Whistleblower Protection Act 2010

It is officially called 'The Public Interest Disclosure and Protection to Persons making the Disclosure Bill, 2010'.

The Law Commission of India had in its 179th Report, inter-alia, had recommended formulation of a specific legislation 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” also recommended formulation of legislation for providing protection to whistle blowers.

The Government of India had issued a Resolution 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. It was decided by the Government to enact standalone legislation.

The Bill is a standalone legislation to provide-
a) 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; 

b) 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;

c) the procedure to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimisation of the whistler-blower, that is the person making such disclosure;

d) safeguards against victimisation of the person reporting matters regarding the corruption by a public servant;

e) punishment for revealing the identity of a complainant, negligently or malafidely;

f) Punishment for false or frivolous complaints.

Important features of the Bill are:

a) Once this bill becomes law, it would empower the Central Vigilance Commission (CVC) to penalize those who reveal the identity of whistleblowers or threaten them. The penalty under the proposed legislation for the guilty is up to three years of jail and a fine of up to Rs.50, 000.

b) The bill also empowers the Central Vigilance Commission (CVC) to impose a penalty on a public authority - Rs 250 for every day of delay beyond the stipulated deadline - that sits on complaints sent to them for their comments.

c) The commission will have powers of a civil court under this law; appeals against its decisions will lie with the high court.

d) The bill, which has provisions to prevent victimization or disciplinary action against whistleblowers will cover, Central, State and Public Sector Employees.

e) The Bill also proposes that no court can interfere in the case and can have any powers over the decision made by the CVC. It will also be able to take action against anyone, who makes frivolous complaints. It stipulated a two-year jail term and a maximum fine of Rs 30,000 for people who were found to be leveling false and frivolous complaints against officials.

Procedure of Inquiry 

First, the Vigilance Commission has to verify the identity of the complainant, and then conceal his identity (unless the complainant has revealed it to any other authority). Then it shall decide whether the matter needs to be investigated based on the disclosure or after making discreet inquiries. If it decides to investigate, it shall seek an explanation from the head of the concerned organisation. The Vigilance Commission shall not reveal the identity of the complainant to the head of the organisation unless it is of the opinion that it is necessary to do so. The head of the organisation cannot reveal the identity of the complainant.

After conducting the inquiry, if the Vigilance Commission feels that the complaint is frivolous or there is no sufficient ground to proceed, it shall close the matter. If the inquiry substantiates allegation of corruption or misuse of power, it shall recommend certain measures to the public authority (anybody falling within the jurisdiction of the Vigilance Commission). Measures include initiating proceedings against the concerned public servant, taking steps to redress the loss to the government, and recommending criminal proceedings to the appropriate authority.

Every public authority shall create a mechanism to deal with inquiries into disclosures. The mechanism shall be supervised by the Vigilance Commission.  The Vigilance Commission may take the assistance of the Central Bureau of Investigation or police authorities to make inquiries or to obtain information