The Hindu Editorial Analysis- 17th April 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Why in News?

U.S. federal authorities have arrested Jack Teixeira, 21, a member of the Air National Guard, in the case of classified information of the Pentagon that was leaked on social media in recent months, which analysts say has exposed sensitive data regarding the war efforts in Ukraine, potentially undermining Kyiv’s plans to push back the Russian invasion.

Whistleblowers Protection Act of 2014 empowers anybody (a whistleblower) to disclose an act of corruption, deliberate misuse of authority or discretion, or criminal offence committed by a public official. All public officials, including Ministers, Members of Parliament, the lower judiciary, regulatory agencies, federal and state government workers, and so on, are included. Whistleblowing is defined as an act of disclosing information by an employee or any concerned stakeholder about an illegal or unethical conduct within an organisation. 

Whistleblowers Protection Act - Historical Background

• A whistleblower is someone who informs on someone or something that is doing something illegal.
• In 2001, the Indian Legislation Commission proposed that a law protecting whistleblowers be enacted in order to combat corruption. It had also written a bill to address the problem.
• In 2004, the Supreme Court of India urged the Central government to put in place "administrative machinery for acting on allegations from whistleblowers till a legislation is enacted" in response to a petition filed following the infamous murder of an NHAI official.
• The government, in response, notified a resolution in 2004 named, ‘Public Interest Disclosure and Protection of Informers Resolution (PIDPIR)’.
• The Central Vigilance Commission (CVC) was given the authority to act on allegations from whistleblowers as a result of this resolution.
• The Second Administrative Reforms Commission's report from 2007 also urged that a separate statute be enacted to protect whistleblowers.
• The United Nations Convention Against Wrongdoing, to which India has been a signatory (though not ratified) since 2005, encourages states to make it easier for public officials to disclose corruption and to safeguard witnesses and experts from reprisal.
• The Convention also protects the individual filing the complaint from being victimised.
• To comply with these laws, the Whistleblowers Protection Bill was presented in 2011 and passed into law in 2014.
• Companies are required to take notice of any such complaints under the Companies Act of 2013, as well as the Securities and Exchange Board of India regulations.

Who is a Whistle-blower?

• A whistle-blower (whistle-blower or whistleblower) is a person who reveals any information or action within a private or public institution that is judged unlawful, unethical, or incorrect.
• Whistleblowing, according to the Companies Act of 2013, is an action intended at calling stakeholders' attention to instances of unethical activities in an organisation.

Provisions of whistleBlower Protection Act, 2014

• It protects people who bring charges of corruption, purposeful misuse of power, or the commission of a criminal offence against a public servant to the attention of the authorities.
• The Whistleblower Protection Act contains procedures for hiding a whistleblower's identity.
• The legislation protects the complainant and anybody who assists in the investigation from being victimised.
• The law, on the other hand, empowers the necessary authorities to provide them with protection, including police protection and retribution against those who victimise them.
• The act establishes a mechanism to receive complaints related to disclosure of allegations of corruption or wilful misuse of power or discretion, against any public servant, and to inquire or cause an inquiry into such disclosure.
• The act also provides adequate safeguards against victimization of the person making such complaints.
• The law does not allow anonymous complaints to be made and clearly states that no action will be taken by a competent authority if the complainant does not establish his/her identity.
• The maximum time period for making a complaint is seven years.
• Exemptions: The act is not applicable to the Special Protection Group (SPG) personnel and officers, constituted under the Special Protection Group Act, 1988.
• Court of Appeal: Any person aggrieved by any order of the Competent Authority can make an appeal to the concerned High Court within a period of sixty days from the date of the order.
• Penalty: Any person who negligently or mala-fidely reveals the identity of a complainant will be punishable with imprisonment for a term extending up to 3 years and a fine which may extend up to Rs 50,000.
  • If the disclosure is done mala-fidely and knowingly that it was incorrect or false or misleading, the person will be punishable with imprisonment for a term extending up to 2 years and a fine extending up to Rs. 30,000.
• Annual Report: The Competent Authority prepares a consolidated annual report of the performance of its activities and submits it to the Central or State Government that will be further laid before each House of Parliament or State Legislature, as the case may be.
• The Whistleblowers Act overrides the Official Secrets Act, 1923 and allows the complainant to make public interest disclosure before competent authority even if they are violative of the later act but not harming the sovereignty of the nation.

Provisions of Whistle Blowers Protection (Amendment) Bill, 2015

• The bill establishes a process for receiving and investigating public interest disclosures including acts of corruption, willful misuse of power or discretion, or criminal offences committed by public officials.
• The bill makes it illegal to submit a corruption-related disclosure if it fits into one of ten categories.
• These categories include: (i)economic, scientific, and national security interests of India; (ii) Cabinet proceedings; (iii) intellectual property; (iv) information obtained in a fiduciary position, and so on.
• The Official Secrets Act (OSA), enacted in 1923, prohibits certain disclosures. The Bill changes this, making it illegal to make disclosures that are covered by the OSA.
• If any public interest disclosure received by a Competent Authority falls into one of the ten forbidden categories, it will be reported to a government-authorized authority. This authority will make a final decision that will be legally binding.

Important Reports related to whistleblowers

• The necessity for whistleblower protection was originally emphasised in a 2001 report by the Law Commission of India. The Committee went so far as to propose a law to address the problem.
• The Hota Committee (Committee on Public Service Reforms) considered protecting civil officials who submit sensitive information about power and authority abuses in 2004. It did not, however, make any recommendations.
• In response to Satyendra Dubey's plea, the government issued the 'Public Interest Disclosure and Protection of Informers Resolution (PIDPIR)' in 2004, which empowered the Central Vigilance Commission (CVC) to act on complaints from whistle-blowers.
• In addition, the Second Administrative Reforms Commission's report from 2007 stated that a law protecting whistle-blowers was needed.

Problems faced by Whistleblowers

• Whistleblowers are disliked by the government, corporations, and even society to some level, with some countries, even referring to them as "traitors." The story of Wikileaks' Julian Assange and Edward Snowden exemplifies this idea.
• Whistleblowers face legal action, criminal accusations, social disgrace, and the possibility of being fired from any position, office, or job.
• Character assassination, official reprimand, and difficult legal processes are all examples of vindictive strategies used to make an individual's work more difficult and/or insignificant.
• Whistleblowers are nonetheless in a precarious position in a, despite the high fines, because whistleblower cases generally contain a complex combination of facts and job history.

Way forward

• Information on the meaning and concept of the Whistleblowers Protection Act should be widely disseminated. Seminars should be held in both government and private businesses to educate employees and employers about the Whistleblowers Protection Act's value. Employees must be informed about the various methods for making disclosures.
• Furthermore, while the Act provides for anonymous disclosures, it does not specifically address perfect anonymity.
• The Whistleblower Act allows the identity of the whistleblower to be revealed. There is a risk that the whistleblower will be victimised if this is done.
• The definition and meaning of "competent authority" should be changed to broaden the scope of the phrase and include several agencies/organizations that are currently excluded, such as the lower judiciary.
• The Act should establish a Protection Agency that would not only protect existing whistleblowers but also encourage future ones to come forward and help them in making proper public disclosures.
• The state should devise a strategy for dealing with frivolous complaints, maybe by building an effective screening system. Taking away the option to file a complaint anonymously complicates the process of whistleblowing and discourages people from filing concerns.

Conclusion

Appropriate legislation must be enacted to safeguard innocent whistleblowers, and the 2015 Amendment Bill's intended weakening of the act must be abandoned. Strengthening the whistleblower protection process will aid in safeguarding, preserving, and upholding democracy's integrity.