What are Whistle Blower Laws?
Whistle blower laws and other laws that that have provisions for employer retaliation protection are enforced by a number of government agencies. For example, the U.S. Department of Labor (DOL) and its divisions enforce several major laws that directly protect whistle blowers or have provisions to shield employees from retaliation, for reporting violations of the laws, refusing to engage in any action made unlawful by the laws, or participating in any proceedings under the laws. The Corporate and Criminal Fraud Accountability Act is part of the Sarbanes-Oxley Act of 2002, enforced by the Department of Labor. It protects employees of publicly-traded corporations from retaliation for reporting alleged violations of any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. Not only does this landmark Act criminalize employer retaliation, it also requires publicly-traded corporations to create procedures for internal whistle blowing. Additionally, it requires attorneys to become internal whistle blowers. As indicated previously, Federal discrimination (equal employment opportunity) laws also have protection provisions for whistle blowers. For example, if you observe a prohibited discrimination against employees and you report it to the U.S. Equal Employment Opportunity Commission (EEOC), your employer is not allowed to retaliate against you. If your employer retaliates anyway, you may file a discrimination charge with the EEOC, to preserve your right to sue the employer. The Whistleblower Protection Act protects whistle blowers who work for the Federal government, and is enforced by the U.S. Office of Special Counsel (OSC). The Military Whistleblower Protection Act protects whistle blowers in the U.S. military, and isenforced by the Department of Defense Inspector General. For more about whistle blower laws and protection, click the resources in the sidebar listed under Elsewhere on the Web. Federal whistle blower laws mandate only the minimums to which all states must adhere. States are allowed to create their own whistle blower laws, that include or expand upon the minimum protections afforded by the Federal laws. To research your state's whistle blower laws, start with the resources listed in State Labor Law and Employment Law. Alternately or additionally, contact your state's department of labor. Before blowing the whistle, it's a good idea to seek the advice of an attorney in your state, to ensure you are protected by a whistle blower law or a like provision in another law
The Occupational Safety and Health Act (OSH Act) and a number of other laws protect workers against retaliation for complaining to their employers, unions, the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, environmental problems, certain public safety hazards, and certain violations of federal provisions concerning securities fraud, as well as for engaging in other related protected activities. Whistleblowers may not be transferred, denied a raise, have their hours reduced, or be fired or punished in any other way because they have exercised any right afforded to them under one of the laws that protect whistleblowers. Pursuant to most of these laws, discrimination complaints must be filed as soon as possible - within 30 days of the alleged reprisal. OSHA Area Office staff can explain the protections under the whistleblower laws and deadlines for filing complaints. Workers who believe that they have been subject to retaliation for engaging in health and safety actions that are protected under the OSH Act may file complaints with a federal OSHA Area Office representative. In those states operating OSHA-approved State Plan (except those plans covering only public sector employees), private sector employees may file complaints for retaliation with either a federal OSHA Area Office representative or with a State Plan representative. States with OSHAapproved State Plans also protect state and local government employees against retaliation, but in those states, public sector workers can file complaints for retaliation only with State Plan representatives.
COMPLIANCE ASSISTANCE MATERIALS
BASIC INFORMATION Employment Law Guide - Whistleblower Protection - Provides information on whistleblower protection provisions enforced by OSHA. y OSHA Whistleblower Program Web Site - Provides information on rights for employees and representatives of employees under the whistleblower program. y
How to File a Complaint with OSHA - Provides information on the worker complaint process.
APPLICABLE LAWS AND REGULATIONS
Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act) - Provides protection against retaliation based on employee's exercising a variety of rights guaranteed under the OSH Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc. 29 CFR Part 1977 Discrimination Against Employees Exercising Rights under the Williams-Steiger OSH Act Regulations implementing this federal statute designed to regulate employment conditions relating to occupational safety and health. Surface Transportation Assistance Act of 1982 (STAA) - Provides specific safety and health discrimination protections for truck drivers and other employees relating to the safety of commercial motor vehicles. Coverage includes private-sector workers whose work affects the safety of vehicles with a gross vehicle weight rating (or a gross vehicle weight) of 10,001 pounds or more; vehicles designed to transport more than 10 passengers, including the driver; and vehicles transporting materials determined by the U.S. Department of Transportation to be hazardous and to require placarding. 29 CFR Part 1978 Rules for Implementing Section 405 of the Surface Transportation Assistance Act of 1982 - Provides regulatory information on employee protection from discrimination when the employee has engaged in a protected activity pertaining to commercial motor vehicle safety and health matters. Asbestos Hazard Emergency Response Act of 1986 (AHERA) - Provides employee protection against retaliation for reporting violations of environmental laws relating to asbestos in elementary and secondary school systems, whether public or non-profit private. International Safety Container Act of 1977 (ISCA) - Provides specific protection for employees against retaliation for reporting the existence of unsafe shipping containers. Energy Reorganization Act of 1978 (ERA) - Provides occupational safety and health discrimination protections for employees of operators, applicants, contractors, and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission and for employees of contractors working under contract with the U.S. Department of Energy (so-called GOCO sites). Clean Air Act of 1977 (CAA) - Provides discrimination protection and provides for the development and enforcement of standards regarding air quality and air pollution. Employees are protected from retaliation for reporting violations, or alleged violations, of the standards. Safe Drinking Water Act of 1974 (SDWA) - Requires that all drinking water systems in public buildings and new construction of all types be lead free. Employees are protected from retaliation for reporting violations, or alleged violations, of the law. Federal Water Pollution Control Act of 1972 (FWPCA) - Also called the "Clean Water Act," basically prohibits any and all hazardous pollution of waters that provide a natural habitat for living things. Persons reporting such pollution, or alleged polution, are protected from discrimination. Toxic Substances Control Act (TSCA),15 USC § 2622 - Regulates the manufacture, distribution, and use of certain toxic substances. Employees are protected from retaliation for reporting violations, or alleged violations, of the Act. Solid Waste Disposal Act of 1976 (SWDA) - Also called the Resource Conservation and Recovery Act (RCRA), provides technical and financial assistance for the development of facilities for the recovery of energy and other resources from discarded materials and to regulate the management of hazardous waste. Employees are protected from discrimination for exercising certain rights under the Acts. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) Provides for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and for the cleanup of inactive hazardous waste disposal sites. Employees are protected from discrimination for exercising certain rights under the Acts. Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) - Provides antidiscrimination coverage to employees of air carriers, contractors, or subcontractors of air carriers who raise safety concerns. 29 CFR 1979 Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century Provides information on
employee protection from discrimination by air carriers or contractors or subcontractors of air carriers because the employee has engaged in protected activity pertaining to a violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of federal law relating to air carrier safety. Corporate and Criminal Fraud Accountability Act of 2002 (CCFA) (Sarbanes-Oxley Act) - Provides antidiscrimination protection to employees of publicly traded corporations who report violations of the Securities Exchange Act or any other federal law relating to fraud against shareholders. 29 CFR Part 1980 Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 Provides information on employee protection from discrimination by companies and representatives of companies because the employee has engaged in protected activity pertaining to a violation or alleged violation of any rule or regulation of the Securities and Exchange Commission, or any provision of federal law relating to fraud against shareholders. Pipeline Safety Improvement Act (PSIA), 49 USC § 60129 - Provides discrimination protection for employees who report violations, or alleged violations, of federal law regarding pipeline safety and security or who refuse to violate such provisions. 29 CFR 1981 Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002 Provides procedures and time frames for the handling of discrimination complaints under the Pipeline Safety Act, including procedures and time frames for employee complaints to the Occupational Safety and Health Administration (OSHA), investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (acting on behalf of the Secretary), and judicial review of the Secretary s final decision. 29 CFR Part 24 Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes - Implements employee protection provisions under the Safe Drinking Water Act, Water Pollution Control Act, Toxic Substances Control Act, Solid Waste Disposal Act, Clean Air Act, Energy Reorganization Act, and Comprehensive Environmental Response, Compensation and Liability Act
Financial Reform Bill Includes FCPA Whistleblower Provision
July 26, 2010 The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), popularly known as the financial reform bill and signed into law by President Obama on July 21, 2010, includes a new whistleblower program that could pay considerable cash rewards to individuals who report securities violations, including violations of the Foreign Corrupt Practices Act ("FCPA"), to the Securities and Exchange Commission ("SEC"). Under Section 922 of the Act, which is modeled on the qui tam provisions of the Civil False Claims Act, the SEC will pay whistleblowers at least 10% and up to 30% of monetary sanctions in excess of $1 million awarded in a successful enforcement action by the SEC.
The SEC will have to implement regulations to spell out the mechanics of how the whistleblower program will operate under Section 922's requirements. First, Section 922 requires that the information provided by the whistleblower must be "original information." That is, information "derived from the independent knowledge or analysis of the whistleblower" and "not known to the Commission from any other source" nor "exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit or investigation, or from the news media." Second, no award will be made if the whistleblower is convicted of a crime related to the action, is part of an appropriate regulatory agency or the Department of Justice, or learned of the information through performance of an audit under Section 10A of the Securities Act of 1934. SEC regulations will have to clarify whether a whistleblower with unclean hands who has not been convicted of a crime related to the action can receive a payment (for example, in the instance of a foreign whistleblower over whom there is no jurisdiction for criminal prosecution). The whistleblower provision provides that the bounty will be paid only in actions resulting in monetary sanctions in excess of $1 million dollars. "Monetary sanctions" includes "penalties, disgorgement, and interest." Though the Act provides for a payment of between 10% and 30% of monies obtained by the government, the SEC has considerable discretion in determining the amount within that range. Criteria includes "the significance of the information," "the degree of assistance," "the programmatic interest of the Commission in deterring violations" and any "additional relevant factors as the Commission may establish by rule or regulation." The SEC has 270 days from enactment of the Act to issue final regulations implementing the whistleblower provisions. However, information provided by a whistleblower in writing to the SEC prior to the implementation of regulations but after the Act was signed into law can qualify as "original information." Moreover, otherwise qualified whistleblowers will be eligible for an award even if the reported conduct occurred before enactment the Act. The whistleblower bounty also will be paid if the information provided to the SEC led to a successful "related action" by the Department of Justice or other appropriate state or federal enforcement agency. The Act provides that the source of payment for all awards will be made from the "Securities and Exchange Commission Investor Protection Fund," to be created from monetary sanctions collected by the SEC. One issue the regulations will have to resolve is whether a whistleblower will receive an award if the information leads to a monetary sanction in a related action but not in the SEC investigation (for example, if DOJ prosecutes a foreign subsidiary over which the SEC does not have jurisdiction). Regardless, given that the payments will be made from an SEC coffer, the SEC likely will seek a more active role in whistleblower-driven investigations. The SEC may also be encouraged to seek a larger portion of settlements in whistleblower cases that are settled globally because of its need to fund the Investor Protection Fund. The Act also provides significant protection to whistleblowers against retaliation by employers. No employer may "discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against" any employee who provides information to the SEC or otherwise assists in an SEC investigation. The Act provides aggrieved employees with a cause of action in federal court and remedies that include not only reinstatement, but also double back pay and compensation for litigation costs. The Act also makes clear that the anti-retaliation provisions apply to subsidiaries, as well as parent entities. It is unclear how the anti-retaliation provisions would be enforced in an instance involving a foreign whistleblower employed by a foreign company. Though the SEC previously had a whistleblower program, that program only applied to insider trading cases and limited awards to a maximum of 10% of monetary sanctions. There never has been a whistleblower program to assist the government in the enforcement of other violations of the securities laws, including the books and records provisions of the FCPA. Given the trend in large monetary penalties assessed for violations of the FCPA and an increased focus on FCPA enforcement, the new program likely will provide significant incentives to whistleblowers. In the last two years alone, the SEC has announced some of the largest FCPA settlements in its history. Siemens agreed to $350 million in disgorgement to the SEC and another $450 million fine to the Department of Justice to
settle FCPA charges in 2008. KBR and Halliburton similarly agreed to pay $177 million in disgorgement to the SEC and a $402 million criminal fine. Already this year, the SEC has announced a number of large settlements. In June, Technip, a former subsidiary of Halliburton and partner of KBR, agreed to pay $98 million to the SEC and an additional $240 million to the Justice Department to settle FCPA charges. The new SEC whistleblower program carries with it a number of significant implications that companies with FCPA exposure must consider. The program may increase a company's incentive to self-disclose because the whistleblower's right to a share is triggered only if the wrongdoing is "not known to the Commission from any other source." Although the whistleblower theoretically should not increase total penalties to which the company is exposed, as a practical matter, whistleblower participation could adversely affect future settlement negotiations. Moreover, the whistleblower could "over sell" the issue to the government, thus potentially leading to a far more expansive (and expensive) investigation. Finally, and perhaps most significant, the whistleblower provision likely will increase the volume of FCPA investigations. In a fashion similar to that seen in the realm of False Claims Act qui tam actions, attorneys seeking a percentage of the large bounties will be incentivized to seek out potential whistleblowers. The Act itself provides that a whistleblower may be represented in making a claim for award and must be represented if the whistleblower opts to anonymously submit information (though the whistleblower must identify him or herself prior to payment). The use of counsel surely will increase the number of whistleblowers seeking to provide the government with information. Moreover, because the whistleblowers could be current employees, they could provide the government with documents and materials to which the government otherwise would never have access. In some instances, these documents undoubtedly will include proprietary and/or attorney-client privileged materials, thereby raising further issues. In sum, the whistleblower provision in the new financial reform bill likely will have a significant impact on companies that must comply with the FCPA and other securities regulations and provides a strong incentive to review compliance programs and policies.
OSHA Whistleblower Protection: Giving Sharper Teeth to a ´Legal Dinosaurµ
Sunday, 18 July 2010 11:20
By Mark A. Lies II and Meagan Newman* There is no question that the new administration is cracking down on discrimination against whistleblowers. Critics of the prior administration claim that OSHA¶s handling of whistleblower claims was lagging, if not deficient, and led to inadequate protection for employees who raise legitimate safety and health concerns. Still, the statistics for 2009 are not significantly different than those of prior years. In 2009, OSHA received 2,160 whistleblower complaints and completed 1,947 investigations. OSHA recommended litigation or otherwise found merit in only 3% of whistleblower complaints; 20% were resolved by settlements; 63% were dismissed; and 14% were withdrawn. The Assistant Secretary of Labor for Occupational Safety and Health, David Michaels, has said he simply does not believe the vast majority of whistleblower complaints are unfounded²instead he believes institutional, administrative and legislative -barriers to the complaints are behind the statistics showing unsuccessful complaints. As a result, recently there has been much more aggressive enforcement of the laws protecting whistleblowers in the workplace and a major push by OSHA to increase existing legal protections for whistleblowers.
OSHA·s Call for Tougher Whistleblower Protections In testimony before the Senate Committee on Health, Education, Labor and Pensions on April 27, 2010, Michaels called OSHA¶s whistleblower provision a ³legal dinosaur.´ Michaels noted as weaknesses in the existing law: inadequate time for employees to file complaints; lack of a statutory right of appeal; lack of a private right of action; and OSHA¶s lack of authority to issue findings and preliminary orders, so that a complainant¶s only chance to prevail is through filing an action in U.S. District Court. New Legislation on the Horizon Even prior to Michaels¶ testimony before the Senate, there had been a push to pass legislation to increase whistleblower protections. Senator Edward Kennedy re-introduced the Protecting America¶s Workers Act prior to his death last year. A similar bill had been introduced in the House by Representative Lynn Woolsey earlier in the year. Now, the legislation is seeing increased momentum. If passed, the Protecting America¶s Workers Act (H.R. 2067, S. 1580) will significantly alter the landscape of OSHA enforcement. In addition to strengthening whistleblower protection, the Act will increase civil and criminal penalties for OSHA violations, including changing criminal violations which may be brought against corporate officers and others responsible for violations, from misdemeanors to felonies. With respect to whistleblowers, the Act will explicitly make reporting illnesses and injuries in the workplace protected activity under the Occupational Safety and Health Act¶s whistleblower protection provision. Refusing to work when the employee believes he or she is facing an imminent danger will also be codified as protected activity. Additionally, the Act would grant employees a private right of action to enforce their claims. Yet, OSHA would like more. Michaels is asking lawmakers to add provisions to the Protecting America¶s Workers Act that would increase the potential stakes for employers by adding civil penalties to the provision. Currently, OSHA¶s whistleblower protection provision only allows for compensatory damages. Additionally, Michaels would like to add a provision that allows for temporary reinstatement of the employee pending the outcome of the whistleblower case, consistent with a similar provision in the Mine Safety and Heath Act (MSHA). OSHA is Making the Most of Existing Protections Even without the increased enforcement power the Protecting America¶s Workers Act would bring, OSHA is aggressively administering the whistleblower protection statutes it enforces. Currently, OSHA investigates and enforces whistleblower provisions under 17 federal statutes including the OSH Act, seven environmental statutes, six transportation-sector statutes, as well as nuclear energy safety, and consumer product safety and securities fraud statutes, including the Sarbanes-Oxley Act of 2002. OSHA is using the tools it currently has to seek higher penalties than were traditionally assessed in whistleblower cases. For example, in March, OSHA ordered the Tennessee Commerce Bank in Nashville to reinstate a whistleblower and pay him more than $1 million in compensatory damages and other relief. The employee claimed he was fired in retaliation for raising concerns about internal controls, employee accounts, insider trading and other issues, in violation of the Sarbanes-Oxley whistleblower protection provision. Also, in January of this year, OSHA secured a settlement with Texas employer Orion Drilling Co. to pay $10,000 in back wages after finding an employee was retaliated against for raising complaints about mold in the workplace. Employers should be aware of the potential liability associated with whistleblower discrimination and take all possible measures to ensure that employees who raise safety concerns do not face adverse action as a result of this protected activity. Along these lines, employers should develop a strategy, including: Employers should have written anti-discrimination and anti-retaliation policies that clearly prohibit any adverse action against employees who have raised safety concerns or engaged in other forms of protected activity. Train supervisors to be aware of complaints and how to respond; employees do not have to use any unique language in order to raise a complaint that is protected under OSHA¶s whistleblower provisions.
Mandate reporting injuries and illnesses, but be aware that such activity is deemed by OSHA to be protected activity. Because OSHA will closely scrutinize safety incentive programs to ensure that these programs are not ³disincentive programs´ that discourage workers from seeking and getting help when they¶re hurt on the job, including programs that may award prizes or other incentives based upon the lack of recordable injuries or illnesses. Carefully investigate and document all complaints received and respond to employees after investigation. Carefully document all employee discipline. Often, discipline issued to an employee whose performance was lacking prior to any incidents of protected activity is the best way to show that later discipline or termination was not discriminatory, that is, not based upon ³protected activity.´
Union Cabinet Approved Whistleblowers Act
Current Affairs Category: National | India, 2010 Current Affairs, August 2010 Current Affairs Current Affairs Week: 09 Aug 2010 To 15 Aug 2010 Share|
On 10 August 2010 the Union Cabinet of India approved Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, also known as Whistleblowers act to provide protection to Whistleblowers and punishing those who expose identity of Whistleblowers. Under the Whistleblowers act anybody who reveals the identity of Whistleblowers would be punished with 3 years imprisonment or fine up to Rs. 50,000. In case of any information leakage regarding the Whistleblower s identity the head of the department is to be held liable by (Central Vigilance Commission) CVC. At the same time there is also the provision that if anyone makes a false charge, he would be equally punishable with equal amount of imprisonment and fine. Under the Whistleblowers act, Central Vigilance Commission (CVC) will have jurisdiction over all the ministries and institutions. CVC s directives in protecting the identity of Whistleblowers can override any government s directive. According to the Whistleblowers act, the CVC can seek clarification from any ministry or person who is charged with corruption. If they fail to do so or delay, then CVC has the authority to impose fine on the ministry or person concerned. CVC s jurisdiction will be absolute. No other civil court would have jurisdiction over the act where CVC is empowered. Any appeal can be filed only in High Court. The killing of several Whistleblowers and RTI (Right to Information) activists for instance, the killing of RTI activist Amit Jethwa by the anti-social elements of the society was the reason behind that the government of India drafted the Whistleblower act. Because of recent increase in attacks on Whistleblowers and RTI activists it was needed to empower the CVC to protect the lives of Whistleblowers and to deal with corruption.
Whistleblower is a term commonly used for a person, who discloses information about the corruption in an organisation. Usually that person belongs to the same organisation. Whistleblowers act also defined the word Corruption in government for the first time. Corruption is defined as willful misuse of power or willful misuse of discretion by which there is a demonstrable loss to government or a
demonstrable gain to the public servant using that power. The Prevention of Corruption act, 1988, does not define corruption but puts down various actions which can be constituted as corruption.
The Lok Sabha on 12th August 2010 approved amendments to the Foreign Trade (Development and Regulations) Act of 1992. This will provide power to the government to impose quantitative restrictions on the import of goods to protect the domestic industry and to check any unwanted increase in imports or cheap imports. Moreover, the amendments done in the bill also covers the trade in technology and services. The bill which has already been passed by the Rajya Sabha
Ethical Responsibilities of Whistleblowing
By Eryn Travis , eHow Contributor
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Whistleblower Whistleblowing Protection
Before blowing the whistle, review these ethical responsibilities.
The term whistleblower refers to an individual who shines a public light on illegal or immoral acts that he witnesses within his own organization. Whistleblowing is controversial since employees must balance organizational loyalty with the potential benefits of solving a problem by shoving the organization in the spotlight. Some events, like blatant sexual harassment or or deliberate theft, are easily identified examples of when a whistleblower should act. However, most instances are less clear cut. Therefore, a would-be whistleblower needs to understand the ethics of taking his claim public.
The first ethical responsibility of a potential whistleblower is to check her motivations to make sure there is not a conflict of interest. In some cases, whistleblowers can profit financially or professionally by going public with a claim. The best interest of the public, not financial gain, attention or revenge, should be at the core of the decision to take more drastic action. In addition, potential whistleblowers should check that they have exhausted all possible means of complaint before going public.
Having detailed evidence about the claim is another ethical responsibility of whistleblowing. Hearsay and personal opinions are not enough to toss company loyalty aside. Another benefit of collecting detailed evidence is that a whistleblower's claim is more likely to be believed.
Before going public, potential whistleblowers need to ask themselves whether or not their actions prevent serious harm to an individual, such as repeated safety infractions, or to a group of people, such as fraud. Going public about a boss's irritating but harmless habits is not ethical whistleblowing.
Would-be whistleblowers have an ethical responsibility to make sure they are not guilty of the same infraction they are reporting. Whistleblowers must be able to report a claim with a clear conscience. Otherwise, the line between doing the right thing by reporting an infraction and tattling first to avoid punishment begins to blur.
Whistleblowers should act on information that could hurt individuals but stand down for cases of inappropriate but non-detrimental infractions. However, many situations fall in between these two easily recognizable ends of the spectrum. For cases that are not as clear cut, whistleblowers have an ethical responsibility to consider whether or not the problem can be solved by their actions. If the answer is yes, proceed. If the answer is no, the whistleblower may have to learn to live with the issue and make a stand by getting a new job
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Roles, Responsibility and Duties of whistle blower:
1. Whistleblowers provide initial information related to a reasonable belief that an improper governmental activity has occurred. The motivation of a whistleblower is irrelevant to the consideration of the validity of the allegations. However, the intentional filing of a false report, whether orally or in writing is itself considered an improper governmental activity which the University has the right to act upon.
2. Whistleblowers shall refrain from obtaining evidence for which they do not have a right of access. Such improper access may itself be considered an improper governmental activity.
3. Whistleblowers have a responsibility to be candid with the LDO, investigators or others to whom they make a report of alleged improper governmental activities and shall set forth all known information regarding any reported allegations. Persons making a report of alleged improper governmental activities should be prepared to be interviewed by University investigators.
4. Anonymous whistleblowers must provide sufficient corroborating evidence to justify the commencement of an investigation. An investigation of unspecified wrongdoing or broad allegations will not be undertaken without verifiable evidentiary support. Because investigators are unable to interview anonymous whistleblowers, it may be more difficult to evaluate the credibility of the allegations and therefore, less likely to cause an investigation to be initiated.
5. Whistleblowers are ³reporting parties,´ not investigators. They are not to act on their own in conducting any investigative activities, nor do they have a right to participate in any investigative activities other than as requested by investigators.
6. Protection of a whistleblower¶s identity will be maintained to the extent possible within the legitimate needs of law and the investigation. Should the whistleblower self-disclose his or her identity, the University will no longer be obligated to maintain such confidence.
7. A whistleblower¶s right to protection from retaliation does not extend immunity for any complicity in the matters that are the subject of the allegations or an ensuing investigation.
8. Whistleblowers have a right to be informed of the disposition of their disclosure absent overriding legal or public interest reasons.
A whistleblower is a person who raises concern about frauds, corruptions, wrongdoings and mismanagement. For instance, a government employee who exposes corruption practices, within his department is a whistleblower. So is an employee of a private organization, who raises his voice against misconduct, within the company. The misconduct can be classified in several ways, such as: Violation of Indian laws. Posing direct threat to public interest. Violation of health or safety norms. Deceptive practices.
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A whistleblower may approach an external agency, such as law enforcement officers, media or social groups. He may also report the matter to other members of the organization
Recommendations for the Whistleblower Bill ± 2010
The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice has begun hearing people's depositions on how the Whistleblower Bill could be strengthened. Some recommendations for public discussion by Venkatesh. Related Links The Credibility of Indian Democracy Demand to Review Liquor Policy TN Political Forces Target Officer The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 RECOMMENDATIONS FOR STRENGTHENING THE WHISTLEBLOWER PROTECTION REGIME IN INDIA Introduction The Government of India has found it expedient to table The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 (the Bill/Whistleblower Bill). The Department related Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice sought views from the people of India on the contents of the Bill after placing its contents in the public domain. CHRI prepared and disseminated a comparative study analysing the Bill from the point of view of international best practice standards. This study compared the Whistleblower Bill with the Public Interest Disclosure and Protection of Informers Bill (LCI Bill) prepared by the Law Commission of India in
2003. CHRI demonstrated how the Whistleblower Bill fell short of matching most of the international best practice standards as well as those recommended in the Law Commission¶s draft Bill. Given below is a set of recommendations that have the potential of strengthening the protection regime that the Whistleblower Bill seeks to establish. The tabular format given below identifies major aspects of the Bill that need improvement and contains recommendations based on both national and international best practice standards and the rationale behind them. Where appropriate, reference will be made to the best practice adopted in one or more countries included in the comparative study mentioned above. These recommendations are being made with the following objectives:â¼ providing a safe alternative to silence for the potential whistleblower and ensuring that the national motto: ³SatyamÄ³va jayate´ (³truth alone triumphs´) is upheld. Key Issues and Recommendations for Change 1. Coverage: Scope of wrongdoings is limited a) Provision(s): Preamble and Clause 2(d) b) Problem area: The description of wrongdoing that may be disclosed under the Bill is severely limited. For example human rights violations have not been included despite this being a rampant problem across the country. Other kinds of improprieties that may have adverse effect on public health, safety and environment are not included if they cannot be identified as criminal offences. c) Rationale for improvement: In countries that have instituted comprehensive Whistleblower protection regimes a whistleblower is protected for disclosing any violation of the law occurring in a public authority. For example see the provisions relating to similar laws operational in Canada, Romania and Uganda under Standard #2 discussed in the comparative study. d) Recommendation: Clause 2(d) may be amended to include violation of any law operational in the country that is or is intended to be committed by public servants. Coverage: Council of Ministers has been left out
a) Provision(s): Preamble and Clause 2(i) b) Problem area: The Bill does not cover wrongdoing committed or intended to be committed by members of the Council of Ministers. c) Rationale for improvement: With the exception of the USA, all other countries included in the comparative study have instituted comprehensive Whistleblower protection. For example see the provisions relating to similar laws operational in Canada, Ghana, New Zealand, Norway, Romania and Uganda Standard #3 discussed in the comparative study. (USA does not have Westminster style government.) The LCI Bill covered Ministers as well. d) Recommendations: Clause 2(i) may be amended to include Ministers under the ambit of the Bill. A comprehensive Lok Pal Bill be immediately enacted in order to provide for the investigation of wrongdoing by
individuals occupying the position of Prime Minister, Chief Minister and Minister. Coverage: Armed Forces have been left out a) Provision(s): Clause 3(1) b) Problem area: Armed forces matters and personnel, forces maintaining law and order, intelligence and counter intelligence agencies and employees maintaining telecommunications of aforementioned organisations are exempt. c) Rationale for improvement: The Bill insulates crucial bodies involved in defence and law enforcement services and maintenance of related communications facilities. This exemption is a perversion of Article 33 of the Constitution along which it is closely modeled. Article 33 permits Parliament to make laws that would impose restrictions on the extent to which the fundamental rights and freedoms guaranteed under Part III of the Constitution are enjoyed by the members of such services. The limitation on the fundamental rights enjoyed by members of such services is justified on the basis of the need for proper discharge of duties and maintenance of discipline. The Notes on Clauses attached to the Bill does not explain the rationale behind this clause. It is common knowledge that where power is concentrated without adequate checks and balances the tendency to abuse such power grows with impunity. Allegations of abuse of power by armed forces when deployed on law and order or counterâ¼ terrorism duties are not uncommon. Human rights violations committed by forces charged with the maintenance of law and order such as the police are only growing in number despite the adoption of several measures to prevent such abuse of power. Given this scenario there is no rationale for exempting the armed forces from the coverage of the Bill. In countries like the Ghana, New Zealand, South Africa and Uganda such services are not excluded from the coverage of whistleblower laws. In USA special laws have been enacted to enable armed forces to make disclosures of wrongdoing in confidence to Inspectors General and members of the US Congress. For example see the statutory provisions relating to these countries under Standard #5 discussed in the comparative study. d) Recommendation: Clause 3(1) may be amended to bring the armed forces, forces engaged in the maintenance of law and order and bodies providing telecommunications services to such bodies within the purview of the protective regime of the Bill. Coverage: Private sector has been left out a) Provision(s): Preamble and Clause 2 b) Problem area: The Bill covers whistleblowers in the private sector who disclose wrongdoing in any public authority. However wrongdoing in the private sector has been left out of the ambit of the Bill. c) Rationale for improvement: In its 4th report entitled: Ethics in Governance, the Second Administrative Reforms Commission recommended that a comprehensive whistleblower protection law cover the private sector as well. The Government of India accepted this suggestion. However the Bill does not cover the private sector. The whistleblower provisions contained in The Companies
Bill, 2009 tabled in Parliament does not protect an employee of a private company from harm if he or she were to blow the whistle on internal wrongdoing. Further, the scope of the term wrongdoing is very limited. Despite the Department related Standing Committee of Parliament on Finance recommending enlargement of the scope of these provisions in its recent report the recommendation provides for whistleblowing mechanisms that are internal to a private body. There is no elaborate mechanism to protect whistleblowers nor are there serious consequences to employees who take retaliatory action against whistleblowers. The whistleblower laws of Ghana, New Zealand, Norway, Uganda and the UK protect whistleblowers in the private sector as well. In South Africa, both the special law on whistleblowing and the Companies Act of 2008 facilitate private sector whistleblowing and provide protection for such actions. In the USA special laws have been passed to protect whistleblowers in the private sector. These provisions are discussed under Standard #4 of the comparative study and provide useful models to adopt in India. d) Recommendation: The Preamble and Clause 2 of the Bill may be amended to include the private sector within its ambit. Procedures: Single point for receiving public interest disclosures a) Provision(s): Clause 2(b) and 3(2) b) Problem area: The Bill provides for only one point for receiving disclosures of wrongdoing namely the Competent Authority in the States and at the Centre. c) Rationale for improvement: Whistleblower protection laws across the world provide for both internal and external mechanisms for making public interest disclosures. A whistleblower may make disclosures of wrongdoing through procedures established within the body where he or she is employed or to the head of such body. He or she may also make confidential disclosures to regulatory bodies or other designated authorities. Subject to certain conditions some laws allow for disclosures to be made to any other person including members of the respective parliaments and the media. The internal and external procedures for whistleblowing established in countries such as Canada, Ghana, New Zealand, Uganda and the United Kingdom. The purpose of providing multiple choices is to make available to the potential whistleblower safe alternatives to disclosing wrongdoing internally. These provisions are discussed under Standard #15 of the comparative study. Restricting the potential whistleblower to only one option such as the Competent Authority like the Central Vigilance Commission may not be the best way to inspire confidence in the minds of potential whistleblowers. d) Recommendation: Clauses 2(b) and 3(2) of the Bill may be amended to provide multiple points where public interest disclosures may be made including members of parliament and the mass media subject to reasonable conditionalities. Procedures: Undue burden on whistleblowers a) Provision(s):
Clause 2(d), 3(3) and 3(4) b) Problem area: The Bill requires the whistleblower to make a disclosure specifically naming the public servant responsible for or involved in the wrongdoing. Further, the whistleblower is required to submit supporting documents and other material in support of his or her disclosure. This is too high a burden on potential whistleblowers who may not have all the data. c) Rationale for improvement: Most whistleblower protection laws around the world are designed to ensure that credible information about wrongdoing is received by the concerned authorities so that inquiries and investigations may be conducted. Merely filing a complaint on the basis of hearsay is discouraged. However these laws do not impose a huge burden on the whistleblower to marshal all names, facts and documents prior to making the disclosure. The purpose of the whistleblower law must be to enable disclosure of wrongdoing irrespective of the identity of the wrongdoer. It is the duty of the inquiring authority to establish the identities of wrongdoers in order to bring them to book based on the information received from the whistleblower. These best practice standards are discussed at Standards #16 and 19 in the comparative study. d) Recommendation: Clauses 2(d), 3(3) and 3(4) of the Bill may be amended to require the whistleblower to provide credible information of wrongdoing in good faith not based merely on hearsay. However there should not be any requirement of mentioning specific names or providing copies of documents. Mere statement of facts which can be borne out by the inquiry later should suffice for the purpose of making the public interest disclosure.
Procedures: Endangering the whistleblower a) Provision(s): Clause 4(4) b) Problem area: The Bill actually permits the Competent Authority to disclose the identity of the whistleblower to the Head of the department or organisation for the purpose of seeking comments or explanations on the public interest disclosure received. This virtually amounts to a death sentence being passed on the whistleblower and will encourage taking of retaliatory action by his or her colleagues or seniors. c) Rationale for improvement: Some countries like Canada, Ghana and Uganda require the identity of the whistleblower confidential to be kept confidential. However others such as South Africa, the UK and the USA do not place a premium on keeping the identity of the whistleblower secret. However even in these countries the name of the whistleblower cannot be disclosed without his or her express consent. Ensuring the safety of the whistleblower is as important as conducting the inquiry or investigation into wrongdoing. These provisions are discussed under Standard #13 of the comparative study. If the whistleblower has no say in the decisionâ¼ making process about disclosure of his or her identity not many people will come forward and put themselves at risk by making public interest disclosure. d) Recommendation: Clause 4(4) of the Bill may be amended to ensure that the identity of the whistleblower is not disclosed without his or her
written consent prior to such disclosure.
Procedures: Dealing with cases involving exercise of discretion a) Provision(s): Clause 5(4) b) Problem area: The Bill prohibits the Competent Authority from questioning any bona fide action or bona fide discretion (including administrative or statutory discretion) exercised in discharge of duty by the employee. c) Rationale for improvement: This Clause is not in tune with the intention of the Bill. One of the objectives of the Bill is to provide for inquiring into willful misuse of power and discretion alleged by the whistleblower. Until and unless inquired into how is it possible to establish that the alleged action was done in a bona fide or mala fide manner? Jurisprudence in administrative law requires that discretionary actions also be informed by some reasonable criteria. This provision makes no sense and does not aid the achievement of the objectives of the Bill. d) Recommendation: Clause 5(4) may be deleted.
Procedures: Transparency in the outcomes of cases a) Provision(s): Clause 4(6) b) Problem area: The Bill does not require the Competent Authority to inform the whistleblower of the progress made in the inquiry into wrongdoing disclosed by him or her. Similarly there is no requirement on the Competent Authority to record a detailed speaking order while closing a matter. There is no requirement to make public the outcomes of a case inquired into by the Competent Authority. c) Rationale for improvement: This Clause is not in tune with best practice standards. In Canada and the USA the whistleblower is informed of the progress made in his or her case and the final outcome of the inquiry launched by the competent authorities. This is a requirement of disclosure which is in public interest. The whistleblower regime in Norway also requires the outcome of an inquiry to be made public after completion. These provisions are discussed under Standard #12 of the comparative study. As the outcome of the inquiry has a direct bearing on the whistleblower¶s interests the Competent Authority is mandatorily required to provide reasons for closure under Section 4(1)(d) of the Right to Information Act, 2005. Similarly the Competent Authority is required to announce the outcomes of the case to the general public as is the requirement under Section 4(1)(c) of the Right to Information Act. d) Recommendation: Clause 4 may be amended to provide for the following: The whistleblower must be kept informed about the progress of inquiry made into the allegation of wrongdoing. The Competent Authority must provide a detailed order indicating the reasons for closing a case and furnish a copy to the whistleblower immediately and free of cost.
The Competent Authority must place in the public domain the details of the outcome of every inquiry launched subsequent to a public interest disclosure received.
Procedures: Bureaucratic veto on disclosure of information a) Provision(s): Clause 7 b) Problem area: The Bill exempts disclosure of information which may prejudicially affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign countries, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Disclosure of proceedings of the Union or State Cabinet or its committee is prohibited. Such records may not even be disclosed during the inquiry into an allegation of wrongdoing made under the Bill. A certificate issued by an officer of the rank of Secretary to Government for this purpose will be binding and conclusive. c) Rationale for improvement: This Clause is a throwback to the 19th century and is modeled along the lines of Sections 123 and 124 of the Indian Evidence Act, 1872. According to these provisions a head of a government department may refuse to produce information contained in unpublished papers relating to the affairs of the State to a court of law by citing public interest. This is known as µpublic interest immunity¶â¼ a claim that the Government can make in a court of law through affidavit. The Bill seems to have been drafted in complete ignorance of the jurisprudence developed around these provisions as also Section 162 of the Indian Evidence Act. It is settled law that such information cannot be denied to a court of law any more. In a catena of cases the Supreme Court has held that the court has residual powers to examine the document in camera to determine whether the µimmunity¶ has been properly claimed, that the information is truly related to the affairs of the State and that public interest will be harmed by disclosing it to the opposite parties. Clause 7 is in violation of this settled law. All documents relating to a case must be delivered to the competent authority or court for examination. µSealed coverâ¼ procedure¶ may be adopted for sensitive matters. d) Recommendation: Clause 7 may be amended to provide for the disclosure of sensitive information belonging to the specified categories in sealed cover to the Competent Authority or the Court for examination. Safeguards: Onus to protect the whistleblower and RTI applicants a) Provision(s): Clause 10 and Chapter V b) Problem area: i) The Bill states that the onus of protecting a whistleblower will be on the Central Government. There is no mention of the State Governments in this context. ii) There is no provision for protecting whistleblowers in the nonâ¼ government and citizen sector especially, citizens who unearth corruption using The Right to Information Act, 2005. c) Rationale for improvement: This clause is poorly drafted. It is obvious that in a quasiâ¼ whistleblowing employees. federal setup the Central Government cannot provide protection for employees of the State Government. The Bill must authorize the State Governments to protect their
In recent times attacks on citizens who use The Right to Information Act, 2005 to unearth corruption and wrongdoing in government has increased manifold. They are attacked by vested interests who are in collusion with elements within the government offices. As Section 3(1) of the Bill recognises even private individuals as potentialwhistleblowers, RTI users can be protected from victimisation. This can be done by including a provision in the Bill that places the burden of proof on the public authority that dealt with the RTI application that it did not disclose the contents of the RTI application filed by the person attacked without lawful and proper procedure. d) Recommendations: Clause 10 of the Bill may be amended to make State Governments responsible for ensuring the safety of their whistleblowing employees. A new Clause may be inserted in Chapter V to ensure that the burden of proving that an RTI application was not disclosed to any stranger without proper authorization shall be on the public authority dealing with the RTI application.
Safeguards: Victimisation of the whistleblower a) Provision(s): Clauses 2, 10 and Chapter V b) Problem areas: i) The Bill does not contain any provision about burden of proof of victimisation of or retaliatory action initiated against the whistleblower. ii) The Bill is also silent on what actions and omissions amount to reprisals or retaliatory action against the whistleblower. c) Rationale for improvement: i) In order to become an effective law the Bill must recognise all kinds of action and omissions that may be considered reasonably as being retaliatory against the whistleblower. The whistleblower protection laws of Canada, Ghana, New Zealand, South Africa, Romania, the UK and the USA clearly define as to what kinds of action constitute retaliatory action. This could be in the form of transfer, demotion, denial of promotion, shifting to jobs with lesser responsibilities as compared to the qualifications of the whistleblowing employee, reduction in salary, denial or increments etc. These best practices are discussed under Standard #6 of the comparative study. ii) The Bill must provide a safe alternative to silence for the whistleblower. One of the ways of doing this is to ensure that he or she is not required to prove that victimisation or retaliatory action occurred. A mere allegation of victimisation is enough to start the inquiry proceedings. It is international best practice to place the burden of proof on the public authority concerned that the retaliatory action did not occur or any administrative action that was taken against the whistleblowing employee would have been taken even if he or she had not made the public interest disclosure. This is the standard in countries like Ghana, Norway, New Zealand, Romania, South Africa, the UK and the USA. The relevant provisions contained in their whistleblower laws are discussed under Standard #18 of the comparative study. d) Recommendations: Clause 2 may be amended to include a definition of the kinds of action and omissions that will be treated as retaliatory
action or reprisal against a whistleblower. Clause 10 of the Bill may be amended to include a provision reversing the burden of proof on the employer in every allegation of victimisation and retaliatory action.
Safeguards: Disincentives for victimisers a) Provision(s): Chapter VI b) Problem area: The Bill is silent on the consequences that may entail for any person that may victimise a whistleblower or take retaliatory action against him or her. c) Rationale for improvement: A good whistleblower protection law must create disincentives for any person who seeks to victimise a whistleblower. This is one of the necessary safeguards for a whistleblower and goes a long way in ensuring him or her a safe alternative to silence. In Canada a detailed procedure is given in the whistleblower law for launching disciplinary action against an official who takes retaliatory action against a whistleblower. In New Zealand such retaliatory action is treated as a human rights violation. In Uganda an official who victimises a whistleblower may face a prison term of up to five years and a hefty fine. In the USA a federal employee who victimises a whistleblower may face suspension, reprimand, reduction in grade or even a monetary penalty. These best practices are discussed at Standard #17 in the comparative study. d) Recommendation: Chapter VI may be amended to include a penalty provision for any person who victimises or takes retaliatory action against a whistleblower. The penalty could be a maximum prison term of five years and or a fine of up to Rs. 50,000. Safeguards: Provision of interim relief to the whistleblower
a) Provision(s): Chapter V b) Problem area: The Bill is silent on providing interim relief except ordering status quo ante. c) Rationale for improvement: Merely ordering status quo ante is not enough to alleviate the suffering caused to the whistleblower due to retaliatory action. The Bill must clearly specify the kinds of interim relief that a whistleblower may claim if the Competent Authority finds that the allegation of victimisation is required to be investigated. The LCI Bill did contain provisions for making interim orders to alleviate the suffering of the victimised whistleblower, However this provision is missing from the current Bill. The laws of New Zealand, the UK and the USA contain provisions for giving interim relief to the victimised whistleblower. These provisions are discussed at Standard #14 of the comparative study. d) Recommendations: Chapter V of the Bill may be amended to enable the Competent Authority to grant interim relief to the victimised whistleblower.
Safeguards: Whistleblower¶s right of appeal a) Provision(s):
Chapter VII b) Problem area: The Bill does not provide the whistleblower any right of appeal against the order of the Competent Authority except when a penalty is imposed for making mala fide disclosure. c) Rationale for improvement: The Bill must provide the whistleblower with the right of appeal if he or she is aggrieved by any order of the Competent Authority. As the right of appeal is not a common law right it must be created specifically in the statute. d) Recommendations: Chapter VII of the Bill may be amended in order to provide for a right of appeal for the whistleblower if he or she is aggrieved by any order of the Competent Authority. Such right of appeal may lie in the High Court of appropriate jurisdiction.
Safeguards: Protect those who volunteer information a) Provision(s): Chapter VII b) Problem area: The Bill does not provide express protection to any person who may voluntarily come forward to provide additional or related information about a wrongdoing that is being inquired into, subsequent to a disclosure made by the whistleblower under this law. Such persons are also likely to be victimised by vested interests in the public authority. c) Rationale for improvement: The Bill must automatically provide similar degrees of protection as is available to the original whistleblower to any person who may volunteer information related to a wrongdoing that is being investigated under this law. However such protection may not be automatically available to a person who provides information upon being compelled under the inquiry process. d) Recommendations: Chapter VII of the Bill may be amended in order to provide for adequate protection to any person who may provide information that is additional or related to the wrongdoing that is disclosed by any whistleblower.
Safeguards: Public consultation on Ruleâ¼ a) Provision(s): Chapter VII Clauses 24, 25 and 26 b) Problem area:
The Bill does not require the Central and State Governments to make Rules after prior publication and public consultation. Similarly the Competent Authority is not required to make Regulations through the process of prior publication and consultation. c) Rationale for improvement: The process of making laws and subordinate legislation in India is not sufficiently participatory and consultative. Even though the General Clauses Act, 1897 contains a procedure for making rules and regulations after prior publication this requirement is not included in Bills. As a result Section 23 of this Act remains a dead letter, rarely used. According to Section 4(1)(c) of the Right to Information Act, 2005 governments and public authorities are required to
announce all facts while formulating important decisions or announcing policies to inform the people. The Central Information Commission has on two separate occasions directed the Government of India and the Government of the National Capital Territory of Delhi to adopt consultative processes prior to tabling Bills and rules and regulations in Parliament and the State Legislature. It is only fitting that an important piece of legislation, such as the Whistleblower Bill, contain a requirement that participatory procedures be adopted for making rules and regulations. Prior publication of draft rules and regulations ensures that people have an opportunity to give inputs to the process of making subordinate legislation. This ensures that the provisions in the principal Act are not diluted in the process of making subordinate legislation. d) Recommendations: Clauses 24, and 25 of the Bill may be amended to require the Central and State Governments to make rules for carrying out the provisions of the Bill as per the procedure of prior publication described in Section 23 of the General Clauses Act, 1897. Clause 26 of the Bill may be amended to require the Competent Authority to make regulations for carrying out the provisions of the Bill as per the procedure of prior publication described in Section 23 of the General Clauses Act, 1897.
Indian Law: The Whistleblowers Protection Bill Cleared by the Cabinet
The Whistleblowers Protection bill has been passed by the Union Cabinet on August 9, 2010. The bill is officially known as the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010. The proposed Indian law intends to protect the whistleblowers, facilitate the disclosure of information and uncover corruption and deceptive practices that exist in government organizations. To find out who a whistleblower is, read here.
Indian Law: Key Features of the Whistleblowers Protection Bill
Some of the key features of the proposed Indian law are as follows: y y It will protect the whistleblowers from any discrimination or victimization in their workplace. It provides for concealing the identity of a citizen who discloses information about the misuse of power and money. Those who reveal the identity of the whistleblower will be held liable and penalized, by the Central Vigilance Commission (CVC). The offenders will be liable for imprisonment up to 3 years and a fine up to Rs.50, 000. There will be penalization in case of delays in response, under the Right to Information Act. A fine of Rs.250 will be imposed for every day of delay beyond the set deadline. There will be penalization for officials who try to mislead the CVC. The bill provides for addressing complaints against public sector employees and employees of the Central and the State Government. The bill also ensures the honest government officials are not harassed in anyway but those individuals who file false complaints and charges will be liable for imprisonment up to 2 years and fine up to Rs.30, 000.
y y y y y
Indian Law: Criticism on the Whistleblowers Protection Bill
According to Indian law reports, the bill has faced considerable criticism because its jurisdiction is restricted to the government sector and encompasses only those who are working for the Government of India or any of its agencies. It does not cover the employees of State Governments. The draft Bill aimed at protecting whistleblowers is a welcomed move. Given the fact that this bill, if it becomes law, is a very important legislation, the lack of public debate and consultation on the Bill seems to indicate the danger of it becoming another µpaper tiger.¶ Typically, the Ministries that propose draft legislations involve an elaborate process of public consultation to give the public a fair opportunity to criticize and scrutinize the provisions carefully. In this case, such an opportunity has been denied to the public and there is considerable criticism about it. No doubt, the proposed law to protect whistleblowers will assist to detect corruption, ensure better information flow and pave the way for successful prosecution of corrupt individuals through clear and protected processes. However, the public in India have poor levels of confidence in fighting corruption because they fear retaliation and intimidation against those who dare to make complaints. Another worry pertains to the delay in disposing off these cases. Without public debate on the provisions of this proposed law, it is clear that there is no way for people to measure its effectiveness when the draft bill comes into force as law.