The draft of the Whistleblower Act by Human Rights Law Network

The draft of the Whistleblower bill prepared by Jai singh Sekhopuria, of the Human Rights Law Network.

Whistleblowers Bill, 2006 Nature of the Act

 

 

1. Short title This Act may be called as the Whistleblowers Bill, 2006

2. Commencement
Section 1 and this section commence on the day on which this Act receives the assent of the Parliament.

3. Objects of this Act:
The objects of this Act are to:

(a) To fight corruption and thereby encourage honest upright citizens of this nation to come forward and make public interest disclosures.

(b) To support the principle of public interest disclosure and safeguard rights of persons who make public interest disclosures including rights guaranteed under the constitution of India;

(c) Provide a framework within which public interest disclosures will be independently and rigorously dealt with;

(d) Provide a framework within which persons who make a public interest disclosure will be protected.

 

4. Act generally binding
This Act binds all persons inter alia working in or a member of a public, private and semi-private concerns or any other organization. In other words, this act covers every individual(s) who is/are working in a public company, private company, joint venture of a government and a private company, or any other organization. This Act also covers disclosures made against any foreign/international organizations provided that the same is in public interest.

Interpretation
5. Definitions
A company means a company formed and registered under the companies’ act of 1956.

Confidential information means: (a) information about the identity, occupation or whereabouts of a person who has made a public interest disclosure or against whom a public interest disclosure has been made; or
(b) information contained in a public interest disclosure; or
(c) information concerning an individuals personal affairs; or
(d) information that, if disclosed, may cause detriment to a person.

Damages refers either to the harm suffered by a Whistleblower as a result of making the public interest disclosure, or to the money paid or awarded to the Whistleblower in compensation for such harm suffered by him.

Conduct is to be taken to be disclosable if:
(a) it is of a type referred to in subsection (2); and
(b) it would, if proven, constitute:
(i) a criminal offence; or
(ii) an offence relating to public health and safety; or
(iii) an offence relating to environment; or
(iv) an offence relating to public wastage; or
(v) any other offence that is or would be or is likely to be detrimental to public interest.

For the purposes of sub-section (a), the following types of conduct are disclosable:
(a) conduct of a person that adversely affects, or could adversely affect, either directly or indirectly, the honest or impartial performance of official functions by a person;

(b) conduct of a person which amounts to the performance of any of his or her official functions dishonestly or with partiality;

(c) conduct of a person, including a former employee or an agency that amounts to a breach of public trust;

(d) conduct of a public official, a former public official or an agency that amounts to the misuse of information or material acquired in the course of the performance of official functions (whether for the benefit of that person or agency or otherwise);

(e) conduct of a public official of a kind that amounts to mal- administration which is action or inaction of a serious nature that is:
(i) contrary to law; or
(ii)unreasonable, unjust, oppressive or improperly discriminatory; or
(iii) based wholly or partly on improper motives;
(f) a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (e) (inclusive).

A joint venture (often abbreviated JV) is a strategic alliance between two or more parties to undertake economic activity together.

An organization is a formal group of people with one or more shared goals.

Persons mean a human being or a corporation treated as having the rights and obligations of a person.

Private would be something of someone’s own personal importance or something which would affect one’s individual life or right to life.

A private company as defined by the Companies Act, 1956 is a company which has a minimum pad up capial of 1 lakh rupees or a higher amount as fixed by the articles, restricts the right to transfer shares if any, has maximum of 50 members, does not invite the public for any investment in the form of buying the shares or debentures of a company.
Public is of or pertaining to the people; belonging to the people; relating to, or affecting, a nation, state, or community; opposed to private. Public herein also includes the people of a nation not affiliated with the government of that nation.
A public company as defined by the Companies Act, 1956 such a company that is not a private company, has a minimum paid up capital of 5 lakh rupees or more as fixed by the articles, is a private company which is a subsidiary of a company which is not a private company.

A public interest disclosure means a disclosure of information that the person making the disclosure believes on reasonable grounds tends to show:

(a) that another person has engaged, is engaging, or proposes to engage, in disclosable conduct; or

(b) public wastage; or

(c) conduct involving substantial risk to the environment; or

(d) conduct involving substantial risk to public health; or

(e) that a person has engaged, is engaging, or proposes to engage, in an unlawful reprisal;

(f) any other conduct that that is or would be or is likely to be detrimental to public interest.

Public wastage means conduct by a public official that amounts to negligent, incompetent or inefficient management within, or of, an agency resulting, or likely to result, directly or indirectly, in a substantial waste of public funds, other than conduct necessary to give effect to a law of the State.

A semi-private concern is a concern, which is neither completely public nor completely private but has clashing interests of both the organs and its work affects both.

A Tort is a civil wrong for which the remedy is damages or compensation and for which civil proceedings may be carried out.

An unlawful reprisal means a conduct that causes, or threatens to cause, detriment:
(a) to a person directly because a person has made, or may make, a public interest disclosure; or

(b) to a person directly because he or she has resisted attempts by another person to involve him or her in the commission of an offence.

A Whistleblower is a person who makes a public interest disclosure reporting misconduct to the concerned authority as provided by the Act.

Disclosures
6. Public interest disclosure
(1) Any person may make a public interest disclosure to an appropriate authority.
(2) Without limiting the generality of subsection (1), a person may make a public interest disclosure, if he feels:
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed
(3) Such disclosures are to be entertained which if not made would result in mass damage to the public interest.
Provided that:
(4) the disclosures so made should not be out of personal vendetta.
(5) the disclosure of information can be made by an employee of any organization, it may be private or it may be public or could be a joint venture as well, but the disclosure of information should always be in the interest of the public.
Procedure and Reporting
7. Procedure for making Public Interest Disclosure before the appropriate authority:
(1) The State Government may, by notification in Official Gazette, constitute for every State, specified in the notification, an appropriate authority for exercising the powers and discharge the duties conferred on such authorities in relation to public disclosures made by whistleblowers and for the protection of the whistleblower under this Act.
(2) The Authority shall consist of a Chairperson and four other members as the State Government may think fit to appoint, who shall be experts on matters concerning whistleblowers.
(3) The qualifications of the Chairperson and the members, and the tenure for which they may be appointed shall be such as may be prescribed.
(4) The appointment of any member of the Committee may be terminated, after holding inquiry, by the State Government, if-
i. he has been found guilty of misuse of power vested under this Act;
ii. he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
iii. he fails to attend the proceedings of the Committee for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year.
(5) The Committee shall function as a Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class.
Any appeal against the findings of the said authority will be made in the High Court of the Supreme Court and the mater should be heard within three days of filing of the appeal.
(6) For the purpose of Section 7:
(1) Before being nominated as members of the Authority the members including the Chairperson shall fully disclose all their assets.
(2) The Authority shall investigate into the public interest disclosure within 60 days of making the public interest disclosure.
(3) Upon completion, if the appropriate authority finds that the disclosure made is true and correct, the authority shall have the power to immediately provide protection to the whistleblower and the family of the whistle blower.

8. Progress report
(1) A person who makes a public interest disclosure to the Authority may request the Authority to which the disclosure was made or referred to provide a progress report.
(2) Where a request is made under subsection (1), the proper authority to which it is made shall provide a progress report to the person or authority who requested it:
(a) as soon as practicable after receipt of the request; and
(b) if the Authority takes further action with respect to the disclosure after providing a progress report under paragraph (a):
(i) while the authority is taking action—at least once in every 20 days period commencing on the date of provision of the report under paragraph (a); and
(ii) on completion of the action.
(3) A progress report provided under subsection (2) must contain the following particulars with respect to the proper authority that provides the report:
(a) where the authority has declined to act on the public interest disclosure—that it has declined to act and the ground on which it so declined;
(b) where the authority has referred the public interest disclosure to an independent investigating agency—that it has referred the disclosure to an independent investigating agency and the name of the agency to which the disclosure has been referred;
(c) where the authority has accepted the public interest disclosure for investigation—the current status of the investigation;
(d) where the authority has accepted the public interest disclosure for investigation and the investigation is complete—its findings and any action it has taken or proposes to take as a result of its findings.
(4) Nothing in this section prevents the Authority from providing a progress report in accordance with subsection (3) to a person who may make a request under subsection (1).

Protection offered by the Act
9. Protection of Public Interest Disclosure and persons making the Public Interest disclosure:
Liability:
(1) A person is not liable, civilly, criminally or under an administrative process, for making a public interest disclosure.
(2) Without limiting subsection (1)—
(a) in a proceeding for defamation the person has a defence of absolute privilege for publishing the disclosed information; and
(b) if the person would otherwise be required to maintain confidentiality about the disclosed information under an Act, oath, rule of law or practice or policy the person—
(i) does not contravene the Act, oath, rule of law or practice or policy for making the disclosure; and
(ii) is not liable to disciplinary action for making the disclosure.
(3) This section requires that the inquiry is ‘not to be open to public’ and that the ‘names of the persons making the disclosure and of the person(s) named in the disclosure” shall not be disclosed to the public.

(4) Police Protection
The whistleblower and his family shall be entitled to police protection if the disclosure is of such nature that the disclosure may cause or is likely to cause harm to the Whistleblowers life or property.

For the purpose of the above section it is necessary that the police assigned with the abovementioned responsibility shall be officers specifically trained in the issue of whistleblowers. Persons who are experts in the field of whistleblowers will conduct the training.

Provided that prior to assigning the abovementioned task the concerned police officers shall fully disclose their assets to the members of the appropriate authority.

(5) Relocation of employees (1) Subject to sections 10 and 11 this section gives a right to appeal for the relocation of the Whistleblower.

(2) The appeal must be made on the ground that:

(a) it is likely a reprisal will be taken against the Whistleblower if he continues in the existing work location; and
(b) the only practical way to remove or substantially remove the danger is to relocate the Whistleblower.

(3) The appeal may be made to the Authority by the Whistleblower.

Discrimination 10. Discrimination against Whistleblowers Prohibited: –
It shall be unlawful for any person to discharge, demote, suspend, reprimand, or take any other action that in any manner discriminates against any Whistleblower, or to threaten or recommend the discharge, demotion, suspension, reprimand or other any other action that in any manner discriminates against any Whistleblower.
Reprisals
11. Reprisal-unlawful and grounds for reprisal
(1) A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that, anybody has made, or may make, a public interest disclosure.
(2) An attempt to cause detriment includes an attempt to induce a person to cause detriment.
(3) A contravention of subsection (1) is a reprisal or the taking of a reprisal.
(4) A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
(5) For the contravention to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.
11A. Damages entitlement for reprisal
(1) A reprisal is a tort and a person who takes a reprisal is liable in damages to anyone who suffers detriment as a result.
(2) Any appropriate remedy that may be granted by the Auhtority for a tort may be granted by the Auhtority for the taking of a reprisal.

11B. Application for injunction or order
An application for an injunction may be filed either before the District Court or High Court or the Supreme Court:
(a) by a person claiming that he or she is suffering or may suffer detriment from an unlawful reprisal; or
(b) by the Auhtority on behalf of a person referred to in paragraph (a).

Disclosures have to be confidential
12.Confidentiality
(1) the Authority will not willfully disclose to any person, confidential information gained through the Authorities involvement in the administration of this Act.
(2) Subsection (1) does not apply to a member of the Authority who makes a record of, or discloses, confidential information for the purposes of a proceeding in a court or tribunal.

Provided that subject to the conditions laid down in section 20 sub- section 2, if any disclosure is made to any person other than the person making the disclosure, during the investigation carried out in respect to the Public interest Disclosure, the members of the Authority, including the Chairperson shall be criminally liable for breach of (professional code of conduct or trust) and the principle of Strict Liability shall be applicable.

Liability of the persons making the disclosures
13. Limitation of liability
(1) A person is not subject to any liability for making a public interest disclosure or providing any further information in relation to the disclosure to a proper authority investigating it, and no action, claim or demand may be taken or made of or against the person for making the disclosure or providing the further information.
(2) Without limiting subsection (1), a person:
(a) does not commit an offence under a provision of an Act which imposes a duty to maintain confidentiality with respect to a matter; and
(b) does not breach an obligation by way of oath or rule of law or practice requiring him or her to maintain confidentiality with respect to a matter; by reason only that the person has made a public interest disclosure with respect to that matter to a proper authority.
(3) Without limiting subsection (1), in proceedings for defamation there is a defence of absolute privilege in respect of the making of a public interest disclosure, or the provision of further information in relation to a public interest disclosure, to a proper authority.

(4) Liability of person disclosing
A person’s liability for his or her own conduct is not affected by the person’s disclosure of that conduct in a public interest disclosure.