Soon after abrogation of Article 370 a Jammu based newspaper carried a detailed report titled Whistle-blowers in J&K all set to get legal protection against victimisation. The newspaper had reported that anti-corruption movement was all set to get a major boost in Jammu, Kashmir and Ladakh as whistleblowers, who help shed light on corrupt practices by public servants, would get legal protection against any sort of victimisation under the Central Law. The law became applicable in J&K from October 31st 2019, but till date it has not been operationalised. Under the J&K Reorganisation Act 2019 several central laws have been extended to Jammu & Kashmir. The details are shown in the fifth schedule table 1. At serial number 105 there is mention of Whistleblowers Protection Act 2014 having been extended to J&K.
What is whistleblowing?
This is an act of disclosing information by an employee or any other stakeholder about an illegal or unethical conduct within an organisation.A whistle-blower is a person who informs about a person or organisation engaged in such illicit act. In 2001 Law Commission of India with an aim of reducing corruption had given recommendations for legal protection to whistle-blowers. The commission had also prepared a draft bill to address this issue. The Supreme Court of India in 2004 had directed the Government of India to activate the administrative machinery so that it acts on complaints from whistleblowers until a full fledged law was enacted at national level. This order was issued in response to the petition related to infamous murder of a young engineer namely Satyendra Dubey working with National Highways Authority of India (NHAI). Dubey was a whistle-blower who had exposed corruption in the Golden Quadrilateral highway project in Bihar in 2003.
The government, in response to the SC order, had notified a resolution in 2004 named, Public Interest Disclosure and Protection of Informers Resolution (PIDPIR). The resolution gave the Central Vigilance Commission (CVC) the power to act on complaints from whistle-blowers. In 2007, the report of the 2nd Administrative Reforms Commission also recommended that a separate law was needed to be enacted to protect the whistle-blowers in India.
UN convention on corruption
The UN Convention against corruption to which India is a signatory (although not ratified) since 2005, encourages states for facilitating reporting of corruption by public officials and provide protection to the witnesses and experts against retaliation. The Convention also provides safeguards against victimisation of the person making the complaint (whistleblowers). To conform with such regulations, in 2011 Govt of India proposed to enact a law for Whistleblowers Protection which was enacted into a law in 2014. The Companies Act 2013 and Securities and Exchange Bureau of India (SEBI) regulations have made it mandatory for the companies to take notice of all such complaints to give legal protection to whistle-blowers.
Highlights of WBP Act 2014
The Whistleblowers Protection Act (WBP Act 2014) creates a mechanism to receive complaints related to disclosure of allegations of corruption or wilful misuse of power or discretion, against any public servant, and to inquire or cause an inquiry into such disclosure. The law also provides adequate safeguards against victimization of the person making such complaints. It allows any person, including a public servant, to make a public interest disclosure before a Competent Authority. The law has elaborately defined various competent authorities.
Section 3 (b) of WBP Act 2014 defines the Competent Authority. In relation to a Member of the Union Council of Ministers, the Prime Minister is the competent authority. In relation to a Member of Parliament, other than a Minister, the Chairman of the Council of States if such Member is a Member of the Council of States or the Speaker of the House of the People if such Member is a Member of the House of the People, as the case may be is the competent authority. In relation to a Member of the Council of Ministers in a State or Union territory, the Chief Minister of the State or Union territory, as the case may be, is the competent authority.
In relation to a Member of Legislative Council or Legislative Assembly of a State or Union territory, other than a Minister, the Chairman of the Legislative Council if such Member is a Member of the Council or the Speaker of the Legislative Assembly if such Member is a Member of the Assembly, as the case may be is the competent authority.
In relation to any Judge (except a Judge of the Supreme Court or of a High Court) including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; or any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court ) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority, the High Court. The competent authority is defined in detail under section 3 (b) of the act.
The law does not allow anonymous complaints to be made, and clearly states that no action will be taken by a competent authority if the complainant does not establish his/her identity.
The maximum time period for making a complaint is seven years.
Amendment made in 2015
Instead of making the law operational, the Modi Govt in 2015 introduced an amendment bill in parliament. The anti corruption activists called it dilution of the law. They allege that the amendment bill was brought to the Lok Sabha without any public debate or consultation on its contents. The text of the amendment Bill was made public only when it was introduced in the Lok Sabha. The bill was then passed hurriedly, despite demands from several MPs to refer it to a deliberative committee. In the Rajya Sabha, several MPs moved a proposal to have the Bill referred to a select committee, but that was not acceptable to Govt.
The amendment in the WBP Act has removed the clause which safeguards whistleblowers from prosecution under the Official Secrets Act 1923 (OSA) for disclosing information as part of their complaint. The offences under this act (OSA) have been made punishable by imprisonment of up to 14 years. Such kind of changes in the WBP Act would defeat the essence of this legislation and whistleblowers won’t come forward to use this law.
Whistleblowers Protection Act has been operational in Jammu & Kashmir for more than 2 years now but neither any top Govt official has spoken about this law nor has any awareness been made about it. I haven’t even seen a Govt advertisement in the local newspaper or TV. The J&K Anti Corruption Bureau also hasn’t issued any circular on this law that would boost the morale of whistleblowers. On the other hand the whistleblowers continue to be harassed and victimised whether in Govt offices or outside. The names of RTI applicants or any other whistleblowers are revealed by the Govt officers to the people who are involved in corrupt practices. I know many cases wherein people have been physically assaulted or booked in fake cases for such acts. The WBP Act would have been of great help to such persons.
Dr Raja Muzaffar Bhat is an Acumen Fellow.
He is Founder & Chairman of Jammu & Kashmir RTI Movement
Disclaimer: The views and opinions expressed in this article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.