The National Demo-cratic Alliance (NDA) government has proposed to substantially reduce the kind of information whistle-blowers will be able to disclose under the Whistleblowers Protection Act, 2011.
The government has tabled an amendment Bill in the Lok Sabha that reduces the mandate of the law considerably.
If the amendment is passed, a whistle-blower would no longer be able to provide documents and information that are protected under the Official Secrets Act, 1923, putting all classified and secret documents of the government out of reach. The whistle-blower would also not be allowed to disclose any information that the government and its agencies are exempted from providing under the Right To Information Act (OSA), 2005. Consequently, a potential whistle-blower would not be able to give any information that could not only impact the sovereignty and integrity as well as the security of India, but also the strategic, scientific and economic interests of the state.
Information relating to commercial confidence, trade secrets or intellectual property would also be out of bounds unless accessed through the Right To Information Act (RTI). This would considerably reduce the space for those blowing the lid off any alleged corporate wrongdoings.
Leaking of information held under a fiduciary capacity — say by a broker or a lawyer or agent — would also not be protected by the law unless the information has been accessed through the Right To Information Act. Similarly, information that could impede investigations or apprehensions or prosecutions of offenders would also be out of the ambit of the law. Additionally, information that could be termed as “unwarranted invasion of privacy” of an individual, too, would not be covered by the law unless accessed originally through the RTI law.
Cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers, would also not be admissible under the law, except if the decisions have been taken and only if the documents are not covered by the Official Secrets Act (OSA). Most documents pertaining to Cabinet decisions are put under OSA by government functionaries.
“In other words, unless the whistle-blower is able to prove that the information was obtained under the RTI Act, he or she can be punished for attaching such records to his whistle-blower complaint,” said Venkatesh Nayak, programme coordinator of Commonwealth Human Rights Initiative.
The Centre and state governments would be the ultimate arbiter in deciding if the information provided by the whistle-blower falls in any of the exempted categories of documents and information.
There is no time limit to the process of deciding if the documents fall in the exempted category or not. Nobody would be able to challenge this decision of the government. If the government decides that the information is excluded from protection under the law, the central vigilance commission will not be allowed to investigate further.
Nayak added, “Whistle-blower complaints may simply gather dust if the designated officers want to stall the inquiry process endlessly.”
The proposed amendments, he said, could create an absurd situation in case of allegations by whistle-blowers against ministers either in the state or the Centre. “The prime minister is the ‘competent authority’ to launch an inquiry into a whistle-blower complaint against the ministers. Under the amendments, the PM would have to seek clearance from the designated authority of the department/organisation before inquiring into whistle-blower complaints relating to matters falling under the new Section 4(1), which could be a low-level official.”