THE WHISTLE BLOWERS PROTECTION ACT, 2011

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The Whistle Blowers Protection Act 2011 is formulated by the Parliament of India with an object to eradicate corruption among public servants. The Whistle Blowers Act hereinafter referred to as The WBP Act was passed on the 27th of December 2011 by the Lok Sabha, and by the Rajya Sabha on the 21st of February 2014, finally received Presidential assent on 9th May 2014. The legislative intent behind the enactment is to devise a mechanism for the acceptance of complaints in the form of public interest disclosures against a public servant regarding any allegation of corruption, misuse of power or misuse of discretion granted, and for institution of inquiries regarding the same.

 The Act stipulates that disclosures may be made by any person including an NGO to any Competent authority mentioned in s.3(b) of The Act, including the Prime Minister, The Chief Ministers of states, The chairpersons of the houses of parliament and state legislatures ,the Vigilance Commission at either the Central or State levels etc. Section 3(d) provides that disclosures may be made regarding either an attempt to commit an offense or the commission of an offense penalized by The Prevention of Corruption Act, 1988; or any form of abuse of authority that leads to either loss for the government or wrongful gain to any person including the public servant against whom the allegation is leveled. S. 4(6) lays down that the name of the complainant is to be annexed to any disclosure made failing which such complaints will not be inquired into. The enactment seeks to bring a balance between the protection of bureaucrats from malafide complaints and protection of complainants(whistle blower’s)against harassment and victimization on the ground of lodging a complaint or assisting in an inquiry. It ensures this by penalizing false complaints on one hand as provided in s.17 and providing for the non disclosure of the complainant’s name by the authority save with express consent, and penalty for any such disclosure on the other in s. 16 of The Act. The procedure to be adopted by the authority in relation to a valid complaint has been elucidated in s.5 and its powers thereof have been provided for in s.6.The authority during the process of and for the purpose of the inquiry shall be vested with all the powers of a Civil Court as per s.7(2) and may obtain the aid of the police force or The CBI personnel to facilitate a discreet inquiry. There have however been included certain limitations to acceptance of complaints and exemptions of certain matters from inquiry has been provided for in the act. The Act also provides that no civil court is permitted to take cognizance of or has jurisdiction in any matter regarding this act except on a complaint by the authority. Appeals do lie to the civil court.

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The formulation of the Act was on account of a culmination of a series of attacks against people who brought various instances of corruption to light. There have been multiple occasions of threatening, persecution and murder of whistle blowers. Statistics of the CHRI indicate a growing number of deaths associated with people who expose scams. It was really the murder of Satyendra Dubey, the engineer who exposed the corruption in NHAI’s Golden Quadrilateral project that prompted the Supreme Court to issue a directive on the basis of which the government issued an order, the Public Interest Disclosures and Protection of Informers Resolution, 2004, now invalid on account of the passing of the WBP Act; appointing  the CVC as the nodal agency (“Raval: CVC must protect ‘brave hearts'”. Times of India. Apr 13, 2004.) But later, in 2011 The Court refused to formulate guidelines for the protection of whistle blowers on the ground that it did not have the power to make law.(“Supreme Court refuses to frame guideline for protection of whistle blowers”. DNA. Mar 28, 2011). This resulted in the government taking an initiative and introducing the WBP Bill to the Parliament.

Apart from Indian laws governing the area, protection of those who expose corruption is an integral part of international law. Inter-American Convention Against Corruption (Articles III  & XVI) was adopted in 1996 by the Organization of American States and is the first international convention to tackle corruption. In 2003, the United Nations adopted the Convention Against Corruption. Article 32 and Article 33 of the UN Convention endorse protection for whistle blowers. In 1999, the Council of Europe ratified its Civil Law Convention On Corruption. and is binding on most European governments. The Convention “Explanatory Report” stipulates that states must “protect’ and “encourage” whistle blowing. Of the multitude of international conventions promoting protection of whistle blowers India is also a signatory to a number of agencies including ADB OECD Anti-Corruption Initiative for Asia-Pacific.

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The WBP Act is a welcome initiative to curb corruption which is one of the main malignancies undermining our development and progress today. Though hindered by a number of gray areas like the provision for the government to set up authorities to receive complaints in areas where there are none, which might hinder inquiry as the body appointed would also be part of the government and the lack of provisions tackling allegations on human rights violations, and the like, The act is a step towards repairing our bureaucracy. The act would be even more effective if there were provisions that remunerate whistle blowing so as to form an incentive to motivate people to expose corruption that is one of our main social evils. If enforced diligently the act could go a long way to ensure that our system remains clean and in time encourage more people to come forward and speak against atrocities without fear of persecution.