19 July 2017

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Whistleblowers Protection Act may become Corrupt People Protection Act 2015

Whistleblowers Protection Act may become Corrupt People Protection Act 2015

The Whistleblower Protection Act, 2014 was enacted to enable any person to disclose to a Competent Authority, acts of corruption or willful misuse of power or discretion, or criminal offences by a public servant. The Competent Authority is the Prime Minister or Chief Minister in the case of Ministers, the Speaker or Chairman for Members of Parliament or state legislatures, the Chief Justice of the High Court for district court judges, and the Central or State Vigilance Commission for government servants.

Whistleblowers Protection Act 2014 [WBP Act] was passed by the parliament and received the assent of the president on May 9, 2014, But BJP government has moved an amendment Bill in the parliament which seeks to severely dilute the law.

BJP government brought amendment Bill to the Lok Sabha that is Lower House without any public debate on its contents and its text was only made public on May 11, 2015, once it was introduced in the Lok Sabha.

Opposition parties demanded that Bill be refereed to standing committee, the Bill was passed by the Lok Sabha on May 13, 2015.

Now this amendment bill Whistleblowers Protection (Amendment) Bill, 2015 is listed in the Upper House that is Rajya Sabha.

If this bill gets passed after this Whistleblowers Protection (Amendment) Bill, 2015 will indirectly become the Corrupt People Protection Amendment Bill 2015.

How and why this will happen Let Us Understand

Whistleblowers Protection Act, 2014 -  Disclosures may be made on any act of corruption, abuse of power or discretion, or criminal offence by a public servant.

Below are the changes which are made introduced in Whistleblowers Protection (Amendment) Bill, 2015

A disclosure is prohibited if it contains information
related to:
i) The sovereignty, strategic, scientific or economic interests of India, or the incitement of an offence;

ii) Records of deliberations of the Council of Ministers;

iii) That which is forbidden to be published by a court or if it may result in contempt of court;

iv) A breach of privilege of legislatures;

v) Commercial confidence, trade secrets, intellectual property (if it harms a third party);

vi) That relayed in a fiduciary capacity;

vii) That received from a foreign government;

viii) That which could endanger a person’s safety etc.;

ix) That which would impede an investigation etc.;

x) Personal matters or invasion of privacy.

However, if information related to (ii), (v), (vi), and (x) is available under the Right to Information Act, 2005, then it can be disclosed under the Bill.

The 2013 proposed amendments prohibited only two categories of information from being disclosed under the Act: (i) that related to sovereignty, strategic, scientific or economic interests of India, foreign relations, or the incitement of an offence; and (ii) proceedings of the Council of Ministers. However, the 2015 Bill prohibits the disclosure of 10 categories of information.

USA – Whistleblowers Exemption Law Provision –
National defense or foreign affairs exempted only if there is a specific Executive Order to keep the information secret and If a disclosure is specifically prohibited by law

India also needs to follow this and should keep only 2 exemptions.

Applicability of the Official Secrets Act (OSA), 1923
Whistleblowers Protection Act, 2014 - Disclosures can be made under the Act even if they are
prohibited under the OSA. [The OSA prevents documenting or communicating any
information, etc., if it violates national security.]

Below are the changes which are made introduced in Whistleblowers Protection (Amendment) Bill, 2015 -  Disclosures cannot be made under the Bill, if it is prohibited under the OSA.

“If whistleblowers are prosecuted for disclosing information as part of their complaint and are not granted immunity from the OSA, the very purpose of the law will be defeated. Offences under the OSA are punishable by imprisonment of up to 14 years.

Fear of 14 Year Jail Term – who will dare to disclose information or do anything.

Procedure to determine prohibited disclosures –

Whistleblowers Protection Act, 2014 - Not applicable, as the Act does not prohibit any type of
information from being disclosed.

Whistleblowers Protection (Amendment) Bill, 2015 –  Once a disclosure is made, the competent authority will refer it to a government authorized authority. This government authority will take the final decision on whether the disclosure is prohibited.

Issues that may not be revealed during an inquiry into a whistle blowing complaint

Whistleblowers Protection Act, 2014 - Once a whistleblowing complaint is admitted, and is being inquired into, no person is required to provide any information if it falls under five categories.
These categories include:
i) security of India,
ii) foreign relations;
iii) public order and morality;
iv) contempt of court; defamation, incitement to an offence;
v) Cabinet proceedings

Below are the changes which are made introduced in Whistleblowers Protection (Amendment) Bill, 2015 –
The five categories are replaced with the above 10 categories of information mentioned in No. 1

The Bill amends this provision to prohibit a person from disclosing information related to corruption by public servants if it falls under 10 categories. These categories include information related to sovereignty, scientific, economic interests and security of India, proceedings of the Council of Ministers, breach of privilege of legislatures, intellectual property, an investigation process, etc.

The Statement of Objects and Reasons of the 2015 Bill states that the prohibited categories have been modelled on the 10 categories of information that cannot be revealed under the Right to Information (RTI) Act, 2005.

It is wrong thing to compare Right to Information Act with Whistleblowers Protection (Amendment) Bill

Purpose of Right to information Act is bring accountability and transparency so every Indian citizen will know what is happening and what is truth.

Purpose of Whistleblowers Protection Bill is to expose corruption, the information won’t get shared freely with 100% Indians. the Whistleblowers Act provides for corruption related information to be given by an individual to a Competent Authority. The Competent Authority, in all cases, is a high level Constitutional or statutory authority. This information is not made public and the inquiry into the allegation is required to be discreet, with the identity of the complainant, public servant, and related documents being kept secret.

Whistleblowers Protection (Amendment) Bill, 2015 –
The Bill states that if the Competent Authority receives a public interest disclosure that falls under any of the 10 prohibited categories of information, he will refer it to a government authorized authority. This authority will decide whether the disclosure contains any information that is prohibited under the Bill. This decision will be binding on the Competent Authority.
However, the Bill is silent on the minimum qualifications or designation of the government authority. The independence of this authority may be at risk if the authority is junior in rank to the public servant against whom the disclosure is made

Whistleblowers Protection (Amendment) Bill, 2015 –
amendment Bill also provides for creation of an authority by the central/state government which will certify whether or not any information which is a part of the disclosure, or any information sought during inquiry, is of a sensitive nature as specified in the Bill.

The certificate issued by this authority will be binding and following certification, the competent authority will not inquire into such disclosure and such information will not be provided during the course of inquiry.

This is an excellent idea and provision to stop the inquiry into corruption and to help corrupt politicians and their friends.

If this Whistleblowers Protection (Amendment) Bill, 2015 gets passed in the Upper House that is Rajya Sabha rarely any Indian will dare to disclose any information regarding government contracts or government officers or appointments

Indirectly this amendment bill provides security cover for the corrupt government officers, corrupt politicians and corrupt business houses.

Indirectly this bill will become Corrupt People Protection Amendment bill 2015

Reality views by sm –

Wednesday, July 19, 2017

Tags - Whistleblowers Protection (Amendment) Bill, 2015