Whistle Blower Laws

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What are Whistle Blower Laws?

Whistle blower laws and other laws that that have provisions for employer retaliation protection are enforced by a number ofgovernment agencies. For example, the U.S. Department of Labor (DOL) and its divisions enforce several major laws thatdirectly 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 ofLabor. It protects employees of publicly-traded corporations from retaliation for reporting alleged violations of any rule orregulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.Not only does this landmarkAct criminalize employer retaliation, it also requires publicly-traded corporations to createprocedures 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 whistleblowers. For example, if you observe aprohibited 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 retaliatesanyway, 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 ofDefense 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'swhistle blower laws, start with the resources listed in State Labor Law and Employment Law. Alternately or additionally, contactyourstate'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 awhistle blower law or a like provision in another law

OVERVIEWThe Occupational Safety and Health Act (OSH Act) and a number of other laws protect workers againstretaliation for complaining to their employers, unions, the Occupational Safety and HealthAdministration (OSHA), or other government agencies about unsafe or unhealthful conditions in theworkplace, 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 orpunished in any other way because they have exercised any right afforded to them under one of thelaws that protect whistleblowers.

Pursuant to most of these laws, discrimination complaints must be filed as soon as possible - within 30days of the alleged reprisal. OSHA Area Office staff can explain the protections under the whistleblowerlaws and deadlines for filing complaints.

Workers who believe that they have been subject to retaliation for engaging in health and safetyactions that are protected under the OSH Act may file complaints with a federal OSHA Area Officerepresentative. In those states operating OSHA-approved State Plan (except those plans covering onlypublic sector employees), private sector employees may file complaints for retaliation with either afederal OSHA Area Office representative or with a State Plan representative. States with OSHA-

approved State Plans also protect state and local government employees against retaliation, but inthose states, public sector workers can file complaints for retaliation only with State Planrepresentatives.

COMPLIANCE ASSISTANCE MATERIALSBASIC INFORMATION

y Employment Law Guide - Whistleblower Protection - Provides information on whistleblowerprotection provisions enforced by OSHA.

y OSHA Whistleblower Program Web Site - Provides information on rights for employees andrepresentatives of employees under the whistleblower program.


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y How to File a Complaint with OSHA - Provides information on the worker complaint process.

APPLICABLE LAWS AND REGULATIONSy 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.

y 29 CFR Part 1977 Discrimination AgainstEmployees Exercising Rights under the Williams-Steiger

OSH Act Regulations implementing this federal statute designed to regulate employment conditionsrelating to occupational safety and health.

y Surface Transportation Assistance Act of 1982 (STAA) - Provides specific safety and healthdiscrimination protections for truck drivers and other employees relating to the safety of commercialmotor vehicles. Coverage includes private-sector workers whose work affects the safety of vehicleswith a gross vehicle weight rating (or a gross vehicle weight) of 10,001 pounds or more; vehiclesdesigned to transport more than 10 passengers, including the driver; and vehicles transportingmaterials determined by the U.S. Department of Transportation to be hazardous and to requireplacarding.

y 29 CFR Part 1978 Rules for Implementing Section 405 of the Surface Transportation Assistance Actof 1982 - Provides regulatory information on employee protection from discrimination when theemployee has engaged in a protected activity pertaining to commercial motor vehicle safety andhealth matters.

y Asbestos Hazard Emergency Response Act of 1986 (AHERA) - Provides employee protection againstretaliation for reporting violations of environmental laws relating to asbestos in elementary andsecondary school systems, whether public or non-profit private.

y International Safety Container Act of 1977 (ISCA) - Provides specific protection for employees againstretaliation for reporting the existence of unsafe shipping containers.

y Energy Reorganization Act of 1978 (ERA) - Provides occupational safety and health discriminationprotections for employees of operators, applicants, contractors, and subcontractors of nuclear powerplants licensed by the Nuclear Regulatory Commission and for employees of contractors workingunder contract with the U.S. Department ofEnergy (so-called GOCO sites).

y Clean Air Act of 1977 (CAA) - Provides discrimination protection and provides for the development andenforcement of standards regarding air quality and air pollution. Employees are protected fromretaliation for reporting violations, or alleged violations, of the standards.

y

Safe Drinking Water Act of 1974 (SDWA) - Requires that all drinking water systems in public buildingsand new construction of all types be lead free. Employees are protected from retaliation for reportingviolations, or alleged violations, of the law.

y Federal Water Pollution Control Act of 1972 (FWPCA) - Also called the "Clean Water Act," basicallyprohibits 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.

y Toxic Substances Control Act (TSCA),15 USC 2622 - Regulates the manufacture, distribution, anduse of certain toxic substances. Employees are protected from retaliation for reporting violations, oralleged violations, of the Act.

y 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 ofenergy and other resources from discarded materials and to regulate the management of hazardouswaste. Employees are protected from discrimination for exercising certain rights under the Acts.

y Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) -Provides for liability, compensation, cleanup, and emergency response for hazardous substancesreleased 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.

y Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) - Provides anti-discrimination coverage to employees of air carriers, contractors, or subcontractors of air carriers whoraise safety concerns.

y 29 CFR 1979 Procedures for the Handling of Discrimination Complaints under Section 519 of theWendell H. Ford Aviation Investment and Reform Act for the 21st Century Provides information on


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employee protection from discrimination by air carriers or contractors or subcontractors of air carriersbecause the employee has engaged in protected activity pertaining to a violation or alleged violationof any order, regulation, or standard of the Federal Aviation Administration or any other provision offederal law relating to air carrier safety.

y Corporate and Criminal Fraud Accountability Act of2002 (CCFA) (Sarbanes-Oxley Act) - Provides anti-discrimination 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.y 29 CFR Part 1980 Procedures for the Handling of Discrimination Complaints under Section 806 of

the Corporate and Criminal Fraud Accountability Act of2002 Provides information on employeeprotection from discrimination by companies and representatives of companies because the employeehas engaged in protected activity pertaining to a violation or alleged violation of any rule or regulationof the Securities and Exchange Commission, or any provision of federal law relating to fraud againstshareholders.

y Pipeline Safety Improvement Act (PSIA), 49 USC 60129 - Provides discrimination protection foremployees who report violations, or alleged violations, of federal law regarding pipeline safety andsecurity or who refuse to violate such provisions.

y 29 CFR 1981 Procedures for the Handling of Discrimination Complaints under Section 6 of thePipeline Safety Improvement Act of2002 Provides procedures and time frames for the handling ofdiscrimination complaints under the Pipeline Safety Act, including procedures and time frames for

employee complaints to the Occupational Safety and Health Administration (OSHA), investigations byOSHA, 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 theSecretary), and judicial review of the Secretarys final decision.

y 29 CFR Part24 Procedures for the Handling of Discrimination Complaints under Federal EmployeeProtection 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 LiabilityAct

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.


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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 havejurisdiction). 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


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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 ofcounsel 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 DinosaurSunday, 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 OSHAs 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 only3% 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 unfoundedinstead 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.


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OSHAs Call for Tougher Whistleblower Protections

In testimony before the Senate Committee on Health, Education, Labor and Pensions on April 27, 2010, Michaels called OSHAs whistleblower

provision a legal 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 OSHAs lack of authority to issue findings and preliminary orders, so that a

complainants 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 Americas 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

Americas 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 Occupa-

tional Safety and Health Acts 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 Americas Workers Act that would increase the

potential stakes for employers by adding civil penalties to the provision. Currently, OSHAs 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 Americas 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 consumerproduct safety and securities f raud 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 thatemployees 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 OSHAs whistleblower provisions.


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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 disincentive programs that

discourage workers from seeking and getting help when theyre 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 protected

activity.

Union Cabinet Approved Whistleblowers ActCurrent AffairsCategory:National | India, 2010 Current Affairs,August2010 Current Affairs

Current Affairs Week:09 Aug 2010 To 15 Aug 2010Share|

On 10 August2010 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 Whistleblowers 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. CVCs directives in protecting the identity of Whistleblowers can override any governments 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.

CVCs 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) activistsfor 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.

y Whistleblower is a term commonly used for a person, who disclosesinformation about the corruption in an organisation. Usually that personbelongs to the same organisation.

y Whistleblowers act also defined the word Corruption in government for thefirst time. Corruption is defined as willful misuse of power or willful misuseof discretion by which there is a demonstrable loss to government or a


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demonstrable gain to the public servant using that power. The Prevention ofCorruption act, 1988, does not define corruption but puts down variousactions which can be constituted as corruption.

The Lok Sabha on 12th August2010 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 WhistleblowingBy Eryn Travis , eHow Contributor

y

y

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y Print this articleRelated Searches:

y Whistleblower

y Whistleblowing Protection1.

o 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 thathe witnesses within his own organization. Whistleblowing is controversial since employees mustbalance organizational loyalty with the potential benefits of solving a problem by shoving theorganization in the spotlight. Some events, like blatant sexual harassment or or deliberate theft, areeasily identified examples of when a whistleblower should act. However, most instances are lessclear cut. Therefore, a would-be whistleblower needs to understand the ethics of taking his claimpublic.

2.Motivationso 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 professionallyby 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 whistleblowersshould check that they have exhausted all possible means of complaint before going public.


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Evidenceo 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 collectingdetailed evidence is that a whistleblower's claim is more likely to be believed.

Danger Preventiono 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.

Personal Complianceo 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 avoidpunishment begins to blur.

Solutiono 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 twoeasily recognizable ends of the spectrum. For cases that are not as clear cut, whistleblowers havean ethical responsibility to consider whether or not the problem can be solved by their actions. If theanswer is yes, proceed. If the answer is no, the whistleblower may have to learn to live with theissue and make a stand by getting a new job

Read more: Ethical Responsibilities of Whistleblowing | eHow.comhttp://www.ehow.com/list_6837080_ethical-

responsibilities-whistleblowing.html#ixzz1j9wX3qLo

Roles, Responsibility and Duties of whistle blower:

A. Whistleblowers

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 animproper governmental activity which the University has the right to act upon.


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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 reporting parties, not investigators. They are not to act ontheir 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 whistleblowers 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 whistleblowers 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.


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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:

y Violation of Indian laws.

y Posing direct threat to public interest.

y

Violation of health or safety norms.y Deceptive practices.

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

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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


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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 Commissions 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:

providing a safe alternative to silence for the potential whistleblower and

ensuring that the national motto: Satyamva jayate (truth 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.

2. Coverage: Council ofMinisters 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 ofMinisters.

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


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individuals occupying the position of Prime Minister, ChiefMinister 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.


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 counterterrorism 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 provisionsrelating 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 .


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


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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 of2008 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.


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):


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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.


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.


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 orher 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 decisionmaking 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


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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.


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 detailedspeaking order while closing a matter. There is no requirement to make public the outcomes of a case inquired into by the

Competent Authority.


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 whistleblowers 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 isrequired 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.


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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.


This Clause is a throwback to the 19th century and is modeled along the lines of Sections 123 and 124 of the IndianE vidence 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 public interest immunity 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 immunity 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 forexamination. Sealed coverprocedure 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 mentionof the State Governments in this context .

ii) There is no provision for protecting whistleblowers in the nongovernment and citizen sector especially,

citizens who unearth corruption using The Right to Information Act, 2005.


This clause is poorly drafted. It is obvious that in a quasifederal setup the Central Government cannot provide

protection for employees of the State Government . The Bill must authorize the State Governments to protect their

whistleblowing employees.


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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.


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 publicauthority 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


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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.


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 retaliatoryaction 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.

14. 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.


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: Whistleblowers right of appeal

a) Provision(s):


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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.


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 VIIb) 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.


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 Rulemaking

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 priorpublication and consultation.


The process of making laws and subordinate legislation in India is not sufficiently participatory and consultative.

E ven 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


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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 ofDelhi 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 BillSome of the key features of the proposed Indian law are as follows:

y It will protect the whistleblowers from any discrimination or victimization in their workplace.

y 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).

y The offenders will be liable for imprisonment up to 3 years and a fine up to Rs.50, 000.

y 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.

y There will be penalization for officials who try to mislead the CVC.

y The bill provides for addressing complaints against public sector employees and employees of the

Central and the State Government.

y 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.


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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 veryimportant legislation, the lack of public debate and consultation on the Bill seems to indicate the danger of

it becoming another paper 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.

Documents

Whistle Blower Laws