Professional Documents
Culture Documents
Law Commission of India: One Hundred and Seventy Ninth Report
Law Commission of India: One Hundred and Seventy Ninth Report
GOVERNMENT OF INDIA
ON
DECEMBER 2001
2
The Law Commission had received a letter dated 24/8/1999 from Mr. N.Vittal,
the Chief Vigilance Commissioner (CVC) requesting the Commission to draft a Bill
encouraging to disclose corrupt practices on the part of public functionaries and
protecting honest persons from such disclosures. In this connection Shri. Vittal also made
reference to the speech of Prime Minister, Atal Bihari Vajpayee condemning rampant
corruption and highlighting the principle of “Zero tolerance’.
Corruption has become a global malaise and for its eradication, “Whistle
Blowing” laws have been enacted by U.K., U.S.A. and Australia. Corrupt practices
violate human rights and basic freedom and affect the development of a Nation. The Law
Commission considered it necessary to recommend some measures to check this evil.
The 15th law Commission has already forwarded its 161st report on ‘Central
Vigilance Commission and Allied Bodies’ in 1998 and 166th report on ‘The Corrupt
Public Servants (Forfeiture of Property) Bill’ in 1999 to tackle this problem.
The Commission after an in-depth study and taking into consideration similar
legislations in other countries and keeping in view the needs and circumstances of our
country has prepared this report. A Bill entitled ‘The Public Interest Disclosure
(Protection of Informers) Bill’ is enclosed with this report. (Annexure-I).
Yours Sincerely,
CONTENTS
ANNEXURE
PROTECTION OF INFORMERS
CHAPTER I
INTRODUCTORY
Thomas M. Devine1
Reference
1. The Law Commission of India had received a letter dated 24th August,
highlighting the principle of ‘zero tolerance’ not only from the demand side
1.1 In the aforesaid letter, Shri.Vittal informed the Law Commission that
1.’The Whistleblowers Protection Act, 1989: Foundation for the Modern Law of Employment Dissent’ by Thomas M.
Devine, Vol. 51, Washington College of Law, Administrative Law Review (1999), p. 533.
Shri. Vittal, in the said letter, stressed the need of a statute regarding whistle
effects thereof to the country, then to the options available for eradication of
corruption, the right to freedom of expression and the right to know and the
Courts, the European Court and by the American Courts. The Commission
whistle blowers in UK, Australia, New Zealand and USA. Thereafter, The
Commission will refer to the proposals for a Bill on the subject in India.
the English Act of 1998 and the Australian Act of 1994 are called ‘Public
Interest Disclosure Acts’. The New Zealand Act of 2000 is called `Protected
public servants (in UK and in some of the States in USA enabling employees
CHAPTER II
too. In the last five years, leading politicians in U.K., Belgium, France,
Spain and Italy have been convicted of corruption and in fact, the entire
pointed recently by the Supreme Court, State of M.P. vs. Ram Singh 2000
increased by the First and Second World War conditions. Corruption, at the
contracts, licences and grants. Even after the war, the opportunities for
huge sums of money which lay in the control of the public servants, giving
them a wide discretion, with the result of luring them to the glittering shine
of wealth and property”. The Court observed that “in order to consolidate
which was amended from time to time. In the year 1988 a new Act on the
subject, being Act 49 of 1988, was enacted with the object of dealing with
the working and implementation of the 1947 Act.” In the same case, the
with HIV leading to AIDS, being incurable. It has also been termed as
anti people, but aimed and targeted against them. It affects the
economy and destroys the cultural heritage. Unless nipped in the bud
“the abuse of public office for private gain1. It involves the seeking or
office-centered definition:
1
Published by Transparency International World Bank in Financial Times September 16, 1997.
2
Mark Philip, “Defining Political Corruption” political studies, Vol.45 No.3, special issue 1997.
10
1. Published by Transparency International World Bank in Financial Times September 16, 1997.
2. Mark Philip, “Defining Political Corruption” political studies, Vol.45 No.3, special issue 1997.
other rewards not legally provided for, induced to take actions which
favour whoever provides for the rewards and thereby does damage to the
________________________________________________
3
J.S. Nye, Political Corruption: a Cost Benefit analysis in A.J. Heidenheimer, M. Johnston and V.le
Vine(ed.), Political: A hand book, 1989 P.966 as refered in “The Asia Foundation Working Paper
Series,1998 P.10
4
See id at page 10.
5
Naphaniel Leff, “Economic Development through Corruption” in Heidenheimer, id at 389.
11
3. J.S Nye, Political Corruption: A Cost Benefit analysis in A.J. Heidenheimer, M.Johnston and V. le Vine (ed.),
Political: A hand book, 1989 p. 966 as referred in “ The Asia Foundation Working Paper Series, 1998, P. 10”
4. See id at page 10
Bank is the “misuse of public office for private profit or political gain”
identified specific abuses of public office for private gains, which are as
follows:
competitive advantage and profit. Public office can also be abused for
_____________________________________________
6. World Bank, Helping countries combat corruption: the role of World Bank 1977. Italics supplied.
6
World Bank, Helping countries combat corruption: the role of World Bank 1997. Italics supplied
12
Syed Hussein Alats has, while defining the term corruption “as the
recipient pursued by them for mutual benefit and the latter entailing some
taking place when a single individual earns profit from inside knowledge of
violence.7
7. Syed Hussein Alatas, Corruption: Its Nature, Causes and Consequences. Aldershopt; Brookfield, Vt., USA Avebury, 1990 pp 3-4.
7
Syed Hussein Alatas, Corruption : its Nature, Causes and Consequences. Aldershopt; Brookfield, Vt.,
USA Avebury, 1990 pp.3-4.
13
the post colonial settings where the standards and practices embedded within
According to him –
poor institutions (including the rule of law and safeguards for the rights of
8
Robert Klitgaard, Controlling Corruption Berkeley; University of California Prss, 1988, page 75.
14
also characteristics like the size of the country which seem to play an
enabling role for corruption.9 Along these lines, the World Bank points out
8. Robert Klitgaard, Controlling Corruption Berkeley; University of California Press, 1988, page 75.
9. See Asia Foundation Working Paper series on Corruption prepared by Amanda L. Morgan, Consultant Asia Foundation
page 50.
environment for corruption. In its report of 1997, it states that corruption
thrives :
the powers and little accountability for their actions taken therefor;
(ii) whenever government policies leave some gap, then these gaps
9
See Asia Foundation Working Paper series on Corruption prepared by Amanda L. Morgan, Consultant
Asia Foundation page 50.
15
Hence such root causes of corruption and also other causes which give
went on for long. One view is that corruption may not be incompatible with
method of cutting the red tape and clearing projects for development. A
allocated to those persons who are most likely to use them efficiently.
more bribes.10
fail to account for any objective other than short term efficiency. Gunnar
“In the long run, expectations of bribery may distort the number
and types of contracts placed for bidding, the method used to
award contracts, and the speed or efficiency with which public
officials do their work in the absence of bribes. It may also
delay macroeconomic policy reform. In addition, the gains
from such bribery may be inequitably distributed (accessible
only to certain firms and public officials).11
may result in loss of tax revenue in the form of tax evasion or improper use
10. Gunnar Myrdal, Asian Drama: an inquiry into the Poverty of Nations, Vol. II, New York Pantheon, 1969.
10
Gunnar Myrdal, Asian Drama: an inquiry into the Poverty of Nations, Vol.II, New York Pantheon, 1969.
11
World Bank Helping countries combat Corruption 1997 p.14.
17
public official pursues his own interest without regard to the interest
government entities and between the State and the civil society is effectively
damaged. If the general population assumes that public officials are not
bound by the restraints of their public functions, it will be less likely to obey
class has been developed in many developing countries. It can affect morals
18
that society may expect thereby posing a serious threat to the democratic
purchase and contracts tends to undermine the very security of the State.
exploits the helpless poor citizen. The other is collusive corruption where
the citizen corrupts the public servant by a bribe because he gets financially
money. He pointed out four key characteristics that make corruption more
damaging in South Asian countries than in any other parts of the world:
Second, corruption money in South Asia has wings, not wheels. Most
of the corrupt gains made in the region are immediately smuggled out
19
The big fish – unless they belong to the opposition – rarely fry. In
South Asia is that the corrupt are often too powerful to go through
poverty, not with per capita incomes above twenty thousand dollars.
human deprivation and even more extreme income meet their basic
the helpless poor citizen. The other is collusive corruption where the
money.”
Index
refers to the rankings of various countries from the least corrupt to the
most corrupt.
The Report further refers to the judgment of the Kenyan High Court
No. 71 with a score of 2.7 out of 10. There are, no doubt, 20 other
between No. 71 to No. 91. In that list come the following countries,
and Bangladesh comes last at No. 91. Among the least corrupt
and 8.8), UK stands at No. 13 and USA at No. 16 with 8.3 and 7.6
-*-
23
CHAPTER III
servants:
prima facie case is made out, to frame charges and to conduct a regular
on.
Code, 1860
employer to take action against the public servant under the provisions
Act, it shall not be lawful for any person to whom the Act applied, to
other person on his behalf. The relevant provision of the Bill further
provides as follows:
of seven years, which may extend upto fourteen years. The provisions
of the proposed Act apply not only to the public servant but also to
any time previously held by the public servant, unless such holder
The Bill making the above provisions has not yet become law.
to corruption.
The Act was the result of the 57th report and the 130th report of
the Law Commission and precludes the person who acquired the
benamidar.
27
as may be prescribed.
amount shall be payable for the acquisition of any property under sub-
section (1)”.
of section, 5 and the result is that it has not been possible for the
Court. . The scope of such public interest cases has been laid down by the
Supreme court of India in a series of cases, entitled Vineet Narain vs. Union
28
of India :- 1996 (2) Scale (SP) 42, 1996 (2) SCC 199, 1997(4) SCC. 778,
that it is the bounden duty of the judiciary to enforce the rule of law and to
see that investigation into corruption “is conducted in accordance with law
is held by them in trust for the people. Any deviation from the
that the majesty of law is upheld and the rule of law vindicated.
29
Monetary Fund and the World Bank who have warned that
Ayukt Bill’. The first draft of the Bill was prepared by the
30
1996, 1998, 2000 and the latest in the year 2001. We shall
procedures:
activities.
(b) laying traps, (c) search and seizure operations and (d) proving that assets
sources of income.
currency notes which are chemically treated are handed over to the public
31
servant by the bribe giver and almost immediately the police land at the
place and recover the currency notes from the public servant. This is the
trap procedure. One other method that is followed is to conduct a search and
illegally. There are provisions in the Income Tax Act, 1961 and other
out whether the assets owned or in the possession of the public servant are
presumption that the assets must have been acquired out of corruption.
(C) Whistleblowers:
department but unfortunately, they are not bold enough to convey the said
service and challenge abuses of power. They test loyalty with the highest
moral principles but place the country above loyalties to persons, parties or
supporting the enforcement of criminal and civil laws. This aspect may be
called the ‘rule of law’ concept implied in whistle blowing. Again, whistle
Public Life”, the importance and the need for ‘whistle blowers’ has been
“Whistle Blowing:
rather than because of the system. We are not aware of any central
guidance for executive NDPBs and whilst the NHS have issued
Report found that none of the 17 NHS bodies they visited had a well-
confidence that it will be taken seriously and dealt with if necessary, they
may feel they have no other option. The Committee agreed with the
silence clauses”.
On the other hand, the Committee also made it clear that they do not
public confidence in institutions, without due cause. It believed that the best
way to achieve the balance was to develop sound internal procedures backed
by an external review.
found that about one third of the NHS staff would take no action in the face
of impropriety because of fears of losing their jobs if they “rock the boat”.
(May 1996) dealing with other areas including Education, the Nolan
New Service Code was shown in Annexure B and para 11, 12 thereof deal
their protection.
The above Report and its acceptance by the Government led to the
the opening section (section 2) that Congress has found that federal
government illegality and corruption, and one of the purposes of the Act is
to strengthen and improve protection for the rights of the federal employees,
‘personnel practices’. The Section further directs that the said Special
led to the passing of the Public Interest Disclosure Protection Act, 1994, and
New Zealand has also passed a statute recently called ‘The Protected
CHAPTER IV
Article 19(1) of the Constitution of India. This right is, however, subject to
Article 19(2) which permits law to be made for the purpose of imposing
India, the security of State, friendly relations with foreign States, public
incitement to an offence.
In this context, we may point out that Art. 19 (a) of the Universal
Declaration of Human Rights and Art. 19 (2) of the Covenant on Civil and
and this right is, however, subject to restrictions that may be imposed
by law, (a) for respecting the rights or reputations of others or (b) for the
morals.
Right of Free Speech. The American Supreme Court has held in one of the
most celebrated judgments in New York Times vs. Sullivan, (1964) 376 US
254 that the ‘central meaning’ of the First Amendment was the:
issues should be uninhibited, robust and wide open and that it may
The above case involved the right of the public official to seek damages for
relating to his official conduct unless he proves that the statement was
made with ‘actual malice’ – that is, with knowledge that it was false
appointed official and all governmental employees, even those located near
position must be one which could invite the public scrutiny and discussion
what is ‘official conduct’ of the public servant, the law has been laid down
against local criminal court judges were relevant to official conduct of such
Our Supreme Court had occasion to deal with the exposure of the
earliest cases in S. Rangarajan vs. P. Jagjivan Ram, 1989 (2) SCC 574, the
Supreme Court held that criticism of government policies was not prohibited
social interests. But courts cannot simply balance the two interests as if they
41
allowing the freedom are pressing and the community interest will be
farfetched. It should have proximate and have a direct nexus with the
expression.
637, the Supreme Court held that there is nothing wrong in requesting the
a large of number of policy holders. This was because; the statute required
Court observed that the ‘community is, therefore, entitled to know whether
the LIC. The LIC was bound to publish the rejoinder of the organization be
it, in its inhouse journal, so that the readers who read the magazine obtained
a complete picture of the corporation and not a one sided one. The LIC’s
refusal to publish the rejoinder was therefore violative of the right of the
Rajagopal vs. State of Tamil Nadu, (1994) 6 SCC 632. The case involved
was serial-killer. The case squarely deals with the right to know and the
judgments of the American Court in New York Times vs. Sullivan, already
in Derbyshire vs. Times Newspaper Ltd., 1993(2) WLR 449. The Supreme
Court held that while decency and defamation were two of the grounds
referred to in Clause (2) of Art. 19, still any publication against any person
In addition, in the case of ‘public official’, the right to privacy or for that
matter, the remedy of action for damages is simply not available with respect
to their acts and conduct relevant to the discharge of their official duties.
This is so even where the publication is based upon facts and statements
which are not true, unless the public official establishes that the publication
was made with reckless disregard for truth. In such a case, it would,
however, be enough for the person who published the news to prove that he
him to prove that what he has published is true. Of course, where the
official duties, the public official enjoys the same protection in respect of his
privacy as any other citizen (The judiciary and Parliament and legislatures
are not subject to these principles and enjoy greater immunity). The above
principle does not, however, mean that the press is not bound by the Official
and gives protection to the informants from reprisals, unless the disclosure
expression. The Court observed in Dinesh Trivedi vs. Union of India, 1997
citizens have a right to know about the affairs of the government which,
informed of the vital decisions taken by the government and the basis
thereof. The Court was dealing with the Vohra Committee Report and stated
that though it was not advisable to make public the basis on which certain
Prime Minister and after consideration with the Speaker of the Lok Sabha.
It is therefore clear that the Supreme Court has accepted that the right
In the light of the above judgment of the American and English Courts
and our Supreme Court, on the question as to the scope of ‘free speech’, the
public servants, or persons or NGOs against other public servants and the
offend the right to privacy emanating from sub-clause (a) of clause (1) of
Art. 19. The right to privacy has to be adequately balanced against the right
to know. Both these rights emanate from same sub-clause in Art. 19.
46
CHAPTER V
judgments of the English Courts, the European Court and the US Courts.
English Courts:
English Courts have consistently laid down in the last more than One
hundred and fifty years that there is an exception to the general principle of
the exception is that where he comes to know that certain actions of his
public and such disclosure can neither be prevented by his employer nor is it
actionable.
stepped in and enacted the Public Interest Disclosure Protection Act, 1998
(For necessary case law, see “Whistle Blowers and Job Security” by David
Lewis in 1995 Modern Law Review, pp. 208-221). We shall refer to the
employee informed the victims of a fraud giving details of the fraud carried
Evans 1969 (1) QB 349 that the word “iniquity” here means “just cause or
vs. Times News Paper Ltd. 1993(2) WLR 449 as an important part of the
applied the principles laid down by the US Supreme Court in New York
misdemeanor of fellow workers to the employer, it was held, that this was
dependent upon the individual contract and the circumstances. For example,
in Sybron Corporation vs. Rochem Ltd. (1983) (IRLR 253) (CA), the Court
that required him to disclose his own misdeeds (see also ‘Grassing on a
prevent its former Sales Manager revealing the existence of a price fixing
cartel. The Company had put out a misleading circular, falsely blaming high
prices on the new selective employment tax, when infact the increased prices
least arguable that it was in the public interest that it should be made
we are issuing misleading circulars but you are to keep quiet about it,
and if you disclose it, I shall sue you for damages”. The servant may
leave and let the public know about it, so as to protect them”
One showed that the head of the company’s calibration department seriously
doubted whether the device complied with the Home Office’s requirements.
certify that they were accurate. The Court of Appeal refused the injunction
sought by the Laboratories, finding that the disclosure was justified in the
public interest to prevent the unjust conviction of motorists, and permit the
In the famous Spycatcher No. 2, 1987 (3) WLR 776, the government
of the security service, in as much as they were under a life long and
50
breached. The Law Lords accepted that the obligation was life long but that
it was not absolute. Lord Greffiths stated that the public interest defence
impending danger”.
authority who can follow a suspicion that wrong doing may lurk
duty not to abuse the confidential information and to use it only for
In Francome v. Daily Mirror, 1984 (1) WLR 892, the Court of Appeal
held that the Daily Mirror could not, however, publish confidential
or future threat. This is based upon the general principle related to law of
In W v Egdell, 1990 (2) WLR 471, the Court of Appeal held that it
patient to the medical director at the patient’s hospital, where the consultant
However, the court held the sale of his story to the media would not have
the breach on the right of the party and, in particular, any unjustified damage
it caused him.
out of malice and based upon fiction or invention. But if that is so,
then I ask myself what harm will be done. FIMBRA may decide that
the allegations are not worth investigating. In that case, no harm will
nothing will follow from the investigation. And if the harm is caused
FIMBRA”.
53
Court (Att. General vs. Butterworth, 1963 (1), Q.B. 696 and Chapman vs.
trust between employer and employee’. (Woods vs. W.M. Car Services
Finance Ltd. (15) case 59214/93, Mathew Harris’ complaint to the company
about the ill effects of Lindane, a wood preservative was in question. The
was held, can be treated as valid only if they do not conflict with public
interest. A.G. vs. Jonathan Cape Ltd. 1976(1) AC 109. It was further held
54
interest or not. British Steel vs. Graneda Television 1981 AC 1097. In that
case the Court ordered the return of confidential documents that would
reveal the identity of the employee who had leaked them to Graneda
From the above judgments of the English courts, it is clear that even
societal interests.
The European court and Commission have also laid down similar
principles such as those laid down by the English courts. Apart from that,
Before the UK Human Rights Act, 1998 came into force in England,
(i.e. before 2/10/2000), in a case arising from England relief was granted by
reveal his source so that the company can take proceedings against the
This order was even upheld by the Court of Appeal and the House of Lords.
However, the European Court held that the order breached Art. 10 of the
held:
make it much more difficult for them to obtain information and as, a
expect loyalty and confidence from the employee. (see Handyside vs. UK)
(1981. E.H. R.R. 737). This is because the freedom is not only a personal
right but is meant to serve public interest. In another case, it was held that
(IRLR 219) and Faccenda Chicken vs. Fowler 1986 LCR 291. The
jobs there involve the carrying out of government policy. (see 1997 Public
At one time, in 1985, in Van Der Heijden vs. The Netherlands, (1985)
Germany: (1996) 21. E.H.R.R. 205. The case involved the dismissal of a
teacher who was a member of an extremist political party. The court held
that Art. 10 of the European Convention was breached. Vogt. was a member
of staff at the time of her dismissal. (It was a judgment by 10 judges against
9) The dismissal was held not valid and the employee’s freedom of
vs. UK, 1981 EHRR 737). The court allows a ‘margin of appreciation’ to
that what is proportionate can vary according to different contexts and can
The Court will more readily conclude that the restriction on freedom
of speech is invalid if it amounts to a total ban of free speech and where the
on speech (though an ex-employee may still have a right to speak out) and
the Court and Commission have further recognized that a threat of legal
proceedings could also inhibit public debate: Lingens vs. Austria: 1986 8
EHRR 407.
(i) As to (i), the nature of the post, a Judge and a teacher (who criticized
provincial authorities and heads of the school) were said to have impliedly
accepted restriction in their free speech (Morrisens vs. Belgium 1988 D&R
56 and B&K (1986) D&P 45 and Hasledine vs. UK 1992 DER 225.
sanction as it had the effect preventing Mrs. Vogt from getting a job as a
teacher elsewhere.
(ii) As to (ii), the applicants’ conduct in the post will also be relevant.
T.V., the Court may find that the restriction is appropriate. (Morrisens vs.
Belgium) 1988 D&R 56. The Nolan Committee in UK has held that
(iv) In regard to (iv), the nature of the opinion expressed and the relevance
European Court. In Castells vs. Spain (1992) 14 EHRR 445, the Court
public opinion”.
(see also Schwabe vs. Austria (1993) 14 H&LJ 26 and Oberschlick vs.
such a protection.
The USA:
The US courts also laid down the same principle that was laid down
by the English courts and the European Courts but they based their decision
alleges wrongful discharge from service can bring an action against the
employer to enforce public policy (Cummins vs. EG & G Seallol Inc. (1988)
employees can comment on their employer and have free speech guaranteed
1990).
61
In the US, some cases even suggest that it would be contrary to public
The above decisions of the English Courts, the European Court and
Commission and the US Courts amply protect the interest of the whistle
blower on the ground of public interest and on the basis of the public policy.
CHAPTER VI
following four countries, United Kingdom, Australia, New Zealand and the
must:
“do not tolerate any form of retribution against those who do speak
But the above Code, rather contradicted itself in stating that these
relating to confidentiality.
Code required civil servants, who believed that they were being asked to do
something unlawful to report the matter to their senior officers and ‘if legal
advice confirmed that the action would be likely to be held unlawful, the
The Code further stated that if a civil servant ‘considers that he or she
Codes and Guides, the matter should be reported to a senior officer and, if
12).
64
appropriate authority”.
Health. (see ‘Whistleblower and Job Security’ by David Lewis (1995) vol.
Safety at Work Act, 1974 did not contain any such provision. However, in
measures at work places and the persons who so complained were protected
from dismissal by Section 57 A (1) (c) and Section 22A (1) (c) of the
the Trade Union and Labour Relation (Consolidation) Act, 1992. However
such a protection has now been granted by an amendment of the above said
Act, 1998.
Act, 1976 contain provisions supporting whistle blowing. They further make
somewhat got diluted by the decision of the Court of Appeal in Aziz vs.
Trinity Taxis (1988), IRLR 206 holding that the employee against whom
66
action is taken by the employer for making the complaint, had to prove the
causal link. Where, however, the employee has taken action under Section
The above Act is the outcome of the Nolan Committee Report, 1995,
3818, Dec., 1997), the Modern Local Government (Cm. 4014, July, 1998)
Concerns for Work’ consisting of Lord Borrie, Q.C., Right Honourable Lord
Oliver of Aylmerton and Others. The Act took into account various
Employment Rights Act, 1996 which contains the new sections 43A to 43L,
47B, 48 (1A), amends section 49, and adds section 103A, amends sections
105, 108, 109, 112, 117, 118, adds section 127B amends section 128, 191,
As already stated, the Act also amends the Trade Union and Labour
We shall briefly refer to the salient provisions of the 1998 Act. The
where they have made complaints raising genuine concerns about a range of
The Act covers virtually all employees in the public, private and
age do not apply. The Act does not cover the army and the police.
The workers who blows the whistle will be protected if the disclosure
is made in good faith and is about (i) a criminal act, (ii) a failure to comply
and safety, (v) any damage to the environment. Any attempt to cover up any
Under the scheme of the Act, there are three types of disclosure,
namely, (i) Internal disclosure, (ii) Regulatory disclosure and (iii) Wider
disclosure.
the same principle applies to the disclosure made to him. It also applies,
regulators such as the Health and Safety Executive, the Inland Revenue and
the Financial Services Authority. Such disclosures are protected where the
whistle blowers pass the test for ‘Internal disclosure’ and where additionally,
they honestly and reasonably believe that the information and allegations are
substantially true.
if, in addition to the test for ‘Regulatory disclosures’ they are reasonable in
all the circumstances and they are not made for personal gain. The whistle
blower must, however, meet other preconditions to win protection for this
type of ‘Wider disclosure’. These are that (a) he reasonably believed that he
or (c) the concern has already been raised with the employer or a prescribed
In the case of all these three types of disclosures, if the above said
conditions are met and the Employment Tribunal is satisfied that the
the reasonableness of the disclosure, the Tribunal will consider all the
owed a third party. Where the concern had been raised with the employer or
the prescribed regulator, the Tribunal will consider the reasonableness of the
response. Finally, if the concern had been raised with the employer, the
70
Tribunal will consider whether any whistle blowing procedure within the
Where the victimization falls short of dismissal, the Act provides that
awards will be uncapped and based on losses. Where the whistle blower is
an employee and has been sacked, he may, within seven days, seek ‘interim
full hearing.
regulation under the Act, which will provide that the whistle blower will get
compensation in a sum, which will be more than awards for normal unfair
declared void under section 43J of the U.K. Employment Rights Act, 1996
(c ) The U K Official Secrets Act, 1989 and the U.K. Public interest
already stated, Part IV of the Employment Rights Act, 1996 has been
amended and Sections 43C to 43H have been introduced into that Act.
the reasonable belief of the worker, tends to show the following, will be
protected, namely:
or is likely to be committed,
likely to occur,
(d) that the health or safety of any individual has been, is being, or
is likely to be endangered,
damaged, or
72
(f) that information tending to show any matter falling within any
to be deliberately concealed.
Sub-section (2) of Section 43B states that the relevant failure may occur in
UK or outside UK.
by making it’. It is here that the Official Secrets Act, 1989 becomes
relevant.
breaches the Official Secrets Act, 1989, the disclosure is not protected. It
disclosures” and states that a disclosure can be said to be made with lawful
authority if, and only if, it is made in accordance with his official duty. Sub
lawful authority if, and only if, it is made to a Crown servant for the
It was stated in the House of Commons debates on July 28, 1997, that
the British Government had no plans to repeal the Official Secrets Act, 1989
nor to introduce a public interest defence (H.C.Deb., vol. 299, col. 6) see
Initially, the need for a Whistleblowers Act was pointed out in the
first instance) and in any event free from fear of reprisals. The body
disclosures made to it and to protect those who assist it, will be vital
74
depend.”
Later, the Gibbs Committee (on Criminal Law) also made a similar
recommendation.
Sector Management Act, 1994. The ‘proper authority’ is defined as the Chief
grounds set out in sub-section (2) of section 25. Section 29 deals with
This section is again in conformity with the principles laid down in New
York Times vs. Sullivan (1964) 376 US 254 which has been referred to in
Derbyshire vs. Times Newspaper Ltd. 1993 (2) WLR 449 has also been
provisions which are similar to those in the Australian Act, 1994 with certain
against reprisals, and sec. 18 refers to immunity from civil and criminal
former employer such as dismissal or any action other than dismissal, the
said employee may apply for redress under the provisions of the
reads as follows:-
That means that the Act will certainly override any other law in
under the Act and under section 66 (1) (a) of the Human Rights Act, 1993 is
77
not available to the person giving the information if he has made the
allegation with knowledge that the information is false or has acted in bad
faith. The section conforms to the principles laid down in New York Times
Blower Protection Act, 1989 and other State statutes, we may briefly refer to
The False Claims Act, 1863 (revised in 1986) was enacted to combat
fraud by suppliers to the federal government during the civil war. Under
that Act, whistle blowers could receive a percentage of the money recovered
were provisions for protection of whistle blowers even in the Civil Services
The Civil Services Reforms Act of 1978 was not able to remedy
1989, when the present Act was passed, even the federal Office of Special
became better only after the 1989 Act and more so after the recent
It appears that there are more than a hundred similar statutes in the
sector also. Some of these laws also deal with the ‘right to disobey’ illegal
orders of superiors. (see “State Whistle Blowers’ Statutes and the Future of
The four corner stones of the Federal Act of 1989 are: (i) giving the
whistle blowers control of their own cases (rather make them depend upon
for hearings before the Merit Systems Protection Board (MPSB); (2) making
indeed abused earlier since 1978; (3) expanding the stage of protection by
eliminating prior loopholes, broadening the shield for protected conduct and
expanding the scope of illegal employer conduct and; (4) creating more
The Act covers not only protection against reprisals but also against
can also seek ‘interim relief’ (sec. 1221). Even retired persons could file
actions. The employee who succeeds can also be awarded costs. The
Special Counsel can pursue corrective action for violation of the Freedom
the proceedings. The Board can also pass orders for contempt of its orders.
evidence in a disclosure. Under the Act of 1989, “if the disclosure was
reasonable and significant to public policies, - then the time, manner, place,
others assisting the inquiry. What is more novel is that it also protected
law” [sec 2302 (b) (a)] or those commanded to do an illegal act and where
the refusal is followed by a reprisal. But this right is not placed in sec. 2302
(b) (8) and, therefore, does not trigger Individual Rights of Act but fell
within sec. 2302 (b) (a) which requires the Special Counsel to act. Even
The more important innovation was about the burden of proof. At one
time, in McDonnell Douglas v. Green, (1973) 411 US 792, it was held that
there were two stages in relation to burden of proof. First, the employee
would have to make out a prima facie case of discrimination and then the
employer could try to rebut the same. But, even if the employer’s case of
absence of discrimination was accepted still the employee had to prove that
Even later, it was held that the burden was on the whistle blower and
this was on the basis of the principle in Mt. Healthy vs. Doyle (1977) 429
US p. 274. This principle has been reversed by sec. 1214 (b) (4) (B) (i) and
sec. 1221 (e) (1), both in cases of Action by the Individual or by the Special
Counsel. Now the Board is bound to order corrective action if the employee
“has demonstrated that a disclosure described in sec. 2302 (b) (8) was a
Further the employer or the agency has now to prove through “clean
and convincing evidence” that it “would have taken the same personnel
action in the absence of such disclosure” [see sec. 1214 (b) (4) (B) (ii) and
home’ syndrome.
In addition, the new Act restored the remedies under other laws,
except the constitutional tort, giving a go bye to principle laid down in Bush
vs. Lucas: (1983) 462 U.S. 367. The other remedies now saved are those
under Back Pay Act, Civil Rights Act, 1871, Privacy Act, 1976 and 1997
and the Tucker Act, 1994, the Veterans Preference Act, 1994 and others.
protection. Now, after 1994, the employer cannot resort to “any other
expenses also to be paid with a view to restore the employee wholly to the
Since 1994, the complaints (appeals) before the Board have yielded
far-reaching importance and are wider than the UK Act of 1998, the
Chapter VII
7.0 In the earlier Chapters, we have referred to the need for elimination of
We have referred to the basic concepts of public policy and public interest,
referred to the need to strike a proper balance between the Right to Free
Speech and the Right to Know. We have also referred to judicial approaches
in USA, UK, European Court and by our Supreme Court in that behalf. We
Disclosure Act, 1998, the Australian Public Interest Disclosure Act, 1994,
the New Zealand Protected Disclosures Act, 2000 and the US (Federal)
7.1 In the light of the above principles of law and provisions in other
corruption. The Committee went into the matter extensively and suggested
that there should be Vigilance Commissions both at the Centre and in the
of officials. It observed:
“that there is wide spread public impression that some Ministers who
obtained good jobs for their sons and relations through nepotism and
public life”.
7.3 (b) The Administrative Reforms Commission Report 1967 and the
tier machinery, namely, Lok Pal at the centre and Lok Ayukta at the State
levels. It submitted report on October 20, 1966 appending a draft Bill for
The Government of India introduced the Lok Pal and Lok Ayukta Bill
1968 in the Lok Sabha on May 10, 1968. The Bill was referred to a joint
March 26, 1969. The Lok Sabha passed the Bill on August 20, 1969 but
while it was pending in the Rajya Sabha, the Lok Sabha was dissolved and
the Bill consequently lapsed. The same was the fate of the Lok Pal Bill,
1971, Lok Pal Bill, 1977, Lok Pal Bill, 1983, Lok Pal Bill, 1989, Lok Pal
Bill, 1996, the Lok Pal Bill, 1998. In the States, as of now, about 14 States
have Lok Ayuktas and Up Lok Ayuktas, under State laws. The State of
of the Chief Justice of India and two other Judges of the Supreme Court next
as its Chairman, the Prime Minister, the Speaker of Lok Sabha, the Minister
of Home Affairs, Leader of the House to which the Prime Minister does not
belong, the Leader of the Opposition in the Lok Sabha and Rajya Sabha as
Members.
The Lok Pal will enquire in complaints, which are made alleging that
Corruption Act, 1988 and the expression ‘Public functionary’ covers the
Supreme Court in the Vineet Narain cases, as stated earlier.(see Chapter II)
outside India.
87
which states that the provisions of the Act shall apply even to disclosable
Lok Pal and Lok Ayukta Acts uniformly defined the word ‘action’. In the
Lok Pal and Lok Ayukta Bill of 1969 and similar enactments in the States,
any manner and includes failure to act and all the expressions
follows:
finding or any other proceeding and includes failure to act and all
accordingly.”
88
whom the complaint can be made. In the Lok Pal and Lok Ayukta Bill of
1969 and other enactments in the States, the said word has been defined, as
“in relation to public servant who is a Minister, the Prime Minister and in
It was decided to omit Prime Minister from the purview of the Act in
view of the proposed Lok Pal Bill, 2001. On that analogy and having regard
Ordinance of 1999 which lapsed and which is being continued under the
by the President in this behalf’ and in the case of any other public servant,
behalf;
89
(ii) any other public servant, means the Central Vigilance Commission
In as much as the basis of the inquiry under the proposed Act is the
sec. 43A of the U.K. Employment Rights Act, 1996 (section 43A was
2(c) as follows:
disclosable conduct’.
90
while section 43B of the U.K. Employment Rights Act, 1996 (as amended
(iii) mal-administration.”
This word occurs in clause (iii) of proposed sec. 2 (d) and has,
therefore, to be defined.
91
Ayuktas Bill 1969 in sec. 2(g). This definition also refers to past and present
improperly discriminatory;
(ii) where there has been negligence or undue delay in taking such
action;
in any manner; or
92
the Ministers for the Union and includes the Minister of State and Deputy
provisions appears to have been made in the proposed The Lok Pal Bill,
proposed to be defined in the sec. 2(f)) (i.e. excluding the Prime Minister)
‘public servant’ in Clause 2 (k) of the Lok Pal and Lok Ayuktas Bill, 1969 is
follows:
section 10. Under sub-section (3) of the proposed section 10, the Competent
complaints made under sub-section (2) of that section by all persons (other
servant making the disclosure to the status quo ante. In that context, it is
While defining the said word, we have kept in mind the various
referred in extenso in chapter VI. Under the US Law apart from dismissal
also aware that the victimization may be by the person against whom the
instance of the person against whom disclosure is made. In the light of the
sec.2(i);
harassment;
disclosure and sub section (2) contains a non-obstante clause overriding the
over the U.K. Public Interest Disclosure Act of 1998 where the protection, as
Sub section (2) refers to the persons who can make the disclosure.
They are:
The disclosure must, under sub section (3), be in good faith, based on a
believes that the information disclosed and any allegation contained therein
Authority’, supported by details and documents. The Authority can call for
The person who makes complaint must disclose his identity. In other
words, anonymous complaints or those sent under false names, will not be
entertained.
section 4]
substance or is trivial or has already been dealt with adequately (sub section
(1)).
section (2)).
Under proposed sub section (3), if the Authority is of opinion that the
public’ and that the ‘names of the persons making the disclosure and of the
public servant named in the disclosure” shall not be disclosed to the public.
Proposed sub section (3) directs that the name of the person making
the disclosure shall be disclosed to the public servant provided that, if the
person making the disclosure requests that his identity should not be
disclosed to the public servant named in the disclosure, and if the Competent
or the safety of such person, it shall make the necessary direction in that
authority shall be bound by the principle of natural justice and also by the
other provisions of the Act and it shall have the power to regulate its own
the inquiry, the competent authority is of the opinion that (a) the facts and
made in good faith or (b) there are no sufficient grounds for proceedings
99
with the inquiry, it shall close the inquiry and inform the concerned persons,
servant is other than a Minister, record the appropriate finding and send its
findings along with the relevant records, to the Authority competent to take
disciplinary action against the public servant; and (b) it shall, if such public
servant is a Minister, record the appropriate the findings and send its
the findings as stated in clauses (a) or (b) of sub-section (6), the authority
referred therein shall take appropriate action immediately against the person
punishable under any law, the Competent Authority shall direct the
approval for such prosecution under any law for the time being in force.
inquiry under the Act in respect of any action shall not affect, such action or
any power or duty of any public servant to take further action with respect to
any matter subject to the inquiry in accordance with any law for the time
being in force.
(proposed section 6)
competent authority such as where an inquiry has been ordered under the
Public Servants Inquiry Act, 1850 or under the Commission of Inquiry Act
provision of sub-section (2) referred to above, the provisions of the Act shall
Act.
Sub-section (4) of the proposed section 6 states that nothing in the Act
any inquiry under the Act, any administrative or statutory action taken in
in proposed sub section (5), where the disclosure might prejudice the
before a Court.
it to the President.
the annual report under sub-section (1), the President shall cause a copy
House of Parliament.
any case complete the inquiry within a period of six months from the date of
before the said period, it may reasons for be recorded in writing, extend the
said period and in no case, the said period shall be extended beyond a period
period of two years as stated in sub-section (1). But, that does not mean that
proceedings under any other law for the time being in force against the
otherwise made on the ground that such person had made a disclosure under
this Act.
Authority seeking redress in the matter. It will be noticed that the word
any person who is not a public servant and may also include a Non-
Governmental Organization.
sub-section (2) of section 10, the Competent Authority may, after making
(3) stating that where the Competent Authority is of the opinion that the
105
that the action alleges to cause hardship is not relatable to the complaint is to
This provision has to be read along with section 14, which relates to
burden of proof.
anything contained in any other law for the time being in force, the power to
include the power to direct the restoration of the public servant making the
We have proposed that this power to restore the public servant to the
status quo ante should be vested in the Competent Authority and that where
public servants have to be restored back into service or the other acts of
to the public servant. It will not be a necessary for the public servant, to
appropriate body for relief and that is why we have introduced a non-
countries.
given by the Competent Authority shall be binding upon the public servant
or the public authority against whom the allegation of victimization has been
proved.
public servant against whom the disclosure is made, the person who has
made the disclosure may be harassed by way of transfer. It may also happen
that in spite of a bona fide belief in the truth of the allegations contained in
the disclosure, the allegations are not proved in the inquiry conducted by the
Competent Authority and in such a case, the public servant who had made
the complaint may be harassed within his department. It is also possible that
the allegations made by public servant are proved in the inquiry conducted
by the Competent Authority and thereafter the person who made the
(referred to in Chapter VI) give a choice to the public servant who made the
witnesses and other assisting the inquiry so that the persons against whom
complaints are made do not try to scuttle the inquiry or interfere with the
witnesses and other persons assisting the inquiry. It is, therefore, necessary
to protect the witness and other persons assisting the inquiry. With a view to
the Competent Authority shall pass such orders granting adequate protection
to the witnesses and other persons assisting the inquiry as may be necessary
against whom the complaint is made may try to victimize the person making
a specific provision, as stated in Chapter VI, that the burden of proving that
been taken even if no such disclosure was made by the applicant (applicant
in the application under section 10) shall be upon the public servant or the
fact, before such a provision was made in USA, the burden of proof to prove
the nexus between the act of victimization and the disclosure was placed on
the employee and such a procedure did not yield any results in rendering
justice to the person who made the disclosure. That was why the law was
on the employer.
On the same lines as in the USA and in UK, we recommend that in the
proposed section 15, the burden of proof shall be on the public servant or
before the Competent Authority, to establish that the same action would
have been taken or the same proceedings would have been issued against the
disclosure.
16):
and the similar right contained in the US Constitution and in Art. 10 of the
European Convention, it has now been held that allegations against public
servant are not actionable merely because they are wrong or have been
allegations were made by the person with knowledge that they were false or
were made, recklessly or maliciously. In India, our Supreme Court has also
laid down the same rule in Rajagopal’s case referred to in Chapter IV. We
have also referred to several other cases in Chapter V which have protected
Therefore, any provision which proposes to punish the person making the
permit punishment of the person making the disclosure, take note of the
above principle of law in the section which deals with punishment of the
person making the disclosure. It may also be noticed, in the context, that
111
faith and the person making shall solemnly affirm that he reasonably believe
substantially true.
section dealing with punishment of the person making the disclosure. The
“Section 16: any person who makes any disclosure which falls to his
imprisonment for a term which may extend upto 3 years and also to
may, by notification in the Official Gazette, make rules for the purpose of
Sub-section (2) of the proposed section 17 states that every rule made
under the Act shall be laid, as soon as may be after it is made, before each
other Acts indicating the procedure for laying rules before Parliament.
113
We recommend accordingly
Chairman
Vice Chairman
(Dr.N.M. Ghatate)
Member
(Mr.T.K.Viswanathan)
Member-Secretary
Date14.12.2001
114