Purpose of The Whistle Blowers Protection Act, 2011:

This Act  received the assent of  the President on 9th May,2014. It  essentially provides for the mechanism to (i) receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant ; (ii) inquire or cause an inquiry into such disclosure; and (iii) provide adequate safe guards against victimization of the person making such complaint. Before the Act could be brought into force, the government introduced the Whistle Blowers Protection (Amendment) Bill, 2015 to further amend the Principal Act. The Amendment Act has been  passed by the Lok Sabha and awaits the approval of the Rajya Sabha.

Some of the Amendments are salutary in nature:

2.Some of the amendments are beneficial from point of view of public interest and are welcome. In fact, these should have been kept in view when the Principal Act itself was introduced in Parliament. Some of such prominent amendments are:

(a) Section 8 (1) of the Principal Act provided that  no person shall be required to furnish any such information or answer any such question  or produce any document or information or render any other assistance if it is likely to prejudicially affect the   “decency or morality”, as might involve the disclosure of the proceedings of the  Union / State Cabinet or of any Committee of the Union / State Cabinet. The expressions “decency” and “ morality’ are vague and difficult to define and as such subject to  different interpretations. The proposed amendment of section 8(1) has the impact of deleting these two expressions;

(b)It is proposed to insert a new section 4(1A) to provide that no public interest disclosure shall be made , if such disclosure contains (i) information which has been expressly forbidden to be published by any court of law or tribunal; (ii) information the disclosure of which would cause a breach of privilege of Parliament or State Legislature; (iii) information received in confidence from a foreign government; and (iv) information the disclosure of which would endanger the life or physical safety of any person  or identify the source of information or assistance given in confidence for law enforcement or security purposes; (v) information which would impede the process of investigation or apprehension or prosecution of offenders; and (vi) personal information devoid of any public interest or which would cause unwarranted invasion of the privacy of an individual unless such information has been obtained under the Right to Information Act 2005.

Some of the other Amendments are restrictive in nature:

3.Some of the  Amendments being made in the Principal Act  raise a question mark ,as briefly discussed below:

(a) Section 4(1) of the Principal Act provided that “Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923”, any public servant or any person including any non-governmental organization may make a public interest complaint  relating to commission of an offence under the Prevention of Corruption Act, 1988 or willful misuse of power  or commission of a criminal offence. The words “Notwithstanding anything contained in the provisions of  the Official Secrets Act, 1923”  have been deleted in the amended section 4(1).

(b) Section 8 of the principal Act provided that  no person shall be required to furnish any such information or answer any such question  or produce any document or information or render any other assistance if it is likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, as might involve the disclosure of the proceedings of the  Union / State Cabinet or of any Committee of the Union / State Cabinet. In other words, a person as per the Principal Act was free to assist in an inquiry into a complaint falling within the ambit of the  aforesaid areas so long as it did not  compromise the confidentiality of the proceedings of the Cabinet or its Committee. However, in the amendment Bill passed by the Lok Sabha, a new section numbered as 4(1A) has been added which would have the effect of preventing  all kinds of  disclosure  from being made, or inquired into, in these area.

(c)The amended section to be numbered as section 4(1A) in the Principal Act, transported almost verbatim from section 8 (1) (i) of the Right to Information Act 2005, specifically provides that no public interest disclosure shall be made if it, inter alia, contains, information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security of the State, the strategic, scientific or economic interests of the State, friendly relations with foreign States or lead to incitement of offence.  Specific mention also needs to be made to the provisions relating to (a) commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party; (b) information available in a fiduciary capacity; and (c) cabinet papers. No disclosure under the Whistle Blowers Protection Act  can be made if it relates to any of the said three  areas, unless  the information has been obtained by the whistle blower under the RTI Act, 2005.

Are these amendments justified?

3.A careful assessment of the amendments being made in the Whistle Blowers Protection Act 2011 indicates:

(a) The main purpose of bringing   this law on the statute book was to provide protection to a whistle blower from harassment, victimization and physical harm. It was not to place, as far as practicable, fetters on him in the matter of subject matter of the complaint. On the other hand, the emphasis  should be on  encouraging public servants to expose incidents of corruption.

(b) Section 4(1) of the Principal Act which empowers a person to make public disclosure is sought to be amended by deleting the words “notwithstanding anything contained in the provisions of the Official Secrets Act, 1923.” It is interesting to note that section 8 (1) of the Right to Information Act, 2005  which provides exemptions for furnishing information and which  has been practically lifted verbatim and put in as a new section 4(1A) in the  amended Act, does not place any restriction on the ground that the information sought  impinges upon the Official Secrets Act 1923. In fact, under section 22, the Right to Information Act, 2005 specifically provides that the “provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”In other words, the deletion of reference to the Official Secrets Act, 1923 from section 4(1) of the Principal Act has the effect of placing unnecessary fetters on a public servant from  making a public disclosure. The placement of this fetter, on blanket basis, shall only detract from the transparency the Government is so keen to promote in its functioning;

(c) The provisions of section 8(1) of the Right to Information Act, 2005 have been, as indicated above,  practically lifted verbatim and put under the newly introduced section 4 (1A) of the amended  Whistle Blowers Protection Act, 2014. This has been done apparently without any thought to the context in which these provisions were provided in the RTI Act and the impact which they would have on the very objects and reasons for enactment of the Whistle Blowers Protection Act, 2011. For example, it may be perfectly justified for a “public authority” to withhold information about matters relating  to the sovereignty  and integrity of India or security of the state or commercial confidence, trade secrets or intellectual property or information available in fiduciary capacity under the  RTI Act, but if a public servant in the normal course of the discharge of his functions comes across  information which tends to show that decisions taken or being taken or acts done or being done  in any of these areas are tainted with a view to derive personal profit at the expense, say, of sovereignty and integrity of India or security of the state, it would be a pity if he is prevented from making a disclosure of it ; and

(d) It would have been advisable if a specialized procedure were devised to receive and inquire into  disclosures of the above nature so that their confidentiality is not compromised. But to totally shut out disclosures in these areas, to our mind, would be a retrograde step.

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