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The need to empower Right To Information and Whistleblower Protection Act

The complicated mechanism of governance, corporate structures & other non governmental organizations that hold and exercise abrupt power, make a lot of profit by rendering public services, have a huge investment from tax payer's money.

The resource purchasing capacity of this entity is very large. With these complicated structures , the give and take of consideration like in sole proprietorship is not limited to 2 hands but the process of give and take of this consideration itself has turned out into complicated process.

Though there is framework of regulations and strict procedures to ensure no corrupt practices take place but these large entities & there desire to make early money finds its way to practices which are not in harmony with public interests. However, in this entire organization there is often one person who is committed to his job and cannot see scams right under his nose. Committed to their job with utmost honesty , these people bear all the risks to themselves, their families , property and decide to expose the scams.

These people are called  Whistleblowers and very name suggests that they make people cautious of the insider scams in the organization by exposing. There is a quote by former US President Barack Obama  Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. The quote asks the government to encourage the acts of whistleblowers and empower them. In order to empower them a strong legislation is needed which can protect them from danger to their life , loved ones & their property.

2. Case Laws
A Satyendra Dubey[1]- Satyendra Dubey was an engineer appointed in golden quadrilateral highway project of the NHAI. He had written letter to PMO office addressing in it the corrupt practices by NHAI in giving the tender to contractors. However the letter was not delivered at PMO office and instead diverted to Ministry of road and transport which then forwarded this letter to NHAI and eventually it fell into the hands of deputy head of this project who had assigned Satyendra Dubey as project engineer. Satyendra Dubey was pressurized about the allegations he made and eventually one day after addressing the letter he was shot dead in 2003.

B] Unnatural death of Karnataka cadre IAS officer[2]
Karnataka food and supplies commissioner Anurag Tewari was found dead under mysterious circumstances. His family claimed that he was about to expose a scam worth thousands of crores of rupees in Karnataka government. He was gathering evidence to expose the scam. But before he could , he was allegedly killed.

C. social activist Satish Shetty murdered[3]
Satish Shetty a social activist used Right To Information, Act (RTI) for inquiry and subsequently became whistleblower by lodging a complaint against Mumbai based IRB land developer and real estate firm for grabbing a huge land that was set aside by govt for Mumbai - Pune highway. IRB had using forged documents grabbed the land and sold to its subsidiary. After 2 ½ months of lodging complaint Satish Shetty was brutally killed outside his house . 7 years after CBI filed a closure report of the case on basis of insufficient evidence.

D RTI activist Lalit Mehta murdered [4]
Lalit Mehta an RTI activist who worked for National rural employment guarantee programme was brutally murdered after he came across social audit of NREGA projects. He found that the authorities were given huge sum for implementation and employment of rural people under this scheme. He found that the muster rolls created had more number of workers than actually were employed. Forged signatures of the villagers were taken and job cards were issued in the name of persons already died.

In all the above case laws we see there is one person working with the corporation, government project and others are outsiders who by means of RTI drew the light to scams taking place. Many people are internal whistleblowers who are very closely associated with the day to day working, management, audits, and business transactions entered by these entities.

However in not a single company, or corporation, or government programs there is a confidential mechanism or whistleblower policy or mechanism which can address letters of allegations of fraud, corruption, misconduct in place to help whistleblowers in smooth revelation which goes in proving that no corporations specifically owned by government wants to empower whistleblowers and instead they do not want these people to come around and expose the malpractices. This shows the very ethical stand taken by these big entities who do not care for common man's money ( tax payer). statistics shows that 62% of whistleblowers lost their jobs, 18% transferred or were felt harassed, 11% complaint of reduced salary, 22% reported criminal investigations and 11 were indicted.[5]

This sets an example for others who dare to do this acts in bona fide of public integrity or public interest. In the case where Satayendra Dubey addressed letter to PMO which was diverted to NHAI itself shows government attitude against Whistleblowers which is the very reason that Whistleblower protection act was introduced in 2011, passed by Rajya Sabha, assented by president but it was not brought into effect because the rules necessary to effect this act were not framed and now The whistleblower protection( amendment) bill, 2015 is still pending in Rajya Sabha. The national crime record bureau does not specifically report of crimes as crimes done against whistleblowers. offences of murder, death threats, harassment against whistleblowers are not reported as offences of specific nature like we have Economic Offences in place. Whistleblowers blows off the whistle of unjust practices which they already know. Whistleblowers do not seek for inquiry unlike in RTI act.

Where RTI applicants seek inquiry of particular nature. A report reveals that many RTI applications are also turned down by Central Information Commissioners by giving baseless reasons such as, that the pertaining inquiry falls under ambit of section 8(1) of RTI Act. This is the reason many RTI activists have turned as whistleblowers because they sensed some unprofessional conduct inquiry of which was not permitted by Central Information Commissioners and then on themselves they found out the misappropriations and exposed them.

3. Analysis of Whistleblower Protection Act, 2011 & Whistleblower Protection (Amendment) Bill, 2015
Whistleblower protection act was passed by Lok Sabha in parliament in 2011 and by Rajya Sabha on 21st February 2014 and received president`s assent on 9th June 2014. Before the bill could be brought in effect some amendments were introduced in the bill Whistleblower protection (Amendment) act, 2015 which is still pending in Rajya Sabha.

The object of whistleblower protection act is as follows-
An Act to establish a mechanism to receive complaints 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 person making such complaint and for matters connected therewith and incidental thereto[6].

A. Chapter II, Public interest disclosure, section- (6) of WPA,2014 states that unless the complainant discloses his identity or if he/she is found giving incorrect identity details then no action will be taken against any public interest disclosures by the competent authority.[7]The competent authority is not a uniform body and is different in relation to all different disclosures. For eg. if there is any disclosure regarding union council of ministers the competent authority is prime minister.[8]

If disclosure is regarding any Central Government employee or any other public servant then Central Vigilance Commission is the competent authority. Disclosure related to any member of legislative body is kept out of purview of CVC. If this is the case then the whistleblower shall not be expected to disclose his name because if disclosure is regarding any legislative member ultimately an insider of this body will be the competent authority and not the CVC. For e.g. when Satyendra Dubey addressed letter to PMO it was ultimately diverted to NHAI. So there is again no guarantee of confidentiality and safety to whistleblowers in case of disclosure related to any political party member which dilutes the purpose of the act , for the union cabinet ministers are the chosen members of Prime minister.

B. The whistleblower protection (amendment) act has inserted following clauses in section 4 sub section (1-a) that no complaint of any public interest disclosure shall be entertained if it affects sovereignty, security, integrity of India , the strategic, scientific, economic interests of state and friendly relations with other state and all other clauses the disclosure of which is forbidden.[9]

The content of all other non-disclosure clauses is same as section 8(1) of RTI act[10]under which RTI applicant cannot be given any information. In a report on Preliminary findings of assessment of orders of the Central Information Commission it is found that 60% of RTI applications were denied stating that the information is of the nature as specified in section 8(1) and in cases where part of record qualified to be exempted for information , the whole record was denied[11].

Similarly in whistleblower protection amendment bill if any receipt of disclosure is made which subjects to clause 4(1-A) competent authority on receipt of such disclosure refers to an authority authorized by Central or State government which will give a certificate by the secretary of government stating that such disclosure falls under section 4(1-A)and hence inquiry cannot be made and the decision will be then binding on competent authority. If the competent authority is at whims of government in matters which affects the vested interests of government the act does not serve its purpose. Disclosure regarding any scams like coal scams, 2G scams, etc may not be entertained citing grounds of non disclosure under section 4(1)(1-a).

C. In section 4(1-A)(d) disclosure of information relating to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party is forbidden. The clause keeps commercial confidence, trade secrets completely out of disclosure. Nothing is stated in regards that if the disclosure warrants public interest it will be entertained by competent authority. This simply means that disclosure of bid allocation, land purchase , extraction of resources and their manner, trade secret such as processes of making product which proves hazardous to health of people and environment will not be entertained by competent authority.

In Electronics corporation of Tamil Nadu limited vs Tamil Nadu information commission[12], the petitioner corporation rendered assistance to entrepreneurs setting up information technology company for which they purchased lands and set up IT parks. They had inspected the fields in the vicinity where 1500 families worked in a nearby salt pan for 33 years. The survival of 1000 fisherman also depended on these lands. The reality was that whenever petitioner had set up IT park the cost of that land escalated . Hence the respondent had sought field inspection report from petitioner corporation. However petitioner corporation took shield of section 8(1)(d) of RTI Act. However the court held that, information for checking suitability of these lands cannot be denied because larger public interests warrants so. This was an example to illustrate that there are instances where insider or an outsider knows certain commercial secrets which warrants disclosure in public interest. The famous example in this regard is of Satyendra Dubey who had made disclosure of poor building of contracts.

D. clause (h) of section 4(1)(1-a) of the whistleblower protection (amendment)act,2015 prohibits disclosure of information, which would impede the process of investigation or apprehension or prosecution of offenders. The object of whistleblower act includes to provide mechanism for any complaint against willful misuse of power. With increasing instances of custodial violence in our country and detention of false offenders under political pressure or for ease of assaulting and self incriminating, interrogating poor, underprivileged without producing them before magistrate is in all ways safeguarding such police officials and political parties by discouraging any such disclosures.

4. U.S Whistleblower Policy

A. The False Claims Act [13]
It protects employees who believe that their disclosure reveals a violation of law, rule of regulation, gross mismanagement, gross waste of funds, abuse of authority, danger to public health and safety. The law provides a legal framework to deal with military contractors who defrauded the federal government by either overcharging of products or providing defective war material including food and weapons.


B. The No Fear Act [14]
It Was passed to protect whistleblowers against unlawful discrimination and retaliation by their manager &supervisors. Provisions are laid down to pay awards for discrimination and retaliation of violence out of the agency budget.

C. whistleblower protection enhancement act of 2012 [15]
It was designed to ensure that employees who serve in Intelligence community or have access to classified information, can effectively report waste, fraud and abuse while protecting classified information. The act requires each Intelligence community agency to establish policies and procedures that prohibit retaliation and create proper internal channel to make protected disclosure.

Recently, Dinesh Thakur, Ranbaxy employee - An American-educated chemical engineer, was hired by Ranbaxy, back in 2003. He later became a whistleblower, exposing massive fraud by the generic pharmaceutical giant, a company that sold Americans drugs like the generic version of Lipitor. His information led to Ranbaxy pleading guilty to seven felonies in a U.S. court in May, and pay $500 million in fines and settlements.[16]This shows the stringency with which US whistleblower acts are enforced.

5. Conclusion
It is very clear that corruption, frauds, misuse of power and discretion is the center of government policy to exercise their power , unjustly enrich themselves at the expense of tax payers money and the confidence with which people had elected them as their representatives. Government do not want to subject themselves and their corporations to any inquiry, investigation against disclosure instead it acts as authoritative body to monitor competent authority and direct competent authority if it should investigate into disclosure or not. With increasing Economic offences in India it has became important to encourage internal whistleblowers to come forward and make disclosures.

As discussed in the article about U.S whistleblower policy where matters of procurement of defense equipment, classified information are not kept out of whistleblower policy even if it constitutes disclosure relating to national security. Also monetary award becomes payable if any whistleblower is subjected to retaliation.

Whereas in India a whistleblower is not guaranteed any protection and award if subject to any sort of victimization, the provision of which is not clear in whistleblower protection act. Section 4(1-A) in whistleblower protection amendment bill is the same as section 8(1) of RTI act.

The government is misconstruing the very purpose of both these acts. RTI act is a tool for obtaining information which concerns public interest whereas whistleblower act is a mechanism for people to make disclosure of any corruption, fraud etc , the inquiry into which will be done by competent authority. RTI act is for people`s right to access information whereas whistleblower act is to encourage stand against corruption. Hence, for this purpose if a whistleblower is making any sort of disclosure be it of national, sovereign importance it must be inquired for not conducting any inquiry will be turning a blind eye to acts which can prove fatal to national interests.

6. References
1. Whistleblower protection act,2014
2.Whistleblower protection(Amendment)bill,2015
3.Critical analysis of the whistleblower protection mechanism in Indian law www.Kaavpublications.org
4. RTI act,2005
5. Kanika Choudhry, whistleblowing: comparative analysis of India and U.S
6. http://www.osec.doc.gov/ocr/nofear/nofear.html
7. https://www.governancenow.com/news/regular-story/the-case-of-whistleblowers-and-the-laws-to-protect-them
8. https://scroll.in/article/727173/if-amendments-to-whistleblowers-act-are-passed-there-may-be-no-one-left-to-protect

End-Notes
[1] Three get life in Satyendra Dubey murder case, The hindu, MARCH 27, 2010 16:00 IST, https://www.thehindu.com/news/national/Three-get-life-in-Satyendra-Dubey-murder-case/article16625349.
[2] Theja Ram, What happened to Karnataka IAS officer? Autopsy says unnatural death, The News minute, May 24, 2017 - 16:59, https://www.thenewsminute.com/article/what-happened-k-taka-ias-officer-anurag-tewari-autopsy-says-unnatural-death-62548
[3] Shoumojit Banerjee, Satish Shetty murder: CBI files closure report after 7 years,The hindu, APRIL 18, 2018 23:30 IST, https://www.thehindu.com/news/national/other-states/satish-shetty-murder-cbi-files-closure-report-after-7-years/article23590596.ece
[4] NREGA activists who paid with their lives Lalit Mehta(Jharkhand) , A K Gupta, down to earth, 7thjune 2015.
[5] Ayushi Kalyan & Aseem Diddee, Whistleblowing Policy In India- Needs And Challenges, Linked in,( December 22, 2016), https://www.linkedin.com/pulse/whistleblowing-policy-india-needs-challenges-roy choudhury
[6] The whistle blowers protection act,2014, NO. 17, Acts of parliament,1992(India)
[7] The whistle blowers protection act,2014, NO. 17, Acts of parliament,1992(India),chapter II,sec4(6)
[8] The whistle blowers protection act,2014, NO. 17, Acts of parliament,1992(India),chapter I, sec 3 (b)(i)
[9] The Whistle Blowers Protection (Amendment) Bill , 2015, No. 154 of 2015,section 4(1-a)
[10] Right to Information Act, 2005, No. 22 Acts of parliament 2005,chapter II, section 8(1)
[11] Preliminary findings of assessment of orders of the central Information commission, Satark Nagrik Sangathan, October,16,2018,page 7.
[12] 2010 5 MLJ 402
[13] Federal False Claims Act 31 U.S.C. §§ 3729 - 3733
[14] Notification and Federal Antidiscrimination and Retaliation Act of 2002
[15] Ranbaxy whistleblower reveals how he exposed massive pharmaceutical fraud, CBS NEWS November 6, 2013, 8:57 AM, https://www.cbsnews.com/news/ranbaxy-whistleblower-reveals-how-he-exposed-massive-pharmaceutical-fraud/

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