Whistleblowers Protection Act,
2011
Anjali Bhardwaj & Amrita Johri
National Campaign for Peoples’ Right
to Information
The Whistleblowers Protection Act,
2011
• An Act to provide protection to
whistle blowers and provide
safeguards against their
victimization.
• Alternative mechanism to inquire
into complaints made while invoking
the WBP Act.
Who can make a complaint under the
Act?
• Any public servant
• Any other person
• Any non-governmental organisation
However, no provision for anonymous
complaints.
What can you blow the Whistle about?
• Under this act you can file complaints against public
servants (except judges of SC & HC) relating to the
actual commission or attempt to commit,—
(i) an offence under the Prevention of Corruption Act,
1988;
(ii) wilful misuse of power or wilful misuse of
discretion by virtue of which demonstrable loss is
caused to the Government or demonstrable wrongful
gain accrues to the public servant or to any third
party;
(iii) a criminal offence
Public servant as defined under the PCA
To whom can a complaint be made?
• Complaint in writing or electronically to the designated
competent authority under the Act
–
–
–
–
The PM/CM for Ministers
Chairman/ Speaker of legislature for MPs/MLAs
High Court in relation to any subordinate judge
Central/State Vigilance Commissions/other designated
authority, for employees of Central & State Government
organizations
– Appropriate CA to be designated for Armed Forces/ forces
charged with the maintenance of public order/ any
intelligence organisation or any person connected with the
telecommunication systems for these organisations.
What protection is available?
• Concealment of identity of complainant
• Protection against victimisation of complainant or
anyone who has rendered assistance in inquiry
• Protection (including police protection) for
complainant, witness or anyone who has
rendered assistance in inquiry
• However, imprisonment up to 2 years, and fine
up to thirty thousand rupees, for mala fidely and
knowingly filing incorrect/false/misleading
complaint
Process
Prison and penalty for revealing identity
!
Protection
Complaint
(Identity concealed)
!
Prison & fine
for false
complaint
Directions of
CA
Discreet Enquiry
Victimisation
!
Seek Report from HoD
(CA has powers of civil court)
Penalty up to fifty
thousand for not
furnishing report
Opportunity of
hearing
Directions of
CA
Recommendations to the
public authority
Close the
complaint
!!
Penalty for
noncompliance
Identity Protection for Complainant
• Competent Authority (CA) to conceal identity
• Identity can only be revealed with prior written
permission of complainant (5(4))
• However, identity may be revealed at discretion of
Competent Authority (S 13)
• Seeming inherent contradictions and dangers
• Imprisonment up to 3 years, and fine up to fifty
thousand, for negligent or mala fide revelation of
identity.
Inquiry
• CA may seek assistance of the CBI/ police authorities/
any other authority to carry out inquiries under the Act
• For the purpose of inquiries, CA shall have all the
powers of a civil court:—
– summoning and enforcing the attendance of any person
and examining him on oath;
– requiring discovery and production of any document;
– receiving evidence on affidavits
– requisitioning any public record
– issuing commissions for the examination of witnesses or
documents;
– such other matters as may be prescribed.
Protection against Victimization
• CA to take action and give directions to prevent or avoid
victimisation on receipt of application seeking redress
• Opportunity of hearing to the complainant and the public
authority/servant before issuing directions
• Burden of proof on the public authority
• Directions of CA are binding
• Penalty up to thirty thousand rupees for non compliance
with CA directions
• CA may direct restoration of status quo ante in relation to
public servants
Recommendations to PA
• Recommendations to PA:
– Initiate proceedings against concerned public servant
– Take administrative steps to redress loss caused to
Government;
– Initiate criminal proceedings
– Take corrective measures
– Any other measures
• PA to act on recommendations within 3 months
(max. 6 months) or record reasons in writing for
disagreement
Problems
• No action on complaints made after expiry of
seven years from the date of offence
• Arbitrary exemptions: Provisions of this Act do
not apply to the Special Protection Group (SPG),
Judges of Supreme Court & High Court
• What constitutes victimisation is not
comprehensively defined
• No appeal u/s 20 against penalty imposed on
complainant u/s 17
• CA for PM/CM?
Rules to be prescribed for:
•
•
•
•
Procedure for disclosure
Manner and time-frame for discreet inquiry
Form of annual report of CA
Additional matter in respect of which the CA
may exercise the powers of a Civil Court
• Any other matter which is required to be, or
may be, prescribed.
Competent Authorities
• Government may by notification specify CA for
3(b)(vi) and 3 (b)(vii)