The Whistle Blowers Protection Act and the Idea of Transparency

Introduction

India’s history is replete with examples of whistleblowers. Over the years, many people in our nation have died while attempting to reveal the system’s poor governance. The Whistle Blowers Protection Act was introduced by the Indian Parliament in 2014 in an effort to prevent similar regrettable incidents. Nevertheless, the Whistle Blowers Protection Act, 2014 has not yet been implemented. Additionally, the Whistle Blowers Protection Act of 2014’s detractors claim that the law infringes upon citizens’ fundamental rights. Because of this, the law has already generated controversy before it was even passed. The act of an employee or other stakeholder concerned revealing information regarding unethical or unlawful behaviour occurring within an organisation is known as whistleblowing. A whistleblower is someone who discloses information about an individual or group involved in illegal action. As previously mentioned, India has seen several attacks against its whistleblowers. An engineer by the name of Satyendra Dubey was killed in 2003 after he revealed corruption within the National Highways Authority of India (NHAI). A few years later, Shanmugam Manjunath, an employee of Indian Oil Corporation, was killed for exposing the fuel tampering scheme. As a result, it was believed that robust and efficient laws protecting whistleblowers were necessary¹.

It is important to remember that the Law Commission of India suggested a whistleblower law in 2001 in order to address the issue of corruption in the country. Consequently, the Indian Government issued a resolution in 2004 called the “Public Interest Disclosure and Protection of Informers Resolution (PIDPIR)”. This resolution gave the Central Vigilance Commission (CVC) the authority to respond to whistleblower allegations. Furthermore, the Second Administrative Reforms Commission’s 2007 Report² suggested that in order to protect whistleblowers, a specific law should be enacted. Interestingly, the Indian Government signed the United Nations Convention against Corruption in 2005. This Convention attempts to safeguard witnesses and experts from reprisals and to make it easier for public officials to disclose wrongdoing³.

Ultimately, the Union Government presented a Bill to the Lok Sabha in August 2010 that would protect anyone who reveal wrongdoing in Government organisations. The Bill was also forwarded to the Parliamentary Standing Committee on Personnel, Law, and Justice (the Standing Committee) in September 2010 for in-depth discussion. The general public was encouraged to submit comments to the Committee. It is interesting to note that the Bill included many of their recommendations as well. The Lok Sabha finally approved the legislation on 27-12-2011 and the Bill was tabled in the Rajya Sabha in 2012. Eventually on 21-2-2014, it was enacted following a number of deliberations. On 9-5-2014, the President signed the Bill into law. However, the Act has not gone into effect as the present-day National Defence Academy (NDA) administration has not yet made a decision regarding the implementation of the Whistle Blowers Protection Act, 2014⁴.

The Whistle Blowers Protection Act, 2014: Primary attributes

With seven chapters and thirty-one sections, the Whistle Blowers Protection Act, 2014 is a minor piece of legislation. Chapter I⁵ of the Whistle Blowers Protection Act, 2014 addresses the legislation’s applicability. The entire territory of India is covered under the Whistle Blowers Protection Act, 2014. It is important to remember, though, that Section 2 of the Whistle Blowers Protection Act, 2014⁶ specifies that the Whistle Blowers Protection Act, 2014 does not apply to employees and officers of the Special Protection Group, which has been established by the Special Protection Group Act of 1988⁷.

According to the Whistle Blowers Protection Act, 2014, anyone, even public servants, can complain to a competent authority about corruption or abuse of authority committed against a public servant. Section 3 of the Whistle Blowers Protection Act, 2014 provides a detailed definition of the word “competent authority”⁸.

Public interest disclosure is covered in Chapter II⁹ of the Whistle Blowers Protection Act, 2014. The Official Secrets Act of 1923¹⁰ is superseded by Section 4 of the Whistle Blowers Protection Act, 2014, which permits the complaint to disclose information in the public interest before a competent body even if doing so violates the later statute and does not jeopardise national sovereignty¹¹. Chapter III¹² of the Whistle Blowers Protection Act, 2014 addresses the competent authority’s authority and duties. The types of matters that the competent authority can and cannot consider are explained in this chapter. In contrast, Chapter IV¹³ addresses the process that a competent authority must follow while looking into a subject¹⁴.

Additionally, Chapter V of the Whistle Blowers Protection Act, 2014 offers some protection to prevent the complainants from becoming victims. The Whistle Blowers Protection Act, 2014, however, forbids anonymous complaints; that is, no action will be done against the complainant if they do not reveal their identity to the appropriate authority. Additionally, you have a limitation of seven years to file a complaint¹⁵.

Chapter VI of the Whistle Blowers Protection Act, 2014 addresses penalties that the competent authority may administer¹⁶. In addition, Section 20 of the Whistle Blowers Protection Act, 2014 stipulates that anyone who feels wronged by a competent authority ruling has sixty days from the date of the order to file an appeal with the relevant High Court¹⁷.

Chapter VII¹⁸ of the Whistle Blowers Protection Act, 2014 addresses the miscellaneous provisions. According to Section 23 of the Whistle Blowers Protection Act, 2014, the competent authority is required to compile an annual report detailing the performance of its operations and submit it to the Federal Government or State Governments, which will then present it to each House of Parliament or State Legislature, as applicable.¹⁹

Discrepancies in the Whistle Blowers Protection Act, 2014

There is no provision for anonymous complaints in the Whistle Blowers Protection Act of 2014. According to the Act, a complaint would not be considered unless the complainant discloses their identity. The authors believe that this is against Articles 14²⁰ and 21²¹ of the Constitution²². We have seen other whistleblowers lose their lives in the past while opposing the unscrupulous system. Therefore, it becomes crucial that the whistleblowers’ identities remain confidential.

In the 2017 case of K.S. Puttaswamy (Privacy-9J.) v. Union of India²³ the Supreme Court noted that the right to privacy is a component of the right to life and personal liberty, which are protected by Article 21 of the Indian Constitution. Privacy is the State or circumstance of not having one’s actions or decisions interfered with or brought to the attention of the public. It has been said that the right to be left alone includes the right to be in this state. The ability to isolate oneself and prevent others from invading it in any way appears to be fundamental to privacy. These intrusions can be visual or bodily, and they can occur directly, through tools, equipment, or technical help, or they might be in the form of peering over someone’s shoulder or eavesdropping. Even so, the Supreme Court subsequently made it clear that the right to privacy is not unconditional and can only be violated in very specific situations. A violation of someone’s right to privacy must commensurate with the desired outcome. Even though it is not required, the complainants identity is revealed in the current case. It is also important to remember that in these situations, the person who has been the target of the complaint and the person who has not are not on equal footing.

The Supreme Court noted in Prem Chand Somchand Shah v. Union of India²⁴ decision that Article 14 guarantees equality among equals and that its purpose is to shield those in comparable circumstances from discriminating treatment. It implies that everyone in a similar situation will receive the same treatment in terms of the rights granted and the obligations placed upon them. On the other hand, if people in different situations are treated equally, prejudice may ensue. In order to distinguish individuals or things that are grouped together from those that are left out of the group, the differential treatment must be based on an understandable differentia. Additionally, the differentia must have a logical connection to the goal that the statute in question is trying to accomplish. Additionally, Section 13²⁵ grants the competent authority discretionary authority over the revelation of the complainants’ identities, which the authorities may readily abuse. Therefore, it is crucial that an Impartial Committee investigate it rather than the appropriate authority, which is made up of members of the same organisation.

The Whistle Blowers Protection Act, 2014 in various jurisdictions

United Kingdom

Whistleblowers were not historically encouraged in the United Kingdom. It was regarded as a betrayal of confidence. However, following a few Court rulings, the perception shifted. In Initial Services Ltd. v. Putterill²⁶ the Queen’s Bench noted that the law permits an exception to the rule that confidential information should not be published when there is wrongdoing of a kind that should be revealed to others for the benefit of the public. The revelation must, however, be made to a person who is related and interested to the same.

The Queen’s Bench further ruled in Lion Laboratories Ltd. v. Evans²⁷ that the justification for disclosing the private information can be a just cause and greater good. The Public Interest Disclosure Act, 1998 was finally passed by the British Parliament in 1998. The purpose of this legislation, as enacted by the Parliament, was to protect those who notify others about improper management in their departments or offices. Three types of disclosure are allowed under the Public Interest Disclosure Act. The first is an internal disclosure to the employer; the second is a regulatory disclosure to a designated individual; and the third is a more general disclosure that may be made to the media, the police, Members of Parliament, and others.²⁸

Anonymous complaint procedures were not covered by British law. Nonetheless, the European law places a strong emphasis on the need for complainants to remain anonymous. The UK Bribery Act of 2010²⁹ and the UK Employment Rights Act of 1996³⁰ provide whistleblowers with additional protection in addition to the Public Interest Disclosure Act of 1998. These laws, in addition to the Public Interest Disclosure Act of 1998, do offer certain protections for anyone who come forward to expose wrongdoing.³¹

New Zealand

In New Zealand, whistleblower protection is addressed under the Protected Disclosures Act of 2000³². The whistleblower laws of the Australian State of Victoria and New Zealand are comparable. The law stipulates that a certain number of people must be informed. The list of people who can file a complaint is somewhat detailed. The process to be followed for revealing the information to the designated individuals is outlined in Sections 7-14. Sections 17 and 18 of the Protected Disclosures Act, 2000 grant whistleblowers specific immunity.³³

But Section 19 is the most intriguing part of this statute. According to Section 19, an informant’s identity must be kept confidential unless the informant gives permission or it is necessary to disclose his identity for an efficient investigation, to avoid endangering the public’s health or safety, or to uphold natural justice principles. Additionally, Section 20 of the Protected Disclosures Act, 2000 addresses false allegations and specifies that the person providing the information cannot benefit from the Act’s protections if they knew the information was untrue or that the person acting in bad faith had done so.

Right to information versus the Official Secrets Act, 1923: Where to draw the line

Article 19(1)(a)³⁴ of the Indian Constitution guarantees freedom of speech and expression to all Indian citizens. Furthermore, it is evident from the discussions held in the Constituent Assembly that the freedom of the press is also protected by Article 19(1)(a). However, there is no mention of the right to information. Therefore, it may be argued that the original Constitution did not specifically mention the right to information. However, the Supreme Court of India had the chance to interpret Article 19(1)(a) widely in State of U.P. v. Raj Narain³⁵ and as a result, they included the right to information within its purview. Section 123³⁶ of the Evidence Act, 1872³⁷ prohibits the use of unpublished Government documents relating to State matters as evidence. However, if the individual receives permission from the officer in charge of the appropriate department, the same can be done. Accordingly, the Court was entrusted with determining whether Blue Book meets the requirements of Section 123 of the Evidence Act, 1872 as a privileged record. In his ruling, Justice Mathew noted that Section 123 had to be read in accordance with Section 162³⁸ of the Evidence Act, 1872, which requires the witness to present documentation. In his decision³⁹, Justice Mathew also stated that in a democracy, everyone has the right to know about all public actions. Nonetheless, Justice Mathew did impose certain restrictions on the right to information. The executive branch alone is in charge of deciding the public’s security, under Justice Mathew’s decision⁴⁰. Therefore, the Minister’s certificate of non-disclosure will be considered final. Therefore, one could argue that Justice Mathew detracted from his offering⁴¹.

The Supreme Court of India dismissed the argument in S.P. Gupta v. The President of India⁴² that certain types of papers are immune under Section 123 of the Evidence Act, 1872 just because they deal with policymaking. The Supreme Court’s clear decision states that the right to information is included in the scope of freedom of speech and expression. Furthermore, in L.K. Koolwal v. State of Rajasthan⁴³ the Indian Supreme Court decided that the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution includes the right to information. However, the Supreme Court did point out in a few of its rulings that the Government may decide to withhold information in certain situations and that the right to information is not always guaranteed⁴⁴.

The Right to Information Act, 2005: A conceptual discussion

In order to promote transparency and accountability in Government, the Parliament enacted the Right to Information Act in 2005⁴⁵. The Act aims to combat corruption and strengthen the nation’s citizens. The Act allows citizens to view government documents, take notes on them, and obtain certified copies of such documents from the appropriate public entity. According to the Right to Information Act of 2005, a public authority is anybody created by the Constitution or by legislation enacted by the Federal Government or State Governments. The relevant public authority must provide information on the topic within 30 days. Nonetheless, such information must be provided within 48 hours when someone’s personal freedom is at risk⁴⁶.

To be clear, the Right to Information Act of 2005 did not establish a new bureaucracy to enforce the law. Rather, it issued directives and required that all officials in all offices shift from a secretive mindset and responsibilities to an open and transparent one. It elevated the Information Commission to the highest authority in the nation by purposefully and methodically granting it the authority to direct any office in the nation to release information in compliance with the Act’s provisions. Additionally, it gave the Commission the authority to discipline any official who violated their directives. The right to knowledge has been viewed as essential to the advancement of people-centred governance and participatory democracy. By eliminating needless concealment, it also helps public authorities make decisions.⁴⁷

Among the many fundamental rights guaranteed by the Constitution, the right to information is not unqualified. Sections 123, 124⁴⁸, and 162 of the Evidence Act, 1872 permit the disclosure of secret documents. According to these clauses, the department head may decline to provide information about State issues, but only after pledging that the information is a State secret. Similarly, no public official may be forced to reveal communications that were provided to him in confidence. It is also critical to keep in mind that the Central Government has been exempted from the requirement to disclose information under its control by the Atomic Energy Act of 1962⁴⁹.⁵⁰

Furthermore, the Central Civil Services (Conduct) Rules, 1964 prohibit government employees from communicating or sharing any official documents unless specifically authorised by an executive branch direction, either general or specific. To protect a range of information, including but not limited to information on State affairs, diplomacy, national security, espionage, and other State secrets, the British Government passed the Official Secrets Act in 1923. The requirements of the Right to Information Act, 2005 however, always take precedence over those of the Official Secrets Act, 1923 in the event of a conflict.

The Official Secrets Act, 1923: A threat to transparency and accountability

One of the most draconian laws in our nation is the Official Secrets Act of 1923. Additionally, this is also one of those laws which is filled with innumerable flaws. Information of any type may be designated as an official secret. However, there is no definition of a secret document in the law. The administration has been left to make the decision. The Government abuses secret documents to further its own political agenda because they are not defined anywhere in the Act. The Official Secrets Act, 1923 grants the Government unrestricted authority to keep information from citizens. Additionally, if the information is made public, the individual who did so faces legal repercussions. Furthermore, if someone is accused under the Official Secrets Act, 1923, it becomes extremely difficult to get bail. This is because the matter involves national security, making it even more difficult to challenge. Furthermore, spying is defined in Section 3⁵¹ of the Official Secrets Act, 1923. However, there are many different definitions of spying. Additionally, the accused bears the burden of proof under Section 3(2) of the Official Secrets Act, 1923, which requires them to demonstrate their innocence or malice. The researchers believe this to be problematic as well⁵².

The Government has frequently abused the Official Secrets Act, 1923 in recent years. Journalists who report against the Government are the targets of these prosecutions. When journalist Santanu Saikia published the contents of a cabinet memo on disinvestment policy in 1998, he was charged under the Official Secrets Act, 1923. It took eleven long years for the court to finally acquit the journalist. Iftikhar Gilani of the Kashmir Times was charged with violating the Official Secrets Act, 1923 in 2002. The Government argued that he had given the Pakistani Army access to some classified military secrets. The records for which he was charged under the Official Secrets Act, 1923, however, were later discovered to be in the public domain. He was eventually released from prison, but not before spending seven arduous months there for no fault of his own.⁵³

When Tarakant Dwivedi of the Mid-Day reported that the firearms purchased by the Government Railway Police were rotting due to water leaks, he was detained under the Official Secrets Act in 2011. The case took a long time because it was filed under the Official Secrets Act, but the reporter was granted bail. Furthermore, for exposing the misuse of the sahayak system in the Indian Army, Poonam Agarwal of The Quint was charged under the Official Secrets Act in 2017. Because of the Official Secrets Act, the case took a long time. Finally, she was released⁵⁴.

The then Attorney General, Mr K.K. Venugopal, contended before the Supreme Court in the Rafale Review hearing that the documents published by the Hindu were secret materials that had been stolen from the Defence Ministry, which put the Official Secrets Act in the headlines more recently. As a result, The Hindu newsgroup must be the target of legal action. But in the Rafale case⁵⁵, the Supreme Court dismissed the Government’s arguments and permitted the use of the leaked⁵⁶.

Interestingly the Law Commission of India filed a report on the Official Secrets Act in 1971.⁵⁷. According to its report, it concurs with the argument that a circular should not be subject to the Act’s provisions just because it is marked as secret or confidential if its publication serves the public interest and there is no conflict between the State’s interest and a national emergency. The Law Commission did not, however, suggest any modifications to the legislation. The Second Administrative Reforms Commission, however, suggested in 2006 that the Official Secrets Act be repealed and that its contents be moved to a chapter of the National Security Act, 1980.⁵⁸ An umbrella Act that would combine all of India’s national security laws should be passed since the Official Secrets Act is inconsistent with the democratic society’s transparency regime.

A Committee was established by the Union Government in 2015 to examine the Official Secrets Act’s provisions in light of the Right to Information Act, 2005. According to the Committee’s assessment, the Official Secrets Act ought to be more open and consistent with the Right to Information Act, 2005. According to Section 22⁵⁹ of the Right to Information Act, 2005, the Right to Information Act, 2005 will take effect regardless of any conflicting provisions in the Official Secrets Act, 1923, any other currently enacted legislation, or any document that is enforceable under a law other than this Act. Consequently, if there is a discrepancy in the Official Secrets Act concerning the information’s provision. The Right to Information Act, 2005 will take precedence over the aforementioned. Nonetheless, the Government may decline to release specific information in accordance with Sections 8⁶⁰ and 9⁶¹ of the the Right to Information Act, 2005. In addition, a document may be exempt from the Right to Information Act of 2005 if the Government designates it as secret under Clause 6 of the Official Secrets Act, 1923⁶².

The present version of the Officials Secrets Act does not protect the interests of our nation’s citizens. It just violates citizens’ rights in the guise of official secrets and national security. Advocates of the Official Secrets Act frequently contend that this law is essential for preventing espionage and safeguarding military secrets. It is important to remember, though, that the military acts themselves contain protections against military offences. Therefore, there would be no difference even if the Official Secrets were removed. The Lokpal and Lokayukta, the offices of Ombudsman, are also impacted by the Official Secrets Act since many papers are kept secret from the general public under the guise of official secrets, which could damage the Government’s reputation if they are revealed. Furthermore, the Government may book someone under the Official Secrets Act if they submit a document to the Lokpal or Lokayukta, which would have a chilling effect. Therefore, it is imperative that India move towards transparency and shake off the colonial shackles of governmental opacity.⁶³

Way ahead

Any democratic society must be built on the foundation of accountability and transparency. The Government’s powers are restrained by these procedures. It guarantees that the public can access information. To put it simply, information transparency holds the Government responsible. Thus, every progressive democratic society strives to achieve the highest level of accountability and set restraints on the Government’s unbridled authority.

In an attempt to improve accountability and openness in the nation’s social and political systems, the Indian Government passed the Right to Information Act in 2005. The information kept by the State’s governmental offices was made available to the public by this Act. Since the Act required government entities to make information available to the public, it did in fact significantly change India’s accountability and transparency procedures. Therefore, it is possible to say that there was a significant change in the way that records were kept in Indian governmental offices. However, the new legislation lost its momentum because of a number of restrictions on the availability of information in the public domain. The primary goal of the Act is overlooked by the constraints. It destroys the core of the law. The limitations permit the Government to operate in an opaque manner. People hold the Government less accountable because of the lack of openness. As a result, we will argue against these restrictions on the Right to Information Act, 2005.

One such restriction upon the application of the Right to Information Act, 2005 is the draconian Official Secrets Act. Over the years, the Indian Government has continued to comply with the Officials Secrets Act, which originally became a law during British rule. Furthermore, this Act has damaged our nation’s democratic reputation in addition to causing miscarriages of justice. Numerous prominent legal scholars and civil rights advocates have called on the Indian Government to repeal this statute. The same was also recommended by the Second Administrative Reforms Commission. Nevertheless, this recommendation is yet to be implemented. Hence, it is the need of the hour that the same is done as soon as possible.⁶⁴

Furthermore, the interests of whistleblowers are not adequately protected under the Whistle Blowers Protection Act of 2014 in its current form. Consequently, it is imperative that the existing Whistle Blowers Protection Act undergo certain modifications. First of all, as is the case in New Zealand, the whistleblowers’ identities should not be revealed. This will guarantee the whistleblowers’ safety. Second, the disclosures must be examined by an impartial entity other than the appropriate authorities. More impartiality in decision-making will result from this. Thirdly, whistleblowers ought to receive specific financial rewards. As a result, whistleblowers would receive financial assistance for the risks that have undertaken to expose the corruption.

Additionally, the Supreme Court correctly noted in Bachan Singh v. State of Punjab⁶⁵ that the Government should be of laws and not of men, and that it makes no difference in how this concept is applied whether men are in the administration or the judiciary. Article 14’s fundamental criterion is that discretion must always be exercised in accordance with rules or norms to prevent it from degenerating into arbitrariness and treating people in similar situations differently. The exercise of discretion by an authority can be arbitrary or capricious when it is granted unguided and unbound. Our constitutional framework forbids any kind of arbitrariness, including judicial adhocism and presidential sleight of hand. Therefore, it is crucial to make sure that decisions are made in an unbiased and non-arbitrary manner. The fundamental rights were incorporated primarily to empower citizens and hold the Government responsible. Nonetheless, the existing whistleblower protection law has diminished individual status and given the Government more authority. Consequently, it is imperative that the law be changed for the better.