Blow the lid off

On May 9, President Pranab Mukherjee signed the Whistleblowers Protection Bill, 2011 into an Act. The Rajya Sabha cleared the Bill on February 21, 2014, more than two years after the Lok Sabha cleared it. Interestingly, in these two years, the Bill saw no amendments at all. And the delay in passing the Bill clearly exposes the lack of political will towards pursuing such a vital issue.

That said, the Act aims to lay down a mechanism to tackle complaints on corruption and misuse of power by public servants and to protect those who make such disclosures. It classifies complaints made by any public servant or any other person as public interest disclosures.

Complaints can be made by an individual, a company or an association or a body of individuals and non-governmental organisations. The disclosure must be in relation to three events — an offence under the Prevention of Corruption Act, 1988 (POCA); any wilful misuse of power or wilful misuse of discretion which results in demonstrable loss to the government or demonstrable wrongful gain to the public servant or any third party; commission of a criminal offence by a public servant.

Even an attempt to commit an offence under POCA or an attempt to commit a criminal offence by a public servant comes under public interest disclosures.

All public interest disclosures are required to be made only before the Competent Authority defined under the Act. Receiving the disclosure, the Authority should discreetly ascertain if there is a prima facie case. If there is a case, it is required to recommend it to the public authority to take measures such as initiating proceedings against the public servant.

Further, the Act attempts to safeguard the complainant against victimisation. The Authority is required to protect the identity of the complainant by ensuring that it is not revealed by the head of the department of the organisation. The person under threat can file an application before the Authority seeking redressal of his/her grievance.

The Authority is empowered to take all necessary steps to protect the complainant. The onus of proving that there is no victimisation of the complainant lies with the public authority.

Despite its good intent, the Act has a few inherent problems. For one, the phrase ‘demonstrable loss to the government or demonstrable gain to the public servant’ has not been defined in the Act. Nor has ‘victimisation’. These leave room for varied interpretation and may be a bone of contention in many instances.

Also, the Act does not offer an appellate mechanism where the public authority does not accept the recommendations of the Competent Authority. It is desirable to have such an appellate mechanism clearly set out in the Act to make the remedies available under the Act wholesome.

It also needs to be seen as to how much restriction would be imposed on the scope of inquiry of the Authority on the ground that the action of the delinquent officer was a bona fide action or on exercise of a bona fide discretion. This may be addressed by framing tightly-worded rules in the Act.

Another concern is the insistence on disclosing the identity of the complainant. The Act does not permit anonymous disclosures and, therefore, the person making the disclosure is required to disclose identity. This requirement needs to be made less stringent and a separate mechanism devised to address anonymous complaints. In the past, several anonymous complaints have helped expose major scams.

The writer is a Partner at Khaitan & Co. The views are personal