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Govt proposes massive dilution of whistleblower law -Nitin Sethi
-Business Standard

Amendments will bar whistleblowers from disclosing info which govt and its agencies are exempted from providing under RTI Act

The NDA government has proposed to substantially reduce the kind of information the 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, the whistle-blower would no more be able to provide documents and information that are protected under the Officials 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 which the government and its agencies are exempted from providing under the Right To Information Act, 2005. Consequently, a potential whistle-blower would not be able to give any information which could not only impact the sovereignty and integrity of India, the security of the state 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 such information has been accessed through Right To Information Act. This would considerably reduce the space for whistle-blowers blowing the lid of any alleged corporate wrong-doings.

The leaking of information held under a fiduciary capacity, say by a broker or a lawyer or agent by anyone would also not be protected by the law unless the information has been accessed through 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 RTI law.

The cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers would also not be admissible under the law except after the decisions have been taken but only if the documents are not covered by the Officials Secret Act. 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,” Venkatesh Nayak, programme coordinator of Commonwealth Human Rights Initiative.

The central and state governments would be the ultimate arbiter in deciding if the information provided by the whistle-blower falls in to any of the exempt categories of documents and information and there is no time limit given to the process of deciding if the documents fall in the exempt 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, then the central vigilance commission will not be allowed to investigate any further. Nayak added, “Whistle-blower complaints may simply gather dust if the designated officers want to stall the inquiry process endlessly.”

He also said the proposed amendments 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/organization before inquiring into whistle-blower complaints relating to matters falling under the new Section 4(1), which could be a low level official.”