THE INDIAN LAW INSTITUTE
LL.M (Two Year Course)
Wednesday Seminar VII
(22.09.10)
(10.00 am – 12.15 pm)
The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010[1]
Moderator : Mehbubul Hassan Laskar
Presenter : S. Mercy Deborah
Discussants : Abhishek Kumar Pandey & Navtika
Rapporteur : Senthiyanger
I.Background
THE BILL TO PROTECT whistleblowers has been introduced in the Lok Sabha[2] to shield those people who stand up for truth and public interest, often at great personal risk. This Bill is the result of a circuitous and protracted outcome of the Supreme Court’s strong pitch for a mechanism to protect whistleblowers. This it did while hearing a PIL on the murder of Satyendra Dubey, the Bihar-based engineer with National Highways Authority of India (NHAI) who was killed for exposing irregularities in road contracts. The pressure applied by the court led the central government to the issue of an order[3] in early 2004 authorizing the Central Vigilance Commission (CVC) to receive and act on complaints of whistleblowers and to protect their identities, pending the enactment of a law. This interim arrangement is finally set to become a law.
II.Overview of the Bill
The legislation seeks to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto. Under the Bill “Disclosure”[4] would mean a complaint relating to an attempt to commit or commission of an offence of corruption or wilful misuse of power or wilful misuse of discretion or criminal offence by a public servant and such disclosures shall be treated as public interest disclosure under the Bill. It lays down that such disclosure be made before the “Competent Authority”. [5] Every disclosure shall be made writing.[6] At the first instance, the competent authority makes a discreet inquiry.[7] If the disclosure requires to be investigated, it shall seek comments or explanation from the head of the department of the concerned organization, but the identity of the complainant shall not be revealed.[8] If, however, it becomes necessary to reveal the identity, the authority may reveal to the head of the organization, who shall not directly or indirectly reveal the identity.[9] If after conducting an inquiry, the facts or allegations are found to be frivolous or vexatious, competent authority shall close the matter[10] and such frivolous or vexatious complaints will attract penalties.[11] If, however, the reports confirm the allegations, then it shall recommend initiation of proceedings against the concerned public servant.[12] The authority shall not investigate a complaint made after expiry of five years from the date on which the action complained against is alleged to have taken place.[13] For the purpose of making discreet inquiry or obtaining information from the organisation concerned, the competent authority shall be authorised to take assistance of police authorities.[14]
III.Issues
1. Whether the definition of ‘disclosure’ under clause 2(d) and making of such disclosure to a single authority under clause 3(1) of the Bill defeats the very purpose of legislation?
2. Does the Bill provide for effective operational system for protecting whistleblowers and whether the provisions of the Bill will fuel activism or deter potential whistleblowers?
3. Given the fact that most of the public functions have now been taken over by the private sector, is it prudent to exclude the private sector from the purview of the Bill?
Suggested Readings-
1. Law Commision of India, 179th Report on The Public Interest Disclosure and Protection of Informers (December 2001), available at www.lawcommissionof india.nic.in/reports/179rptp1.pdf
2. Chêne Marie, “Good Practice in Whistleblowing Protection Legislation (WPL)”, available at http://www.u4.no/helpdesk/helpdesk/query.cfm?id=207
3. Gupta Ruchi, “Comments on the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill”, available at http://bourgeoisinspirations.wordpress.com/2010/08/11/draft-comments-on-the-public-interest-disclosure-and-protection-to-persons-making-the-disclosure-bill/
4. Nayak Vankatesh, “Whistleblower Bill in India – A case of the right hand not knowing what the left hand has done”, available at http://www.c-nes.org/nycu/755.html
5. Venkatesan V., “Secrecy around Bill”, Frontline, p. 29, September 10, 2010.
[1] Bill No. 97 of 2010. Hereinafter referred to as “Bill”.
[2] Introduced in Lok Sabha on August 26, 2010.
[3] Vide Resolution No. 89, dated April 21,2004, The Ministry of Personnel, Public Grievances and Pensions notified a resolution, called the Public Interest Disclosure and Protection of Informers’ (PIDPI) resolution.
[4] Cl. 2(d).
[5] Cl. 3(1).
[6] Cl. 3(4).
[7] Cl. 4(2).
[8] Cl. 4(3).
[9] Cl. 4(4) and 4(5).
[10] Cl. 4(6).
[11] Cl. 16.
[12] Cl. 4(7) (i).
[13] Cl. 5(3).
[14] Cl. 9.
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