INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME I ISSUE III (SEPTEMBER 2020)

Email – [email protected] Website – www.ijlra.com

56565656565651 www.ijlra.com Volume IIssue III|September 2020 ISSN: 2582-6433

DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA.

Though every effort has been made to ensure that the information in Volume I Issue III is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal.

Copyright © International Journal for Legal Research & Analysis

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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A WORD FROM THE TEAM

IJLRA:(ISSN: 2582-6433) is proud to complete its Volume I Issue III. The current issue consists of articles, short notes, case comments, legislative comments and book reviews, contributed by advocates, academicians, researchers & students from all parts of the country. Each contribution has been thoroughly examined by our editorial team to provide a filtered and quality read.

The fact that law as a subject is dynamic and ever evolving makes it imperative for lawyers, academicians, researchers, and students to stay abreast of recent developments. The same thought process has led us to develop a dedication towards providing all the contributors with a platform to express their original ideas on contemporary issues. With the same endeavour to present view on latest legal developments within and outside country we are successful in presenting diverse selection of stimulating articles.

We strive hard to stick to the core of the Journal's principles, which includes diversity and open discussion from all aspects of law while maintaining highest standards of professional integrity.

The Issue is a culmination of the efforts of several people who must be rightly acknowledged. We would like to place on record our sincere gratitude to all our contributors for their valuable work. We would also like to thank all the members of Editorial Board for their efforts in shortlisting and editing the papers to ensure that the ideas of authors are being expressed in the best possible manner; and finally the members of our technical support team for making this issue reach all our readers by way of an open access system.

We sincerely hope that the present issue will come to the expectations of its readers.

Team IJLRA

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RIGHT TO INFORMATION AND PROTECTION OF WHISTLE BLOWER Name:- Vivek Raj & Yashasvi ABSTRACT

Transparency and accountability in administration is the sine qua non participatory democracy. Information in today’s life is the oxygen that any citizen needs to live in the social structure of the society and maintain its democratic balance. Right to information in India was developed through judicial pronouncement there by distinguish by a fundamental right under article 19(1)(a). After a gradual period of time, realizing the importance of this right to know, this right was established in 2005 as a full- fledge statue in the name of “The Right To Information” act 2005. This RTI become the pioneer tool to the citizen of India for promoting, protecting and defending their right to know.

Good governance may be termed as a synonym for the work carried out by a government where maximum benefit is given to maximum number of people. India being a huge democratic country, needs participation from every front to implement the objective of good governance. The scenario often turns that law of public interest benefit is mostly used by the elite sections of the society. However, this piece of legislations stands as an exception as it has reached its extend to the to the remote corner of the country. The paper will study the implementation and extent of this prominent law to the gross root level of India through the participation and activeness of common people who thrive to promote good governance through their extraordinary work. RTI is powerful tool that can deliver significant social benefits. It provides a strong support to the democracy and promotes good governance, by empowering the citizen’s ability to participate effectively and hold government officials accountable. Rather than just providing information. RTI act in most of the countries has served to be effectively watchdog ensuring all those coming in purview of the act to work in accordance with rules and regulations, without any irregularities. Currently, the RTI act in India is passing through decisive phase much more need to be done to facilitate its growth and development.

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TABLE OF CONTENT I. INTRODUCTION II. EVOLUTION OF RTI INTO FOOTSTEPS OF WHISTLE BLOWER ACT A. JUDICIAL TERENDS FROM (1975- 2005) B. JUDICIAL TERENDS FROM (2005-2010) C. JUDICIAL TEREND FROM (2010 – 2014) D. 2014 (WHISTLE BLOWER ACT III. COMPARING WHISTEL BLOERS LAW OF OTHER JURISDICTIONS A. UK B. USA C. INDIA IV. CONCLUSION

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INTRODUCTION

“Where the society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing.” - Justice P N Bhagwati

Right to information is an index to measure the growth and development of the country. In India, till 2005 the citizen has had no access to any information which was dealt by a public authority. Matter effecting public interest was not easy for a common man get accessibility. Thus without getting any relevant information it was very difficult for a citizen to participate in any social, political or economical debate concerning the issues or interest of the country.

In India after many deliberations over the years the RTI Act was passed by the parliament in 12 October 2005. Thus the opening of the governance process of our country to the public the Right to information Act is considered to be the most revolutionary of all enactment in the independent India. The right to information and the assurance of wide spread citizen participation in public affairs and an active civil society are essential for the realization of democracy. The RTI Act which is used sensibly and efficiently can take the country in the direction of new democracy and good governance.

Whistle blower protection has been recognized by all the major international instruments concerning to corruption. The 1998 OECD Recommendation on Improving Ethical Conduct in the Public Service including the Principles for Managing Ethics in the Public Service .1

The Whistle blowers Protection Act, 2014 was passed in Parliament on February 21, 2014.1 After the Bill was passed by Lok Sabha, certain amendments were circulated in Rajya Sabha on August 5, 2013.2 However, these changes were not incorporated in the Bill when it was passed by Rajya Sabha in 2014. The Whistle blowers Protection (Amendment) Bill, 2015 was introduced in Lok Sabha on May 11, 2015. The Statement of Objects and Reasons states that this Bill has been introduced to give effect to earlier amendments which could not be passed. 2

1 Referred to http://www.oecd.org/cleangovbiz/toolkit/50042935.pdf. (last visited 24/2/2018) 2Referred to http://www.prsindia.org/administrator/uploads/media/Public%20Disclosure/whistleblowers%20bill- %20comparison%20of%202013%20and%202015%20amendments.pdf. (last visited 24/2/2018)

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EVOLUTION OF RTI TO THE FOOTSTESPS OF WHISTLE BLOWER ACT/ WHAT IS THE JUDICIAL INTERPRETATION OF RTI BEFORE ITS BIRTH? (1974 – 2005)

Although in pre RTI era the government or incorrect word neither the legislature neither the judiciary and neither the executive has shown the valuable interest to recognize the basic pillar of democracy , may be using the term pillar is not the right version of etymology but in the course later it prove as a major pillar for Indian democracy .Although judiciary has shown some attention toward it which can readily trace down to Maneka Gandhi case where On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the Regional Passport Office, Delhi, asked to submit her passport (No. K-869668) within seven days from the day on which she had received such letter, i.e.before 11th July 1977. The letter stated that it was the decision of the Government of India to impound her passport under Section 10(3)(c) of the Passport Act 1967. The ground for such an impounding, as told to her, was “public interest.”3 Smt. Maneka Gandhi after that immediately sent a letter to the Regional Passport Officer, inquiring for the grounds on which her passport had been impounded. She also requested him to provide a copy of the ‘Statement of Reasons’ for making of such an order. The reply sent by the Ministry of External Affairs to Maneka Gandhi was that it was the decision of the Government of India to impound the passport in the interest of the general public. Also, there were orders to not issue her any copy of the Statement of Reasons. Smt. Maneka Gandhi thus filed a petition with regards to the matter. Therefore this case may be taken as glimpse of evolution of RTI in India.

Not only that The National Campaign on People's Right to Information (NCPRI) was formed with the twin purpose of being a support group for the MKSS and to carry out advocacy on the right to information at the national level. The presence of senior and respected media persons, serving and retired bureaucrats, and members of the bar and Judiciary in the National Campaign on People's Right to Information (NCPRI) make it an important nodal body. Members like Prabhash Joshi, have been keeping the issue alive through their writing and travelling around the country. The National Campaign also brought out a journal, ‘Transparency’ which proved to be very useful for campaigning and networking purposes.4

3 Maneka Gandhi v union of India (AIR). 4 Ids research summary winning the right to information campaign in India October 2008

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In India, the campaign on the Right to information (RTI) was triggered off at the grassroots level by an organization called, the Mazdoor Kisan Shakti Sangthan, in the 1990s. The movement was initially started to bring in transparency in village accounts. It was an off shoot of the demand made for minimum wages in rural areas. In Rajasthan, a State level Jan Sunwai was being organized to highlight the gaps between the promises of the State Government, provisions of law and the real implementation. The Mazdoor Kisan Shakti Sangthan (MKSS) was engaged in a struggle for minimum wages on Government Work sites. In 1992, it took small interest free loans from its members and started several Mazdoor Kisan Kirana, grocery stores where high quality groceries were supplied on low profit. The Mazdoor Kisan Shakti Sangthan (MKSS) activists, then, started demanding for the accountability from the officers and the elected representatives. They realized the needs to access the all records of local Governments work in order to make the Government accountable. In 1994, the Mazdoor Kisan Shakti Sangthan (MKSS) movement adopted the methodology of Jan Sunwais or public hearings. The public hearings organized by (MKSS) evoked great hope among the underprivileged people locally, as Well as among the Government. On 5 April, 1995 the Chief Minister of Rajasthan announced that his Government would be the first in the country to confer to every citizen the right to obtain photocopies of all official documents related to local development Work on deposit of a specific fee for the same. Exactly one year after the assurance of the Chief Minister, the Mazdoor Kisan Shakti Sangthan launched a 52 day long Dharna 15 in Beawar16. At the end of the Dharna, the Deputy Chief Minister made an astonishing announcement, those six months earlier, the State Government had already notified the right to receive photocopies of documents related to Panchayat or Village Local Government Institutions.

WHAT WAS THE COURSE OF RTI IN ITS INFANT ROLE MODEL AS STAGE? (2005-2010)

For looking forward to this stage one of the early landmarks was Mr. Keval Prasad V. Allahabad bank.5 In this case the Central Information Commission, held that the technical interpretation of the provision not be adopted by the Public information officers and the Public Authorities While dealing with the applications filed by either the President or the members of any organization under the Right to information Act. Commission has taken the

5 2907 ICPB 2008

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side of accepting all applications that has been received from bodies like Unions, Associations, Welfare Bodies, companies etc. Because Commission felt that these bodies shall also be entitled to benefit from the provisions of the Right to Information Act which should not be lost sight of in the narrow interpretation of the Act. The Commission had therefore directed the Central Public information Officers, in all such cases, to entertain and process all such applications as per the provisions of the Act.

Some other leading case includes Patanjali Sharma vs. Central Public Information Officer of the Rajya Sabha Secretariat.6 It has ruled that the records with a parliamentary committee can be provided under the Right to Information Act, once the report has been tabled on the floor of the House.

After few years when we analyse the phase of 2008 and 9 we can easily find various landmarks but the two which gives new direction to the same was mukesh chaturvedivs N W railway, Jaipur where the Information/ documents regarding the question-wise and sub question- wise marks secured by the candidate' for the examination held for the post of Assistant Personnel Officers in 2007 along with answer-sheets of the other candidates who had qualified in the examination was sought for The Commission directed the Respondents to provide the question-wise and sub-question wise marks to the Appellant of his answer sheet for the examination of the Assistant Personnel Officers held in 2007; (ii) the Appellant may be shown the answer-sheets of the candidates he wants but without providing him with a copy of the same. In that case he wants a copy of his own answer-sheets, this may be provided to him. The reason cited was that the Central board of secondary education (CBSE) shared a fiduciary relationship with its evaluators and maintained confidentiality of the manner and method of evaluation. Section 8 (1) (e) of the Right to Information Act exempts a public authority from disclosing information if it is held in a fiduciary relationship unless the authority is satisfied that the larger public interest warrants such disclosure. Further the Central Board of Secondary Examination (CBSE) claimed that its examination bye-laws barred re-evaluation, disclosure or inspection of answer books, and what was permissible was only a verification of marks. The Central board of secondary education (CBSE) submitted that the procedure evolved and adopted by it in the evaluation of answer books ensured fairness and accuracy and made the entire process as full proof as possible. If candidates were to be permitted to seek the revaluation of answer books, it would create confusion and chaos,

6 CIC/ WB/A/2008/01 294 dated 25. 7.2008

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subjecting its elaborate system of examinations to delay and disarray apart from necessitating huge additional staff and infrastructure.

WHAT IS THE NEW DIRECTION RTI IS TAKING IN ITS COURSE OF JUSTICE? (2011-2014)

In the case of Sri banarasirai v. Cbi Madhya Pradesh7 Shri Banarasi Rai filed an application dated 17.06.2014 under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Central Bureau of Investigation (CBI) seeking information regarding action taken report on his complaint . The appellant filed a second appeal before the Commission on the grounds that no information has been provided to him by the CPIO as well as the First Appellate Authority (FAA) within the stipulated time limit under the provisions of RTI Act.

There is the Commission observes that in this case information has been sought from CBI, an organization to which the RTI Act does not apply as per Section 24(1) of the RTI Act,Further the information sought does not pertain to allegations of corruption and human rights violatio ns by the officers of CBI. Hence, information cannot be provided to the appellant.

Moreover other case of such nature like as Madhu VS PIO8 and Sr. DMM, DRM Office, Northern Railway, State Entry Road, New Delhi Fact: The appellant vide RTI application dated 13.04.2017 sought copy of her husband’s caste certificate to enable her to apply for caste certificate for her daughter. The CPIO’s reply or the First Appellate Authority (FAA)’s order is not on record. Aggrieved with the non-supply of the desired information from the respondent authority, the appellant filed a second appeal under the provision of Section 19 of the RTI Act before the Central Information Commission on 01.07.2017. In this case consent from the 3 third party is received within the time stipulated u/s 11(1) of the Act, the sought for information can be provided to the appellant. The Commission therefore, directs the CPIO (Personnel) to issue notice u/s 11 of the RTI Act to the third party within five days from the receipt of this order, informing him of the Commission’s order and of the fact that the respondent is directed to disclose the information subject to third party(s) consent and invite the third party to make submission in writing on whether the information sought for in the above stated RTI application should be disclosed to the appellant in this case. The third party

7 Decision No. CIC/CC/A/2014/000687/SB 8 CIC/BS/C/2016/900411

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in this case, within ten days from the date of receipt of such notice, shall inform the respondent authority about his stand. In case the third party gives consent, the CPIO shall provide complete information within 3 days from the receipt of such consent to the appellant and if the third party objects, the same shall be intimated to the appellant within the same time period under intimation to the Commission.

WHAT IS WHISTLE BLOWING?

US ACADEMICIANS MICELI AND NEAR (1984)9 Defines Whistle blowing as “the disclosure by organizational members (former or current) of illegal, immoral, or illegitimate practices under the control of their employees, to persons or organizations that may be able to effect action”.

According to Miceli and Near has given it includes individual because whosoever report wrongdoing within an organisation, and also individual whosoever reports wrongdoing outside an organisation. They don’t differentiate between internal and external whistle blower because what they have researched indicates the individual always report wrongdoing inside the organisation either to outside the organisation

INTERNATIONAL LABOUR ORGANIZATION (ILO)10 Defines whistle blowing as “the reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers”

According to international labour organisation the area of responsibility has given in the hands of the ethical officer related to the protections of the officials who believes that action has been taken against them because they have been reported for corruption, misconduct or unethical practices

9 Marcia Parmerlee Miceli, Janet P Near (1984), “The Relationships among Beliefs, Organizational Position, and Whistle-Blowing Status: A Discriminant Analysis” The Academy of Management Journal, Vol. 27, No. 4, pp. 687-705.

10 Brown, A., Lewis,D., Moberly,R., Vandekerckhove,W. (2014).International Handbook on Whistleblowing, Edward Elgar Publishing Limited

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BOK S (1980)11 Whistle blowers are those individuals who “sound an alarm from within the very organization in which they work, aiming to spotlight or abuses that threaten the public interests”.

According to Bok S there are some of the employees in the organisation ‘in which they work’ and they raise their voice as the ‘sound an alarm’ for the corruption, misconduct etc

According to the above different persons and authors those who have clearly stated that ‘whistleblower’ means reporting employee about the wrongdoing of their employer in the organisation attempt to find the corrective action to check the misconduct, unethical practices which majorly effects the public interest

WHAT ADD AND WHAT NOT IN WHISTLE BLOWER ACT 2011?

THE WHISTLE BLOWERS PROTECTION ACT, 2011 AN ACT to be establish a mechanism to receive complaints relating to disclosures on any allegations of corruption or misuse of power or misuse of discretions against public servant and inquire or cause an inquiry into such disclosures and to provide adequate safeguards against any type of victimisation of the person making such complaint and for any matter connected therewith and incidental thereto.

This Act is called the Whistle Blowers Protection Act, 2011.12 That extends to the whole India the State of Jammu and Kashmir. It will come into force on such date as the Central Government may, provide notification in Official Gazette, and different dates may be appointed for different types of provisions of this Act and any references in any provision to the commencement of this Act will be construed as a reference to the coming into force of that provision. The provision of this Act shall not be applied to the armed forces of the Union, being as the Special Protection Group to be constituted under the Special Protection Group Act, 1988.In this Act the context otherwise requires,— "a Central Vigilance Commission" means the Commission should be constituted under sub-section (1) of section 3 of the Central Vigilance Commission Act, 2003; "a Competent Authority" means— in relation to a Member of the Union Council of Ministers, the Prime Minister; in relation to the

11 Bok, S. (1980). Whistleblowing and professional responsibilities. In Ethics teaching in higher education (pp. 277-295). Springer US. 12 Whistle Blowers Protection Act, 2011" (PDF). Gazette of India. Retrieved 13 feb 2018

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Member of Parliament, other than the Ministers, the Chairman of the Council of States if such Member is a Member of the Council of States or the Speaker of House of the Peoples if such Member is the Member of the House of the People, as the case may be; in relation to the Member of the Council of Ministers in the State or Union territory, the Chief Minister of the State or Union territory, as the case may be.

WHISTLE BLOWER AND ITS RELATION WITH PUBLIC INTEREST DISCLOSURE Notwithstanding anything contained in this provisions of the Official Secret Acts, 1923,13 any public servants or any other person including any non-governmental organisation, may make the public interest disclosure before Competent Authority. Any disclosures made under the Act shall be treated as the public interest disclosures for the purposes of this Act and shall be made before the Competent Authorities and the complaints making the disclosure shall, be on behalf of the Competent Authorities, be received by such authority as may be specified by the regulations made by the Competent Authority. Every disclosure should be made in a good faith and the person making disclosures shall make a personal declarations stating that he reasonably believes that all the information disclosed by him and allegations contained therein is substantially true. Every disclosure will be made in writing or by electronic mail or electronic message in accordance with the procedures as may be prescribed and contains full particulars and be accompanied by supporting all documents, or other materials, if any

INQUIRY RELATED TO WHISTLE BLOWER “PUBLIC INTEREST” Subject to the provisions of this Act, the Competent Authority shall, receipt of a public interest disclosures under the section 4,— ascertain from the complainant or the public servants whether he is the person or the public servant who made the disclosure or not; 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 Provided that if the Competent Authority is of the opinion that it has, for the purpose of seeking the comments or explanations or report from them under sub- section (3) on the public disclosure, become necessary to reveal the identity of the complainant or public servant to the Head of the Department of the organisation or authority, board or corporation concerned or office concerned, the Competent Authority may, with the prior written consent of the complainant or public servant, reveal the identity of the

13 http://www.archive.india.gov.in/allimpfrms/allacts/3314.pdf

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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 further that in case the complainant or public servant does not agree to his name being revealed to Head of the Department, in that case, the complainant or public servant, as the case may be, shall provide all documentary evidence in support of his complaint to the Competent Authority

COMPARING THE EVOLUTIONARY STATUS OF RTI WITH OTHER JURISDICTIONS? CAN WE FIND SIMMILARITIES OR CLUSTER OF DIFFERENCES? WHAT WAS THE STATUS OF WHISTLE BLOWER?

UNITED KINGDOM AND STATUS OF LAW RELATES TO WHITSLE BLOWER

A leading common law English decision on the point is British Steel Corporation V. Granada television Ltd14. Granada television broadcast a programme called the steel papers which revealed that poor management played a part in financial difficulties of British Steel Corporation which was evident from documents leaked to Granada by a British steel corporation employ. In an action against Granada by British steel corporation Granada returned a confidential documents they have used but defaced them to conceal the identity of there source. Granada defended itself by pleading that the press should be granted an exception from that general rule, for potential informer would be less likely to give information to the press unless assured that their identity would be protected. The House of Lords by a majority didn’t accept this plea and held that the discloser could be compelled in the interest of justice. It was held that the newspaper rule was confined to libel actions. It did not extend to actions based on breach of confidence and did not operate to confer on the media, a general immunity from the discloser of their sources. The lone dissenter, lord salmon, observed:

The immunity of the press to reveal its sources of information save in exceptional circumstances is in the public interest, and has been so accepted by the courts for so long that consider it is wrong now to sweep this immunity away. The freedom of the press depends on this immunity. Where it to disappear so would the sources from which its information is

14 1981 AC 1096: (1980) 3 WLR 774: (1981) I ALL ER 417 (HL); referred to in nishi prem V. Javed Akhtar, AIR 1988 Bom 222, Where it was held that at the interim stage of a matter in answer to interrogatories, a newspapaper cannot be made to disclose its source of information.

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obtained, and the public would be deprived of much of the information to which the public of a free nation is entitled.15

The common law did not grant journalist and absolute right to preserve the confidentiality if their sources, although it did recognise that the court had the discretion to decide as to whether or not to compel journalist to name their sources. The common law position was reinforced by section 10 of the English contempt of courts act 1981.

No court may required a person to disclose, nor is any person guilty of contempt of court from refusing to disclosure the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that it is necessary in the interest of justice or national security or for the prevention of disorder o crime.

Section10 of the English contempt of court act 1981 creates a presumption in favour of journalist who wants to protect the identity of their sources. Whoever that presumption can be rebutted if the court reaches the conclusion that the disclosures necessary on any of the four stated grounds that is in the interest of justice, or national security, for the prevention of disorder, for the prevention of crime. These factors to be considered by the court where laid down by the house or lords in GOODWIN V. United Kingdom.16 Bill Goodwin, a journalist employed with the engineer received that a lead in Private Corporation, contrary to its own publicity, was in deep financial trouble and was desperately seeking to raise a large loan. Goodwin telephoned the company seeking information and comment. The company responded by obtaining an injection on the ground of breech of confidence and seeking discloser of the identity of the source of information the court of appeal directed the journalist to place the name of each source in a sealed envelope and hand it over to the court pleading pending the outcome of the final appeal to the house of lords. The House of Lords held that the interest of justice outweighed the presumption in favour of protection of source under section 10, contempt of courts act 1981 and that the company could suffer grave damage, unless it was able to identify the employ or consultant who had leaked what is regarded as confidential information to the press.17 The public interest discloser act 1998 (UK) provides some protection for whistle blowers in the UK. It is linked to employment legislation and protection is afforded to a qualifying discloser.18 The person making the discloser must

15 British steel corpn v. Granada television ltd., 1981 AC 1096: (1980)3WLR774☹ 1981)1 All ER417(HL). 16 (1996)22EHRR123. 17 ibid 18 S. 43-B, employments rights act, 1996(UK).

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reasonably believe that it tends to show the commission of a criminal offence, danger to the health or safety of any individual, damage to the environment and likelihood of the information mentioned above being concealed. The matter complained of could be in the past the present or the future, within or outside the UK.

UNITED STATES AND STATUS OF LAW RELATED TO WHITSLE BLOWERS?

In the US, the whistle blower protection act 1989 provides whistle blower an individual right of action ‘IRA, before the US merit systems protection board. The discloser must be made either to the special council, the inspector general of an agency, another employ designated by an agency head to receive such disclosers, or any other individual or organisation, i.e congressional committee or the media, provided the discloser is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defence or the conduct of foreign affairs. Procedures have been prescribed for the protection of witnesses and for the non-discloser of the identity of the complainant.

A significant feature of the US whistle-blower protection act, 1989 is the creation of “more realistic burdens of proof”. This feature is based on three principles, i.e elimination the relevance of the employer motives, easing the standard to establish a prima facie case reversing the burden of proof for agencies which must then prove legitimate, independent justification for the personnel action by “clear and convincing evidence”. The whistle blower is given the option of a transfer, which may be invoked even during the interim stage. A number of amendments have been made to the whistle blower protection act, since its enactment in 1989, to strengthen the protection given to whistle blowers. A significant change was made by the Sarbanes-Oxley act enacted by the congress in 2002. This was prompted by accounting debacles in large corporate such as Arthur Anderson, Enron and world.com. This legislation provides protection to whistle blowers who report on the basis of a reasonable belief that a company, subject to the Securities and Exchange Commission’s regulations, has engaged in fraudulent activities.19

19 Such exemptions are contained in: 1) s. 5, bankers books evidence act, 1891.

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INDIA

In India, in the past, the law has been more inclined to compel discloser rather than protect sources. For instance, the evidence Act, 1972 provides that all people, who are competent to be witnessed under section 118 if the Act, can also be compelled to give evidence and also to answer relevant question unless exempted by law.20 Likewise, the prevention of terrorism Act, 2002 (which was subsequently repealed in 2004) provide under section 14 that a person could be compelled to furnish information, regarded as useful or relevant, for the purpose of the Act. This includes lawyers and journalists, who are otherwise bond by their professional duties, to treat information rendered in the course of their professional work as privileged communication. In people’s union for civil liberties V. Union of India,21 arising out of a constitutional challenge to the prevention of terrorism Act, 2002, it was held that the journalist and lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethos. This was justified on the ground that it is the duty of every citizen to assist the state in the detection of crime and bringing criminals to justice.22 However, no provision was made for the3 protection of journalist who was compelled to disclose information about terrorists.23

In the 179th report of the law commission of India under the chairmanship of B.P Jeevan Reddy J,24 it was recommended that statutes enabling complaints to be made by the public servants, individual, or NGOs against other public servants and the grant of protection to such complaints must be enacted:

It is now recognized that while a public servant may be subject to a duty of confidentiality, this duty never be extended 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 Whistle blower laws ore based upon the principles.

The commission is of the view that a statute enabling complaints to be made by servants, or persons or NGOs or against other public servants and the grant of protection to such

20 Such exemptions are contained in: (1) S. 5, Bankers, Books Evidence Act, 1891. (2) Ss. 51-52, Divorce Act, 1869. (3) Ss. 121-29, Evidence Act, 1872. 21 (2004) 9 SCC 580: AIR 2004 SC 456. 22 Ibid, (SCC) 603, para, 37. See also, S.39 CrPC and state of Gujarat V. Anirudbsing, (1997) 6 SCC 514: AIR 1997 SC 2780. 23 Prevention of terrorism Act, 2002 gas been repealed w.e.f. 21-9-2004. 24 Submitted on 14-12-2001.

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complaints is perfectly valid and will not offend the right to privacy emanating from sub- clause (1) of article 19. The right to privacy has to be adequately balanced against the right to know. Both these rights emanate from sub-clause in article 19.

Based on these recommendations, a bill was introduced in parliament known as the public interest discloser (protection of informer) Bill, 2002. The bill defined “disclosure” as “a disclosure of information that the person making the disclosure reasonable believes that it tends to show disclosable conduct”.25 “disclosable conduct “ is defined as such conduct as a public servant may engage in, or has engaged, or is engaging, or proposes to engage in, which amount to

1-abuse or misuse of power or discretion vested in him; or

2-an attempt to commit or the commission of an offence under the prevention of corruption Act, 1988, the IPC, or any other law for the time being in force; or

3-maladministration26

The glaring need for legal reform in India was brought in focus by the murder of two young whistle-blower who blew the whistle in corruption in government contracts. In 2003, Satyendra Dubey, a young engineer employed with the national highway authority of India who blew the whistle on large scale corruption in connection with the government’s Golden Quadrilateral project in Bihar, was brutally murdered; there was much outrage in the media and debate over the necessity for the comprehensive legislation to protect whistle-blower. While the government dragged its feet for over two years, another young upright young man, Manjunath Shanmugam, employed with the Indian oil corporation was shot dead for blowing the whistle on kerosene adulteration in a petrol pump.

In 2006, the whistle-blower (protection in public interest disclosure) Bill was presented in the Rajya Sabha. In the meantime RTI Act came into force, compelling often uncomfortable public disclosure on an unprecedented scale. RTI activities face real threats from the vested interest, a few were threatened and some even murdered.27 The fallout of the RTI Act only underlines the need for a legislation to protect whistle blower. In August 2010, the union cabinet cleared the redrafted public interest disclosure (protection of informer) Bill, 2010 to

25 S. 2(c) , Public Interest Disclosure (protection of informers )Bill, 2002 26 Ibdi, S. 2(d). 27 In 2010, an RTI activist and environmentalist, Amit Jethava, who campaigned against illegal mining in Gujarat, was murdered. In 2011, another activity, shehla Masood was shot dead in Bhopal.

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protect whistle blower. The bill help those who make public interest disclosure and ensures that the central vigilance commission has a power to protect whistle blower from any disciplinary action from exposing corruption in a government department. The Bill proposes three years, imprisonment and a fine up to 50,000 for the revelation of the identity of the whistle blower.28The Bill was renamed “The whistle blower” protection Bill, 2011 and passed by the lok sabha on 27th December 2011. Subsequently it was stalled in rajya sabha. The Bill was regarded as weak in limiting those who may receive protection to government employees and those in societies or companies controlled by the government.

In a society deeply scarred but corruption, there is a pressing need for substantive legislation that would inspire the confidence of potential whistle-blower. Whit the killings in cold blood of two upright young government employees, Satyendra Dubey and Manjunath among other valiant right to information activists and in long delay in bringing in a law to protect whistle blower, there is little incentive for citizen to blow the whistle on wrongdoing and corruption.

CONCLUSION

Though we have seen the various dimension of whistle blower Act but at all and it cascade to curb the corruption by making the government and governance more transparent .there are some other jurisdictions also which are planning to move in this direction and there are some other one from whom reforms can be seen and cut file apply to our democratic nation .RTI from its beginning bringing the social security to others but the whistle blowers who are the real soul mate of RTI are not protected whistle blower act is just the first step in this direction some more work is needed to do in the same so that the basic spirit of right to information never fails down in mischief and brutality .

28 In indirect tax practitioners’ Assn. V. R.K. Jain, (2010) 8 SCC 218:AIR 2011 SC 2234, the supreme court recognised two types of whistle blower, internal whistle-blower from within the organisation and external whistle-blower, who expose wrongdoing within the organisation from outside.

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