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Are Whistle Blowers Protected In India?

Whistle blower simply connotes a person who blows the whistle, however, it is a phrase usually conveys a person who exposes any illegal, anti-social, corrupt, immoral activities or any misconduct or mismanagement by any authority/ agency whether public or private or by any other person within a society, organization or a country, in a larger public interest; and such information can be classified or unclassified.

It is of paramount importance that there should be a transparent, effective and honest public system and if there is any lacuna or corrupt practice on the part of the any official of the system then it becomes mandatory to eradicate that corrupt practice, however, due to fear from the superior authority hardly any person dares to disclose such corrupt practice; and if any person discloses the said corrupt practice or an illegal act, then that person is termed as Whistle Blower.

The term whistle blower gained popularity in United States in the early 1970, instead of similar terms as ‘informer’ being negative in appearance. A whistleblower could be a citizen or member of society/organization or an employee or a contractor, or a supplier or any other person who becomes aware of any illegal activities and exposes the illegal act.

In legal parlance ‘whistle-blower’ is the person who informs and exposes an illegal act within an organization or society. Usually there might be several persons acquainted with the facts of commission of any illegal activities but hardly any of them dare to expose or report regarding said illegal act; and when any person reports regarding commission of above illegal act, such person is termed as whistle blower.

Though several persons may be aware of commission of illegal or harmful acts yet they do not prefer blowing the whistle due to fear of retaliation by means of physical, mental, social, economical harm or fear of losing their relationships with the offenders. Since whistle blowers belong to same organization/society which they form a part, hence they may be treated as ethical traitors by the persons/organizations involved in illegal harmful activities, therefore, the whistle blowers are vulnerable to retaliation in form of physical, social, mental and financial harm, hence, whistle blowers need protection from the law enforcing agency, being the most reliable witness and importance source of evidence.

If the whistle blowers are not protected then not only the valuable evidence may be destroyed but also demoralize the other persons and in future no one would dare to be a whistle blower. Therefore, the protection of the whistle blower is of utmost importance.

The Hon’ble High Court of Delhi in Civil Writ Petition No. 3113 Of 2020 titled as Savita Gupta versus India Post Payments Bank Limited (IPPB Board) also protected the interest of whistle blower by reinstating the petitioner. Though, there might be cases where whistle blowers do not have any direct approach to the Courts due to ignorance of the legal provisions, hence, there had been an immense need for a separate legislation to protect the interest of whistle blowers.

With an intent to eliminate corruption in bureaucratic system and protect the interest of the whistle blowers in the larger public interest and to encourage transparency & accountability in the system, the parliament of our country has enacted a bill which received the President's assent on 9 May 2014 and an act has passed in the name of The Whistle Blowers Protection Act, 2014 (Act No. 17 of 2014) which is 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 complaints and for matters connected therewith and incidental thereto. This act extends whole of India except the armed forces of the Union, being the Special Protection Group constituted under the Special Protection Group Act, 1988.

Thus, after implementation of above said act, a whistle blower or any public servant or any other person including any non-governmental organization, notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, may make a public interest disclosure before the Competent Authority which has been appointed by the state in that department. The Competent Authority, as per the act, may be summarized as follows:
In respect of persons/authorities Nominated Competent Authority
Members of the Union Council of Minister The Prime Minister
Member of Parliament, other than a Minister The Chairman of the Council of States if such Member is a Member of the Council of States or the Speaker of the House of the People if such Member is a Member of the House of the People, as the case may be.
Member of the Council of Ministers in a State or Union territory, the Chief Minister of the State or Union territory, as the case may be
Member of Legislative Council or Legislative Assembly of a State or Union territory, other than a Minister the Chairman of the Legislative Council if such Member is a Member of the Council or the Speaker of the Legislative Assembly if such Member is a Member of the Assembly, as the case may be;
Any Judge (except a Judge of the Supreme Court or of a High Court) including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; or any person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; or any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority. The High Court;
any person in the service or pay of the
Central Government or remunerated by the Central Government by way of
fees or commission for the performance of any public duty
except Ministers, Members of Parliament and members or persons, or in
the service or pay of a society or local authority or any corporation
established by or under any Central Act, or an authority or a body owned
or controlled or aided by the Central Government or a Government company
as defined in section 617 of the Companies Act, 1956, owned or

controlled by the Central Government; or any person who holds an office
by virtue of which he is empowered to prepare, publish, maintain or
revise an electoral roll or to conduct an election or part of an
election in relation to elections to Parliament or a
State Legislature; or any person who holds an office by virtue of which
he is authorized or required

to perform any public duty (except Ministers and Members
of Parliament); or

any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received
any financial aid from the Central Government or from any corporation
established by or under a Central Act, or any authority or body or a
Government company as defined in section 617 of the Companies Act, 1956
owned or controlled or aided by the Government; or

any person who is a chairman, member or employee of any Central Service Commission or Board, by whatever name called, or a member of any selection committee appointed
by such Commission or Board for the conduct of any examination or making
any selection on behalf of such Commission or Board; or any person who
is a Vice-Chancellor or member of any governing body,

professor, associate professor, assistant professor, reader, lecturer or
any other teacher or employee, by whatever designation called, of any
University established by a Central Act or established or controlled or
funded by the Central Government or any person whose services have been
availed of by such University or any such other public authority in

connection with holding or conducting examinations; or any person who is
an office-bearer or an employee of an educational, scientific, social,
cultural or other institution, in whatever manner established, receiving
or having received any financial

assistance from the Central Government or any local or other
public authority.
The Central Vigilance Commission or any other authority, as the Central Government may, by notification in the Official Gazette, specify in this behalf under this Act.
any person in the service or pay of the State Government or remunerated by the State Government by way of fees or commission, for the performance of any public duty except Ministers, Members of Legislative Council or Legislative Assembly of the State, or in the service or pay of a society or local authority or any corporation established by or under a Provincial or State Act, or an authority or a body owned or controlled or aided by the State Government or a Government company as defined in section 617 of the Companies Act, 1956, owned or controlled by the State Government; or any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election in relation to municipality or Panchayats or other local body in the State; or any person who holds an office by virtue of which he is authorized or required to perform any public duty in relation to the affairs of the State Government (except Ministers and Members of Legislative Council or Legislative Assembly of the State);  or any person who is the president, secretary or other office-bearer of a registered co- operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the State Government or from any corporation established by or under a Provincial or State Act, or any authority or body or a Government company as defined in section 617 of the Companies Act, 1956 owned or controlled or aided by the State Government; or any person who is a chairman, member or employee of any State Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;  or any person who is a Vice-Chancellor or member of any governing body, professor, associate professor, assistant professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University established by a Provincial or State Act or established or controlled or funded by the State Government and any person whose services have been availed of by such University or any such other public authority in connection with holding or conducting examinations; or any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the State Government or any local or other public authority. The State Vigilance Commission, if any, or any officer of the State Government or any other authority, as the State Government may, by notification in the Official Gazette, specify in this behalf under this Act;
The members of the Armed Forces; or the members of the Forces charged with the maintenance of public order; or persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization. Any authority or authorities as the Central Government or the State Government, as the case may be, having jurisdiction in respect thereof, may, by notification in the Official Gazette, specify in this behalf under this Act;

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 and the complaint making the disclosure shall, on behalf of the Competent Authority, be received by such authority as may be specified by regulations made by the Competent Authority.

Every disclosure shall be made in good faith and the person making disclosure shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true. The above mentioned disclosure shall be made by the whistle blower in writing or by electronic mail or electronic mail message in accordance with the procedure as may be prescribed and contain full particular sand be accompanied by supporting documents, or other materials, if any. The Competent Authority may, if it deems fit, call for further information or particulars from the person making the disclosure.

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. 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 and within such time as may be prescribed, to ascertain whether there is any basis for proceeding further to investigate the disclosure.

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 organization or authority, board or corporation concerned or office concerned within such time as may be specified by it.

It is pertinent to mention that while investigating the above said disclosure of whistle blower the Competent Authority shall not reveal the identity of the whistle blower/complainant or the public servant and direct the Head of the Department of the organization concerned or office concerned not to reveal the identity of the complainant or public servant, except with clear consent from the whistle blower or complainant. The Head of the organization or office concerned shall not directly or indirectly reveal the identity of the complainant or public servant who made the disclosure.

The Competent Authority, if after conducting an inquiry, is of the opinion that:
  1. the facts and allegations contained in the disclosure are frivolous or vexatious; or
  2. there are no sufficient grounds for proceeding with the inquiry, it shall close the matter.
  3. after receipt of the comments or explanations or report on disclosure by the whistle blower, if the Competent Authority is of the opinion that such comments or explanations or report reveals either willful misuse of power or willful misuse of discretion or substantiates allegations of corruption, it shall recommend to the public authority to take any one or more of the following measures, namely:
    1. initiating proceedings against the concerned public servant;
    2. taking appropriate administrative steps for redressing the loss caused to the Government as a result of the corrupt practice or misuse of office or misuse of discretion, as the case may be;
    3. recommend to the appropriate authority or agency for initiation of criminal proceedings under the relevant laws for the time being in force, if so warranted by the facts and circumstances of the case;
    4. recommend for taking of corrective measures;

The Competent Authority shall, after making an inquiry, inform the whistle blower or complainant or public servant about the action taken on the complaint and the final outcome thereof.
‘The Whistle Blowers Protection Act, 2014’ also provides the matters which are not to be inquired by the competent authority, which are:
  1. If any matter specified or an issue raised in a disclosure has been determined by a Court or Tribunal authorised to determine the issue, after consideration of the matters specified or issue raised in the disclosure, the Competent Authority shall not take notice of the disclosure to the extent that the disclosure seeks to reopen such issue.

  2. The Competent Authority shall not entertain or inquire into any disclosure:
    1. in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850 ; or
    2. in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952.
    3. The Competent Authority shall not investigate, any disclosure involving an allegation, if the complaint is made after the expiry of seven years from the date on which the action complained against is alleged to have taken place.

Nothing in this Act shall be construed as empowering the Competent Authority to question, in any inquiry under this Act, any bona fide action or bona fide discretion (including administrative or statutory discretion) exercised in discharge of duty by the employee.

The Whistle Blowers Protection Act, 2014’ confers certain powers upon the competent authority, which are:
  1. Without prejudice to the powers conferred upon the Competent Authority under any other law for the time being in force, the Competent Authority, may require, for the purpose of any inquiry any public servant or any other person who in its opinion shall be able to furnish information or produce documents relevant to the inquiry or assist in the inquiry, to furnish any such information or produce any such document as may be necessary for the said purpose.

  2. For the purpose of any such inquiry (including the preliminary inquiry), the Competent Authority shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:
    1. summoning and enforcing the attendance of any person and examining him on oath
    2. requiring the discovery and production of any document;
    3. receiving evidence on affidavits;
    4. requisitioning any public record or copy thereof from any court or office;
    5. issuing commissions for the examination of witnesses or documents;

The Competent Authority shall be deemed to be a Civil Court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 , and every proceeding before the Competent Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code.

It is pertinent to mention that, subject to the provisions of section 8 of the act, no obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to the Government or any public servant, whether imposed by the Official Secrets Act, 1923 or any other law for the time being in force, shall be claimed by any public servant in the proceedings before the Competent Authority or any person or agency authorised by it in writing and the Government or any public servant shall not be entitled in relation to any such inquiry, to any such privilege in respect of the production of document or the giving of evidence as is allowed by any enactment or by any rules made thereunder: provided that the Competent Authority, while exercising such powers of the Civil Court, shall take steps as necessary to ensure that the identity of the person making complaint has not been revealed or compromised.

However, there are matters which are exempted from disclosure in the act, such as:
  1. No person shall be required or be authorised by virtue of provisions contained in this Act to furnish any such information or answer any such question or produce any document or information or render any other assistance in the inquiry under this Act if such question or document or information is likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
  2. the disclosure of proceedings of the Cabinet of the Union Government or any Committee of the Cabinet;
  3. the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet,

It is not out of the place to mention that no person shall be compelled for the purposes of inquiry under this Act to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a court.

The following main protections are available to the Whistle Blowers in The Whistle Blowers Protection Act, 2014:
  1. The Central Government shall ensure that no person or a public servant who has made a disclosure under this Act is victimized 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.
  2. If any person is being victimized or likely to be victimized on the ground that he had filed a complaint or made disclosure or rendered assistance in inquiry under this Act, he may file an application before the Competent Authority seeking redress in the matter, and such authority shall take such action, as deemed fit and may give suitable directions to the concerned public servant or the public authority, as the case may be, to protect such person from being victimized or avoid his victimization:

    Provided that the Competent Authority shall, before giving any such direction to the public authority or public servant, give an opportunity of hearing to the complainant and the public authority or public servant, as the case may be:

    Provided further that in any such hearing, the burden of proof that the alleged action on the part of the public authority is not victimization, shall lie on the public authority.
  3. Every direction given by the Competent Authority shall be binding upon the public servant or the public authority against whom the allegation of victimization has been proved.
    Notwithstanding anything contained in any other law for the time being in force, the power to give directions under the act, in relation to a public servant, shall include the power to direct the restoration of the public servant making the disclosure, to the status quo ante.
  4. The Whistle Blowers Protection Act, 2014’ also provides that any person who willfully does not comply with the direction of the Competent Authority under the act , shall be liable to a penalty which may extend up to thirty thousand rupees.
  5. If the Competent Authority either on the application of the complainant (Whistle Blower), or witnesses, or on the basis of information gathered, is of the opinion that either the complainant or public servant or the witnesses or any person rendering assistance for inquiry under this Act need protection, the Competent Authority shall issue appropriate directions to the concerned Government authorities (including police) which shall take necessary steps, through its agencies, to protect such complainant or public servant or persons concerned.
  6. The Competent Authority shall, notwithstanding any law for the time being in force, conceal, as required under this Act, the identity of the complainant (whistle blower) and the documents or information furnished by him, for the purposes of enquiry under this Act, unless so decided otherwise by the Competent Authority itself or it became necessary to reveal or produce the same by virtue of the order of the court.
  7. The Competent Authority, at any time after the making of disclosure by the complainant or public servant, if it is of the opinion that any corrupt practice required to be stopped during the continuation of any inquiry for the said purpose may pass such interim orders as it may deem fit, to prevent the immediate stoppage of such practice.

The Whistle Blowers Protection Act, 2014’ provides certain penalties in furtherance of objectives of the act, which are;
  1. Where the Competent Authority, at the time of examining the report or explanations or report referred to in sub-section (3) of section 5 of the act, on the complaint submitted by organization or official concerned, is of the opinion that the organization or official concerned, without any reasonable cause, has not furnished the report within the specified time or mala fidely refused to submit the report or knowingly given incomplete, incorrect or misleading or false report or destroyed record or information which was the subject of the disclosure or obstructed in any manner in furnishing the report, it shall impose:
    1. where the organisation or official concerned, without any reasonable cause, has not furnished the report within the specified time or mala fidely refused to submit the report, a penalty which may extend to two hundred fifty rupees for each day till report is furnished, so, however, the total amount of such penalty shall not exceed fifty thousand rupees;
    2. where the organisation or official concerned, has knowingly given incomplete, incorrect or misleading or false report or destroyed record or information which was the subject of the disclosure or obstructed in any manner the furnishing of the report, a penalty which may extend to fifty thousand rupees:
      Provided that no penalty shall be imposed against any person unless he has been given an opportunity of being heard.
    3. Any person, who negligently or mala fidely reveals the identity of a complainant shall, without prejudice to the other provisions of this Act, be punishable with imprisonment for a term which may extend up to three years and also to fine which may extend up to fifty thousand rupees.

The main object of ‘The Whistle Blowers Protection Act, 2014’ is to secure the interest of the whistle blowers and not to create hindrances in the functioning of the system through false or frivolous disclosures. This act provides punishment for such false or frivolous disclosure or other offences in the act, as:
  1. Any person who makes any disclosure mala fidely and knowingly that it was incorrect or false or misleading shall be punishable with imprisonment for a term which may extend up to two years and also to fine which may extend up to thirty thousand rupees.

  2. Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

  3. Notwithstanding anything stated above, where an offence under this Act has been committed by a Department of Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

  4. Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he has exercised all due diligence to prevent the commission of such offence. It is also provided that where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Blowing whistle to hide own fault cannot be a ground to be a whistle blower. The Hon’ble High Court of Delhi in a case (Civil Writ Petition No. 9878 Of 2020) titled as Pramod Kumar Singh Versus Union Of India & others also emphasized that “as per the respondents BSF, the whistle blown by the petitioner was investigated and found to be unnecessary and a false alarm and now it is the petitioner who is facing the enquiry for making false allegations.

It is stated by the counsel for the respondents BSF that the petitioner has been attached, so as to eliminate the possibility of the petitioner suffering any prejudice at the hands of the respondent no.5 Sandeep Rawat who continues to be at Chakur, Maharashtra. It is also stated that the enquiry against the petitioner is also being held at Gandhi Nagar, Gujarat”, thus the petition was dismissed by the Hon’ble High Court of Delhi.

An appeal may be filed by the person against whom the penalty / punishment has been imposed by the Competent Authority by the person aggrieved by any order of the Competent Authority to the High Court within a period of sixty days from the date of the order appealed against, however, 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.

Being a special act, no Civil Court shall have jurisdiction in respect of any matter which the Competent Authority is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. No court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder, save on a complaint made by the Competent Authority or any officer or person authorised by it and no court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act.

The act further provides that ‘No suit, prosecution or other legal proceedings shall lie against the Competent Authority or against any officer, employees, agency or person acting on its behalf, in respect of anything which is in good faith done or intended to be done under this Act’.

It is apparently clear from the above provisions that:
The Whistle Blowers Protection Act, 2014’ is a legislation enacted for the purpose of promoting transparency & accountability and eradication of corrupt measures besides extending the protection to the whistle blowers who disclose any illegal activity or corrupt measures being adopted by the public authority or the government servant or any other authorities.

However, this act does not have much publicity and awareness, thus, there is a need to make all public authorities acquainted with the provisions of the act which would not only secure the interest of whistle blower in larger public interest but also minimize the chances of adopting corrupt measures.

Written By: Kapil Kishor Kaushik, Advocate

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