PARLIAMENT OF INDIA RAJYA SABHA 46

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

FORTY SIXTH REPORT ON THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO PERSONS MAKING THE DISCLOSURES BILL, 2010

(PRESENTED TO HON’BLE CHAIRMAN, RAJYA SABHA ON 9TH JUNE, 2011)

(LAID ON THE TABLE OF THE LOK SABHA ON 10TH, AUGUST, 2011) (LAID ON THE TABLE OF THE RAJYA SABHA ON 11TH, AUGUST, 2011)

RAJYA SABHA SECRETARIAT NEW DELHI AUGUST, 2011/SHRAVANA, 1933 (SAKA) Website:http://rajyasabha.nic.in E-mail:[email protected] CS (P & L)-91

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

FORTY SIXTH REPORT ON THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO PERSONS MAKING THE DISCLOSURES BILL, 2010

(PRESENTED TO HON’BLE CHAIRMAN, RAJYA SABHA ON 9TH JUNE, 2011)

(LAID ON THE TABLE OF THE LOK SABHA ON 10TH AUGUST, 2011) (LAID ON THE TABLE OF THE RAJYA SABHA ON 11TH AUGUST, 2011)

RAJYA SABHA SECRETARIAT NEW DELHI

AUGUST, 2011/SHRAVANA, 1933 (SAKA)

CONTENTS

PAGES

1. COMPOSITION OF THE COMMITTEE ...... (i)-(ii)

2. INTRODUCTION ...... (iii)-(iv)

3. REPORT ...... 1—20

4. RELEVANT MINUTES RECORD OF DISCUSSION OF THE MEETINGS OF THE COMMITTEE ...... 21—32

5. ANNEXURES ...... 33—106

A. The Public Interest Disclosure and Protection to persons making the Disclosures Bill, 2010 ...... 35—62 B. Comments of the Department of Personnel and Training on the views/ suggestions contained in memoranda submitted by individuals/organisations/ experts on the provisions of the Bill...... 63—96

C. Reply furnished by the Department of Personnel and Training to the Questionnaire forwarded by the Secretariat ...... 97—105

D. Comments furnished by the Central Vigilance Commission on the Bill...... 106

As on 7th March, 2011

COMPOSITION OF THE COMMITTEE

1. Shrimati Jayanthi Natarajan — Chairperson

RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Abhishek Manu Singhvi 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Parimal Nathwani 7. Shri Amar Singh 8. Shri Ram Vilas Paswan 9. Shri O.T. Lepcha 10. Vacant*

LOK SABHA 11. Shri N.S.V. Chitthan 12. Shrimati Deepa Dasmunsi 13. Shrimati Jyoti Dhurve 14. Shri D.B. Chandre Gowda 15. Dr. Monazir Hassan 16. Shri Shailendra Kumar 17. Shrimati Chandresh Kumari 18. Shri Bhajan Lal 19. Dr. Kirodi Lal Meena 20. Ms. Meenakshi Natarajan 21. Shri Devji M. Patel 22. Shri Harin Pathak 23. Shri Lalu Prasad 24. Shri S. Semmalai 25. Shri Vijay Bahadur Singh 26. Dr. Prabha Kishor Taviad 27. Shri Manish Tewari 28. Shri R. Thamaraiselvan 29. Adv. P.T. Thomas (Idukki) 30. Vacant** 30. Vacant***

* Vacancy caused due to death of Shri M. Rajasekara Murthy w.e.f. 7th December, 2010. ** Vacancy caused due to resignation of Shri Arjun Munda from Lok Sabha w.e.f. 26th February, 2011. *** Vacancy existing since the reconstitution of the Committee. . (i) (ii)

SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer INTRODUCTION

I, the Chairperson of the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, having been authorised by the Committee on its behalf, do hereby present the Forty Sixth Report on The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. The Bill seeks 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. 2. In pursuance of the rules relating to the Department Related Parliamentary Standing Committee, the Hon’ble Chairman, Rajya Sabha referred♣ the Bill, as introduced in the Lok Sabha on the 26th August, 2010 and pending therein, to this Committee on the 15th September, 2010 for examination and report. 3. Keeping in view the importance of the Bill, the Committee decided to issue a press communiqué to solicit views/suggestions from desirous individuals/organisations on the provisions of the Bill. Accordingly, a press communiqué was issued in national and local newspapers and dailies, in response to which memoranda containing suggestions were received, from various organizations/individuals/ experts, by the Committee. 4. The Committee heard the presentation of the Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions on the provisions of the Bill in its meeting held on 29th September, 2010. The Committee also heard the views of stakeholders/NGOs in its meetings held on 14th and 15th February, 2011. The Committee further held in-house discussion on the Bill on the 28th April, 2011. 5. While considering the Bill, the Committee took note of the following documents/information placed before it :– (i) Background note on the Bill submitted by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions; (ii) Views/suggestions contained in the memoranda received from various organisations/ institutions/individuals/experts on the provisions of the Bill and the comments of the Department of Personnel and Training thereon; (iii) Views expressed during the oral evidence tendered before the Committee by the stakeholders such as representatives of the PRS Legislative Research, Commonwealth Human Rights Initiative, Shri M.N. Vijaya Kumar, I.A.S., Akhil Bharatiya Grahak Panchayat, Shri M.P. Dubey, Shri G. Venkatanarayana, Rakshak Foundation, National Campaign for People’s Right to Information, Dr. R. Stephen Louie, Shri P.M. Bhat, Shri Krishna H. Rao, Shri Ajay B. Bose and Shri Rajinder Kumar Goyal in its meetings held on 14th and 15th February, 2011; (iv) Reply furnished by the Department of Personnel and Training to the questionnaire forwarded by the Secretariat;

♣ Rajya Sabha Parliamentary Bulletin Part-II (No. 1937) dated the 16th September, 2010.

(iii) (iv)

(v) Comments furnished by the Central Vigilance Commission on the Bill; and (vi) Other research material/documents related to the Bill. 6. The Committee adopted the Report in its meeting held on the 11th May, 2011. 7. For the facility of reference and convenience, the observations and recommendations of the Committee have been printed in bold letters in the body of the Report.

JAYANTHI NATARAJAN NEW DELHI; Chairperson, 11th May, 2011 Committee on Personnel, Public Grievances, Law and Justice. 1

REPORT

The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 was introduced* in the Lok Sabha on the 26th August, 2010. It was referred♣ by the Hon’ble Chairman, Rajya Sabha to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on the 15th September, 2010 for examination and report. 2. The Bill (Annexure-A) seeks 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. 3. The Statement of Objects and Reasons, appended to the Bill reads as under:- “Corruption is a social evil which prevents proper and balanced social growth and economic development. One of the impediments felt in eliminating corruption in the Government and the public sector undertakings is lack of adequate protection to the complainants reporting the corruption or willful misuse of power or willful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant. The Law Commission of India had in its 179th Report, inter alia, recommended formulation of a specific legislation titled “The Public Interest Disclosure (Protection of Informers) Bill, 2002 to encourage disclosure of information regarding corruption or maladministration by public servants and to provide protection to such complainants. The Second Administrative Reforms Commission in its 4th Report on “Ethics in Governance” has also recommended formulation of a legislation for providing protection to whistleblowers. The Government of India had issued a Resolution No. 89, dated the 21st April, 2004 authorising the Central Vigilance Commission as the designated agency to receive written complaints from whistle-blowers. The said Resolution also, inter alia provides for the protection to the whistle-blowers from harassment, and keeping the identity of whistle-blowers concealed. It has been felt that the persons who report the corruption or willful misuse of power or willful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant need statutory protection as protection given to them by the said Resolution of the Government of India would not suffice. In view of the position stated in the foregoing paragraphs, it has been decided to enact a standalone legislation to, inter alia, provide – (a) for bringing within the scope of the Bill, public servants being the employees of the Central Government or the State Government or any corporation established by or under any Central Act or any State Act, Government Companies, Societies or local authorities owned or controlled by the Central Government or the State Government and such other categories of employees as may be notified by the Central Government or, as the case may be, the State Government, from time to time, in the Official Gazette; (b) adequate protection to the persons reporting corruption or willful misuse of power or willful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant;

* Published in Gazette of India (Extraordinary) Part-II Section 2 dated the 26th August, 2010. ♣ Rajya Sabha Parliamentary Bulletin Part-II (No.1937) dated the 16th September, 2010. 2

(c) a regular mechanism to encourage such person to disclose the information on corruption or willful misuse of power or willful misuse of discretion by public servants or commission of a criminal offence; (d) the procedure to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimization of the whistle-blower, that is the person making such disclosure; (e) safeguards against victimization of the person reporting matters regarding the corruption by a public servant; (f) punishment for revealing the identity of a complainant, negligently or mala-fidely; (g) punishment for false or frivolous complaints.” 4. The Committee heard the presentation of the Secretary, Department of Personnel and Training of the Ministry of Personnel, Public Grievances and Pensions on the Bill on the 29th September, 2010. 5. In order to have a broader view on the Bill, the Committee decided to invite views/suggestions from desirous individuals/organisations on the Bill. Accordingly, a press release was issued inviting views/ suggestions. In response to the press release published in major English and Hindi dailies and newspapers all over India on the 2nd October, 2010, a number of representations/memoranda were received. 5.1 The Committee forwarded some select memoranda from out of the ones received from the individuals/organisations to the Department of Personnel and Training for their comments thereon. A list of such memoranda along with the gist of views/suggestions contained therein and the comments of the Department of Personnel and Training thereon is placed at Annexure-B. 5.2 The major points raised in the memoranda are summarized as follows: (i) Removal of the restrictions contained in Clause 3(1) (a-d), which shield the Armed Forces, the Security Forces and the intelligence operations from accountability; (ii) Bill should provide for specific and exhaustive definition of the term “Victimisation”; (iii) Protection against victimization should be more specific and exhaustive; (iv) Clause 16 detailing punishment for frivolous disclosures ought to be removed. This clause is a clear deterrent to those making Public Interest Disclosures and the human rights defenders, specifically. The Bill does not provide an adequate definition of “frivolous disclosures” which leaves things open to manipulation; (v) There should be numerous Competent Authorities, preferably one in each Department; (vi) Bill should provide for cash rewards; (vii) The term “Complainant” should not be used as it reflects narrow thinking and prejudice against a person making the disclosure. Instead, the term “Whistle Blower” may be used; (viii) Names of the whistle blowers should not be revealed even to the head of Government Department; (ix) By seeking to make the identity of the whistleblower a secret, the Bill inadvertently creates conditions wherein anybody with that privileged information (especially employees of CVC/SVC) may gain crores of rupees by disclosing his identity to interested parties. Thus, the Bill perversely endangers the whistleblowers and sets the stage for various kinds of attacks and retributions; 3

(x) There should be a specific mechanism for moving trials on a fast track; (xi) The Police force and armed forces should be included in the ambit of the Bill; (xii) The action taken by the Competent Authority should be put in public domain; (xiii) On receiving complaints, the Competent Authority should give a complaint number; (xiv) The complainant should be apprised of the development and action completed at each stage so that he may be able to point out the deficiencies; (xv) The time limit as provided in Clause 5(3) of the Bill should be removed; (xvi) The scope of disclosure should be widened to include complaints relating to illegal acts performed by contractors/suppliers directly or through their employees and/or hired persons; (xvii) In Clause 2(d)(ii) the word “demonstrable” occurring at both places may be deleted and suitably replaced with the word “wrongful”; (xviii) In Clause 4(6)(b) of the Bill after the words “it shall close the matter” the words “and send a copy of the closure report to the complainant” may be added; (xix) In Clause 10(1) of the Bill after the words “Central Government” and before the word “shall” the words “and the State Governments” may be inserted; (xx) The Bill should cover the corporate sector also; (xxi) If the allegations are substantiated in the preliminary enquiry, the accused should be suspended forthwith; (xxii) Provide retrospective operation to the Bill/Act to enable earlier whistleblowers to get justice; (xxiii) The Bill does not provide any protection to a private whistleblower (e.g. RTI activist); (xxiv) The CVC is not suitable to be the Competent Body under this Bill for the following reasons:- (a) it has to seek permission to initiate enquiries; (b) it does not have jurisdiction over politicians; (c) it does not have resources and thus will need to outsource investigation; (d) it only has advisory powers and thus cannot mandate enforcement of its recommendation; (e) Appointment procedure for a CVC is non-transparent, and as seen from the current controversy over the present incumbent’s appointment, may also lack moral authority; (f) There are no provisions for transparency and accountability of the CVC in the CVC Act, or for the Competent Authority in this Bill. (xxv) Lack of timeline for investigation may be used to shield corrupt public servants. Further, long drawn investigation will render whistleblower protection (if needed) irrelevant; 4

(xxvi) The burden of proof to prove victimization is on the whistleblower; whereas international best practices lay the onus on the supervisor to show legitimate rationale for negative action taken; (xxvii) Bill must provide protection for two types of whistleblowers- citizen and institutional (Government) whistleblower; (xxviii) In case of grievous hurt to the whistleblower, a special task force under the Competent Authority should investigate issues being probed by the whistleblower; (xxix) Whistleblower must be provided an opportunity for rebuttal in case a complaint is closed based on preliminary investigation. 5.3 The major highlights of the comments furnished by the Department of Personnel and Training are given below :– (a) As per provisions of the Bill, each and every complaint is required to be enquired into. It may not be practically possible to entertain large number of anonymous and pseudonymous complaints and there is likelihood that the very purpose of the Bill may get diluted. (b) The Bill does not provide for any time frame to complete enquiry and decide upon the complaint. However, if deemed necessary the same can be provided in the Rules/ Regulations. It may not be appropriate to provide for time-frame in the Bill because it needs to be spelt-out what action has to be taken if the same is not complied within the time-frame. (c) DOP&T has already issued a circular requesting all Ministries/Departments to publicize cases which have reached finality both in regard to conviction and major penalties of dismissal, removal from service and compulsory retirement. (d) Clause 10 provides for safeguard against victimization. Victimization has been clarified as “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”. It is felt that the above provision will take care of all aspects including fabrication of false charges, transfer, posting, promotion, etc. (e) It was Ministry of Defence which suggested that Armed Forces may be kept out of the purview of the bill. DOP&T is open to suggestions. (f) The motive of the Whistle Blowers Bill and that of the RTI Act are different. Though both are aimed at checking corruption, the exemptions provided in the Whistle Blowers Bill and that in the RTI Act cannot be made the same. In fact, the exemption under the RTI Act are more than that under the Whistle Blowers Bill. (g) The term “maladministration” was used and defined in the Bill suggested by the Law Commission of India in its 179th report. The Group of Ministries (GoM) and also the Committee of Secretaries (CoS) felt that such stringent clauses would hamper smooth functioning of Government servants. Hence, the present grounds enunciated in the Bill would suffice. (h) At this stage, it may not be possible for the CVC to handle complaints of private sector. (i) It is felt that Ministers may be left out for the present. (j) All Government officials are covered in the Bill, whether working in India or abroad, in connection with the affairs of the Government. 5

(k) Though the Bill does not require the Competent Authority to provide guidance to potential whistle blowers, the Bill does allow the Competent Authority to ascertain the identity of the complainant. (Clause 4(1)(a)). This clause gives power to interact with the whistle blower and the Competent Authority may guide potential whistle blowers, if felt necessary. (l) On promulgation of this Act, there may be no need for whistle blowers to make complaints to other forums. Further, it may not be possible for the Government to protect all whistle blowers who themselves reveal their identity to other forums. (m) The CBI is being strengthened and additional Special Courts are being set-up. (n) It has been suggested that if the complaint is closed, the complainant should be informed, accordingly. This suggestion can be taken care of while framing the rules/ regulations. (o) There is no provision in the Bill for appellate/oversight authority. (p) There is no provision in the Bill for special task force, etc. 5.4 A Questionnaire on the Bill was also prepared by the Secretariat and forwarded to the Ministry for their replies. The reply to the Questionnaire (Annexure C) was furnished by the Ministry on 18th February, 2011 and the same was considered by the Committee. 5.5 The Committee also heard the views of stakeholders/NGOs viz. PRS Legislative Research, Commonwealth Human Rights Initiative, Shri M. N. Vijaya Kumar, I.A.S., Akhil Bharatiya Grahak Panchayat, Shri M. P. Dubey, Shri G. Venkatanarayana, Rakshak Foundation, National Campaign for People’s Right to Information, Dr. R. Stephen Louie, Shri P. M. Bhat, Shri Krishna H. Rao, Shri Ajay B. Bose and Shri Rajinder Kumar Goyal in its meetings held on the 14th and the 15th February, 2011. The Committee further held in-house discussion on the Bill on the 28th April, 2011. 5.6 The Committee also called for the comments of the CVC on the Bill which were received vide their communication dated 22nd March, 2011 (Annexure D).

Major issues examined by the Committee

1. Public Interest Disclosure

(i) Scope of the Public Interest Disclosure 5.7 The Committee took note of the submissions made by some of the witnesses who appeared before the Committee, that the ambit of wrongdoings that may be disclosed under the Bill is very limited and that ‘willful maladministration’, ‘human rights violations’ and wrongdoings that may have adverse effect on ‘public health, safety or environment’ should also be covered in the Bill. It was further submitted that such provisions exist in similar laws operational in countries like Canada, Romania and Uganda. 5.8 The Ministry, in its comments furnished to the Committee, stated that the term “maladministration” was used and defined in the Bill suggested by the Law Commission of India in its 179th report. The Group of Ministries (GoM) and also the Committee of Secretaries (CoS) felt that such stringent clauses would hamper smooth functioning of Government servants. Hence, the present grounds enunciated in the Bill would suffice. 5.9 One of the witnesses who appeared before the Committee suggested that Clause 2(d) of the Bill should be amended to include violation of any law operational in the country, that has been or is intended to be, committed by public servants. A suggestion also came that the scope of disclosure 6 should be widened to include complaints relating to illegal acts performed by contractors/ suppliers directly or through their employees and/or hired persons. However, the Ministry in its response, has stated that this will increase the ambit of the Bill considerably and CVC may not be able to handle complaints on such a large scale. 5.10 The CVC, in its written comments furnished to the Secretariat, has suggested that clause 2(d)(ii) of the Bill may be amended to include wrongful gain accrued to any third party also. The CVC further commented that the comprehensive definition of “public servant” given in the Prevention of Corruption Act may be adopted for the purposes of this Bill. 5.11 The Committee recommends that the suggestions made/concerns raised by the stakeholders in the above mentioned paras should be seriously considered by the Ministry and appropriately included in the Bill to the extent feasible. Eventually, the Bill should be dealing with all such wrongdoings. The Committee, however, specifically recommends that the suggestion of CVC to cover accrual of wrongful gain to third party should be incorporated in clause 2(d)(ii) of the Bill. The Committee also recommends to Government to examine the suggestion of the CVC regarding defining the term “Public Servant” in the Bill when the term already stands defined under the IPC and the PC Act.

(ii) Ambit of the Public Interest Disclosure 5.12 The proviso to Clause 3(1) of the Bill prohibits public servants, referred to in clauses (a) to (d) of article 33 of the Constitution, from making public disclosures related to members of the Armed Forces, Forces charged with the maintenance of public order, persons employed in any bureau/ organization established for purpose of intelligence or counter intelligence and in telecommunication system set up for the purposes of such Force, Bureau or Organization and matters related thereto. 5.13 The Committee, during its interactions on the Bill, with various stakeholders, came across a persistent view that there was no rationale for such exemption. It was also cited before the Committee that in countries like Ghana, New Zealand, South Africa and Uganda, such Services were not excluded from the coverage of whistleblowers laws and that in the USA, special laws have been enacted to enable armed forces to make disclosure of wrongdoing in confidence to the Inspectors General and the Members of the US Congress. Serious apprehensions were raised in the written/oral submissions made before the Committee that such an exemption would shield them from public scrutiny and accountability, thereby preventing wrongdoings in such Forces from coming to light. 5.14 The Ministry, in its comments furnished to the Committee, in this regard, stated that it was the Ministry of Defence which suggested that the Armed Forces might be kept out of the purview of the Bill. Further, the Ministry, in its reply to the questionnaire, has stated that Government is of the view that all personnel covered under Article 33(1) should not whistle blow against each other. They can, however, whistle blow against all other public servants, while other public servants/persons can blow whistle against them. 5.15 The Committee takes note of the grave concerns raised regarding the exception created in relation to the defence/intelligence forces vide proviso to Clause 3(1) of the Bill. In Committee’s view, the Ministry has not furnished cogent reasons for excluding such Agencies/ Forces from the ambit of the Bill. It is pertinent to note at this point that under the RTI Act, 2005, no such exemption has been given to the Armed Forces. Further, the RTI Act does not completely exempt the intelligence and security organisations and information in relation to such Organizations is disclosable in cases of corruption and human rights violations. Since this Bill is ultimately aimed at tackling corruption, the Committee does not find any logical reason behind such an exemption. The Committee feels that the Bill under examination should not exclude the defence forces/intelligence and security organsations in this matter. 7

5.16 Government may, however, while doing away with such exemptions, come out with suitable and reasonable exceptions, in order to keep a balance between the operational needs of these forces and their accountability to the public. Government may, alternatively, even consider setting up a separate authority for these exempted agencies under the Bill or special laws may be enacted on the lines of the USA. The Committee directs the Government to examine this proposal in more detail so that no organisation of the Government is left out from public scrutiny and accountability in such a manner. 5.17 The Committee took into account a suggestion made before it that the members of the Council of Ministers should also be included within the ambit of the Bill. In this context, the Committee noted that such a provision was suggested by the Law Commission of India, in its 179th Report for inclusion in the Bill. 5.18 The Committee also took note of one of the submissions made before it, viz, that on many occasions, pliable public servants were the instruments, rather than the doers; and that this Bill looks at the public servants only, while ignoring the main culprits who may be the persons wielding actual power. The situation needs to be dealt with more thoughtfully so that the actual offenders may be proceeded against. 5.19 Another view that was placed before the Committee was that the Bill should cover private sector companies/firms also. The Ministry, in its reply to the questionnaire, has stated that the jurisdiction of the Bill is co-terminus with the present jurisdiction of the CVC. Accordingly, Government banks, insurance companies and public sector undertakings were covered, but not the private sector firms. 5.20 Another suggestion placed before the Committee was that the judiciary should also be brought within the ambit of this Bill. On this issue, the Secretary, DoPT clarified, while deposing before the Committee, that under the Prevention of Corruption Act, under the definition of “public servant”, the judges are included. 5.21 But, while the Committee was deliberating on the Bill, doubts were raised as to whether this provision is applicable to the lower judiciary only, or whether it applied to the higher judiciary also. The term “public servant” has also been defined in the Bill under examination. It is, however, not clear whether the term includes the judiciary also. The Committee strongly feels that there should be greater clarity in this regard in the Bill. 5.22 During the course of discussions on the Bill, one of the Members of the Committee opined that regulatory authorities should also be brought under the purview of this Bill. The Ministry, in its written comments, clarified that all Government officials were covered in the Bill whether working in India or abroad, in connection with the affairs of the Government. 5.23 The Committee finds merit in the foregoing views that have come up before it. The Committee desires that the Ministry should consider bringing the members of Council of Ministers, the judiciary including the higher judiciary, regulatory authorities, etc. within the ambit of this Bill by making necessary amendments in the Bill.

2. Receipt of the Public Interest Disclosure complaints 5.24 The Committee is given to understand that under the present Whistle-blower Resolution, the CVC had received a total of 1996 complaints from the year 2005 up to August, 2010 and it acted on 614 complaints. Other complaints were either anonymous/pseudonymous or non-vigilance complaints. 5.25 As per the mechanism envisaged in the Bill [Clause 3(2)], the sole authority authorized to receive a public interest disclosure is the Competent Authority, i.e., CVC or State Vigilance Commissions. 8

5.26 The Committee, during its interactions with the stakeholders, could gather a pervasive view point that this may not be the best way to instill confidence in the minds of potential whistleblowers and that multiple points may be provided for receiving complaints, specially to facilitate complainants in the remote areas to make use of the enactment. In this context, it was also suggested to provide for an option to receive complaints electronically. There was another suggestion that CVC/SVC should be made the Appellate Authority in the process of handling the public interest disclosures. 5.27 The Ministry, in its written comments, has clarified that even in the Bill drafted by the Law Commission of India in 2002, the proposal was that the CVC would be the Competent Authority. This Bill did not carry any proposal for numerous Competent Authorities. 5.28 The Committee feels that the doubts arising from various quarters, regarding the efficacy of providing CVC/SVCs as the sole authority authorized to receive a public interest disclosure complaint are not unfounded particularly from the view point of access from remote areas. Accordingly, the Committee urges upon the Ministry to ensure that necessary provisions are made in Rules/Regulations putting in place a smooth and convenient system for receipt of the disclosure complaints. At this point, the Committee would like to stress upon the crucial point that if multiple points are to be made for receipt of public disclosure complaints, it has to be particularly ensured that the identity of the complainant is protected for sure and no loopholes creep in, weakening the system.

3. Identity of the Complainant 5.29 Clause 3(6) of the Bill makes it mandatory that the disclosure should indicate the identity of the complainant. 5.30 In this context, the Committee received suggestions from various quarters that anonymous complaints, if accompanied by sufficient evidence, should be taken cognizance of and in that case, it would be easier to protect the complainant. In some of the memoranda received by the Committee, it was suggested that a secret code may be given for each complaint received in order to maintain confidentiality of the complainant. However, the Ministry, in its comments, did not accept the idea to permit anonymous complaints as this may inflate unusually the number of false complaints thereby defeating the purpose of the Bill. The Government, however, accepted the idea of use of electronic means for receiving complaints and keeping the identity of the complainant secret and agreed to take care of these aspects in the rules/regulations to be framed under the Bill. 5.31 The Committee notes at this juncture that the DOPT, in its comments furnished to the Committee, has stated that the Department of Personnel & Training had issued an OM dated 29.9.92 which provides that no action should be taken on anonymous and pseudonymous complaints. Such complaints should be ignored and filed. However, there is a provision available in the said order, viz., that in case such complaints contain verifiable details, they may be enquired into in accordance with existing instructions only on specific direction of the Head of the Department/Chief Executive. The CVC, in 1999, observed that there was widespread use of anonymous and pseudonymous petitions by disgruntled elements to blackmail honest officials and hence no action should be taken on such petitions. It was also stated that as per provisions of the Bill each and every petition was required to be enquired into. It may not be practically possible to entertain large number of anonymous and pseudonymous complaints and there is likelihood that the very purpose of the Bill may get diluted. 5.32 The Committee takes cognizance of the comments of the Ministry on the issue that a mechanism can be provided under the Rules/Guidelines to ensure that the identity of the complainant remains confidential in cases where the complaint is received electronically. The Committee takes serious note of the concerns raised by the witnesses regarding ensuring confidentiality of the identity of the complainant. The Committee strongly recommends that 9 the Ministry should envisage a fool-proof mechanism in every respect which would ensure that the identity of the complainant is not compromised with, at any cost and at any level. The Committee would like to place emphasis on this aspect since it feels that the absence of such a mechanism would deter prospective complainants due to fear of harassment, victimization, etc., or even physical harm which, in turn, would hamper the realization of the objective of this legislation. 5.33 The Committee finds merit in the suggestion made by the stakeholders that if an anonymous complaint is received by the Competent Authority, and the facts mentioned in the complaint and the supporting documents reveal a prima facie case, the Competent Authority should not reject it only for want of identity of the complainant. In Committee’s view, anonymous complaints, if substantiated, would make the task of the Competent Authority easier as it would be less worried on the aspect of protecting the identity of the complainant which is an important objective of the Bill. The Committee recommends that the Government may also consider an alternative mechanism within/outside the Bill, for enquiring into anonymous complaints.

4. Revealing the identity of the Complainant 5.34 The Ministry, in its reply to the questionnaire, has clarified that a mechanism shall be provided under the Rules/Guidelines to keep the identity of the complainant, confidential. 5.35 The proviso to Clause 4(4) of the Bill lays down that “if it becomes necessary”, the identity of the complainant may be revealed to the Head of the Department of the organization, during inquiry in relation to public interest disclosure. 5.36 The memoranda received by the Committee and the witnesses who tendered oral evidence before the Committee, have placed before the Committee, serious opposition to this provision of the Bill. Some of the witnesses even went to the extent of remarking that this provision is a virtual death knell for the complainant. The main concern raised was that the Bill does not specify the conditions under which it may become necessary to reveal the name of the complainant and that it leaves the Competent Authority with wide scope of discretion in this regard. Further, it is apprehended that this may make it very difficult to keep the identity of the complainant secret from the person/organisation against whom the complaint is filed. 5.37 One of the suggestions in this regard was that the identity of the complainant should not be disclosed without the written consent of the complainant, prior to such disclosure. 5.38 In its written comments, the Ministry stated that this clause had been inserted after a lot of thought. It was felt that it may sometimes not be possible for the head of the department to conduct discreet inquiries in the absence of further clarification. Hence, this clause was inserted with stiff consequences in case of violation as per clause 15 of the Bill. 5.39 As stated in para 5.32 of this Report, protecting the identity of the complainant is pivotal to the successful implementation of this statute. In order to make sure that the interests of the complainant are protected, the Committee endorses the majority view placed before it that the identity of the complainant should not be revealed by the Competent Authority to the Head of the Department, without the written consent of the complainant.

5. Undue burden on whistleblowers 5.40 One of the points made by the witnesses and which was at the centre stage of the deliberations of the Committee was that the Bill requires the whistleblower to make a disclosure specifically naming the public servant responsible for or involved in the wrongdoing. Further, the 10 whistleblower is required to submit supporting documents and other material in support of his or her disclosure. The witnesses felt that this was probably burdensome on the potential whistleblower who might not have all the data. 5.41 The Committee could gauge the general view shared by the witnesses that the Bill proposes to turn CVC/SVC into a sort of a Court where each whistleblower might struggle to prove his point, by himself. This will probably mean as if the whistleblower is taking on the role resembling that of an investigating agency or a public prosecutor, for which the State will neither pay him, nor recognize him, nor accord him special status, protection or extent assistance of any kind. 5.42 The Committee strongly feels that since the main intention of the complainant while making the disclosure is protection of public interest, undue burden should not be- placed on him/her to provide proof to substantiate his/her case. Moreover, it would be unreasonable to expect a private citizen, who is the sufferer or at the receiving end, having minimal resources at his/her disposal, to place before the Competent Authority proof sufficient to substantiate the complaint. The Committee is of the considered view that the Competent Authority may have a reasonable expectation from the complainant, i.e., he/she should make out a prima facie case, and subsequently, the Competent Authority should follow up the complaint to its logical conclusion. The Committee recommends that the Ministry may consider dealing with this aspect in the Bill.

6. Dismissal of Public Interest Disclosure 5.43 The Committee took note of the fact that clause 4(6) of the Bill lays down the conditions under which the Competent Authority should close the matter. However, the Bill does not mandate that the Competent Authority shall inform the person making the disclosure of the final outcome arrived at by the Competent Authority. 5.44 Some suggestions have come before the Committee in this regard, viz., that the whistleblower must be kept informed about the progress of the inquiry made into the allegations of wrongdoing and that the Competent Authority must place in the public domain, the details of the outcome of every inquiry launched 4 and the action taken, if any, subsequent to the receipt of the public interest disclosure. 5.45 In this regard, the Ministry has opined that if the Committee agrees, the whistle blower may be informed of the final outcome of the inquiry. However, the procedure therefor, could be incorporated in the Rules/Regulations to be issued under the Act. 5.46 The Ministry has further stated that action taken by the Public Authority on the basis of the recommendation/direction made by the Competent Authority is not confidential. It has also been stated that on the basis of the recommendations of the ARC, the DOP&T has already issued a circular requesting all Ministries/Departments to publicize cases which have reached finality ending up with conviction or imposition of major penalty of dismissal, removal from service and compulsory retirement. 5.47 The Members of the Committee also felt that a provision making it obligatory on the part of Competent Authority to inform the complainant when the matter is closed, should be incorporated in the Bill. The Competent Authority should also state the reasons for dismissing the complaint. Further, the whistleblower should be given reasonable opportunity to adduce his justification/arguments, if he is not satisfied with the conduct/outcome of the enquiry. 5.48 The Committee unanimously feels that the Competent Authority should inform the complainant about the outcome of the complaint, since the complainant has a crucial role under the scheme in the statute. The Competent Authority should also give the reasons if the 11 complaint is dismissed and further, the complainant should be given a reasonable hearing to present his case if he is not satisfied with the dismissal of his complaint/ outcome of the enquiry.

7. Statutory time limit 5.49 The Committee took serious note of the apprehensions made by the witnesses and in the memoranda, that the Bill does not provide a time limit :- (i) for conducting the discreet enquiry; or (ii) for inquiry by the head of the organisation/office; or (iii) for acting upon the recommendations made by the Competent Authority as envisaged in clauses 4(2), 4(6) and 4(7), respectively, of the Bill. It was felt that absence of time limit of any kind might retard the pace of disposal of cases and thereby defeat the objective of the Bill. 5.50 In this regard, the Ministry, in its written comments, has admitted that the Bill does not provide for any time frame to complete enquiry and decide on the complaint. It has, however, suggested that if deemed necessary, the same can be provided in the Rules/Regulations. It may not be appropriate to provide time-frame in the Bill because, if that is done, we may also have to spell out what action has to be taken if the prescribed action is not completed within the time-frame. 5.51 The Committee also noted that the Law Commission of India, in its Bill proposed in its 179th Report, provided that: “9(1) The Competent Authority shall hold every such inquiry as expeditiously as possible and in any case complete the inquiry within a period of six months from the date of the receipt of the complaint. Provided that (I the Competent Authority is of opinion that the inquiry cannot be completed before the said period. It may, for reasons to be recorded in writing, extend the said period and in no case the said period shall be extended beyond a period of two years from the date of receipt of the complaint.” 5.52 A view in the Committee also emerged that such a provision is essential to ensure the effective implementation of this statute. 5.53 The Committee believes that the malady which presently affects the country’s system is not the absence of statutes, but rather their non-effective/lax implementation. The Committee is of the considered opinion that the relatively successful implementation of the Right to Information Act, 2005 is mainly due to the statutory provisions in it for furnishing information within the stipulated time limit and penalty for non-adherence to the same. In view of this, the Committee strongly feels that the Rules/Regulations under the Bill should provide for a reasonable time limit for conducting the discreet inquiry by the Competent Authority; for inquiry by the head of the organisation/office and for acting upon the recommendations made by the Competent Authority. The Rules/Regulations could further provide that if the time period has to be extended, it shall not go beyond a particular period stated therein and the Authority seeking extension of time should be required to record reasons in writing therefor.

8. Non-adherence to the recommendations made by the Competent Authority 5.54 The Committee took cognizance of the fact that the Bill does not envisage the consequences of non-adherence to the recommendations made by the Competent Authority in terms of Clause 4(7) of the Bill. 5.55 On this issue, the Ministry has stated that the recommendations under Clause 4(7) cannot be made binding lest it will give over-riding power to the Competent Authority over the entire Executive. 12

5.56 The Committee feels that it is inevitable that the consequences of non-adherence to the recommendation made by the Competent Authority should be provided in the Bill. The Committee fails to understand how, in the absence of such a provision, the implementation of the Competent Authority’s recommendations can be ensured. If the recommendations are not acted upon and kept in cold storage based on one lame excuse or another, the primary objective of the Bill i.e., tackling corruption will be vanquished. Moreover, the Committee feels that quick action on the recommendations of the Competent Authority will also have a deterrent effect on prospective wrong doers. The Committee, accordingly, recommends that Government should review their stand and put in place some mechanism in the Bill to ensure that the directions of the Competent Authority are not avoided to protect the wrong doers.

9. Time limit for actionable disclosure

5.57 The pre-dominant view that was placed before the Committee was that the time limit of five years from the date on which the action complained against is alleged to have taken place, as provided in clause 5(3) of the Bill, is not in consonance with the spirit of the Bill.

5.58 On this matter, the Ministry has stated that the provision had been kept as it may not be possible to retrieve files/records older than this period. The Ministry, however, kept itself open to Committee’s suggestions in this regard. It, however, also added that this has to be considered keeping in view the instructions contained in Appendix - 13 of the GFR, 2005 relating to destruction of office records connected with accounts.

5.59 One of the witnesses who tendered oral evidence before the Committee, while speaking on this issue, stated thus:

“…There is a jive-year limitation proposed in the Bill. But what happens is, the Right to Information Act allows people to collect information over a period of twenty years. There should be no limitation because it conflicts the whole thing. The same is true about Secretaries deciding whether something is information or not. That also contradicts the Right to Information Act…”

5.60 In one of the memoranda submitted to the Committee, it has been opined that since this Bill also envisages initiation of criminal proceedings against the wrong doer if so warranted, preventing the Competent Authority from investigating any disclosure involving any 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, is contrary to the existing practices under the criminal law which does not prescribe any limitation period for criminal offences.

5.61 The Committee is of the opinion that since the Bill empowers the Competent Authority to recommend for initiation of criminal proceedings under the relevant laws and there is no limitation period under the existing criminal law for such proceedings, the Committee feels that the statutory time limit of 5 years should not be prescribed. The Committee is of the opinion that if at all a time limit has to be prescribed, it should be in consonance with the RTI Act and also the General Financial Rules - 2005. Further, limiting of complaints on events older than 5 years, merely on the ground that records beyond 5 years may not be available does not sound well. In Government, records are maintained as per retention schedule and important records are definitely kept for a longer period. The Committee is, accordingly, not convinced with this restriction of 5 years. The Committee is alternatively of the view that even if a time limit is to be prescribed in the statute, in case of complaints which prima facie reveal wrong doings of a grave nature, exceptions should be made. 13

10. Exemption given to bonafide action or bonafide discretion 5.62 Clause 5(4) of the Bill prohibits the Competent Authority from questioning, in any inquiry under this statute, any bonafide action or bonafide discretion (including administrative or statutory discretion) exercised in discharge of duty by the employee. 5.63 One of the apprehensions raised in this regard was that it would be impossible to ascertain, whether the alleged action amounts to bonafide action or bonafide use of discretion, unless it was inquired into in the first instance. 5.64 The CVC, in its written submission, stated that since bonafide act includes any bonafide discretionary act/ powers, the words” or bonafide discretion (including administrative or statutory discretion)” are superfluous and may be omitted. 5.65 The Ministry, however, in its reply to the questionnaire, clarified that this was an exceptional clause meant to cover situations where the Rules/Guidelines/Legislation provide for exercise of discretionary powers.

11. Disclosure of sensitive information 5.66 With regard to Clause 7 of the Bill which exempts certain matters from disclosure, it was suggested to the Committee that the Bill could provide for the disclosure of sensitive information belonging to the specified categories in sealed cover, to the Competent Authority or the Court, for examination. It was also submitted by one witness that giving binding and conclusive powers to the Secretary to the Government of India or the Secretary to the State Government, to certify that a document is of the nature specified in clause 7(a) and (b), is also not advisable since the RTI Act clearly states what information can be given. The Ministry, however, in their clarification stated that such an exemption is absolutely necessary as the country’s interest cannot be put on stake.

12. Victimisation of the Whistleblower 5.67 Clause 10 of the Bill states that the Central Government should ensure that the person making the disclosure is not victimized. The term ‘victimization’ has not been defined in the Bill. It may be noted here that the 179th Report of the LCI has given the definition of ‘victimisation’ as :– “ ‘victimisation’ with all its grammatical variations, in relation to a Public Servant other than a Minister, shall include:- (A) suspension pending inquiry, transfer, dilution or withdrawal of duties, powers and responsibilities, recording adverse entries in the service records, issue of memos, verbal abuse, all classes of major or minor punishment specified in the disciplinary rules, orders or regulations applicable to such public servant and such other type of harassment; (B) any of the acts referred to in sub-clause (A) whether committee by the person against whom a disclosure is made or by any other person or public authority at his instance.”

5.68 The Committee recommends that the term ‘victimization’ may be defined in the Bill. 5.69 The Ministry, in its written comments, has stated that Clause 10 provides for safeguard against victimization. Victimization has been clarified as “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”. It was felt that the above provision would take care of all aspects of victimisation including fabrication of false charges, transfer, posting, promotion etc. 14

5.70 The Ministry further stated that clause 10(3) of the Bill stipulates that the direction of the Competent Authority is binding. Hence, it is open for the Competent Authority to award punishment to those who harass or victimize whistleblowers. 5.71 The Committee was told during the course of its deliberations that the term ‘merely’ in clause 10(1) may be replaced with ‘directly or indirectly’. The Committee also took note of the suggestion made that in every case of allegation of victimization, the burden of proof should be on the employer. It was also submitted that the penalty for victimization should be made very high. 5.72 The Committee believes that since the disclosure is made in the interest of the general public, the burden to ensure that the complainant is not subjected to any form/degree of victimization should be on the concerned organisation/Competent Authority. The Committee recommends that in order to ensure protection to the complainant from direct or indirect victimization, the Ministry should actively consider the suggestions detailed above and make necessary changes in the Bill. 5.73 The Committee also recommends that it should be provided in the Bill that witnesses/ persons who support the whistleblower or help in the investigation/inquiry, should also be accorded the same protection against victimization as envisaged for the whistleblower, in the Bill. 5.74 The Committee took note of the concerns raised by witnesses that though Clause 10(3) of the Bill provides that every direction given under clause 10(1) by the Competent Authority shall be binding upon the public servant/public authority, against whom the allegation of victimization has been proved, there was however, no provision in the Bill, for ensuring enforcement of these directions. 5.75 The Ministry, in its reply to the questionnaire, has stated that the direction of the Competent Authority under clause 10(2) is binding on the public authority as per clause 10(3). The Competent Authority does not have original jurisdiction in the sense of High Court or Tribunal which can take up contempt of their orders. Even the Central Information Commission is not vested with power of contempt, etc. So, there is no need to make additional provision in the Bill for ensuring enforcement of this direction which would only mean repetition of the provision of Clause 10(2). 5.76 The Committee takes note of the reply furnished by the Ministry on this issue. The Committee is deeply concerned to note that there are very high chances of non-compliance of orders given by Competent Authority under clause 10(1), in the absence of any provision to ensure enforcement of these orders. Therefore, the Committee strongly feels that the Ministry should chalk out an effective mechanism, preferably in the Bill itself, to ensure that the orders of the Competent Authority are complied with and in case of non-compliance, stringent action should be provided for against those responsible.

13. Protection to whistleblowers 5.77 The Committee took serious note of the apprehensions raised by the witnesses and by those who submitted their memoranda, the crux of which, is stated as under: “…Let us consider that the whistle blower is someone who makes a submission on corruption. Actually the RT1 activist has not even made his submission on corruption. The RTI activist is under threat of attack…” In this regard, a proposal suggested by one of the witnesses was that: “…ensure that anyone who is attacked after filing such a complaint, that complaint becomes an automatic high priority reference under this particular Act because the idea of attacking an RTI activists or anyone else is to prevent the truth from coming out. If it becomes clear 15

to these attackers that whoever is being attacked, if they are attacked, even more investigation will be done, special audits will be done. I will give you an example, in Rajasthan when we do social audits, if there are attacks on social audit activists we insist that special audits be done by a very good agency which is a Government agency and that passes the message out to people that if you attack them what will follow is worse…”

5.78 The Committee also felt that the complainant should be provided swift and effective protection that will have a deterrent effect on any vested interest that may think of using violence as a means of suppressing the truth.

5.79 The Committee also took note of the suggestion made that the Bill should include specific definition of the State protection available to those who are victimized and an expanded provision detailing to whom the State protection can apply.

5.80 The Committee is of the unanimous view that the capacity of the State to provide for an effective mechanism for ensuring protection to the life, liberty and property of the complainant would be directly proportional to the degree of faith that the public would be willing to repose, in the noble system envisaged in the Bill, to promote accountability to the public. Therefore, the Committee feels that it is inevitable that the Government puts in place a flawless mechanism for the protection of the whistleblower in order to ensure effective implementation of this statute. Hence, the Committee desires the Ministry to consider the witnesses’ views given above and act upon them, to ensure that the mechanism for the protection of whistleblowers contemplated in the Bill is made foolproof.

14. Onus to protect the whistleblowers

5.81 The Committee took note of a view expressed by the witnesses that the Bill states that the onus of protecting a whistleblower would be on the Central Government. There is no mention of the State Governments in this context. It is obvious that in a federal setup, the Central Government cannot provide for protection for employees of the State Government. It was suggested that the Bill should authorize the State Governments to make rules for carrying out the provisions of this Act and also protect whistle-blowing employees in the States.

5.82 It was also suggested that a new Clause may be inserted in Chapter V of the Bill, to provide that the burden of proving that a public interest disclosure, was not revealed to anybody, without proper authorization, shall be on the Public Authority dealing with the disclosure. It was felt that such a provision will ensure that the confidentiality of the complainant is not compromised by the Public Authority.

5.83 In this regard, one of the issues that come up for discussion is that of ensuring protection to whistleblower in case of Centrally sponsored Schemes, with special emphasis upon SC/ST, tribals and minorities, which are implemented in the States. A Member expressed his concern in following words: “…There could be certain issues of Centre-versus-State, but what you can do is that wherever there is an act of whistle-blowing which pertains to a Central Government scheme, the Central Government would provide protection to that whistle blower in case the State Government fails to do so…”

5.84 The Committee was emphatic that the Ministry should seriously consider this matter. The Committee desires a mechanism be set up for this Bill to apply particularly in respect of Centrally funded schemes when the State level authorities fail to take suitable action. The Committee, however, hopes that all the States would adopt this Bill. 16

5.85 The Committee endorses the suggestions given above and recommends that the Ministry should give them due thought and deliberation, while finalizing the Bill.

15. Frivolous/malafide disclosure 5.86 One of the Members of the Committee, expressed his view regarding this provision in the Bill as under:– “…In terms of imprisonment, the bar is too high. In fact, it acts as a big deterrent for anybody to even use the Act. There are lot of applications which are filed in the Supreme Court and the High Courts which are frivolous, which are misconceived, but the court does not send those people to jail. We could just fine them. I mean, in a sense, you are defeating the entire purpose of the Act by incorporating such provisions…” 5.87 The Secretary, DoPT, while referring to this issue, sated that: “…basically, the experience which we have gained from the RTI, we, I think, wanted to bring this into play here in the sense that it is, basically, some complaint which is proved to be mala fide or false; that is the exact word which is used “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.” So, it is clearly identified that it should be false or it should be misleading, and mala fidely and knowingly done. So, it is not really anything vague. It is something quite focused and which we could try and make even more focused... The only desire on the part of the DOPT is that we should not permit this to become something where the normal sort of grievances, normal sort of complaints and all that are raised, because then, this whole machinery would be so overburdened that it will not be able to do justice to the actual whistle blower cases. That is the only aim and objective…” 5.88 At this juncture, a suggestion came that this provision might be kept in abeyance say for a period of five years so that, during this period, the trend regarding filing frivolous/malafide complaints may be examined, and if found necessary, this provision can then be invoked. It was also proposed that the complainant should be accorded protection against a suit for defamation. 5.89 Another perspective was placed before the Committee, during its discussions, by one of the witnesses in the following terms: “…The issue, now, is that there are whistleblowers. Maybe, there are not enough whistleblowers, but we do have a lot of corruption. So, the question before the Members of Parliament is how to make sure that people who find fault with the functioning, in terms of real corruption happening, can actually show evidence and come forward without fear of victimization. And, at the same time, we need to make sure that honest officers are not unnecessarily dragged. That is why you do have a clause to penalize the people for mala fide and knowingly false and misleading complaints…” 5.90 At the same time, there was a feeling in the Committee that malafide disclosures should be penalised and that causing a malafide complaint to be filed should also be made punishable, since there is a possibility that vested interests can make/cause to make complaints designed to harm the career of a public servant or to clog the system with false complaints. 5.91 While the Committee does not have much opposition against penalizing frivolous/ malafide complainants, it is certainly opposed to the quantum of punishment prescribed in the Bill. It will not only be a major deterrent for the prospective whistleblowers, but also increase the possibility of misuse of this provision, especially in cases where the accused is high and 17 mighty and is able to influence the decision as to whether a complaint is frivolous/malafide. The Committee, therefore, recommends that the penalty provided in clause 16 should be substantially reduced. 5.92. The Committee also feels that, merely because a complaint is not proved beyond reasonable doubt or a complaint is not found to be sustainable or a complaint is dismissed for other reasons, it should not be, termed as frivolous/malafide. The Committee is of the considered opinion that while deciding whether a disclosure is frivolous/malafide or not, the Competent Authority should exercise great amount of caution and give primary importance to the fact whether the complainant, while making the disclosure, had based his action on the documents/information in his possession/ knowledge. The focus should be on the intention and not the outcome of the enquiry. The Committee is of the view that such a dispensation will ensure that only those disclosures which have been made frivolously or with a malafide intention meet with penalty under the Bill. 5.93 There is another aspect of this matter. Clause 19 of the Bill provides for appeal in the High Court for penalties imposed under Clauses 14 and 15. However, it does not provide for appeal in cases of punishment imposed under Clause 16. 5.94 In this regard, the Ministry, in its written reply, has stated that under Clause 14 it is the Competent Authority which will impose penalty on public authority for filing partial, vague or misleading report, whereas clause 16 is an offence and the complainant will be tried by the competent court for the said offence where he will get opportunity to defend under the CrPC. However, it appears to the Committee that the Bill is not clear as to who is competent and required to take action under Clause 16 of the Bill to impose penalty on the complaint. In the Committee’s view, greater clarity is needed in this regard. 5.95 The Committee also recommends that in cases of punishment imposed under clause 16, the accused should be given right of appeal to the High Court so that he can place the facts before the Court to argue that he did not have any malafide ‘intention’ or that, at the time of making the disclosure, the complaint was based on the information he had at his disposal, at that point of time and that it was not frivolous.

Other issues examined by the Committee 16. Powers of Competent Authority 5.96 The witnesses who deposed before the Committee expressed serious doubts as to whether the Competent Authority provided for in the Bill i.e., CVC or State Vigilance Commissions were suitably empowered under the existing system to ensure that the guilty would be punished in a speedy and efficacious manner, under the due process of law. The Committee could gather that the rationale behind such an apprehension was that the power of the Competent Authority was limited to the extent of recommending to the public authority, certain measures, against the public servant. 5.97 Similarly, it was suspected that the involvement of police or CBI as per clause 9 of the Bill would involve susceptibility to political interference or undue pressure from such authorities and would also lead to pendency of cases since such agencies are already overburdened. Therefore, one of the suggestions that came was that the Competent Authority should have its own investigation and prosecution mechanism. 5.98 Doubts were also raised as to how the interim orders of the Competent Authority, as provided in Clause 13 of the Bill, will be executed. 5.99 The Committee takes cognizance of the relevant facts that the LCI, in its 179th Report, had provided: 18

“Clause 5(8) If the inquiry held by the Competent Authority discloses conduct, which constitutes an offence punishable under any law, the Competent Authority shall direct the appropriate authority or agency to initiate criminal proceedings against such public servant including a Minister in accordance with law: Provided that where such a direction is made, any requirement of sanction or prior approval for such prosecution under any law for the time being in force, shall not be necessary to be complied with. (9) The conduct of an inquiry under this Act in respect of any action shall not affect such action) or any power or duty of any public servant to take further action with respect to any matter subject to the inquiry, in accordance with any law for the time being in force.” 6.0 On this issue, the Ministry, in its written reply, has stated that the recommendation under clause 4(7) cannot be made binding lest it will give over-riding power to the Competent Authority over the entire Executive. 6.1 Taking into cognizance the practical apprehensions raised by the stakeholders in this regard and the LCI recommendation, the Committee desires that the Ministry should reconsider the provisions of Clause 4(7) the Bill. Keeping in view the fact that the successful implementation of this statute mainly depends on the enforceability of the ‘directions’ made by the Competent Authority, diluting the ‘directions’ by making them merely ‘recommendations’ casts serious doubts on the feasibility of enforcing the ‘recommendations’ to the desired extent.

17. Special whistleblowers’ Courts 6.2 During the deliberations of the Committee on the Bill, one of the Members of the Committee, suggested that: “…So, rather than taking it through the CVC route, you can actually set up special whistleblower courts across the country like special CBI Judges. You empower Magistrates who only deal with whistleblower applications. So, in that manner, you don’t overburden the CVC, you don’t overburden the other authorities and your points about investigation, protection as well as judicial scrutiny gets taken care of…” 6.3 It may be noted that the Ministry, in its written comments, has stated that CBI is being strengthened and additional Special Courts are being set-up.

18. Incentives to the whistleblower 6.4 Majority of the witnesses who deposed before the Committee opined that the whistle blowers should be rewarded if the disclosure made by them is proved. One of the witnesses suggested that the principle of ‘qui tam’ may be adopted for this purpose. 6.5 In this regard, the Ministry has stated that the Public Authority who benefits from the whistle blower would be encouraged to provide non-monetary incentives to the whistle blower under the policy guidelines to be issued subsequently.

19. Whistle blowing to be made mandatory 6.6 Some of the witnesses opined that the Bill should make it compulsory for a public servant to blow the whistle on any wrongdoing of which he/she has knowledge and that failure to make such disclosure may be made an offence. The argument that was made in support of this is that according to Section 176 of the Indian Penal Code, 1860 a person who does not provide information about the 19 commission of or the intention of persons to commit the aforementioned offences, is liable for punishment with a prison term of up to six months and or fine up to Rs. 1000. When the law is so strict for ordinary citizens to blow the whistle on wrongdoing in society, there is no reason why such stringent measures cannot be stipulated for public servants working in public authorities. 6.7 However, the Ministry, in its written comments, has stated that whistle-blowing cannot be made mandatory for all public servants, as this will create an unhealthy work environment.

20. Prior publication of Rules 6.8 This issue was brought to the attention of the Committee by one of the witnesses, thus: “…the rule-making provision that is mentioned in this Bill is similar to what exists in most other laws. There is no requirement for prior publication’ which actually allows public consultation on rule-making. Section 23 of the General Clauses Act says that if a law provides for making rules by prior publication, then, there is a requirement on the concerned department to put those draft rules in the public domain, invite peoples views and then notify it. This is a good consultative process which was laid down in 1897. ….with the exception of the National Rural Employment Guarantee Act, no other law passed in recent times contains such a requirement of prior publication…Rules must be made after prior publication so that any attempt to dilute provisions of the Act can be taken care of because this has been the experience in several cases where what is given in the principal Act sometimes is diluted in the rules…” 6.9 It was proposed that clauses 24(1), 25 and 26 of the Bill may be amended to require the Central Government as well as the State Government to make rules for carrying out the provisions of the Bill as per the procedure of prior publication contained in Section 23 of the General Clauses Act, 1897. The Committee recommends the Ministry to consider this suggestion.

21. Replacing the word ‘Complainant’ 6.10 Some of the witnesses who deposed before the Committee were of the opinion that the term ‘Complainant’ may be replaced in the Bill with ‘Informant’ or ‘Whistleblower’, since the public spirited person who is making the disclosure, is providing some information regarding certain wrongdoing in the interest of the public only; he has nothing to gain from making the disclosure. Indeed, he may be doing so at a great personal risk, purely because of the public interest involved.

22. Chief Vigi1ance Officer 6.11 One of the suggestions made by witnesses, based on their personal experiences of harassment, for exposing corrupt practices in their respective Departments, was that the CVO should invariably be an outsider so that he/she is completely uninfluenced by the local/organizational administration.

23. Short Title of the Bill 6.12 The Committee takes note and favors the view placed before it, that the Short Title of the Bill may be worded better reflecting the real spirit of whistleblowing. 6.13 The Committee welcomes the Bill and broadly endorses its provisions. The Committee hopes that the Ministry will consider the concerns/suggestions mentioned above and make necessary changes in the Bill wherever found appropriate and possible. 6.14 The Committee, in the end, takes into account the fact that many more legislations like The Lokpal Bill, The Judicial Standards and Accountability Bill etc. are in the offing, the 20 main objectives of which are tackling of corruption and ensuring accountability. The Committee desires that the Government should exercise great care to ensure a holistic approach so that there is no conflict between these legislations and their implementation takes place in a harmonious manner. In any case, the other Bills should not militate against this Bill. 21

MINUTES RECORDS OF DISCUSSION

III THIRD MEETING

The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.00 A.M. on Wednesday, the 29th September, 2010 in Committee Room No. G074, Ground Floor, Parliament Library Building, New Delhi.

MEMBERS PRESENT 1. Shrimati Jayanthi Natarajan – Chairperson

RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Shri Balavant alias Bal Apte 4. Shri Ram Vilas Paswan 5. Shri M. Rajasekara Murthy

LOK SABHA 6. Shrimati Jyoti Dhurve 7. Shri. D.B. Chandre Gowda 8. Dr. Monazir Hassan 9. Shri Shailendra Kumar 10. Dr. Kirodi Lal Meena 11. Kumari Meenakshi Natarajan 12. Shri S. Semmalai 13. Shri Manish Tewari 14. Shri R. Thamaraiselvan

SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Catherine John L, Committee Officer

WITNESSES

I. Ministry of Personnel. Public Grievances and Pensions (Department of Personnel and Training) 1. Shri Shantanu Consul, Secretary; 2. Dr. S.K. Sarkar, Additional Secretary;

23 24

3. Shri Alok Kumar Bhatnagar, Additional Secretary, CVC; 4. Ms. Shalini Darbari, Director, CVC; and 5. Shri J. Vinod Kumar, OSD.

II. Ministry of Law And Justice • Department of Justice 1. Shrimati Neela Gangadharan, Secretary; 2. Shri Ramesh Abhishek, Joint Secretary; and 3. Shri S.C. Srivastava, Joint Secretary. • Legislative Department 1. Dr. G.N. Raju, Joint Secretary and Legislative Counsel; 2. Shri Divakar Singh, Deputy Legislative Counsel; and 3. Shri K.V. Kumar, Deputy Legislative Counsel. The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 2. The Chairperson welcomed the Members of the Committee and informed them that The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 has been referred by Hon’ble Chairman, Rajya Sabha to this Committee on the 15th September, 2010 for examination and report within three months. She informed the Members that the Bill seeks 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 complaints and for matters connected therewith and incidental thereto. 3. The Chairperson then welcomed the Secretary, Department of Personnel and Training and representatives of the Legislative Department to the meeting and requested the Secretary to make a presentation on the Bill. The Secretary then gave a detailed narration of the background and salient features of the Bill and elucidated upon similar legislations existing in other countries. He also made a power point presentation on the Bill. 4. The Chairperson and Members, while appreciating the noble objective of this Bill, expressed apprehension that the provision for imprisonment upto two years in case of false or frivolous complaints could defeat the very purpose of the Bill. The Secretary, Department of Personnel and Training and Additional Secretary, Legislative Department responded to the points raised by the Committee. The Chairperson asked the Secretary to furnish the replies which were not replied during the meeting within one week. (The witnesses then withdrew)

5. * * *

6. * * * 7. A verbatim record of the proceedings of the meeting was kept.

8. The Committee adjourned at 12.30 A.M.

*** Relates to some other matter. 25

RECORD OF DISCUSSION

The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.00 A.M. on Monday, the 14th February, 2011 in Committee Room ‘C’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Shri Shantaram Laxman Naik – In the Chair

RAJYA SABHA 2. Dr. Abhishek Manu Singhvi 3. Shri Ram Vilas Paswan 4. Shri O.T. Lepcha

LOK SABHA 5. Dr. Monazir Hassan 6. Shri Vijay Bahadur Singh 7. Dr. Prabha Kishor Taviad 8. Shri Manish Tewari 9. Shri R. Thamaraiselvan 10. Adv. P.T. Thomas (Idukki)

SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer

I. Ministry of Personnel, Public Grievances and Pensions Department Personnel and Training Shri Alok Kumar, Joint Secretary

II. Ministry of Law and Justice Legislative Department 1. Dr. G. Narayana Raju, Joint Secretary and Legislative Counsel; and 2. Shri Divakar Singh, Deputy Legislative Counsel

WITNESSES 1. PRS Legislative Research, Delhi. Shri M.R. Madhavan, Head of Research.

25 26

2. Commonwealth Human Rights Initiative, Delhi. Shri Venkatesh Nayak, Programme Coordinator. 3. Shri M.N. Vijaya Kumar, lAS, Kamataka. 4. Akhil Bharatiya Grahak Panchayat, Delhi. (i) Shri K.K. Swami, Vice President; and (ii) Shri B.S. Sachdeva. 5. STPI-Visakhapatnam. Shri. M.P. Dubey, Joint Director and Officer-in-Charge. 6. Shri G. Venkatanarayana, Hyderabad. 2. In the absence of the Chairperson of the Committee, Shri Shantaram Laxman Naik was voted to chair the meeting. He welcomed the Members, the witnesses and the senior officers of the Department of Personnel & Training and the Legislative Department present in the meeting. He then requested the witnesses to place their views before the Committee on the Public Interest Disclosure and Protection to Persons Making Disclosures Bill, 2010. 3. The representatives of PRS Legislative Research, while appreciating the objective behind the Bill, enumerated some of the shortcomings of the Bill viz., revealing the name of the complainant under certain circumstances, not providing for any penalty on public servant for victimizing the complainant, absence of provision for appeal by the complainant in case of frivolous/malafide complaints, CVC not given the power to initiate prosecution, abuse of definition of victimization, etc. 4. The representative of Commonwealth Human Rights Initiative made a powerpoint presentation on the Bill. He suggested that the scope and ambit of the Bill may be widened to include human rights violations, wrongdoings that may have adverse effect on public health, safety and environment and wrongdoings committed or intended to be committed by members of the Council of Ministers. Further, he flayed the exemption given to Armed Forces, Police Forces, etc. in the Bill and opined that the Bill should cover private sector also. The representative also referred to providing for some motivation to the whistleblower and having more outlets for lodging complaints. 5. Then, Shri M.N. Vijaya Kumar, while expressing his views on the Bill, stated that it would be appropriate if the term ‘complainant’ is substituted with ‘whistleblower’ or informer and elucidated upon why whistleblowing is morally, ethically and legally important. The representatives of Akhil Bharatiya Grahak Panchayat endorsed the views placed by the other witnesses and stated that the main objective of the Bill should be to encourage whistleblowers and that the provision in the Bill which allows revealing the identity of the complainant to the Head of the Department would endanger the whistleblower. 6. Shri M.P. Dubey and Shri G. Venkatanarayana, while voicing their opinion about various provisions of the Bill, shared with the Committee, some of the harsh treatment which they faced as whistleblowers. They emphasized that the mechanism envisaged in the Bill should be strengthened suitably to ensure that substantive punishment is meted out to the wrongdoer as well as the public servant who indulges in victimization. There was also a suggestion to use the term ‘informant’ in place of ‘complainant’ in the Bill. 7. The witnesses responded to the queries raised by the Chairman and Members of the Committee. (The witnesses then withdrew) 8. A verbatim record of the proceedings of the meeting was kept.

9. The Committee adjourned at 12.36 P.M. 27

RECORD OF DISCUSSION

The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.00 A.M. on Tuesday, the 15th February, 2011 in Committee Room ‘B’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Shri Shantaram Laxman Naik – In the Chair

RAJYA SABHA 2. Shri Ram Vilas Paswan 3. Shri O.T. Lepcha

LOK SABHA 4. Shrimati Jyoti Dhurve 5. Dr. Monazir Hassan 6. Shri Devji M. Patel 7. Shri S. Semmalai 8. Shri Vijay Bahadur Singh 9. Dr. Prabha Kishor Taviad 10. Shri Manish Tewari

SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer

I. Ministry of Personnel, Public Grievances and Pensions Department Personnel and Training Shri Alok Kumar, Joint Secretary

II. Ministry of Law and Justice Legislative Department Dr. S.D. Singh, Joint Secretary and Legislative Counsel

WITNESSES 1. National Campaign for People’s Right to Information, Delhi. (i) Dr. Nikhil Dey; and (ii) Shri Shekhar Singh.

27 28

2. Rakshak Foundation, New Delhi. Dr. Anupama Singh. 3. Dr. R. Stephen Louie, Advocate, Chennai. 4. Shri P.M. Bhat, Mysore. 5. Shri Krishna H. Rao, Mumbai 6. Shri Ajay B. Bose, Mumbai. 7. Shri Rajinder Kumar Goyal. Punjab 2. In the absence of the Chairperson of the Committee, Shri Shantaram Laxman Naik was voted to chair the meeting. He welcomed the Members of the Committee and witnesses who were invited to appear before the Committee for tendering oral evidence on the Public Interest Disclosure and Protection to Persons Making Disclosures Bill, 2010. He also welcomed the representatives of the Department of Personnel and Training and the Legislative Department. Thereafter, he requested the witnesses to apprise the Committee of their views on the Bill. The witnesses, then, made brief presentations before the Committee on the various provisions of the Bill. 3. Despite acknowledging the relevance of the proposed Bill, the representative of the National Campaign for the People’s Right’s to Information drew the attention of the Committee towards the issues that need to be addressed to make the present Bill an effective legislation. They raised concerns over the issues like limited investigating powers of the CVC as proposed in the Bill, inclusion of private sector in the mandate of the Bill and protection of RTI activists under potential threat, etc. In their presentation they emphasized on the need to strengthen institutions like the Lokpal/Lokayukta to supplement the proposed Bill. Thereafter, the Members sought clarifications vis-a-vis the point made by them on the proposed Bill and the representatives responded in detail. 4. The representative of the Rakshak Foundation while making presentation before the Committee, inter-alia, raised concerns over the exclusion of Government funded NGOs from the ambit of the Bill and suggested that these may be included in the proposed Bill. The Members raised some queries vis- a-vis the points made by her and the representative responded in detail. There was a mention about setting up of special Whistle Blower courts which may function within the existing set up. 5. Thereafter, the Committee heard the presentations of other individual witnesses on the various provisions of the Bill and potential consequences of the Bill in the present form. The Members took note of the issues raised and discussed the provisions of the Bill in detail. (The witnesses then withdrew) 6. A verbatim record of the proceedings of the meeting was kept.

7. The Committee adjourned at 1.10 P.M. 29

X TENTH MEETING

The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.00 A.M. on Wednesday the 28th April, 2011 in Room No. ‘53’, First Floor, Parliament House, New Delhi.

PRESENT 1. Shrimati Jayanthi Natarajan – Chairperson

RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Shri Ram Vilas Paswan 4. Shri O.T. Lepcha

LOK SABHA 5. Shrimati Jyoti Dhurve 6. Dr. Monazir Hassan 7. Shrimati Chandresh Kumari 8. Kumari Meenakshi Natarajan 9. Shri Lalu Prasad 10. Shri S. Semmalai 11. Shri Vijay Bahadur Singh 12. Shri Manish Tewari 13. Shri R. Thamaraiselvan 14. Adv. P.T. Thomas (Idukki)

SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer

WITNESSES A. * * * B. * * * C. * * *

*** Relates to some other matter.

29 30

I. ** * 2. * * * 3. * * * 4. * * * II. The Public Interest Disclosure and Protection to persons making the Disclosures Bill, 2010 5. The Chairperson thereafter requested the Members to take up the consideration of the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. The Members deliberated on the provisions of the Bill. It was then decided to consider the Bill in its next meeting alongwith the draft report. 6. A verbatim record of the meeting was kept.

7. The Committee adjourned at 12.00 NOON.

*** Relates to some other matter. 31

XI ELEVENTH MEETING

The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.00 A.M. on Wednesday, the 11th May, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.

PRESENT 1. Shrimati Jayanthi Natarajan – Chairperson

RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Shri Ram Vilas Paswan

LOK SABHA 4. Shrimati Jyoti Dhurve 5. Dr. Monazir Hassan 6. Shri Shailendra Kumar 7. Shrimati Chandresh Kumari 8. Kumari Meenakshi Natarajan 9. Shri Harin Pathak 10. Shri S. Semmalai 11. Shri Vijay Bahadur Singh 12. Dr. Prabha Kishor Taviad 13. Shri Manish Tewari 14. Adv. P.T. Thomas (Idukki)

SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer

WITNESSES A. ** * 2. * * *

*** Relates to some other matter.

31 32

B. Adoption of draft 46th Report on the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. 3. The Committee thereafter considered its draft 46th Report on The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. The Members deliberated upon the various aspects of the report extensively and suggested some changes in the draft Report. The report was adopted subject to amendments suggested by them. The Committee authorized the Chairperson to carry out the modifications on the lines of discussion in the meeting before presentation of the report to Parliament. 4. A verbatim record of the proceedings of the meeting was kept.

5. The Committee adjourned at 12.42 P.M. 33

ANNEXURES

ANNEXURE-A 26 Aug 2010

AS INTRODUCED IN LOK SABHA

Bill No. 97 of 2010

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

ARRANGEMENTS OF CLAUSES

CHAPTER I

PRELIMINARY

CLAUSES 1. Short title, extent and commencement. 2. Definitions.

CHAPTER II

PUBLIC INTEREST DISCLOSURE 3. Requirements of public interest disclosure.

CHAPTER III

INQUIRY IN RELATION TO PUBLIC INTEREST DISCLOSURE 4. Powers and functions of Competent Authority on receipt of public interest disclosure. 5. Matters not to be inquired by Competent Authority.

CHAPTER IV

POWERS OF COMPETENT AUTHORITY 6. Powers of Competent Authority. 7. Certain matters exempt from disclosure. 8. Superintendence of Competent Authority over appropriate machinery. 9. Competent Authority to take assistance of police authorities, etc., in certain cases.

CHAPTER V

PROTECTION TO THE PERSONS MAKING DISCLOSURE 10. Safeguards against victimization.

35 36

Clauses 11. Protection of witnesses and other persons. 12. Protection of identity of complaint. 13. Power to pass interim orders.

CHAPTER VI

OFFENCES AND PENALTIES 14. Penalty for furnishing incomplete or incorrect or misleading comments or explanation or report. 15. Penalty for revealing identity of complainant. 16. Punishment for false or frivolous disclosure. 17. Punishment to Head of department in certain cases. 18. Offences by companies. 19. Appeal to High Court. 20. Bar of jurisdiction. 21. Court to take cognizance.

CHAPTER VII

MISCELLANEOUS 22. Report on disclosures. 23. Protection of action taken in good faith. 24. Power of Central Government to make rules. 25. Power of State Government to make rules. 26. Powers to make regulations. 27. Notification and rules to be laid before Parliament. 28. Notification issued and rules made by State Government to be laid before State Legislature. 29. Power to remove difficulties. 30. Repeal and savings. 37

AS INTRODUCED IN LOK SABHA

Bill No. 97 of 2010

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

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.

BE it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1. (1) This Act may be called as the Public Interest Disclosure Short title and Protection to Persons Making the Disclosures Act, 2010. extent and commencement. (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.

37 38

Definitions 2. In this Act, unless the context otherwise requires,— (a) “Central Vigilance Commission” means the Commission constituted under sub-section (1) of section 3 of the Central Vigilance Commission Act, 2003; (b) “Competent Authority” means in relation to— (i) any public servant referred to in sub- clause (A) of clause (i), 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; (ii) any public servant referred to in sub- clause (B) of clause (i), the State Vigilance Commissioner, if any, or any officer of a State Government or any other authority as the State Government may, by notification in the official Gazette, specify in this behalf under this Act; (c) “complainant” means any person who makes a complaint relating to disclosure under this Act; (d) “disclosure” means a complaint relating to, (i) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988; 45 of 1988. (ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable gain accrues to the public servant; (iii) attempt to commit or commission of a criminal offence by a public servant, made in writing or by electronic mail or electronic mail message, against the public servant and includes public interest disclosure referred to in sub-section (2) of section 3; (e) “electronic mail” or “electronic mail message” means a message or information created or transmitted or received on an computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message; (f) “Government company” means a company referred to in section 617 of the Companies Act 1956; 1 of 1956. (g) “notification” means a notification published in the Gazette of India or, as the case may be, the Official Gazette of a State; (h) “public authority” means any authority, body or institution falling within the jurisdiction of the Competent Authority; 39

(i) “public servant” means any employee of— (A) the Central Government or any corporation established by or under any Central Act, any Government companies, societies or local authorities owned or controlled by the Central Government and such other categories of employees as may be notified by the Central Government, from time to time, in the Official Gazette; (B) the State Government or any corporation established by or under any State Act, Government companies, Societies or local authorities owned or controlled by the State Government and such other categories of employees as may be notified by the State Government, from time to time, in the Official Gazette. (j) “prescribed” means prescribed by rules made by the Central Government and the State Government, as the case may be, under this Act; (k) “regulations” means the regulations made by the Competent Authority under this Act.

CHAPTER II

PUBLIC INTEREST DISCLOSURE

3. (1) Notwithstanding anything contained in the provisions of Requirements of 19 of 1923. the Official Secrets Act, 1923, any public servant [other than those public interest disclosure. referred to in clauses (a) to (d) of article 33 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, (a) the members of the Armed Force or any matter relating to Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence or any matter relating to such bureau or other organisation; (d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c) or any matter relating to such telecommunication system, bureau or organisation. 40

(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.

(3) 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.

(4) Every disclosure shall be made in writing or by electronic mail or electronic mail message in accordance with the procedure as may be prescribed and contain full particulars and be accompanied by supporting documents, or other material, if any.

(5) The Competent Authority may, if it deems fit, call for further information or particulars from the person making the disclosure.

(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.

CHAPTER III

INQUIRY IN RELATION TO PUBLIC INTEREST DISCLOSURE

Powers and 4. (1) Subject to the provisions of this Act, the Competent functions of Authority shall, on receipt of a public interest disclosure under Competent Authority on section 3, receipt of public interest (a) ascertain from the complainant or the public servant disclosure. 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.

(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.

(3) If the Competent Authority, either as a result of the discreet inquiry, or on the basis of the disclosure it self 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. 41

(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: 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. (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. (6) The Competent Authority, if after conducting an inquiry, is of the opinion that— (a) the facts and allegations contained in the disclosure are frivolous or vexatious; or (b) there are no sufficient grounds for proceeding with the inquiry, it shall close the matter. (7) After receipt of the comments or explanations or report referred to in sub-section (3), if the Competent Authority is of the opinion that such comments or explanations or report reveals either wilful misuse of power or wilful misuse of discretion or substantiates allegations of corruption, it shall recommend to the public authority to take anyone or more of the following measures, namely: (i) initiating proceedings against the concerned public servant; (ii) 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: (iii) 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; (iv) recommend for taking of corrective measures; (v) take any other measures not falling under clauses (i) to (iv) which may be necessary for the purpose of this Act. 42

Matters not to 5. (1) If any matter specified or an issue raised in a be inquired by disclosure has been determined by a Court or Tribunal authorised to Competent Authority. 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— (a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850; 37 of 1850. or (b) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952. 60 of 1952. (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. (4) 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.

CHAPTER IV

POWERS OF COMPETENT AUTHORITY

Powers of 6. (1) Without prejudice to the powers conferred upon the Competent Competent Authority under any other law for the time being in Authority. 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:— 5 of 1908.

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any Court or office; 43

(e) issuing commissions for the examination of witnesses or documents; (f) such other matters as may be prescribed. (3) The Competent Authority shall be deemed to be a Civil Court for the purpose of section 195 and Chapter XXVI of the 2 of 1974. Code of Criminal Procedure, 1973, and every proceeding before the Competent Authority shall be deemed to be a judicial proceeding 45 of 1860. within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code. (4) Subject to the provisions of section 7, no obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to the Government or any 19 of 1923. 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 documents 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.

7. (1) No person shall be required or be authorised by virtue Certain matters of provisions contained in this Act to furnish any such information exempt from or answer any such question or produce any document or disclosure. 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, (a) as might involve the disclosure of proceedings of the Cabinet of the Union Government or any Committee of the Cabinet; (b) as might involve the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet, and for the purpose of this sub-section, a certificate issued by the Secretary to the Government of India 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. 44

(2) Subject to the provisions of sub-section (1), 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.

Superintendence 8. (1) Every public authority shall, for the purposes of dealing of Competent or inquiry into the disclosures sent to it under sub-section (3) of Authority over appropriate section 4, create an appropriate machinery for the said purpose. machinery (2) The Competent Authority shall exercise superintendence over the working of machinery created under sub-section (1) for the purposes of dealing or inquiry into the disclosures and give such directions for its proper functioning, from time to time, as it may consider necessary.

Competent 9. For the purpose of making discreet inquiry or obtaining Authority to information from the organisation concerned, the Competent take assistance of police Authority shall be authorised to take assistance of the Delhi Special authorities, etc., Police Establishment or the police authorities, or any other authority in certain cases. as may be considered necessary, to render all assistance to complete the inquiry within the specified time pursuant to the disclosure received by the Competent Authority.

CHAPTER V

PROTECTION TO THE PERSONS MAKING DISCLOSURE

Safeguards 10. (1) The Central Government shall ensure that no person against or a public servant who has made a disclosure under this Act is victimisation. 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.

(2) If any person is being victimised or likely to be victimised 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 victimised or avoid his victimisation.

(3) Every direction given under sub-section (1) by the Competent Authority shall be binding upon the public servant or the public authority against whom the allegation of victimisation has been proved.

(4) Notwithstanding anything contained in any other law for the time being in force, the power to give directions under sub- section (2), 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. 45

11. If the Competent Authority either on the application of the Protection of complainant, or witnesses, or on the basis of information gathered, witnesses and other persons. 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.

12. The Competent Authority shall, notwithstanding any law for Protection of the time being in force, conceal, as required under this Act, the identity identity of of the complainant and the documents or information furnished by him, complainant. 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.

13. The Competent Authority, at any time after the making of Power to pass disclosure by the complainant or public servant, if it is of the interim orders. 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.

CHAPTER VI

OFFENCES AND PENALTIES

14. Where the Competent Authority, at the time of examining Penalty for the report or explanations or report referred to in sub-section (3) of furnishing incomplete or section 4 on the complaint submitted by organisations or officials incorrect or concerned, is of the opinion that the organisations or officials misleading concerned, without any reasonable cause, has not furnished the comments or explanation or report within the specified time or mala fide refused to submit the report. report or knowingly given incomplete, incorrect or misleading or false me 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 a penalty which may extend to two hundred fifty rupees for each day till report is so, however, the total amount of such penalty shall not exceed fifty thousand rupees: Provided that no penalty shall be imposed against any person unless he has been given an opportunity of being heard

15. Any person, who negligently or mala fidely reveals the Penalty for identity of a complainant shall, without prejudice to the other revealing identity of complainant. 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.

16. Any person who makes any disclosure mala fidely and Punishment for knowingly that it was incorrect or false or misleading shall be false or frivolous punishable with imprisonment for a term which may for extend up disclosure. to two years and also to fine which may extend up to thirty thousand rupees. 46

Punishment to 17. (1) Where an offence under this Act has been committed Head of by any Department of Government; the Head of the Department department in certain cases. 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. (2) Notwithstanding anything contained in sub-section (1), 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.

Offences by 18. (1) Where an offence under this Act has been committed companies. 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 contained in this sub-section 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. (2) Notwithstanding anything contained in sub-section (1), 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. Explanation.—For the purposes of this section,— (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.

Appeal to High 19. Any person aggrieved by any order of the Competent Court. Authority relating to imposition of penalty under section 14 or section 15 may prefer an appeal to the High Court 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. 47

Explanation.—For the purposes of this section, the “High Court” means the High Court within whose jurisdiction the cause of action arose.

20. No civil court shall have jurisdiction in respect of any Bar of matter which the Competent Authority is empowered by or under jurisdiction. 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.

21. (l) No court shall take cognizance of any offence Court to take punishable under this Act or the rules or regulations made cognizance. thereunder, save on a complaint made by the Competent Authority or any officer or person authorised by it. (2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act.

CHAPTER VII

MISCELLANEOUS

22. (1) The Competent Authority shall prepare a consolidated Report on annual report of the performance of its activities in such form as disclosures. may be prescribed and forward it to the Central Government or State Government, as the case may be. (2) On receipt of the annual report under sub-section (1), the Central Government or State Government, as the case may be, shall cause a copy thereof to be laid before each House of Parliament, or the State Legislature, as the case may be. Provided that where any other law for the time being in force provides preparing of such annual report by the Competent Authority, then the said annual report shall contain a separate part on the performance of activities under this Act by the Competent Authority.

23. No suit, prosecution or other legal proceedings shall lie Protection of against the Competent Pro Authority or against any officer, action taken in employee, agency or person acting on its behalf, in respect of good faith. anything which is in good faith done or intended to be done under this Act.

24. (1) The Central Government may, by notification in the Power of Central Official Gazette, make rules for the purpose of carrying out the Government to provisions of this Act. make rules. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) the procedure for disclosure by writing or appropriate electronic means under sub-section (4) of section 3; 48

(b) the manner in which the discreet inquiry shall be made by the Competent Authority under sub-section (2) of section 4; (c) the additional matter in respect of which the Competent Authority may exercise the powers of a civil court under clause (f) of sub-section (2) of section 6; (d) the form of annual report under sub section (1) of section 22; (e) any other matter which is required to be, or may be, prescribed.

Power of State 25. The State Government may, by notification in the Official Government to Gazette, make rules for the purpose of carrying out the provisions make rules. of this Act.

Powers to make 26. The Competent Authority may, with the previous approval regulations. of the Central Government or the State Government, as the case may be, by notification in the Official Gazette, make regulations not inconsistent with the provision of the Act and the rules made thereunder to provide for all matters for which provision is expedient for the purposes of giving effect to the provisions of this Act.

Notification and 27. Every notification issued and every rule made by the rules to be laid Central Government and No every regulation made by the before Parliament. Competent Authority under this Act shall be laid, as soon as a may be after it is issued or made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or the rule or the regulation, or both Houses agree that the notification or the rule or the regulation should not be made, the notification or the rule or the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule or regulation.

Notification 28. Every notification issued by a State Government and issued and rules every rule made by a State Government and every regulation made made by State Government to by the Competent Authority under this Act shall be laid, as soon as be laid before may be after it is issued, before the State Legislature. State Legislature.

Power to 29. (1) If any difficulty arises in giving effect to the remove provisions of this Act, the Central Government may, by order, not difficulties. inconsistent with the provisions of this Act, remove the difficulty: Provided that no such order shall be made after the expiry of a period of three years from the date of the commencement of this Act. 49

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

30. (1) The Government of India, Ministry of Personnel, Repeal and Public Grievances and Pensions (Department of Personnel and savings. Training) Resolution No.371/12/2002-AVD-III dated the 21st April, 2004 as amended vide Resolution of even number, dated the 29th April, 2004 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Resolution be deemed to have been done or taken under this Act. 50

STATEMENT OF OBJECTS AND REASONS

Corruption is a social evil which prevents proper and balanced social growth and economic development. One of the impediments felt in eliminating corruption in the Government and the public sector undertakings is lack of adequate protection to the complainants reporting the corruption or wilful misuse of power or wilful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant. 2. The Law Commission of India had in its 179th Report, inter alia, recommended formulation of a specific legislation titled “The public Interest Disclosure (Protection of Informers) Bill, 2002 to encourage disclosure of information regarding corruption or mal-administration by public servants and to provide protection to such complainants. The Second Administrative Reforms Commission in its 4th Report on “Ethics in Governance” has also recommended formulation of a legislation for providing protection to whistle-blowers. The Government of India had issued a Resolution No. 89, dated the 21st April, 2004 authorising the Central Vigilance Commission as the designated agency to receive written complaints from whistle-blowers. The said Resolution also, inter alia, provides for the protection to the whistle-blowers from harassment, and keeping the identity of whistle-blowers concealed. It has been felt that the persons who report the corruption or wilful misuse of power or wilful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant need statutory protection as protection given to them by the said Resolution of the Government of India would not suffice. 3. In view of the position stated in the foregoing paragraphs, it has been decided to enact a standalone legislation to, inter alia, provide— (a) for bringing with ill the scope of the Bill, public servants being the employees of the Central Government or the State Government or any corporation established by or under any Central Act or any State Act, Government Companies, Societies or local authorities owned or controlled by the Central Government or the State Government and such other categories of employees as may be notified by the Central Government or, as the case may be, the State Government, from time to time, in the Official Gazette; (b) adequate protection to the persons reporting corruption or wilful misuse of power or wilful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant;

50 51

(c) a regular mechanism to encourage such person to disclose the information on corruption or wilful misuse of power or wilful misuse of discretion by public servants or commission of a criminal offence; (d) the procedure to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimisation of the whistle-blower, that is the person making such disclosure; (e) safeguards against victimisation of the person reporting matters regarding the corruption by a public servant; (f) punishment for revealing the identity of a complainant, negligently or mala fidely; (g) punishment for false or frivolous complaints. 4. The notes on clauses explain in detail the provisions of the Bill. 5. The Bill seeks to achieve the aforesaid objectives.

NEW DELHI; PRITHVIRAJ CHAVAN The 12th August, 2010. 52

NOTES ON CLAUSES

Clause 1.—This clause provides for the short title, extent and commencement of the proposed legislation. It is proposed not to extend the provisions of the proposed legislation to the State of Jammu and Kashmir. It further proposed to empower the Central Government to bring it into force on such date as it may appoint by notification in the Official Gazette and the Central Government may appoint different dates for different provisions of the Act. Clause 2.—This clause defines various expressions used in the proposed legislation which, inter alia, include the expressions “Central Vigilance Commission”, “Competent Authority”, “disclosure”, “electronic mail” or “electronic mail message”, “Government company”, “public authority” and “public servant”. Clause 3.—This clause lays down the requirements of public interest disclosure. It provides that 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 33 of the Constitution] or any other person including any non-governmental organisation, may make a public interest disclosure before the Competent Authority. It further provides 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, the members of the Armed Force or any matter relating to Armed Forces; the members of the Forces charged with the maintenance of public order; persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence or any matter relating to such bureau or other organisation, persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation or any matter relating to such telecommunication system, bureau or organisation. It further provides that any disclosure made under the proposed legislation shall be treated as public interest disclosure to be made before the Competent Authority which is made in good faith and the person making such disclosure shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true. It further provides that every disclosure shall be made in writing or by electronic mail or electronic mail message in accordance with the procedure as may be prescribed which shall contain full particulars and be accompanied by supporting documents, or other material and 52 53 the Competent Authority may, if it deems fit, call for further information or particulars from the person making such disclosure. It also provides that no action will 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. Clause 4.—this clause provides for the powers and functions of the Competent Authority on receipt of public interest disclosure. It provides that the Competent Authority shall, on receipt of a public interest disclosure, ascertain from the complainant or the public servant whether he was the person or the public servant who made the disclosure or not and 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. It further provides that the Competent Authority, upon the 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 and in case 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 the 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 specified by it and while doing so, the competent authority will not reveal the identity of the complainant or the public servant. However, if the Competent Authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from the Head of the Department of the organisation or authority, board or corporation concerned or office concerned 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. It further provides that the Competent Authority, if after conducting an inquiry is of the opinion that, the facts and allegations contained in the disclosure are frivolous or vexatious; or there are no sufficient grounds for proceeding with the inquiry, it shall close the matter. It also provides that after receipt of the comments or explanations or report referred to in sub-clause (3), if the Competent Authority is of the opinion that such comments or explanations or report reveals either wilful misuse of power or wilful misuse of discretion or substantiates allegations of corruption, it shall recommend to the public authority, for initiating proceedings against the concerned public servant; or, for taking appropriate administrative steps for redressing the loss caused to the Government as it result of the corrupt practice or 54 misuse of office or misuse of discretion, as the case may; or, to recommend 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; or, recommend for taking of corrective measures; or, any other appropriate measure which may be necessary for the purposes of the proposed legislation Clause 5.— This clause provides for the matters not be inquired by the Competent Authority. It provides that 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 such disclosure to the extent that the said disclosure seeks to reopen such issue. It further provides that the Competent Authority shall not entertain or inquire into any disclosure, in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850 or in respect of a matter which has been referred for inquiry under the Commissions of inquiry Act, 1952 and 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. It also provides that nothing in the proposed legislation shall be construed as empowering the Competent Authority to question, in any inquiry under the proposed legislation, any bona-fide action or discretion (including administrative or statutory discretion) exercised in discharge of duty by the employee. Clause 6.—This clause lays down the powers of the Competent Authority. It provides that 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. It further provides that 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 and that all proceedings under the proposed legislation shall be deemed to be judicial proceedings for the purposes of sections 193 and 228 of the Indian Penal Code and for section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. It further provides that subject to the provisions of clause 7, 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 55 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 documents or the giving of evidence as is allowed by any enactment or by any rules made thereunder. It also provides that the Competent Authority, while exercising the 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. Clause 7.—This clause deals with certain matters exempted from disclosure. It provides that no person shall be required or be authorised by virtue of provisions contained in the proposed legislation 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 the proposed legislation, 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, which might involves the disclosure of proceedings of the Cabinet of the Union Government and Cabinet of the State or any Committee of the Cabinet. It further provides that a certificate issued by a Secretary to the Government of India 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 which might involves the disclosure of proceedings of the Cabinet of the Union Government and Cabinet of the State or any Committee of the Cabinet shall be binding and conclusive. It also provides that no person shall be compelled for the purposes of inquiry under the proposed legislation to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a court. Clause 8.—This clause provides for the superintendence of Competent Authority over appropriate machinery. It provides that every public authority shall, for the purposes of dealing or inquiry into the disclosures sent to it under sub-clause (3) of clause 4, create appropriate machinery for the said purpose and shall exercise superintendence over the working of such machinery and give such directions for its proper functioning, from time to time, as it may consider necessary. Clause 9.—This clause makes provisions for the Competent Authority to take assistance of police authorities in certain cases. It provides that for the purpose of making discreet inquiry or obtaining information from the organisation concerned, the Competent Authority shall be authorised to take assistance of the Delhi Special Police Establishment or the police authorities, or any other authority as may 56 be considered necessary, to render all assistance to complete the inquiry within the specified time pursuant to the disclosure received by the competent authority. Clause 10.—This clause empowers by providing safeguards against victimization. It provides that the Central Government shall ensure that no person or a public servant who has made a disclosure under the proposed legislation 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 the proposed legislation and 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, he may file an application before the Competent Authority seeking redress in the matter, and such authority while taking an action 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. It further provides that every direction given under sub- clause (1) by the Competent Authority shall be binding upon the public servant or the public authority against whom the allegation of victimization has been proved and notwithstanding anything contained in any other law for the time being in force, the power to give directions under sub-clause (2), 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. Clause 11.—This clause provides for Protection of witnesses and other persons. It provides that if the Competent Authority either on the application of the complainant, 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 the proposed legislation need protection, the Competent Authority shall issue appropriate directions to the concerned Government authorities, including police, which shall take necessary steps to protect such complainant or public servant or persons concerned. Clause 12.—This clause provides for protection of identity of complainant. it provides that the Competent Authority shall, notwithstanding anything contained in any other Jaw for the time being in force, conceal, the identity of the complainant and the documents or information furnished by him, for the purposes of enquiry, 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. Clause 13.—This clause empowers the Competent Authority to pass interim orders. It provides that 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 57 may pass such interim orders as it may deem tit, to prevent the immediate stoppage of such practice. Clause 14.—This clause makes provision for penalty for furnishing incomplete or incorrect or misleading comments or explanation or report. It provides that the Competent Authority, at the time of examining the report or explanations or report on the complaint submitted by organisations or officials concerned, is of the opinion that the organisations or officials 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, shall impose a penalty which may extend to two hundred fifty rupees for each day till report is furnished, however, the total amount of such penalty not to exceed fifty thousand rupees but no penalty shall be imposed against any person without giving him an opportunity of being heard. Clause 15.—This clause contains the provision for penalty for revealing identity of complainant. It provides that any person, who negligently or mala fidely reveals the identity of a complainant shall 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. Clause 16.—This clause provides for punishment for false or frivolous disclosure. It provides that 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. Clause 17.—This clause provides for punishment to the Head of the Department in the Government. It provides that where an offence under the proposed legislation has been committed by any Department of the 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 once was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. It further provides that if an offence 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 to any other officer, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Clause 18.—This clause contains provisions for offences by companies. It provides that where an offence under the proposed legislation has been committed by a company, every person directly in charge of, and responsible to, the company for the conduct of its 58 business at the time of commission of offence 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 ail due diligence to prevent the commission of such offence. It also provides that where any offence under the proposed legislation has been committed with the consent or connivance of or 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 that offence and shall be liable to be proceeded against and punished accordingly. The Explanation to the clause seeks to define the terms “company” and “director”. Clause 19.—This clause makes provision for filing of an appeal to the High Court. It provides that any person aggrieved by an order made by the Competent Authority relating to imposition of penalty, for furnishing incomplete or incorrect or misleading Comments or explanation or report under clause 14 or for revealing identity of complainant under clause 15 may prefer an appeal to the High Court within a period of sixty days from the date of the order. It further provides that the High Court may entertain an appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. Clause 20.—This Clause provides for exclusion of jurisdiction of civil courts, It provides that no civil court shall have jurisdiction in respect of any matter which the Competent Authority is empowered by or under the proposed legislation 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 the proposed legislation. Clause 21.—This clause provides for courts to take cognizance of an offence. It provides that no court shall take cognizance of any offence punishable under proposed legislation 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 the proposed legislation. Clause 22.—This clause seeks to empower the Competent Authority to prepare a report on disclosures. It provides that the Competent Authority shall prepare a consolidated annual report of the performance of its activities in such form as may be prescribed by the Central Government and forward it to the Central Government or State Government, as the case may be, which would be laid, before Parliament by the Central Government and, before State Legislature by the State Government. It further provides that if any other law for the time being in force provides preparing of the annual report by the Competent 59

Authority, then the said annual report shall contain a separate part on the performance of activities under the proposed legislation by the Competent Authority. Clause 23.—This clause provides for protection of action taken in good faith. It provides that no suit, prosecution or other legal proceedings shall lie against the Competent Authority or against any officer, employee, agency or person acting on its behalf, for anything which is in good faith done or intended to be done under the proposed legislation. Clause 24.—This clause confers power on the Central Government to make rules. It provides that the Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of the proposed legislation. Sub-clause (2) enumerates matters for which such rules may be made by the Central Government. Clause 25.—This clause confers power on the State Government to make rules. It provides that the State Government may, by notification in the Official Gazette, make rules for the purpose of carrying out the provisions of the proposed legislation. Clause 26.—This clause empowers the Competent Authority to make regulations. It provides that the Competent Authority may, with the previous approval of the Central Government or the State Government, as the case may be, by notification in the Official Gazette, make regulations not inconsistent with the provisions of the proposed legislation and for giving effect to the provisions of the proposed legislation. Clause 27.—This clause provides for laying of rules, regulations and notifications before Parliament. It provides that every rule made and every notification issued by the Central Government and every regulation made by the Competent Authority under the proposed legislation shall be laid before each House of Parliament. Clause 28.—This clause provides for laying of rules regulations and notifications before the State Legislature. It provides that every rule made and every notification issued by the State Government and every regulation made by the Competent Authority under the proposed legislation shall be laid before the State Legislature. Clause 29.—This clause makes provision for power to remove difficulties. It provides that if any difficulty arises in effect to the provisions of the proposed legislation, the Central Government may, by order, not inconsistent with the provisions of the proposed legislation, remove the difficulty. It provides that no such order shall be made after the expiry of a period of three years from the date of commencement of the proposed legislation. It also provides that every order under this clause shall, as soon as may be after it is made, be laid before each House of Parliament. 60

Clause 30.—This clause relates to the repeal and savings. It provides for the repeal of the Resolution of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued vide No. 371/12/2002-AVD-III, dated the 21st April, 2004 as amended vide Resolution of even number, dated the 29th April, 2004. It further provides that notwithstanding the said repeal, anything done or any action taken under the said Resolution be deemed to have been done or taken under the proposed legislation. 61

MEMORANDUM REGARDING DELEGATED LEGISLATION

Sub-clause (l) of clause 24 empowers the Central Government to make, by notification in the Official Gazette, rules for carrying out the provisions of the proposed legislation. Sub-clause (2) enumerates the matters in respect of which such rules may be made. These matters, inter alia. specifies the procedure for disclosure in writing or appropriate electronic means under sub-clause (4) of clause 3; the manner in which the discreet inquiry is to be made by the Competent Authority under sub-clause (2) of clause 4; the additional matter in respect of which the Competent Authority may exercise the powers of a civil court under sub-clause (2) of clause 6; the form of annual report under sub-clause (1) of clause 22. 2. Clause 25 empowers the State Government to make, by notification in the Official Gazette, rules, for carrying out the provisions of the proposed legislation. 3. Clause 26 empowers the Competent Authority, with the previous approval of the Central Government or the State Government, to make, by notification in the Official Gazette, regulations, consistent with the provisions of the proposed legislation and the rules made thereunder to provide for all matters for which provision is expedient for the purposes of giving effect to the provisions of the proposed legislation. 4. Clause 21 provides that rules and regulations made by the Central Government are required to be laid before each House of Parliament and rules and regulation made by the State Government are required to be laid before each House of the State Legislature. 5. The matters in respect of which rules and regulations may be made are matters of procedure or administrative detail and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is therefore of a normal character.

61 62

LOK SABHA

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.

(Shri Prithviraj Chavan, Minister of State for Personnel, Public Grievance and Pensions)

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ANNEXURE-B

PART-I: COMMENTS AND SUGGESTIONS ON THE SUBJECT

Sl. Name of Comments/suggestions Response of Govt. No. organization/ individual 12 3 4

1. Memorandum No.1. The credibility of ‘public servant’ The Department of Personnel & Training Shri J.P. Shah, is so low that hardly anyone had issued an OM dated 29.9.92 which M.Com., LL.B. will rely on true intention and: provides that no action should be taken Ex-Bank Manager, capability of CVC or State on anonymous and pseudonymous Consumer & RTI Vigilance Commission (SVC) complaints. Such complaints should be Activist, [competent authority] to keep ignored and filed. However, there is b-12, Amrapali, names of complainants secret at provision available in this order that in Gandhigram, all times. The fact that police case such complaints contain verifiable Junagarh, Gujarat- protection is provided to an details, they may be enquired into in 326001. officer in an organization at the accordance with existing instructions only instance of CVC/SVC, will make on specific direction of the Head of the his identity open directly or Department/Chief Executive. through police. Hence, whistle- blowers should be encouraged The CVC, in 1999, observed that there is to lodge anonymous complaints widespread use of anonymous and by post or emails. pseudonymous petitions by disgruntled elements to blackmail honest officials and hence no action should be taken on such petitions.

As per provisions of the bill each and every petition is required to be enquired into. It may not be practically possible to entertain large number of anonymous and pseudonymous complaints and there is likelihood that the very purpose of the Bill may get diluted.

DoP&T is open to modifications. This clause was inserted with a motive to discourage frivolous complaints, inquiry of which would only be a waste of time.

It is not possible for a common man to give documentarily prove corruption or misdeeds. He can only give rough information about misdeeds. Hence, the

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provision to penalize complainant for frivolous complaints needs to be deleted.

2. Memorandum No.2. Following remedial measures Shri Ajay B. Bose, should be provided to protect C.Rly. Flat No. the interest of whistle-blowers:– 51/4, Agarwad, B/H: Sion (i) Armed protection when Clause No.11 of the bill provides for Hospital, Sion they attend Court/enquiry protection to witnesses and other persons 9W), Mumbai- for deposing against the including police protection. There may 400022 Mob: accused whom they have not be any requirement to specifically 9833058952 brought trap. provide in the Bill that armed protection should be given to whistle blowers.

(ii) Transfer and posting Clause No.l0(1) stipulates that no person undertaken with utmost or a public servant who has made a care keeping the interest disclosure is victimized by initiation of of whistle-blower upper any proceedings or otherwise merely on most in mind. the ground that such person or a public servant had made a disclosure or rendered (iii) Ensuring that whistle- assistance in inquiry under this Act. It is blowers are not denied felt that this will take care of all aspects rightful promotion, including transfer, posting, promotion etc. increment or perks on flimsy grounds for exposing corruption.

(iv) Stiff penalty and This is taken care by the safeguards punishment for those stipulates in clause 10(2). Further, clause harassing and victimizing No.10(3) of the bill stipulates that the whistle-blowers. direction of the competent authority is binding. Hence, it is open for the competent authority to award punishment to those who harass or victimize whistle blowers.

(v) Identity of whistle-blower The provisio to Clause No.4(4) of the should not be revealed if bill stipulate that the identity of the desired. complainant can be revealed to head of the departments for the purpose of enquiry under this Act.

The suggestion is perhaps based on this clause. In this context, it may be mentioned that this clause has been inserted after a lot of thought. It was felt that it may sometimes not be possible 65

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for the head of the department to conduct discreet inquiries in the absence of further clarifications. Hence, this clause was inserted with stiff consequences as in clause 15 of the bill.

(vi) Lifting of gag on whistle- This may defeat all efforts made for blowers for speaking to concealing the identity of the whistle electronic media and print blower as well as his protection. media for exposing corruption in their departments.

3. Memorandum No.3. Shri Thyloor has suggested that The administrative measures suggested Shri Devaraj administrative measures would be by Shri Thyloor are incidentally the same Thyloor more fruitful than giving adequate as that suggested by the Administrative protection to whistle-blowers. Reforms Commission. The Government is already considering these recommendations.

Give computer generated; code This suggestion cannot be accepted at number to the informer which this stage considering the fact that not all is assigned by an independent citizens of this country are literate. and private agency preferably guided by Lokpal or Lokayuktas.

4. Memorandum No.4. Employees working in private DoP&T is open to suggestion and Shri Saileswar organizations, banks, foreign modifications in the Bill. However, at this Chakrabarti, banks etc. should also be stage, it may not be possible for the 1/288, Naktala, included within the ambit of the, CVC to handle complaints of private Kolkata-700047 Bill. sector. West Bengal Tel: 033 23772623 Level of Awareness in the Public Arrangement for publicity can be made is to be developed by the only after the Bill receives the assent of concerned a authorities through the President. various machineries.

5. Memorandum No.5 Complaints against any Senior The Bill does not provide for any time Shri G. official should be scrutinized by frame to complete enquiry and decide Venkatanarayana, a designated impartial committee the complaint. However, if deemed (Ex-Dir KVIC, (of not less than 3 high rank necessary the same can be provided in Chennai), H.No. officers) assisted by Vigilance the Rules/Regulations. It may not be 81-363/33, Cell, within 30 days. appropriate to provide time-frame in the Adityanagar Colony, Bill because we may have to also spell- Opp. Galaxy out what action has to be taken if the Cinema,Tolichowki, same is not complied within the time- Hyderabad 500008 frame. (AP) 66

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If the allegations are found Clause 11 of the Bill provide for protection verifiable, the concerned officials to witnesses. should be suspended within next 10 days and departmental Incidentally, there was one such enquiry should be conducted recommendation of the ARC. DoP&T has strictly as per time schedule and already issued a circular requesting all guidelines of CVC. Ministries/Departments to publicize cases which have reached finality both in regard The complainant may be allowed to conviction and major penalties of to be a witness and he should dismissal, removal from service and be provided protection. compulsory retirement.

Action taken on the accused officers should be publicized as it would act as a deterrent.

For false complaints, a penalty Clause 16 provide for both fine and of not less than Rs.25000/- be imprisonment for false complaints. imposed besides initiation of departmental disciplinary proceedings for major penalty.

6. Memorandum No.6. Use of latest technology may This is a good idea which can be Shri Rajesh A.V., help government to ensure considered at a later stage while 44 – river adequate protection to the person prescribing detailed rules and procedure Gardens, reporting corruption and can also for handling such complaints. Neeramankara, help in imposing punishment for Kaimanom, P.O. false or frivolous complaints. Trivandrum – 695040. The idea is that Government may Mob: 9447246298 arrange for a website, e-mail id Tel: 033 23772623 and a toll free number. On calling the toll free number the serve will record the mobile number and keep it secret and in return give a 20 digits new number which the complainant has to mandatorily use while lodging complaints. In case of frivolous complaints, the complainant can be traced by help of the mobile number

7. Memorandum No.7. The preamble and other relevant The preamble to the Bill mentions Shri R. clauses may also include ‘complaints relating to disclosure on Subramanian, complaints relating to disclosure any allegation of corruption or willful Retd. on any allegation for omission misuse of power or willful misuse of Superintendent, or violation of statutory rules or discretion. ...” This provision itself 67

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Coimbatore Acts of the Central Government takes care of the suggestion made. Municipal or Bylaws or Standing Orders Corporation, 113, of Local Body Council or Boards. First Cross Street (South), Clause 4(7)(iv) may also provide Clause 4(7)(v) empowers the competent Arignar Anna for suitable compensation. authority to take any other measures not Colony, mentioned in clauses (i) to (iv). Hence, it Hudco Colony, felt appropriate the competent authority Tatabad, can order for suitable compensation, if Coimbatore found necessary. 641012. Clause 10(1): Fabrication of false Clause No.10 provide for safeguard charges or suspension or against victimization. Victimization has removal or dismissal from been clarified as “initiation of any service under the disciplinary and proceedings or otherwise merely on the appeal rules of respective service ground that such person or a public or department or stoppage of servant had made a disclosure or rendered pay and allowances or with assistance in inquiry under this Act”. It holding of periodical increment is felt that the above provision will take or suppression of promotion or care of all aspects including fabrication overlooking of seniority or non- of false charges, transfer, posting, inclusion in the seniority list of promotion etc. a public servant who has made a disclosure under this Act shall also be considered as victimization.

A proviso to Clause 16 may be Clause 16 provide that “Any person who added as under:- makes any disclosure mala-fidely and knowing that it was incorrect or false “provided the responsibility to or misleading shall be punishable with prove the allegation shall not imprisonment for a term which may be vested with the complainant, extend up to two years and also to fine on the contrary, it shall be vested which may extend up to thirty thousand with the accused person or public rupees”. servant or public authority or head of office or head of It has been suggested that the onus to department who is maintaining prove that the complaint is frivolous shall or keeping the relevant records lie with the accused person and not on in his custody". the complainant.

The bill empowers the competent authority to take a decision whether the complaint is frivolous or vexatious. Since the competent authority is an independent body, there may not be any need for inserting such a clause as suggested. 68

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8.Memorandum No.8 Persons or Members referred to It was Ministry of Defence who Akkhi Bhartya in Article 33 of the constitution suggested that Armed Forces may be Grahak Panchayat, should be brought in the ambit kept out of the purview of the bill. 6, Dharmaraj of the bill. DoP&T is open to suggestions. Plaza, Old Gangapur Naka Action on the complaint should The Bill does not provide for any time Gangapur Road, be time bound and a decision frame to complete enquiry and decide Nashik-422 005 should be taken within 90 days. the complaint. However, if deemed Tel: 0253- necessary the same can be provided in 2311412 the Rules/Regulations. It may not be appropriate to provide time-frame in the Bill because we may have to also spelt out what action has to be taken if the same is not complied within the time- frame.

The limitation for submitting the It may not be possible to retrieve old disclosure be at least ten years files of ten years. instead of five years.

Clause 7 of the bill should be The motive of the whistle blower bill and consistent with the provisions that of the RTI Act are different. Though of the RTI Act. both are aimed at checking corruption, the exemptions provided in the whistle blower bill and that in the RTI Act cannot be made the same. In fact, the exemptions under the RTI Act are more than that of the whistle Blower Bill.

The captioned bill seeks to ensure The preamble of the bill already provides any inquiry into disclosures and the concept. provide proper safeguards to the complainant. But provisions of the bill do not ensure achievement of the aims and objective of the bill.

Previous records show that CVC Under the present Whistle-blower has failed to encourage whistle Resolution, the CVC had received a total blowers. of 1996 complaints from 2005 to August, 2010 and acted on 614 complaints. The other were either anonymous/ pseudonymous or non-vigilance complaints. So, it is not correct to say that the CVC has failed to encourage whistle-blowers. 69

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There is only one Competent The DoP&T is open to suggestion. Authority whereas in other countries there are many authorities.

Guaranteeing anonymity of the In this context, it may be mentioned that whistle blower is the main this clause has been inserted after a lot feature of this bill. But even this of thought. It was felt that it may guarantee has also been diluted. sometimes not be possible for the head According to subsection 4 of of the department to conduct discreet the Section 4, the competent inquiries in the absence of further authority can reveal the identity clarifications. Hence, this clause was of the whistle blower to the head inserted with stiff consequences as in of the department if it thinks clause 15 of the bill. necessary to get his explanation.

Clause 16 of the bill provides The DoP&T is open to suggestion. for fined up to Rs. 30,000 and punished by imprisonment up to 2 years.

An oversight committee having This may be decided by the Parliamentary public representation should be Standing Committee. roped in to draft a new bill.

9. Memorandum No. 9 The preamble and the statement If it is felt that the preamble needs a Vijay Kumar, IAS of object and reasons should change, the DoP&T is open to suggestion No. 23, 2nd Main, highlight that corruption is the KEB Layout, mother of all evils and that Vivekananda corruption is a major killer of Nagar, innocent people. Banashankari 3rd stage, The Bill should be renamed as The DoP&T is open to suggestion. Bangalore- Promotion of whistle blowing 560 085 and Protection of whistle blowers Bill, 2010 by providing formal ways to promote whistle blowing.

The words complainant and The DoP&T is open to suggestion. complaining should be replaced by whistle blower.

Whistle blower can be defined In the bill, “complainant” has been as a person who raises a defined that as any person who makes a concern about wrong doing complaint relating to disclosure under this occurring in an organization or act. If it is felt that the term whistle body of people. Usually this blower has to be used, it may be defined person would be from that same accordingly. 70

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organization (private or public), but he could be a person with which he had no relation of any type. In the case of public servants reporting the misconduct in his own organization is mandatory.

Whistle blowing could be defined Presently, the term “disclosure” has been to mean the following: used instead of “whistle blowing”. The term “disclosure” has been defined as • That a criminal offence has under: been committee is being committee or is likely to be (i) an attempt to commit or commission committed. of an offence under the Prevention of Corruption Act, 1988; • That a person has failed, is failing, or is likely to fail to (ii) willful mis-sue of power or willful comply with any legal misuse of discretion by virtue of obligation to which he is which demonstrable loss is caused subject. to the Government or demonstrable gain accrues to the public servant; • That a miscarriage of justice has occurred is occurring (iii) attempt to commit or commission or is likely to occur. of a criminal offence by a public servant.

The above definition of 'disclosure' takes care of the suggestion made.

• That the health or safety of DoP&T is open to suggestions. any individual has been is being or is likely to be endangered.

• That the environment has DoP&T is open to suggestions. been, is being, or is likely to be damaged, or

• That information tending to DoP&T is open to suggestions. show any matter falling within anyone of the above has been is being or is likely to be deliberately concealed.

It is important to recognize three The bill authorizes all citizens to make different categories of whistle complaints. There may not be any ground blowers: for categorizing whistle blowers. 71

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I. Those who are public servants.

II. Those who are part of any organized private sector.

III. Those who do not belong to either of the above two categories.

It would be in larger public Whistle-blowing cannot be made interest to define whistle blowing mandatory for all public servants, as this as that mandatory activity of will create an unhealthy work every public servant whose duty environment. is to disclose to the public any one or many of those mentioned under 9(iii) happening in his own organization.

It is important to recognize that As above. as far any government servant whistle blowing is mandatory and hence the protection should be automatic.

Not taking the anti-corruption The pledge is not optional and generally pledge or administering the anti- all public servants are required to corruption pledge on the first administer the oath. However, not taking day of Vigilance week must be the oath does not amount to misconduct treated as a misconduct attracting disciplinary proceedings, as per attracting e major punishment. existing rules.

The following victimization Clause No.10 provide for safeguard should be explicitly mentioned against victimization. Victimization has to act as deterrent against been clarified as “initiation of any corrupt seniors who indulge in proceedings or otherwise merely on the harassment to save their own ground that such person or a public skins:- servant had made a disclosure or rendered assistance in inquiry under this Act”. It • Discrimination in any is felt that the above provision will take manner, unusually as close care of all aspects including transfer, observation of what one posting, promotion etc. says and does, Organizational stonewalling- not responding to letters, not giving appointment, not inviting for meetings etc. Vindictive tactics to make 72

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one’s work more difficult or insignificant frequent transfers, transfers to posts which do not normally warrant posting of an officer of his seniority, 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 organization becomes difficult and dangerous and such other type of harassment.

• As far as private citizens Clause 11 stipulates that if the Competent blowing whistles the Authority either on the application of the following harassment should complainant or witnesses, or on the basis be mentioned explicitly: of information gathered, is of the opinion that either the complainant or public Threats to the whistleblower and servant or the witnesses or any person family members, misuse of rendering assistance for inquiry under this authority to deny basic civic Act need protection, the Competent facilities, reopening closed or Authority shall issue appropriate directions forgotten cases (The Bill does to the concerned Government authorities not want to act against more (including police) which shall take than 5 year old incidents), necessary steps, through its agencies, to physically attacking, denying protect such complainant or public Police protection when sought. servant or persons concerned. This would 73

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take care of all the problem highlighted.

• The following definition of The definition suggested is based on the Mal-administration given by the suggestion made by the Law Commission Law Commission in its 2001 of India in its 179th report. The Group of Report should be used: Ministers and also the Committee of Secretaries felt that such stringent clauses “Mal-administration’ would hamper smooth functioning of includes any action taken or Government servants. purporting to have been taken or being taken or proposed to be taken in the exercise of administrative or statutory power or discretion,

Where such action is unreasonable, unjust, oppressive or improperly discriminatory;

Where there has been negligence or undue delay in taking such action;

Where there has been reckless, excessive or unauthorized use of power in taking such action;

Where such action amounts to breach of trust;

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 interest in any manner; or

Where such action is outside the authority conferred by law or amounts to violations of systems or procedure",

ENCOURAGEMENT TO WHISTLE BLOWERS:

Whistle blowing is encouraged in This purpose can be achieved by giving all sectors must be emphasized. wide publicity to the Act. 74

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In every public function every public servant. must speak about the need to blow whistle.

All government printed This suggestion can be considered at stationeries (calendars, diaries, appropriate time. advertisements, receipt bills, salary bills etc.) notifications, circulars, orders etc must carry a slogan promoting whistle blowing.

Just like the statutory warning This suggestion can be considered at about the ill effects, of smoking appropriate time. by displaying serious but grotesque pictures, the ill effects of corruption and the need to blow whistle blowing should be made mandatory.

Under any circumstance cash The bill has no provision for giving reward incentives should not be given to whistle blowers. Parliamentary Standing to whistle blowers. However, Committee may take a view on this. losses, if any, incurred must be compensated in full.

• The following observation These provisions are adequately covered made in the Law Commission’s under clause 10(2) of the bill which Report could be used to create provide as under: a provision to enable a whistle blower to inform larger “If any person is being victimized or public: likely to be victimized on the ground that he had filed a complaint or made He reasonably believed that he disclosure or rendered assistance in inquiry would be victimized if he had under this Act, he may file an application raised the matter internally or before the Competent Authority seeking with a prescribed regulator (i.e. redress in the matter, and such authority Competent authority); shall take such action, as deemed fit and may give suitable directions to the There was no prescribed regulator concerned public servant or the public (of if the appointment of the authority, as the case may be, to protect competent authority is not at all such person from being victimized or transparent); and he reasonably avoid his victimization.” believed that evidence was likely to the concealed or destroyed; or 75

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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.

Where such action is outside the authority conferred by law or amounts to violations of systems or procedure.”

Any Government servant can This is outside the purview of the bill. talk or write against evils of corruption just like today he does no evils like Prosecution, Child Labour, Illiteracy, Dowry etc as part of his duties without the need to give prior intimation.

Recognizing the fact that DoP&T is open to suggestion. frivolous and false complaints are prices to be paid for having allowed the Systems to collapse and for not taking action against widespread corruption for a long time, either this clause should be deleted or there should be at least five year moratorium on this clause.

As corruption is a criminal It may be difficult to retrieve old records. activity the 5 year limit should Moreover, the Government will not be be removed as the RTI Act able to store all such old documents allows exposing corruption safely forever. which-happened any time in the past.

Whether identity should be The bill provides for revealing the identity revealed or not should be totally only in exceptional circumstances and that left to the whistleblower with to the head of the department as stipulated the liberty given to the whistle in clause 12. blower to withdraw permission given earlier.

As far as what information can Though the motive of both the whistle be given would be decided as blower bill and the RTI Act is the same, per the Right to Information Act. they are based on different footings. 76

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The same office which drives a Clause 11 stipulates for providing person to seek protection should protection to whistle blower, witnesses never be involved in giving and other persons. protection and protection should be extended to members of the family also.

• The transparent selection of This is beyond the purview of the bill. Competent Authority and members of the Appellate Authority (Tribunal) every step of which is subjected to thorough public scrutiny could be done in the following manner:

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

The credentials and claims of all these applications should be put on the respective Government's website and provision should be made to file comments on-line.

Each of the applicants should be asked to give his response to the comments received by providing documentary evidences wherever needed.

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. 77

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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 State 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.

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. 78

PART-I: COMMENTS AND SUGGESTIONS ON THE SUBJECT

Sl. Name of Comments/suggestions Response of Govt. No. organization/ individual

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1. Memorandum N0.10. Remove the restriction contained Ministry of Defence had suggested that The Resist in Chapter 3, Section 3(1) Armed Forces may be kept out of the Initiative (a-d), which shield Armed purview of the bill. International Forces and Security Forces, as (Dr. Subhash well as intelligence operations Mohapatra), from accountability Executive Director, Pandab Patna, Section 5(3) of the bill stipulate It may be difficult to retrieve old records. Nirakarpur, that the competent authority shall Moreover, the Government will not be Khurda, Orissa, not investigate any disclosure able to store all such old documents Pin-752919 involving an allegation, if the safely forever. Tel. +91 complaint is made after the 6756222221 expiry of five years from the date on which the action complained against is alleged to have taken place. The Resist Initiative International has suggested for removal of this section because it is contrary to the existing practicing under the Criminal Procedure Code and also the recommendations made in the UNHCR's Concluding Observations on India, 1997.

Definition of “Victimization” Clause No.l0 provide for safeguard against should be more specific and victimization. Victimization has been exhaustive. The potential negative clarified as “initiation of any proceedings repercussions of making a Public or otherwise merely on the ground that Interest Disclosure are numerous such person or a public servant had made and varied, ranging from physical a disclosure or rendered assistance in violence to verbal threats and inquiry under this Act", It is felt that the intimidation, to discrimination and above provision will take care of all other mental and emotional aspects ranging from physical violence hardships. to verbal threats and intimidation, to discrimination and other mental and emotional hardships. However, DoP&T is open to suggestions.

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Protection from victimization Clause 11 of the Bill provides for adequate should be more specific and protection to witnesses. exhaustive. The existing Clause 10(2) is vague in its definition of protection, an oversight which may lead to inadequate protection measures. The ideal clause would specify the possible protections available to those who make Public Interest Disclosures, as well as specify that these protections are available to not only the person or persons making the disclosure, but also witnesses, victims, relatives (of the person making the disclosure, of witnesses, or of victims) and/or others who are close to them (persons making the disclosure, witnessees, or victims).

Clause 16, detailing punishment This clause was inserted with a motive for frivolous disclosures ought to discourage harassment of honest public to be removed. This clause servants by making frivolous complaints, represents a clear danger to those inquiry of which would only be a waste making Public Interest of time. Disclosures, and human rights defenders specifically. The Bill does not provide an adequate definition of "frivolous disclosures" which leaves it opens to manipulation. As such, this clause effectively handicaps the entire Bill, dissuading people from making Disclosures for fear of being punished themselves, despite good intentions. The Resist Initiative International adjures the Government to remove this clause entirely and strike from the Bill any provisions for prosecution of those who make public interest disclosures.

2. Memorandum No.ll. There should be numerous This particular bill was preceded by a Shri Krishna H Rao Competent Authority. Preferably Bill which was drafted by the Law 80

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12 Shiv Krupa, one in each Department. The Commission of India in 2002. That Bill Kulupwadi Road, CVC/State Vigilance Commission became the basic pattern on which this Mumbai- 400066 may not be able to handle large bill has come up. Even in that Bill, the Contact- 022 288 number of complaints effectively. proposal was that the CVC would be the 60814 competent authority and there was no proposal for numerous competent authority.

There should be provisions for The bill has no provision for giving reward cash rewards. to whistle blowers. Parliamentary Standing Committee may take a view on this.

Persons making complaints to On promulgation of this act, there may other forums including the be no need for whistleblowers to make concerned Departments heads complaints to other forums. Further, it will be left without protection. may not be possible for the Government to protect all whistleblowers who themselves reveal their identity to other forums.

The term "Complainant" should The Parliamentary Standing Committee not be used as it shows narrow may take a view on this. thinking and prejudice against such a person.

There should be no penalties and -do- imprisonment to complainants.

Names of the whistle blower The bill provides for revealing the identity should not be revealed even to only in exceptional circumstances and that the head of Government too only to the head of the department Departments. as stipulated in clause 12.

By seeking to make the identity Clause 15 of the Bill provides for of the whistleblower a secret, imprisonment for a term upto 3 years the Bill inadvertently creates and also fine upto fifty thousand rupees conditions wherein anybody with for revealing identity of complainants. that privileged information (especially employees of CVC/ SVC) may gain crores of rupees by betraying his identity to interest parties. Thus, the bill perversely endangers the whistleblowers and sets the stage for various kinds of attacks and retributions. 81

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There should be specific The CBI is being strengthened and mechanism for moving trails on additional Special Courts are being set- fast tracks up.

The Police force and armed Ministry of Defence had suggested that forces should be included in the Armed Forces may be kept out of the ambit of the bill. purview of the bill.

The term whistle blower should DoP&T is open to suggestions. be used.

The action taken by the On the basis of the recommendation of Competent Authority should be the ARC, DoP&T has already issued a put in public domain. circular requesting all Ministries/ Departments to publicize cases which have reached finality both in regard to conviction and major penalties of dismissal, removal from service and compulsory retirement.

3. Memorandum No.12 Shri Dubey has cited his own Under the present “whistleblower” Shri MP Dubey, case where he has mentioned Resolution, the direction of the CVC is Joint Director and that though CVC has rendered not binding upon the administrative Officer in charge all protection, the administrative authority. Clause 10(3) of the Bill STPI - Department is reluctant to protect stipulates that every direction given by Vishkhapatnam- him. the Competent Authority shall be binding 530049 upon the public authority. Mob No. 9000337719

4. Memorandum No. 13 On receiving complaints the This can be considered at the time of Shri Rajinder Competent Authority should give framing the Rules/ Regulations. Kumar Goyal, a complaint number. 109-D, RCF Colony, & nbs The complainant should be This can be debated at the time of Hussainpur-144602 apprised of the development and framing the Rules/ Regulations. Distt. Kapurthala action completed at each stage (Pb) Mob No. so that he may be able to point 9779243039 out the deficiencies.

Even if the accused is acquitted, When the identity of the complainant is the complainant should be kept secret, the question of such clause exempted from being prosecuted does not arise. The Bill discourages for an act of defamation. frivolous complaints, it may not be appropriate to provide such legal clause barring the accused from filing defamation suits. 82

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The time limit as provided in It may be difficult to retrieve old records. Section 5(3) of the Bill should Moreover, the Government will not be be removed. able to store all such old documents safely forever.

The scope of disclosure should The Parliamentary Standing Committee be widened to include complaints may take a view in the matter because relating to illegal acts performed the ambit of the bill will increase by contractors/suppliers directly considerably and CVC may not be able or through their employees and/ to handle complaints on a large scale. or hired persons.

5. Memorandum No.14 In section 2(d)(ii) the word Clause 2(d)(ii) provide as under:– Shri Karthikeyan, “demonstrable” occurring in both “disclosure” means a complaint relating ML places may be deleted and to – willful misuse of power or willful Advocate, Madras suitably replaced with the word misuse of discretion by virtue of which High Court, New “wrongful”. demonstrable loss is caused to the No. 52, Gangai government or demonstrable gain accrues Amman Koil Street, to the public servant. The word vadapalani, ‘demonstrable’ is more appropriate than Chennai- 600026 'wrongful'. The word ‘wrongful’ has a Tel: 9884093836 wider meaning which may make difficult for government servants to work.

In section 3(1) of the act the Clause 3(1) of the bill stipulates as under:– words within brackets “[other than those referred to in clauses Notwithstanding anything contained in (a) to (d) of article 33 of the the provisions of the Official Secrets constitution]” may be deleted. Act, 1923, any public servant [other than those referred to in clauses (a) to (d) of article 33 of the Constitution} or any other person including any nongovernmental organization, may make a public interest disclosure before the Competent Authority: .....

Ministry of Defence had suggested that Armed forces may be kept out of the purview of the Bill.

In section 3(1) of the act the May not be necessary as all citizens are following word may be added eligible to lodge complaints. after the words “non- governmental organization” and before the word “may” “duly registered or recognized by central or state governments”. 83

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In section 3(1) of the act the Ministry of Defence who suggested that “provided and its clauses (a) to Armed forces may be kept out of the (d)” may n be completely deleted. purview of the Bill.

In section 3(3) of the act the Clause 3(3) of the Bill stipulates as under:- word “substantially” may be “Every disclosure shall be made in good deleted and it may be replaced faith and the person making disclosure with the word “reasonably”. shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true.” As the complainant is required to provide evidence, the word substantially may be more appropriate than reasonably.

In section 4(4) of the act in the Clause 4(4) provides that the Competent provided clause at the end after authority can reveal the identity of the the word purpose and before complainant to the head of organization. the full stop the following words In this context it has been suggested that may be added “after giving notice this should be only with the consent of to the public servant who made the complainant. This is a good suggestion the disclosure and after obtaining and the Parliamentary Standing committee his objections if any”. may take a view. DoP&T is open to suggestions.

In section 4(6)(b) of the act It has been suggested that if the complaint after the words “it shall close is closed, the complainant should be the matter” the following words informed accordingly. This suggestion can may be added “and send a copy be take care of while framing the rules/ of the closure report to the regulations. complainant”.

In section 5(3) of the act the Clause 5(3) of the bill stipulate that “the word “five years” may be Competent Authority shall not investigate, deleted and it may be replaced any disclosure involving an allegation, if with the word “seven years”. 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.” It has been suggested that 5 years may be replaced by 7 years. The period provided in the Bill is reasonable as it may not be possible for the Government to retrieve old files and also to store all old records forever.

In section 10(1) of the act after Clause 10(1) of the Bill provide as the word central government and under:– 84

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before the word shall the “The Central Government shall ensure following words may be a that no person or a public servant who inserted “and the state has made a disclosure under this Act is governments”. 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." It has been suggested to include “state governments”. This is not possible as this is a Central legislation providing enabling provision in Section 25 of the Act for adoption by the State Governments.

In section 14 of the act the Clause 14 of the Bill prescribes for a word “two hundred fifty rupees” penalty of Rs.250/- per day for not may be deleted and it may be furnishing comments/explanation/report to replaced with “five hundred the competent authority. It has been rupees”. suggested to increase the penalty to Rs.500/- per day subject to a ceiling of In section 14 of the act the Rs.1,00,000/-. The RTI Act provides for word “five thousand rupees” penalty of Rs.250/- per day and so does may be deleted and it may be this Bill. The Parliamentary Standing replaced with “one lakh rupees”. Committee may take a view in the matter. DoP&T is open to suggestions.

In section 15 of the act the The maximum penalty for revealing word “three years” may be identity of a complainant is 3 years deleted and it may be replaced imprisonment and/or fine of Rs.50,000/-. with “seven years”. It has been suggested to increase this to 7 years and Rs.2 lakhs. The penalty In section 15 of the act the should not be too harsh. The word “fifty thousand rupees” Parliamentary Standing Committee may may be deleted and replaced with take a view in the matter. DoP&T is “two lakh rupees”. open to suggestions.

In section 16 of the act the Clause 16 provide that “Any person who after the section a “Provided makes any disclosure mala-fidely and clause may be added to make knowing that it was incorrect or false or the burden of proof lie on the misleading shall be punishable with prosecution to prove the guilt of imprisonment for a term which may extend the complainant”. up to two years and also to fine which may extend up to thirty thousand rupees”. 85

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It has been suggested that the onus to prove that the complaint is frivolous shall lie with the prosecution and not on the complainant.

The bill empowers the competent authority to take a decision whether the complaint is frivolous or vexatious. Since the competent authority would be an independent body, there may not be any need for inserting such a clause as suggested.

In section 19 of the act the It has been suggested that the option to word “section 15” the following move the High Court may also be available word may be added “or section to the Complainant if he is charged for 16”. lodging frivolous complaint. The Parliamentary Standing Committee may take a view in the matter. DoP&T is open to suggestions.

6. Memorandum No. 15 The Bill does not cover corporate DoP&T is open to suggestions and Dr. R. Stephen sector. modifications in the Bill. However, at this Louie, stage, it may not be possible for the Advocate, CVC to handle complaints of private F-9, I Phase, 1st sector. Floor, Spencer Plaza, Chennai- The proviso to reveal the identity This clause has been inserted after a lot 60002, India of the whistleblower even to the of thought. It was felt that it may Head of the Department should sometimes not be possible for the head be removed. of the department to conduct discreet inquiries in the absence of further clarifications. Hence, this clause was inserted with stiff consequences as in clause 15 of the bill.

The Bill should not have been The Bill was under consideration of the drafted without consulting the Group of Ministers. Now, it is in public people. domain.

7. Memorandum No.16 There should be provision for The bill has no provision for giving reward Shri PM Bhat G-1, reward to whistle-blowers. to whistle blowers. Parliamentary Standing Brigade Retreat, Committee may take a view on this. VV Mohalla, Mysore-570 002 Tele: 570 002 86

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8. Memorandum No. 17 No mala-fides shall be attributed The Bill has provisions penalizing person Shri P. Sreedhara to the person disclosing the making disclosure mala fidely and Babn, Advocate, information pertaining to corrup- knowingly. Removal of penalty would 1-4-169/47, tion/willful misuse of power etc. increase the number of frivolous complaints. Tirumala Enclave, Old Alwal- Provision to adequately Clause 4(7)(v) empowers the competent Secunderabad compensate the loss to the authority to take any other measures not (A.P) Pin-500010 complainant for loss or damage mentioned in clauses (i) to (iv). Hence, it Tel: 9908117418 caused to the person furnishing is open for the competent authority to information. order for suitable compensation, if found necessary.

If the allegations are Action against accused can be taken only substantiated in the preliminary under the extant rules. enquiry the accused should be suspended forthwith.

Provide for time limit to initiate This can be taken care of while framing action. the rules/regulations.

Provide retrospective effect to It may be difficult to retrieve old records. the Bill/Act to enable earlier Moreover, the Government will not be whistleblower to get justice. able to store all such old documents safely forever.

9. Memorandum No. 18, The Bill does not provide any Clause 11 provides for protection which National compaign protection for a private also includes police protection. for people right to whistleblower (e.g. RTI activist) information Shri Aruna Roy & The CVC is not suitable to be Shri Nikhil Dey, the Competent Body under this C-17A, Munirka, Act for the following reasons: New Delhi- Must seek permission to initiate 110 067 enquiries.

• Must seek permission to Clause 10(3) provides that every direction initiate enquiries. of the Competent Authority shall be binding.

• Does not have Politicians are not covered under the ambit jurisdiction over of the Bill. politicians.

• Does not have The question of outsourcing investigation resources, thus will does not arise. The CVC itself will need to outsource conduct discreet inquiries. The strength investigation. of the Commission can be increased if functionally required. 87

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• Only has advisory Clause 10(3) provides that every direction powers and thus cannot of the Competent Authority shall be mandate enforcement of binding. its recommendation.

• Appointment procedure Appointment is transparent as the for a CVC is recommendation is made by a committee nontransparent, and as comprising of the Prime Minister, Home seen from the current Minister and Leader of the Opposition. controversy over Mr. Thomas appoint- ment, may also lack moral authority.

• There are no provisions The Annual Report of the CVC is laid on for transparency and the Table of both Houses of the accountability of the Parliament and it is also studied by the CVC in the CVC act, Departmental Standing Committee. or for the Competent Authority in this Act.

Involving the HoD in This clause has been inserted after a lot investigation of complaints will of thought. It was felt that it may compromise both the integrity sometimes not be possible for the head of the investigation and safety of the department to conduct discreet of the whistleblower. inquiries in the absence of further clarifications. Hence, this clause was inserted with stiff consequences as in clause 15 of the Bill.

Armed forces, intelligence Ministry of Defence had suggested that agencies and institutions Armed Forces may be kept out of the substantially funded by the purview of the Bill. government are not included in scope.

Permissible disclosure is DoP&T is open to suggestions. narrowly defined with potential for gaps in coverage of maladministration, public safety and environmental issues.

Further matter older than 5 years It may be difficult to retrieve old records. are out of scope. Moreover, the Government will not be able to store all such old documents safely forever. 88

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The provision of imprisonment This clause was inserted with a motive of complainant for disclosures to discourage frivolous complaints, inquiry deemed mala fide is susceptible of which would only be a waste of time. to misuse and may be used to DoP&T is, however, open to discourage potential whistle- modifications. blowers.

Lack of timeline for investigation This can be taken care of while framing may be used to shield corrupt the Rules/Regulations. public servants. Further long drawn investigation will render whistleblower protection (if needed) irrelevant.

Exemptions from disclosure Clause 7(1) of the Bill provide for granted under Section 7(1) on exemption from disclosure documents or the basis of mere certification information which is likely to prejudicially by a GoI or state secretary can affect the interest of the sovereignty and be misused to thwart integrity of the nation etc. It is absolutely investigation; adequate safeguards necessary to provide such exemption as are required. the country cannot be put to a stake.

The Competent Authority must Certain clauses were inserted with a act on all complaints supported motive to discourage frivolous complaints, with credible information inquiry of which would only be a waste regardless whether or not identity of time. of complainant is disclosed.

The burden of proof to prove Clause 16 provide that “Any person who victimization is on the makes any disclosure mala-fidely and whistleblower versus international knowing that it was incorrect or false or best practices where the onus is misleading shall be punishable with on the supervisor to show imprisonment for a term which may extend legitimate rationale for negative up to two years and also to fine which action taken. may extend up to thirty thousand rupees”.

It has been suggested that the onus to prove that the complaint is frivolous shall lie with the accused person and not on the complainant.

The bill empowers the competent authority to take a decision whether the complaint is frivolous or vexatious. Since the competent authority is an independent body, there may not be any need for inserting such a clause as suggested. 89

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Bill must provide protection for All citizens can lodge complaints and are two types of whistleblowers: protected accordingly. citizen and institutional (government) whistleblower.

Competent Authorities must be DoP&T is open to suggestions. designated at each level for decentralized administration to ensure protection for whistleblowers as well as accountability of state officials at all levels.

Appellate/oversight body must be There is no provision in the Bill for independent, have a time period appellate/oversight authority. to decide matters, have adequate power and resources, and subject to transparent appointments and functioning.

In case of grievous hurt to the There is no provision in the Bill for special whistleblower, a special task task force etc. force under the Competent Authority will investigate issues being probed by the whistle- blower.

The appellate/oversight body will There is no provision in the Bill for primarily be responsible for appellate/oversight authority. protection of whistleblower; will have oversight of investigation under existing statutes and organizations but will not take over all investigative functions.

Whistleblower must be provided This can be taken care of while framing an opportunity for rebuttal in the rules/regulations. case a complaint is closed based on preliminary investigation.

10. Memorandum No.19 The Bill penalizes frivolous and This clause was inserted with a motive PRS Legislative vexatious complaints. to discourage frivolous complaints, inquiry Research of which would be a waste of time.

The Competent Authority may This clause has been inserted after a lot disclose the identity to the Head of thought. It was felt that it may of the Department if it becomes sometimes not be possible for the head necessary to do so. of the department to conduct discreet 90

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inquiries in the absence of further clarifications. Hence, this clause was inserted with stiff consequences as in clause 15 of the bill.

The Bill needs to create a It is because of this that penalty has mechanism that enables been proposed for frivolous complaints. complaints against corrupt officials but deters the use of this facility to harass honest officials.

The Competent Authority has Clause 10(3) of the Bill stipulates that only recommendatory powers. every direction given by the Competent Authority shall be binding upon the public authority.

Victimization has not been Clause No.l0 provide for safeguard against defined. victimization. Victimization has been clarified as “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”.

No time limit has been DoP&T is open to suggestions. However, prescribed for discreet inquiry. timeframe can be incorporated in the rules/regulations.

Corporate whistleblowers are not DoP&T is open to suggestion and covered in the Bill. modifications in the Bill. However, at this stage, it may not be possible for the CVC to handle complaints of private sector.

No penalty has been prescribed Though the Bill has no penal provision for victimization. for victimization it provides adequate powers the Competent authority to impose penalty on such officers. 91

COMMENTS AND SUGGESTIONS ON THE SUBJECT

Sl. Name of Comments/suggestions Response of Govt. No. organization/ individual

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1. Memorandum No. 20. Incorporate mal-administration The term “mal-administration” was used Dr. K.C. Sunny, also as a ground for making and defined in the Bill suggested by the Professor & Head, disclosure. Law Commission of India in its 179th Department of report. The Group of Ministers (GoM) Law, University of and also the Committee of Secretaries Kerala, (CoS) felt that such stringent clauses Thiruvananthapuram. would hamper smooth functioning of Government servants. Hence, the present grounds enunciated in the Bill would suffice.

The bill does not cover acts of DoP&T is open to suggestion. public servants which cause harm to public safety, health and environment.

Private Sector and non- At this stage, it may not be possible for governmental organizations the CVC to handle complaints of private should be brought within the sector. scope of the Bill.

Ministers should be included. It was felt that Ministers may be left out for the present.

The applicability of the Bill The Bill extends to whole of India except should be extended to the whole the State of Jammu & Kashmir. All of India and also to the officials government officials are covered in the from India working in foreign Bill whether working in India or abroad, countries. in connection with the affairs of the Government.

The competent authority should There is only one Competent Authority have a representation also from i.e. CVC. Under the existing Act, this is the Judiciary. not possible.

Identity of the whistle blower The suggestion is perhaps based on the should not be disclosed to the Proviso of clause 4. This clause has head of the department. been inserted after a lot of thought. It was felt that it may sometimes not be possible for the head of the department

91 92

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to conduct discreet inquiries in the absence of full details/further clarifications. Hence, this clause was inserted with stiff consequences as in clause 15 of the bill. Time-limit may be provided for This can be taken care of while framing investigation. the rules/regulations.

The time limit of 5 years for It may be difficult to retrieve old records. lodging of complaints should be Moreover, the Government will not be removed. able to store all such old documents safely forever.

Production of documentary Supporting documents may be necessary evidence at the time of lodging to carry out investigation and also to of complaints may be done away ensure that the complaint is not frivolous. with. However, DoP&T is open to suggestions.

There should be no punishment This clause was inserted with a motive for vexatious complaints. to discourage frivolous complaints, inquiry of which would only be a waste of time. However, DoP&T is open to suggestions.

2. Memorandum No.21. Include NGOs that receive DoP&T is open to suggestions. However, RAKSHAK, government funds within the at this stage, it may not be possible for 2784 Homestead scope of the Bill. the CVC to handle complaints of NGOs/ Rd, # 235, Santa private sector. Clara, California, USA - 95051 Include RTI activists as an The bill authorizes all citizens to make admissible class of potential complaints. There may not be any ground complainants. for categorizing whistle blowers.

Extend protection in this Bill to Clause 11 stipulates for providing RTI activists as well. protection to all whistle-blower, witnesses and other persons. There may not be any ground for categorizing whistle blowers.

The CVC should set up multiple This particular bill was preceded by a points of disclosure so as to Bill which was drafted by the Law allow much greater access to Commission of India in 2002. That Bill the public, especially to victims became the basic pattern on which this in rural areas, who may be bill has come up. Even in that Bill, the uneducated or even illiterate. proposal was that the CVC would be the competent authority and there was no proposal for numerous competent authorities. 93

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Investigations should be free Since the competent authority is an from manipulation or undue independent body and will directly influence. supervise the investigation, the question of manipulation or undue influence may be not arise.

There should be time limit for The Bill does not provide for any time investigation. frame to complete enquiry and decide the complaint. However, if deemed necessary the same can be provided in the Rules/Regulations. It may not be appropriate to provide time-frame in the Bill because we may have to also spelt out what action has to be taken if the same is not complied within the time- frame.

CVC should have investigative It can be considered at a later stage functions, particularly for while prescribing detailed rules and complaints involving police or procedure for handling such complaints. CBI personnel.

Provision should be made for It can be considered at a later stage complainants to track the status while prescribing detailed rules and of their complaints by means of procedure for handling such complaints. internet.

Increase period of imprisonment Clause 16 provides for imprisonment for and fine for false, frivolous and a term up to two years and also to fine vexatious complaints. up to thirty thousand rupees. This is adequate for discouraging false, frivolous and vexatious complaints.

Include punishment also for This may be a difficult proposition in the persons who cause frivolous present circumstances. The person who complaints. causes frivolous complaints can be penalized only if there is substantial evidence.

Double the penalties and make them compulsory in case of a deliberate pattern of false complaints designed to destroy someone’s career or intentionally clog the system. 94

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3.Memorandum No. 22. Consent of the whistleblower The bill provides for revealing the identity Shri Venkatesh should be obtained before only in exceptional circumstances and that Nayak, revealing his/her identity to any too only to the Head of the Department Commonwealth authority. as stipulated in Clause 12. Human Rights Initiative (CHRI) Retaliatory action against the Clause No.10 provide for safeguard B-117, First floor, whistle-blower should be against victimization. Victimization has Sarvodaya Enclave, identified. been clarified as “initiation of any New Delhi - proceedings or otherwise merely on the 110 017. The Bill should have specific ground that such person or a public remedies in cases of servant had made a disclosure or rendered victimization. assistance in inquiry under this Act”. It is felt that the above provision will take care of all- aspects ranging from physical violence to verbal threats and intimidation, to discrimination and other mental and emotional hardships.

Only a limited number of DoP&T is open to suggestions. categories of wrongful actions are recognized by the whistleblower Bill. Human rights violations, actions causing loss to the taxpayer and unlawful actions have been left out.

Ministers have not been included. It was felt that Ministers may be left out for the present.

Non-governmental/private/social At this stage, it may not be possible for sectors not covered. the CVC to handle complaints of private sector.

Members of armed forces left Ministry of Defence had suggested that out from the purview of the Armed Forces may be kept out of the Bill. purview of the bill.

The Bill does not contain a list Clause 10(1) of the Bill provide as under:– of actions that are indicative of “The Central Government shall ensure the victimization of the whistle- that no person or a public servant who blower. 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.” 95

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There is no reference in the Bill DoP&T is open to suggestions. to a bar on filing of defamations suits against whistleblowers.

There is no clear provision The bill authorizes all citizens to make guaranteeing protection for complaints. There may be no ground for journalistic sources. categorizing whistle-blowers.

The Bill does not require public There may be no scope for creating authorities to create internal internal procedure as the competent procedure for whistle-blowing. authority will be. looking into all issues.

The Bill does not require the Though the bill does not require the Competent Authority to provide competent authority to provide guidance guidance to potential to potential whistle blowers, the bill does whistleblowers. allow the competent authority to ascertain the identity of the complainant.[Clause 4(1)(a)]. This clause gives power to interact with the whistle blower and the competent, authority may guide potential whistle blowers, if found necessary .

The public authorities are not There may be no scope for creating required to create special internal procedure as the competent mechanism for investigating authority will be looking into all such disclosures. Issues.

There is no obligation on the This can be provided in the rules/ Competent Authority to inform regulations if deemed appropriate. the whistleblower of the progress made in the investigation or provide him with a final report.

The bill does not empower the Clause 10 provides for safeguard against Competent Authority to pass victimizations of whistle blowers. Every orders in relation to victimization direction of the competent authority is of the whistleblower. binding.

The Bill does not contain any Clause 4(7)(v) empowers the competent provision under which the authority to take any other measures not whistleblower may seek damages mentioned in clauses (i) to (iv) of this or compensation for being clause. Hence, it is open for the victimized. competent authority to order for suitable compensation, if found necessary.

There is only one Competent This particular Bill was preceded by a Authority. Bill which was drafted by the Law Commission of India in 2002. That Bill 96

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became the basic pattern on which this. Bill has come up. Even in that Bill, the proposal was that the CVC would be the competent authority and there was no proposal for numerous competent authorities.

The Bill is silent on the procedure DoP&T is open to suggestions. for disclosing wrong doing that occur in the office of the Competent Authority.

The Bill is silent on the issue of Clause 10(2) provides that if any person burden of proof regarding is being victimized or likely to be victimization of the victimized he may file an application whistleblower. before the competent authority who shall give suitable direction to the concerned public authority. 97 ANNEXURE-C Our comments Government is of the view that all personnel covering under Article 33(1) should not whistle They blow against each other. can however whistle blow against all other public servants, while other public servants/ persons can blow whistle against them. of Parliamentary Standing Committee The public servants referred to in clauses (a) to (d) of article 33 of the Constitution are exempted under clause 3(l) of the Bill from making a public disclosure, subject to the proviso given therein. What is the justification for such a provision in the Bill? the of or clause (d) QUESTIONNAIRE ON (c) the provisions of in PERSONS MAKING THE DISCLOSURES BILL, 2010 THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO AND PROTECTION DISCLOSURE THE PUBLIC INTEREST Section/Provision in the Bill Observations Provided that any public servant, being a person or member 3 (1) Notwithstanding anything contained the Official, Secrets Act, 1923, any public servant [other than Secrets the Official, those referred to in clauses (a) (d) of article 33 of article 33 the Constitution, may make a public disclosure relate to,— if such disclosure does not, directly or indirectly, Armed Force or any matter relating to (a) the members of Armed forces; or (b) the members of Forces charged with maintenance public order or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence or any matter relating to such bureau other organisation; (d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Constitution] or any other person including non-governmental organisation, may make a public interest disclosure before the ‘competent Authority: referred to in clause (a) or (b) 1. 12 34 No. Para 98 This could be considered while drafting the Rules or Guidelines Act. under the There is no statutory time limit in the Bill for following: (i) for conducting the discreet inquiry; or (ii) for inquiry by the head of the organization/office; or (iii) for acting upon the recommendations made by the Competent Authority envisaged in clauses 4(2), 4(6) and 4(7), of the Bill. respectively, Comments of the Ministry on these provisions including justification therefore may be furnished. Force, bureau or organisation referred to in clauses (a) (c) any matter relating to such telecommunication system, bureau or organisation. Authority shall, upon receipt of the complaint The Competent 4 (2) and concealing the identity of complainant, or public in such servant in the first instance, make discreet inquiry, manner as may be prescribed, to ascertain whether there is any basis for proceeding further to investigate the disclosure. is if after conducting an inquiry, Authority, The Competent 4 (6) of the opinion that (a) the facts and allegations contained in disclosure are frivolous or vexatious; (b) there are no sufficient grounds for proceeding with the it shall close the matter. inquiry, After receipt of the comments or explanations report 4 (7) Authority is of referred to in sub-section (3), if the Competent the opinion that such comments or explanations report reveals either wilful misuse of power or discretion substantiates allegations of corruption, it shall recommend to the public authority to take anyone or more of the following measures, namely: (i) initiating proceedings against the concerned public servant; (ii) taking appropriate administrative steps for redressing the loss caused to the Government as a result of corrupt practice or misuse of office or discretion, as the case may be; (iii) recommend to the appropriate authority or agency for initiation 2. 12 34 99 DOPT is open to suggestion. this has to be However, considered keeping in view the instructions contained in Appendix-13 of the GFR, 2005 relating to destruction of office records connected with accounts Annexure-I) (copy enclosed as This is an exceptional clause, where the Rules/Guidelines/ Legislation provide for exercising of discretionary powers. If the Committee agrees, whistle blower may be informed of the final outcome the procedure However, inquiry. could be incorporated in the action or discretion bonafide exercised in discharge of duty by the employee’, from purview of this statute might be grossly misused. What safeguards need to be provided to prevent the same and what are the possible fallouts of this clause, if such exemption is not provided? Bill does not provide for informing the complainant:– it (a) if, after discreet enquiry, is ascertained that there no What is the reasoning behind providing a time limit of 5 years in clause 5 (3) of the Bill?; What shall be the situation where action complained has linkage more than 5 years; Does this provision not seriously limit the scope of the competent authority? The exemption given under clause 5(4) of the Bill, for any ‘ discretion (including administrative question, in any inquiry under this Act, question, in any inquiry under this bonafide action or bonafide or statutory discretion) exercised in discharge of duty by the employee. of criminal proceedings under the relevant laws for time being in force, if so warranted by the facts and circumstances of the case; (iv) recommend for taking of corrective measures; (v) take any other measures not falling under clauses (i) to (iv) Act. which may be necessary for the purpose of this Authority shall not investigate, any disclosure The Competent 5 (3) involving an allegation, if the complaint is made after expiry of five years from the date on which action complained against is alleged to have taken place. Act shall be construed as empowering the 5(4) Nothing in this Competent Authority to any 3. 4. 5. 100 Rules, Guidelines to be issued Act. under the Authority who The Public benefits from the whistle blower would be encouraged to provide non-monetary incentives to the whistle blower under the policy guidelines to be issued subsequently. basis for proceeding further to investigate the disclosure; or (b) if, after conducting an Authority the Competent inquiry, is of the opinion that matter shall be closed. Has the Ministry looked at feasibility of giving incentive(s) to the complainant, if complaint is proved true. If so, furnish the details and logic behind not including such a provision in the Bill. 6. 12 34 101 Under clause 14 it is the Authority which will Competent impose penalty on public authority for filing partial, vague or misleading report, whereas clause 16 is an offence and the complainant will be tried by the competent court for the said offence where he will get opportunity as per CrPC. The direction of the competent authority under clause 10(2) is binding on the public authority as per clause 10(3). The competent authority does not have original jurisdiction in the sense of High Court or Tribunal who can take contempt of their orders. Even the Central Information Commission is not vested with power of contempt etc. So, there is no need to make additional provision in the While the proviso to clause 14 of the Bill mandates giving an opportunity of being heard to the concerned organization or official before imposing penalty for certain offences, clause 16 does not envisage such an opportunity to the complainant in case of punishment for false or frivolous disclosure. What is the justification for this differential dispensation in two alike situations? Clause 10(3) of the Bill provides that every direction given under clause 10(1) by the Competent Authority shall be binding upon the public servant/public authority against whom the allegation of victimisation has There is, however, been proved. no provision in the Bill, for ensuring enforcement of these directions. What are the comments of the Ministry in this and mala fidely refused to submit mala fidely binding upon the public servant or Provided that no penalty shall be imposed against any person knowingly that it was incorrect or false misleading shall be punishable with imprisonment for a term which may extend up to two years and also tine which may extend up thirty thousand rupees. 10 (2) If any person is being victimised or likely to be victimiscd on the ground that he had filed a complaint or made disclosure Act, he may file an or rendered assistance in inquiry under this Authority seeking redress in the application before the Competent and such authority shall take action, as deemed fit matter, and may give suitable directions to the concerned public servant as the case may be, to protect such or the public authority, person from being victimised or avoid his victimisation. 10 (3) Every direction given under sub-section (1) by the Authority shall be Competent the public authority against whom allegation of victimisation has been proved. the report or knowinsly given incomplete, incorrect misleading or false report destroyed record information which was the subject of disclosure or obstructed in any manner furnishing the report, it shall impose a penalty which may extend to two hundred fifty rupees for each day till report is furnished, the total amount of such penalty shall not exceed so, however, fifty thousand rupees: unless he has been given an opportunity of being heard. Any person who makes any disclosure 16. 14 Where the Competent Authority, at the time of examining Authority, Where the Competent 14 report or explanations referred to in sub-section (3) of section 4 on the complaint submitted by organisations or officials concerned, is of the opinion that organisations or officials concerned, without any reasonable cause, has not furnished the report within the specified time or 7. 8. 102 Bill for ensuring enforcement of this direction which would only mean repetition of the provision of Clause 10(2). The present Bill includes both the internal whistle blower and also the external whistle blower. Action taken by the public authority on the basis of recommendation/direction made Authority is by the Competent not confidential. The jurisdiction of the Bill is co-terminus with the present jurisdiction of the CVC. Government banks, insurance regard? while Whether the Ministry, introducing this Bill, also considered the need for an internal whistle blower mechanism in the Government organizations; What is the opinion of the Ministry on same? What are the expectations of the Ministry from such an internal mechanism and how it would be compatible with the mechanism proposed under the Bill? Whether the action taken by Authority in pursuance of Public the recommendation(s) made by Authority will be the Competent kept confidential or whether the same can be made public; What is the considered view of Ministry and how the same. has been reflected in the Bill? What is the justification/rationale behind not including the private organizations/companies/trusts etc. within the ambit of ‘public (A) the Central Government or any corporation established by 2. (i) “public servant” means any employee of – Act any Government companies, Societies or under any Central 9. 12 34 11. 10. 103 companies and public sector undertakings are covered but not the private sector firms. The Bill is about protection of whistle blower and if the identity of the whistle blower is not known then how he would be protected. This Bill is not about handling of general complaints or public grievances for which separate mechanism already exist. A mechanism shall be provided under the Rules/Guidelines. servant’ as defined under clause 2(i) of the Bill; what is status of banks and companies where Government provides some financial assistance and exercise control through Government nominees? As per the provisions of Bill, each and every complaint is required to be enquired into The Authority. by the Competent not very position is, however, clear with regard to entertaining the anonymous complaints. Since one of the main objectives the Bill is to protect complainant, anonymous complaints, if they sufficiently substantiate and corroborate through documentary evidence the wrongful act by a public servant, there should be no objection in taking cognizance of such anonymous complaints. What is the considered stand of Government with regard to the handling of anonymous complaints in so far as this Bill is concerned? Keeping the identity of complainant confidential is not (B) the State Government or any corporation established by or local authorities owned controlled by the Central Government and such other categories of employees as may be notified by the Central government, from time to time, in Official Gazette; Act, Government companies, Societies or or under any State local authorities owned or controlled by the State Government and such other categories of employees as may be notified by the State Government, from time to time, in Official Gazette. 12. 13. 104 The recommendation under Clause 4(7) cannot be made binding lest it will give over- riding power to the Competent Authority over the entire Executive. easy when the Bill provides for disclosing the same to Head of Organisation to which the complaint relates. Maintaining confidentiality within the CVC is also a responsible job. In such scenario, to what extent Government sees, keeping secret the name of complainant/ entertaining anonymous complaints a way out? The Bill does not provide for consequences if the public authority does not comply with the recommendations of Authority in terms of Competent clause 4(7) of the Bill; what consequences are foreseen in such a situation and should the Bill not provide a way out for the same so that stalemate does not persist? 4 (7) After receipt of the comments or explanations report 4 (7) Authority is of the referred to in sub-section (3), if the Competent opinion that such comments or explanations report reveals either wilful misuse of power or discretion substantiates allegations of corruption, it shall recommend to the public authority to take anyone or more of the following measures, namely:– (i) initiating proceedings against the concerned public servant; (ii) taking appropriate administrative steps for redressing the loss caused to the Government as a result of corrupt practice or misuse of office or discretion, as the case may be; (iii) recommend to the appropriate authqrity or agency for initiation of criminal proceedings under the relevant laws for time being in force, if so warranted by the facts and circumstances of the case; (iv) recommend for taking of corrective measures; (v) take any other measures not falling under clauses (i) to (iv) Act. which may be necessary for the purpose of this 12 34 14. 105 DOPT is open to suggestion It will be taken care of at the time of framing Guidelines/ Act. Rules under the The Bill provides for punishment of upto 2 years or fine thirty thousand in case the disclosure is found to be false or frivolous. These provisions appear to be demotivating for the complainant to come forward for pointing out irregularities by it not be Would public servants. appropriate if these provisions of the Bill are recast so as to ensure that the penalty clause is invoked only in those cases where the complainant's action is patently wrong and cases of genuine mistake are not covered for imposition of penal action. The Bill is silent about the format of complaint. Can Government consider some guidelines for the same so that the complaints are more focused and convenient to act upon; should there not be some provision to guide the complainant, if they so desire, before submitting the complaint so as to avoid wasteful exercise as different points? 15. 16. ANNEXURE-D

COMMENTS FURNISHED BY THE CENTRAL VIGILANCE COMMISSION ON THE BILL

Clause For Read Reasons No.

Clause 2 (d)(ii), line Accrues to the public Accrues to the public Wrongful gain to any third 19 servent servant/any person party also to be taken care of.

Clause 2(i) (A), line “Public servant” means an “Public servant” means Too many definitions of Public 35 employee of- any person as defined Servant such as in IPC and in Sec. 2(c) of the PC PC Act is likely to cause Act 1988 (Chapter 1) confusion. The comprehensive definition of Public Servant given in PC Act may be adopted for the purposes of this legislation.

Clause 5 (4), line The words “Bonafide Since bonafide act includes 10 discretion (including any bonafide discretionary act administrative or statutory powers these words are discretion)” to deleted superfluous and may be omitted.

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