could mainly be in violation of company’s policy such as sexual harassment at work places, assaults as well as corruption and other discriminatory practices, while in public sector, public employees or servants may also fear, before exposing anyone else’s misconduct, illegal or dishonest activity, as going against their government and country by being a whistleblower. And hence, despite the fact that whistleblowers are protected under the act, they still hesitate to reveal any wrongdoing mainly because of harassment later on by threat from their employers or because of the fear of loss of jobs or due to the abovementioned reason under the public sector. Because of these reasons, Central Vigilance Commissioner K V Chowdary said that there is a need to bring some provisions in Whistleblowers Act to protect witnesses that would provide confidence to those who expose corruption.
The amendment act of 2015 further proposes to curtail the whistleblower’s ambit as it restricts them from revealing disclosures of any public interest matters if it benefits the country and also prohibits the disclosure of acts mentioned under Official Secrets act. It prohibits any person to report any corruptive act if it relates to economic growth of India such as if it promotes the GDP growth, scientific interest related to discovery of a new principle, then this must be overlooked, as in corruption, security of India such as to protect the country from terrorism acts or if there is any information related to cabinet proceedings such as giving bribes to minority voters to stand and vote in favour of majority so that the particular bill is passed in the house, as they appeal to the face a country presents to the outside world. Thus, the bill does not permit disclosure of those acts which are prohibited under Official Secrets Act, 1923, which was allowed prior to the amendment.
Moreover, under the Act, a complaint cannot be filed anonymously. The Act expressly states that no action will be taken if a disclosure does not indicate the identity of the complainant. This is another serious shortcoming in the Act. The first aim of any whistleblower law should be to prevent the person making the disclosure from being victimized, dismissed or treated unfairly in any way for having revealed the information. The most effective way of protecting whistleblowers is to maintain uncompromising confidentiality regarding their identity and the content of their disclosures.
Hence, to conclude, it would be fair to say that however the act tries to empower whistleblowers but they are not protected as they ideally should be and the act is weak enough that it does not encourage more and more people to come up and report cases of corruption or any wrongdoings at the place they work.
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