COMMENTS ON THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO PERSONS MAKING THE DISCLOSURES BILL, 2010

Comments by this Group sent to

Shri V.K. Velukutty,

Deputy Secretary (V-Ill), Department of Personnel and Training,

Room No. 10-8/11, North Block, New Delhi-110001,

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GENERAL NOTE: TOWARDS THE END SPECIFIC CHANGES ARE PROPOSED TO THE BILL. HOWEVER CONSEQUENTIAL CHANGES TO BE MADE ARE NOT SHOWN

1. Corruption is recognized as the mother of all evils , Corruption is recognized to undermine the democracy itself as it violates the Rule of law. Corruption is recognized as a criminal activity. Corruption is recognized today as the root cause of most of the human rights violation. Corruption today is recognized to not only affect the poorest worst but is the cause of many innocent citizens' deaths.

These are best summarised in the observations made by the Supreme Court of India: Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence – shaking the socio-economic-political system in an otherwise healthy, wealthy, effective and vibranting society The Law Commission of India which gave its Report in December 2001 was asked to suggest ways to not only protect whistleblowers but also encourage whistleblowing by creating the needed environment and opportunities as whistleblowing is a major means in the fight against corruption. Unfortunately these are totally missing in the Statement of Objects and Reasons of the Bill

The following from the Law Commission's Report if it had been retained as it is in the Bill's Statement of Objects and Reasons then the spirit of not just the whistleblowers but also of the propsed act would have been made crystal clear.
Good faith whistle blowers represent the highest ideals of public service and challenge abuses of power They test loyalty with the highest moral principles but place the country above loyalties to persons, parties or Governments. There is a close connection between whistle blower’s protection and the right of employees to disclose corruption or mal-administration. Protection of whistleblowing vindicates important interests supporting the enforcement of criminal and civil laws. This aspect may be called the ‘rule of law’ concept implied in whistle blowing. Again, whistle blowing can be seen as supporting public interests by encouraging disclosure of certain types of information. This aspect may be called the ‘public information’ or ‘public interest’ concept implied in whistle blowing. Further, whistle blowing challenges institutional authority, prerogative and discretion. It also enables and protects employee participation in the decision making process of public institutions. This aspect may be called ‘institutional’ or the ‘democratic reform’ concept implied in whistle blowing laws. …It is now recognized that while a public servant may be subject to a duty of confidentiality, this duty does not extend to remaining silent regarding corruption of other public servants. Society is entitled to know and public interest is better served more if corruption or maladministration is exposed. The Whistleblower laws are based upon this principle.

In fact, ARC wants harassment to whistleblowers who expose corrupt practices to be treated as a criminal offense but the Bill does not explicitly state this. Today any Government servant can talk or write against evils like Prostitution, Child Labor, Illiteracy, Dowry etc., Unfortunately, when it comes to corruption, the impression held by even very senior officers is that talking against corruption is forbidden and such officers also treat whistleblowing as a serious misconduct. Unfortunately, the Bill does not make any effort to directly address this critical misunderstanding either in the preamble (Statement of Objects and Reasons) or in the Bill itself. Any fight against corruption should not constrain talking against corruption in general

2. The Bill is very shy about using the universally used word whistleblower except while making reference to it while mentioning the Recommendations of ARC in the Statement of Objects and Reasons. Those who drafted the Bill have totally banished whistleblowing in the Main Bill. The Bill should be renamed as Whistleblowing Act and universally accepted definition of whistleblowing and whistleblower should be defined. Wherever the word complainant appears in the Bill, it should be replaced by the word whistleblower. It would be in larger public interest to define whistleblowing as that mandatory activity of every public servant whose duty is to disclose to the public the following:

(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being, or is likely to be endangered,
(e) that the environment has been, is being, or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the above has been, is being, or is likely to be deliberately concealed.

Following definition of whistleblower could have been used:

A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues).

It is important to recognise three different categories of whistleblowers:
1. those who blow whistle as public servants
2.those who are part of private sector and blow whistle
3. those who do not belong to either of the above two categories but still blow whistle

Today, it is almost impossible to blow whistle and continue to work in the private sector. However, the ills in the private sector are responsible for the ill-health of a large number of citizens but also that of the environment. In spite of very few private sector organisations having whistleblower's Policies, even in these organisations, whistleblowing is an extremely risky activity for even the boldest and sincerest employee,as they are not subjected to external scrutiny. Such being the case, those working in small and medium sized private sector organisations cannot even dream of whistleblowing. In view of this it is important for both private sector and public sector organisations to individually communicate the existance of whistleblower Act to every employee such as printing on the salary Bill that whistleblowing is encouraged and any retaliation would be suitably dealt with heavy hand.

3. The Bill should have kept in mind the recommendations of the ARC to promote whistleblowing not only by Public Servants but also by citizens and private sector employees – this focus is totally missing in the proposed entire Bill. One cannot promote whistleblowing to fight rampant and brazen corruption by harassing the very few who come forward to blow whistle by subjecting them to all sorts of penalty and punishment. Even the statistics put by the CVC on its own website shows that since 2004 when notification to protect whistleblowers was issued as per Supreme Court's directive not more than 3000 people have been entertained by the CVC. This should be compared to crores of public servants working with GOI.Those who drafted the Bill appears to have totally ignored the fact that it is the total failure in the system which has made it necessary for encouraging people outside the system to blow whistle. Just like the Right to Information Act which found those in the System do not promote transparency and accountability and gave those responsibilities to ordinary citizens. Frivolous and false complaints are prices to be paid for allowing the Systems to collapse and for not taking action against widespread corruption. There should be at least five year moratorium on this clause.

4. The Policy of Zero Tolerance for Corruption has given raise to the Anti-Corruption Pledge which every Public Servant must take on the first day of Vigilance Week every year. This Pledge requires every Public Servant to WORK UNSTINTINGLY FOR ERADICATION OF CORRUPTION IN ALL SPHERES OF LIFE (not just in his office) is totally missed out in the Bill. That is whistleblowing is mandatory for all Public Servants and if any other Proceedings reveal that Public Servants of that office kept quiet without blowing whistle then provisions should be there to punish such Public Servants under the proposed Bill. Unfortunately, the Bill gives an impression that Whistleblowing is an optional activity to be rarely indulged by Public Servants that too if they are 100% sure of it (in spite of clauses 17 and 18). The Bill does not provide any mechanism to act as per the anti-corruption pledge as even exposing corruption in his own office is not encouraged.

While all public servants are expected to act as per the above pledge, the Bill is silent about when the whistleblower can blow whistle to the larger public through the media. The following observation made in the Law Commission's Report could be used to create a provision to enable a whistleblower to inform larger public: These are that (a) he reasonably believed that he would be victimized if he had raised the matter internally or with a prescribed regulator (ie competent authority); (b) there was no prescribed regulator (od if the appointment of the competent authority is not at all transparent); and he reasonably believed that evidence was likely to the concealed or destroyed; or (c) the concern has already been raised with the employer or a prescribed regulator. These preconditions do not, however, apply if the malpractice is of an extremely serious nature.

5. AIS officers are governed by the mandatory requirement to not only to work with absolute integrity at all times (not just during office hours)but also to see to it that all those who work under them also work with absolute integrity at all times. This makes all Government Servants and those who are employed in Public Sector bodies and local bodies also to work with absolute integrity at all times. This is nothing but another way of expressing zero-tolerance for corruption anywhere. In fact whistleblowing becomes a legal activity because of this requirement. Unfortunately the basis on which whistleblowing becomes legal is not at all made clear in the Bill as the Bill never uses the universal word whistleblower. The latest report of GOI Expert Committee headed by Sri PC Hota released in July 2010 bring out the plight of honest AIS officers (it should not be difficult to imagine the plight of other lower level honest government servants) bymaking the following observations: We have, however, deliberated also on matters relating
to officers of the All India Services serving in connection with the affairs of a State and feel it necessary to make certain recommendations in respect of them. In going into these matters, we have kept in view the objectives with which the All‐India Services were established, the unique role of these Services in the governance of the country and the high expectations from the officers of these Services in matters of efficiency, fairness and probity. It has also to be
remembered that, among the three All‐India Services, the Indian Administrative Service(IAS) and the Indian Police Service(IPS) have been designed to hold posts at senior and crucial levels both in the Central Government and in the State Governments

It is in the background of the prevailing situation that we have felt the need to deal with two trends clearly discernible in several states. One of these is the tendency to browbeat members of the All‐India Services through motivated action, including frequent transfers, transfers to posts which do not normally warrant posting of an officer of his seniority, suspension and initiation of Disciplinary Inquiries without adequate basis. Through such steps, State Governments humiliate and harass several officers of these Services, in effect warning others what can happen to them unless they, too, toe the line. This does lead to several officers opting for the easy way‐out by turning collaborators or by acquiescing in wrongful actions of the powers that be. That this set of circumstances seriously sullies the image and standing of the All India Services in the public eye can hardly be denied, leading also to the consequence that the All‐India Services are no longer the ambition for a large number of youngsters with brilliant academic records. It does not require a
very fertile imagination to conclude that this state of affairs significantly impairs the capability of the Government to provide good governance.

The following harassments should have been explicitly mentioned to act as a deterrent against corrupt seniors to indulge in harassment to save their own skins:

Discrimination in any manner, Unusually close observation of what one says and does , Organizational stonewalling- not responding to letters, not giving appointment, not inviting for meetings etc. Vindictive tactics to make one's work more difficult or insignificant – frequent transfers, initiating enquiry without any basis, framing false charges , withdrawing facilities, not sanctioning leave, violating all Rules with the sole intention of harassing, forcing the whistleblower to seek redress in Courts and other authorities, withholding salary on flimsy grounds, suspension pending inquiry, transfer, dilution or withdrawal of duties, powers and responsibilities, recording adverse entries in the service records, issue of memos, verbal abuse, questioning one's mental health, threatening dismissal from Service , Isolation & humiliation, assassination of one's character, act in such a manner that continuation in the organisation becomes difficult and dangerous and such other type of harassment

As for as private citizens blowing whistle the following harassments should have been mentioned explicitly:

Threats to the whistleblower and family members, misuse of authority to deny basic civic facilities, reopening closed or forgotten cases(The Bill does not want to act against more than 5 year old incidents!!), physically attacking and in some cases murdering whistleblowers, denying information etc

6. For private sector employees apart from the Labor Commissions the only other directive (which has the force of Law though no law has been enacted) is the protection given to women against sexual harassment by the Supreme Court. Today in the private sector there is such an environment created that if any woman complains about sexual harassment she should be ready to get sacked. Unfortunately in spite of the Supreme Court Directive many women not only lose job but are subjected to continuous harassment. It should not be surprising if similar fate is going to be faced by whistleblowers in the private sector. If Competent Authority is not selected in a transparent manner by subjecting them to public scrutiny before appointment then employees in private sector would not have any faith and would certainly not come forward to blow whistle(it should not be forgotten that private sector plays a major role in the widespread , rampant corruption, unfortunately this is totally missing in the Statement of Objects and Reasons )

7. The Bill ignores the fact that very senior IAS officers (including Chief Secretaries) are frequently involved in rampant, brazen corrupt practices. Otherwise how to explain the very high corruption ranking India gets year after year( these get reflected in high child mortality, high mother mortality, very large percentage of people living below poverty line, allowing food grains to perish when a large number of population go without food not to mention the many scams) Because of this designating a person who is part of the system as competent authority ensures that whistleblowers would be harassed as per the whims and fancies of those who appoint them. The selection of competent authority should be done in a very transparent manner that too after subjecting them to thorough public scrutiny from every conceivable angle. No person whose appointment itself is not transparent and not subjected to public scrutiny should be appointed as Competent Authority

8. Ordinary Citizens who use the Right to Information Act to expose corruption fall under a totally different category which has not at all been imagined by those who have drafted the Bill. Any person who reports corrupt practices based on the information obtained under the RTI Act must be automatically protected and his complaint must be acted upon.

9. Denial of information, making documents not traceable, not following checklists, not following time limits etc, willful omissions and commissions etc must be brought under the definition of corrupt practices. IT IS VERY UNFORTUNATE THAT THOUGH THE LAW COMMISSION HAD RECOMMENDED INCLUSION OF MALADMINISTRATION (WHICH SUSTAINS AND PROMOTES CORRUPTION) , IT IS LEFT OUT IN FULL IN THE BILL. ALL BAD POLICIES WITH A VIEW TO SWINDLE MONEY ARE MADE BY SUPRESSION AND DISTORTION OF FACTS. SUCH THINGS TAKE PLACE AT THE HIGHEST LEVEL AND ONLY WHISTLEBLOWING CAN EXPOSE AND PREVENT EFFECTIVELY AND IN THE SHORTEST TIME. THE SPIRIT OF THE ACT SHOULD BE NOT ONLY TO ENCOURAGE TO EXPOSE CORRUPTION AFTER IT HAS OCCURRED BUT ALSO TO PREVENT CORRUPTION BEFORE IT OCCURS . THESE MUST GET REFLECTED NOT ONLY IN THE PREAMBLE BUT ALSO UNDER THE MAIN PROVISIONS OF THE BILL. IT IS VERY UNFORTUNATE THE PROPOSED BILL IS TOTALLY SILENT ON SUCH VERY IMPORTANT AND CRITICAL PROVISIONS. IT APPEARS THAT THE PROPOSED BILL IS TO JUST SATISFY THE CURIOSITY OF ORDINARY CITIZENS WITHOUT MAKING ANY EFFORT TO UNDERSTAND THE PLIGHT OF WHISTLEBLOWERS

The following definition of Mal-administration given by the Law Commission in its 2001 Report should be used :
mal-administration’ includes any action taken or purporting to have been taken or being taken or proposed to be taken in the exercise of administrative or statutory power or discretion,
(i) where such action is unreasonable, unjust, oppressive or improperly discriminatory;
(ii) where there has been negligence or undue delay in taking such action;
(iii) where there has been reckless, excessive or unauthorized use of power in taking such action;
(iv) where such action amounts to breach of trust;
(v) where such action involves the conduct of a public servant which would result in wastage of public funds or causes loss or prejudice to the State or is prejudicial to public funds or causes loss or prejudice to the State or is prejudicial to public interest in any manner; or
(vi) where such action is outside the authority conferred by law or amounts to violations of systems or procedure.”

10. If a citizen discovers using the RTI Act huge corrupt practices which happened more than 5 years back and if the officer responsible for those is occupying today an important post then the Bill says nothing can be done against that corrupt officer. But as corruption is a criminal activity the 5 year limit should be removed in the Bill.

11. Whether identity should be revealed or not should be totally left to the whistleblower

12. Empowering Secretaries to override such provisions would be illegal as the RTI Act has clearly stated what information can be given. What information can be revealed or not should be left to the Information Commission. Law Commission had made the recommendation before Right to Information Act was enacted. What would be the fate of a whistleblower who obtains information through RTI Act and complains against the very Secretary who might have earlier decided against giving information.

13. Protection should not be just confined to the whistleblower but to family members also if requested. Expecting the very department to give protection which had earlier driven a public servant to approach another authority does not make sense.

14. A tribunal should be set to hear the appeals and whistleblower should not be forced to go to High Court. If the appointment of competent authority itself is not transparent then it would be improper to expect that Authority to act unbiased in all cases. Till appointment of competent authority is not only made fully transparent but till his motives and credentials are subjected to public scrutiny, there should be provision to express the same through the media in larger public interest. An innovative, transparent and confidence enhancing method of selecting both the Competent Authority and the Appellate Tribunal are given in the changes proposed towards the end.

15. The experience of most of the Lokayukta across the country whose reports are not acted upon till today appears to have no impact on those who drafted the Bill (as repeatedly admitted in public by the Hon’ble Karnataka Lokayukta himself). The Bill should propose deemed action/sanction/denial after a time period

BASED ON THE ABOVE OBSERVATIONS AND WHAT HON'BLE PRIME MINISTER HAS IN HIS SPEECHES BEEN INFORMING THE PUBLIC SINCE SEPTEMBER 2004 (all relevant extracts are given in this link here http://cleanias.wikidot.com/corruption ) FOLLOWING CHANGES TO THE BILL ARE PROPOSED

NOTE : ONLY CLAUSES WHICH GET AFFECTED ARE GIVEN . HENCE CONSEQUENTIAL CHANGES ARE NOT SHOWN BELOW

CLAUSE No AS PER BILL TABLED Changes proposed
Title Bill No.97 of 2010 THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO PERSONS MAKING THE DISCLOSURES BILL, 2010 Bill No.97 of 2010 Promotion of whistleblowing and Protection to Whistleblowers Bill 2010
Preamble A Bill to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto. A Bill to promote whistleblowing SO THAT SUCH AN ENVIRONMENT IS CREATED WHICH ENABLES ANY SUBORDINATE OR CITIZEN TO SPEAK UP FEARLESSLY AGAINST CORRUPT AND MALPRACTICES OF VERY SENIOR PEOPLE IN THE ORGANISATION and to establish a mechanism to receive complaints from whistleblowers relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the whistleblowers making such complaint
It is now recognized that while a public servant may be subject to a duty of confidentiality, this duty does not extend to remaining silent regarding corruption of other public servants. Society is entitled to know and public interest is better served more if corruption or maladministration is exposed. This Whistleblower law is based upon this principle.
Be it enacted by Parliament in the Sixty-first year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
01 (1) This Act may be called as the Public Interest Disclosure and Protection to Persons Making the Disclosures Act, 2010.
(2)It extends to the whole of India except the State of Jammu and Kashmir.
(3)It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
(1)This Act may be called Promotion of whistleblowing and Protection to Whistleblowers Act 2010
(2) NO MODIFICATION
(3)It shall come into force 60 days after it gets President’s assent or any day earlier to it as may be notified by the Central Government / State Government
02 NEW (aa) Appellate Tribunal comprises of a retired Chief Justice and four other out of the topfive who failed to get selected as Competent Authority
02 (c) "complainant" means any person who makes a complaint relating to disclosure under this Act; (c) "complainant" means a whistleblower;
02 NEW (cc) " disclosure in public interest " means the following circumstances under which the whistleblower can blow whistle to reach the public at large directly using any or all of the mass media available:
(a) he reasonably believed that he would be victimized if he had raised the matter internally or with a competent authority;
(b) there was no prescribed competent authority; and he reasonably believed that evidence was likely to be concealed or destroyed; or
(c) the concern has already been raised with the employer or a prescribed competent authority.
(d) if the appointment of the competent authority was not appointed by following transparent procedure enabling scrutiny by the public at every stage
(e) if the concerned government fails to appoint a competent authority
(f) if the concerned government fails to notify the Act after 60 days after the assent is given by the President
These preconditions do not, however, apply if the malpractice is of an extremely serious nature and the whistleblower can directly reveal it to the media.
02 (d) (ii) willful misuse of power or willful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable gain accrues to the public servant; (d) (ii) ii willful misuse of power or willful misuse of discretion by virtue of which demonstrable loss is caused to the Government / to the environment/ to the public at large or demonstrable gain accrues to the public servant;
2 NEW (ff) ‘mal-administration’ includes any action taken or purporting to have been taken or being taken or proposed to be taken in the exercise of administrative or statutory power or discretion,
(i) where such action is unreasonable, unjust, oppressive or improperly discriminatory;
(ii) where there has been negligence or undue delay in taking such action;
(iii) where there has been reckless, excessive or unauthorized use of power in taking such action;
(iv) where such action amounts to breach of trust;
(v) where such action involves the conduct of a public servant which would result in wastage of public funds or causes loss or prejudice to the State or is prejudicial to public funds or causes loss or prejudice to the State or is prejudicial to public interest in any manner; or
(vi) where such action is outside the authority conferred by law or amounts to violations of systems or procedure.”
2 NEW (l) (i) "victimisation" of a public servant or a private sector whistleblower may include any one or more of the following in addition to those which an independent whistleblower also is subjected to after the person blows whistle or makes an intention to blow whistle:
Discrimination, Unusually close observation of what one says and does , Organizational stonewalling- not responding to letters, not giving appointment, not inviting for meetings etc. Vindictive tactics to make one's work more difficult or insignificant – frequent transfers, initiating enquiry without any basis, framing false charges , withdrawing facilities, not sanctioning leave, violating all Rules with the sole intention of harassing, forcing the whistleblower to seek redress in Courts and other authorities, withholding salary on flimsy grounds, suspension pending inquiry, transfer, dilution or withdrawal of duties, powers and responsibilities, recording adverse entries in the service records, issue of memos, verbal abuse, questioning one's mental health, threatening dismissal from Service , Isolation & humiliation, assassination of one's character, act in such a manner that continuation in the organisation becomes difficult and dangerous and such other type of harassment
(ii) "victimisation" of an independent whistleblower may include any one or more of the following after the public servant blows whistle: Threats to the whistleblower and family members, misuse of authority to deny basic civic facilities, reopening closed or forgotten cases,denying information physically attacking and in some cases murdering whistleblowers
Any of the acts referred to above whether committed by the person against whom a disclosure is made or by any other person or public authority at his instance
2 NEW (m) "whistleblower" is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization but he can be any citizen. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues).
Whistleblower who is a public servant is referred to as public servant whistleblower
Whistleblower who works in a private sector is recognised as a private secotor whistleblower
Whistleblower who is neither a public servant nor is part of a private sector is recognised as an independent whitleblower
2 NEW (m) "whistleblowing" means it is that mandatory duty expected of every public servant to disclose any one or more of the following
(a) that a criminal offense has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being, or is likely to be endangered,
(e) that the environment has been, is being, or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the above has been, is being, or is likely to be deliberately concealed
CHAPTER II

Change PUBLIC INTEREST DISCLOSURE to WHISTLEBLOWING

03 (1) Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, any public servant [other than those referred to in clauses (a) to (d) of article 3 of the Constitution] or any other person including any non-governmental organisation, may make a public interest disclosure before the Competent Authority:
Provided that any public servant, being a person or member referred to in clause (a) or clause (b) or clause (c) or clause (d) of article 33 of the Constitution, may make a public disclosure if such disclosure does not, directly or indirectly, relate to, unless reported in the media across the country
(1) Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, any public servant [other than those referred to in clauses (a) to (d) of article 3 of the Constitution] or any other person including any non-governmental organisation, may make a public interest disclosure as a whistleblower before the Competent Authority:
Provided that any public servant, being a person or member referred to in clause (a) or clause (b) or clause (c) or clause (d) of article 33 of the Constitution, may make a public disclosure if such disclosure does not, directly or indirectly, relate to, unless already reported in the media across the country or has not been disallowed by a State or the Central Information Commission as the case may be
03 (2) Any disclosure made under this Act shall be treated as public interest disclosure for the purposes of this Act and shall be made before the Competent Authority. (2) Any disclosure made under this Act by explicitly stating as made by a whistleblower shall be treated as public interest disclosure for the purposes of this Act and shall be made before the Competent Authority.
03 (5) The Competent Authority may, if it deems fit, call for further information or particulars from the person making the disclosure. (5) The Competent Authority may, if it deems fit, call for further information or particulars from the person whistleblower making the disclosure but cannot compel the whistleblower to furnish if he/she is not satisfied with arrangements made to protect the whistleblower and/or his family members
03 (6) No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure or the identity of the complainant or public servant is found incorrect or false. (6) No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure or the identity of the complainant or public servant is found incorrect or false.
Provided the complainant gives instances of similarly placed persons being victimized after approaching the competent authority
NEW CHAPTER IIA
APPOINTMENT OF COMPETENT AUTHORITIES AND APPELLATE TRIBUNALS
02A NEW (2A) (a) (1) Appointment of Competent Authority
(i) Application should be called , after giving wide publicity, directly from person with exemplary integrity who himself had at least directly had blown whistle or had supported whistleblowers
(ii) the credentials and claims of all those applications should be put on the respective Government's website and provision should be made to file comments on-line
(iii) Each of the applicant should be asked to give his response to the comments received by providing documentary evidences wherever needed
(iv) The office entrusted with the process of appointing the Competent Authority should make a thorough examination of the applications, responses from the public and the remarks by the applicants if any and after assigning marks in a transparent manner prepare a list of top ten out of all the applications received
(v) A Committee of eminent people headed by a retired Chief Justice in case of central government and a retired High court Chief Justice in the case of a Sate Government making the appointment should scrutinize the ten applications , comments from the public and response from the applicants if any and the comments of the office and then only shortlist five names clearly indicating why these were selected and reason for rejection of remaining five applications which were assigned ranks within top ten should be put on the official website
(vi) Finally shortlisted five people should then participate in a public debate which must be aired by Government Television, which should allow for public to ask questions live. The Selection Committee comprising of the Head of the State, the Opposition Leader and the Supreme Court / High Court Chief Justice should watch the public debate and then give reason in detail as to why one of them is to be appointed as the Competent Authority
CHAPTER III

Change INQUIRY INTO PUBLIC INTEREST DISCLOSURE to INQUIRY INTO WHISTLEBLOWING

04 (1) Subject to the provisions of this Act, the Competent Authority shall, on receipt of a public interest disclosure under section,
(a)ascertain from the complainant or the public servant whether he was the person or the public servant who made the disclosure or not;
(b) conceal the identity of the complainant unless the complainant himself has revealed his identity to any other office or authority while making public interest disclosure or in his complaint or otherwise.
(1) Subject to the provisions of this Act, the Competent Authority shall, on receipt of a public interest disclosure by a whistleblower under section
(a) ascertain from the complainant or the public servant whether he was the person or the public servant who had approached the Competent Authority as a whistleblower or not
(b) conceal the identity of the complainant unless the complainant himself has given in writing that he has no objection to reveal his identity in spite of he having already revealed his identity to any other office or authority while making public interest disclosure or in his complaint or otherwise as a whistleblower.
04 (2) The Competent Authority shall, upon receipt of the complaint and concealing the identity of the complainant, or the public servant in the first instance, make discreet inquiry, in such manner as may be prescribed, to ascertain whether there is any basis for proceeding further to investigate the disclosure. (2) The Competent Authority shall, upon receipt of the complaint and concealing the identity of the complainant, or the public servant straightaway proceed to act if the complaint is based on information obtained under the RTI Act else in the first instance, make discreet inquiry, in such manner as may be prescribed, to ascertain whether there is any basis for proceeding further to investigate the disclosure
04 (3) If the Competent Authority, either as a result of the discreet inquiry, Or on the basis of the disclosure itself without any inquiry, is of the opinion that the disclosure requires to be investigated, it shall seek comments or explanation or report from the Head of the Department of the organisation or authority, board or corporation concerned or office concerned within such time as may be specified by it. (3) (a) If the Competent Authority, either as a result of the discreet inquiry, Or on the basis of the disclosure itself without any inquiry, is of the opinion that the disclosure requires to be investigated, it shall seek comments or explanation or report from the Head of the Department of the organisation or authority, board or corporation concerned or office concerned within such time as may be specified by it if the complaint by the whistleblower is not against the Head of the Department/ organization/authority.
(3) (b)If the complaint by the whistleblower is against the Head of the Department/ organization/authority, then the competent authority after consulting the whistleblower help the whistleblower to file complaint against the Head of the Department/ organization/authority with that authority whom the whistleblower would have approached but for this Act by providing necessary assistance.
04 (4) While-seeking comments or explanations or report referred to in sub-section (3), the Competent Authority shall not reveal the identity of the complainant or the public servant and direct the Head of the Department of the organisation concerned or office concerned not to reveal the identity of the complainant or public servant: (4) While-seeking comments or explanations or report referred to in sub-section (3), the Competent Authority shall not reveal the identity of the complainant or the public servant and direct the Head of the Department of the organisation concerned or office concerned not to seek for the identity or in case identity is known then not to reveal the identity of the complainant or public servant:
04 Provided that if the Competent Authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, become necessary to reveal the identity of the public servant to the Head of the Department of the organisation or authority, board or corporation concerned or office concerned, the Competent Authority may reveal the identity of the complainant or public servant to such Head of the Department of the organisation or authority, board or corporation concerned or office concerned for the said purpose. Provided that if the Competent Authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, become necessary to reveal the identity of the public servant whistleblower to the Head of the Department of the organisation or authority, board or corporation concerned or office concerned, the Competent Authority may reveal the identity of the complainant or public servant to such Head of the Department of the organisation or authority, board or corporation concerned or office concerned for the said purpose only after getting written consent from the whistleblower.
04 (5) The Head of the organisation or office concerned shall not directly or indirectly reveal the identity of the complainant or public servant who made the disclosure. (5) The Head of the organisation or office concerned shall not directly or indirectly reveal the identity of the complainant or public servant who made the disclosure even if the whistleblower has given written consent.
04 (6) The Competent Authority, if after conducting an inquiry, is of the opinion that
(6) If after conducting an inquiry, and after giving an opportunity to the Complainant , the Competent Authority is of the opinion that
04 it shall close the matter. it shall close the matter after intimating the reasons in writing to the complainant.
04 (7) NEW (7) (vi) inform the whistleblower in writing the recommendations made.
05 (3) The Competent Authority shall not investigate, any disclosure involving an allegation, if the complaint is made after the expiry of five years from the date on which the action complained against is alleged to have taken place. (3) The Competent Authority shall not investigate, any disclosure involving an allegation, if the complaint is made after the expiry of five years from the date on which the action complained against is alleged to have taken place unless the officers have not retired from Service or if corruption is exposed based on information obtained under the RTI Act (which allows citizens to get information of past 20 years)
05 (7) (1) and for the purpose of this sub-section, a certificate issued by the Secretary to the Government of lndia or the Secretary to the State Government, as the case may be, or, any authority so authorised by the Central or State Government certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive. (7) (1) and for the purpose of this sub-section, decision of the Central or State Information Commission as the case may be that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive.
05 (8) (1) Every public authority shall, for the purposes of dealing or inquiry into the disclosures sent to it under sub-section (3) of section 4, create appropriate machinery for the said purpose. (8) (1) Every public authority shall, for the purposes of dealing or inquiry into the disclosures sent to it under sub-section (3) of section 4, create appropriate machinery for the said purpose.
CHAPTER IV

Change PROTECTION TO PERSONS MAKING DISCLOSURE to PROTECTION TO WHISTLEBLOWERS

10 (1) The Central Government shall ensure that no person or a public servant who has made a disclosure under this Act is victimised by initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act. (1) Both the Central and State Governments shall ensure that no person or a public servant who has made a disclosure under this Act is victimised by initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act.
10 5 NEW In case of extreme victimisation reported in the media , the Competent Authority must take up suo-moto measures to give protection to the whistleblower and set right any losses suffered by that person even though he has not approached the Competent Authority as a whistleblower
CHAPTER VI

OFFENCES AND PENALTIES

19 Any person aggrieved by any order of the Competent Authority relating to imposition of penalty under section 14 or section 15 may prefer an appeal to the High Court Appellate Tribunal within a period of sixty days from the date of the order appealed against:
Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
Explanation: For the purposes of this section, the "High Court" means the High Court within whose jurisdiction the cause of action arose.
Any person aggrieved by any order of the Competent Authority relating to imposition of penalty under section 14 or section 15 may prefer an appeal to the Appellate Tribunal within a period of sixty days from the date of the order appealed against:
Provided that the Appellate Tribunal may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
Explanation: For the purposes of this section, the "Appellate Tribunal" means the Appellate Tribunal within whose jurisdiction the cause of action arose.
CHAPTER VII

MISCELLANEOUS

30 NEW CREATION OF PROPER ENVIRONMENT FOR WHISTLEBLOWING,PUBLICITY & TRAINING
(a) Every head of the organization should make every effort to create proper environment for whistleblowing by taking up the promotion of the following:
(i) The fact that whistleblowing is to be encouraged to save democracy , to help the poorest, improve economy , to tackle terrorism, to prevent abuse of human rights and to protect environment should be repeatedly stressed in all communications sent to not only people working within the organization but also those who are not part of the organization.
(ii) The fact that whistleblowers are risking their career and lives to improve the organization should be emphasized.
(iii) The fact that victimization of whistleblowers would not be tolerated should be made clear. Proper incentive schemes should be designed to promote independent whistleblowing
(iv) any other decision in support of the above
(b)Every head of the organisation must use every type of disseminating the information about this law with the clear message that any subordinate can report corrupt practices and Mal-administration without the fear of being victimised. In case of victimisation that those who harass would be criminal acted upon with both penalty and imprisonment should be conveyed to everyone in the organisation
(c) Every head of the organisation should also encourage whistleblowing by those who do not belong to the organisation to report corrupt practices and mal-administration and wherever possible such independent whistleblowers should be given incentives as they may be even risking their lives to make the organisation work in a better manner.
(d) Every head of the organisation should use every method to give publicity about how whistleblowing by those working within the organisation is encouraged. The organisation's official website should be used for this purpose. Even salary bill , various forms used in the office etc should carry the message that whistleblowing is not only encouraged but those who harass whistleblowers would be severly dealt
(e) Every head of the organisation should train resource people to train every one in the organisation about whistleblowing
DOPT MNV VKK
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