Whistle
Blowers Protection Act, 2011 (No. 17 of 2014)
Recently, President
Pranab Mukherjee gave assent to the Whistleblowers Protection Bill, 2011, which
was passed by the Rajya Sabha in February. Here are some of its salient
features.
1. Object and
Purpose of the Act
It is an Act to
establish a mechanism to receive complaints relating to disclosure on any
allegation of corruption or wilful misuse of power or wilful misuse of discretion
against any public servant and to inquire or cause an inquiry into such
disclosure and to provide adequate safeguards against victimisation of the
person making such complaint and for matters connected therewith and incidental
thereto.
2. “Disclosure”
means a complaint relating to:
(i) Attempt to
commit or commission of an offence under the Prevention of Corruption Act.
(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) Attempt to
commit or commission of a criminal offence by a public servant.
3. The Identity
of the Complainant must be included in the Complaint or the Disclosure.
4. The Competent
Authority shall conceal the identity of the complainant unless the
complainant himself has revealed his identity to any other office or authority
while making public interest disclosure or in his complaint or otherwise.
5. However,
the Competent Authority may, with the prior written consent of the complainant,
reveal the identity of the complainant to such office or organization where
it becomes necessary to do so. If the complainant does not agree to his name
being revealed, in that case, the complainant shall provide all documentary
evidence in support of is complaint to the Competent Authority.
6. After receipt
of the report or comments relating to the complaint, if the Competent
Authority is of the opinion that such comments or report reveals either wilful
misuse of power or wilful misuse of discretion or substantiates allegations of
corruption, it shall recommend to the public authority to take appropriate
corrective measures such as initiating proceedings against the concerned
public servant or other administrative and corrective steps. However, in case
the public authority does not agree with the recommendation of the Competent
Authority, it shall record the reasons for such disagreement.
7. The Competent
Authority cannot entertain any disclosure relating to any inquiry ordered under
the Public Servants (Inquiries) Act, 1850 and Commissions of Inquiry
Act, 1952.
8. The Time
Limit for making any complaint or disclosure to the Competent Authority is seven
years from the date on which the action complained against is alleged to
have taken place.
9. While dealing
with any such inquiry, the Competent Authority shall have all the powers of
a Civil Court under the Code of Civil Procedure, 1908 in respect of matters
like receiving evidence, issuing commissions, discovery and production of any
document etc. Also, every proceeding before the Competent Authority shall be
deemed to be a judicial proceeding under the Code of Criminal Procedure,
1973 and Indian Penal Code.
10. No
obligation to maintain secrecy or other restrictions upon the disclosure of
information shall be claimed be claimed by any Public Servant in the
proceedings before the Competent Authority. However, all steps must be
taken so as not to reveal or compromise the identity of the complainant.
11. But, no
person is required to furnish any information in the inquiry under this act if
such information is likely to prejudicially affect the interest of the
sovereignty and integrity of India, foreign relations, public order, decency or
morality, proceedings of the Cabinet of the Union or the state.
12. It shall be
the responsibility of the Central Government to ensure that no person who has
made a disclosure is victimised on the ground that such person had made a
disclosure under this act.
13. If any
person is victimised or likely to be victimised on the above-mentioned
ground, he may contact the Competent Authority and the Competent Authority may
pass appropriate directions in this respect. The Competent Authority can
even restore status quo ante with respect to the Public Servant
who has made a disclosure. Also, the Competent Authority can pass directions to
protect such complainant.
14. However, the
Competent Authority can reveal the identity of the complainant in circumstances
where it becomes inevitable or extremely necessary for the purposes of the
enquiry.
15. Any person
who negligently or mala fidely reveals the identity of the
complainant shall be punished with imprisonment up to three years and fine
not exceeding fifty thousand rupees.
16. Similarly
any disclosure made mala fidely and knowingly that it was false or
misleading shall be punished with imprisonment up to two years and fine
not exceeding thirty thousand rupees.
17. If an
offence under this act has been committed by any Head of the Department unless
he proves that the offence was committed without his knowledge or that he
exercised all due diligence in this respect.
18. This Act
extends to all the Companies as well. When any offence under this act has
been committed by a company, every person who at the time of the offence was
responsible for the conduct of the business of the company shall be deemed to
be guilty of the offence unless he proves that the offence was committed
without his knowledge or that he exercised all due diligence in this respect.
19. The High
Court shall be the appellate authority in this respect.
20. The Jurisdiction
of the Civil Court is barred in respect of any matter which the Competent Authority
is empowered to pursue.
21. No court
can take cognizance of any offence under this act save on a complaint made by
the Competent Authority. No court inferior to that of a Chief Metropolitan
Magistrate or a Chief Judicial Magistrate shall try any offence under this act.
22. The Central
Government and the State Government shall have the power to make the
rules under this act, as the case may be.
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