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Scrapping of Article 370 give path for implementation of Whistle Blowers Protection Act 2014

Anti-corruption movement is all set to get major boost in Jammu, Kashmir and Ladakh as whistleblowers, who exposes corrupt practices by public servants, would get legal protection against any sort of victimization under the Central Law, which will become applicable to both Union Territories. Whistleblowers Act as early warning system and help to uncover corruption and combat illegal activities in any organization.

While performing this vital role in the anti-corruption movement, they become vulnerable to abuse as such need proper protection. However, this aspect never received due attention in Jammu and Kashmir as a result of which whistleblowers are facing official apathy and are being treated as persona-non-grata although on the basis of their information and cooperation the Anti-Corruption Bureau (formerly State Vigilance Organization) has been able to identify corrupt elements in the administration and successfully conduct trap cases.

Whistle Blowers Protection Act, 2014, which was enacted by the Union Government to establish a mechanism to receive complaints relating to corruption or wilful misuse of power against any public servant and to provide adequate safeguards against victimization of the person making such complaint, will become applicable to the Union Territory of Jammu and Kashmir and Union Territory of Ladakh as per the provisions of Jammu and Kashmir Reorganization Act, 2019 passed by the Parliament {1}.

Anti-Corruption Bureau (formerly State Vigilance Organization)

History and Organizational Structure: The offences of corruption and bribery against government employees were initially covered only under the provisions of Ranbir Penal Code, 1989 Bikrami (1932 A.D). Up to 1949 A.D. cases in this behalf were registered and investigated by Local Police.

After the enactment of J&K Prevention of Corruption Act, 2006 Bikrami (1949 AD), a separate wing called Anti-Corruption Wing was formed in the State Crime Branch for conducting the investigation of cases covered under Prevention of Corruption Act. However, in 1962 a separate organization, called Anti-Corruption Organization was created to investigate all cases relating to bribery and corruption.

With the passage of time, various Acts were enacted to deal effectively with the menace of corruption. Most important among those enactments were, Prevention of Corruption Laws (amendment) Act, 1983 A.D. by virtue of which the Anti-Corruption Organization was renamed as State Vigilance Organization, and J&K Public Men and Public Servants Declaration of Assets and Other Provisions Act, 1983 A.D.

By virtue of this Act, the elected representatives of various public bodies, MLAs and Ministers were brought under the purview of Corruption Laws and filing of Annual Property Returns was made mandatory for all public servants and public men. Failure to do so was made an offence under P.C. Act, 2006 Bikrami (1949 A.D.). To streamline the investigations, two Police Stations were set up, one at Jammu and another at Srinagar vide SRO 229 of 1976 dated 23.4.1976. These Police Stations take cognizance of offences under P.C. Act, 2006 Bikrami (1949 A.D.).

Laws enforced by State Vigilance Organization: Offences related to corruption envisaged in Ranbir Penal Code (RPC), 1989 Bikrami (1932 A.D), which is substantive penal law for J&K, equivalent to Indian Penal Code (IPC). Offences related to corruption envisaged in the Prevention of Corruption Act, 2006 Bikrami (1949 A.D). Offences related to Public Servants envisaged in the Jammu & Kashmir Public Men and Public Servants Declaration of Assets and Other Provisions Act, 1983 A.D. Reorganization of Vigilance Organization to Anti Corruption Bureau due to implementation of Reorganizing Act 2019 of Jammu and kashmir. The nomenclature of Vigilance Organization Jammu & Kashmir has been be rechristened as to Directorate of Anti-Corruption Bureau Jammu & Kashmir by making suitable amendments in the State Vigilance Commission Act./ P.C. Act.

Key highlights of whistle blowers protection Act 2014:

The Act establishes a mechanism to receive complaints related to disclosure of allegations of corruption or willful misuse of power or discretion, against any public servant, and to inquire or cause an inquiry into such disclosure. The Act also provides adequate safeguards against victimization of the person making such complaints. It allows any person, including a public servant, to make a public interest disclosure before a Competent Authority.

The law has elaborately defined various competent authorities. The law does not allow anonymous complaints to be made and clearly states that no action will be taken by a competent authority if the complainant does not establish his/her identity. The maximum time period for making a complaint is seven years.

Exemptions: The act is not applicable to the Special Protection Group (SPG) personnel and officers, constituted under the Special Protection Group Act, 1988.
Court of Appeal: Any person aggrieved by any order of the Competent Authority can make an appeal to the concerned High Court within a period of sixty days from the date of the order.

Penalty: Any person who negligently or mala-fidely reveals the identity of a complainant will be punishable with imprisonment for a term extending up to 3 years and a fine which may extend up to Rs 50,000. If the disclosure is done mala-fidely and knowingly that it was incorrect or false or misleading, the person will be punishable with imprisonment for a term extending up to 2 years and a fine extending up to Rs. 30,000.

Annual Report: The Competent Authority prepares a consolidated annual report of the performance of its activities and submits it to the Central or State Government that will be further laid before each House of Parliament or State Legislature, as the case may be.

The Whistleblowers Act overrides the Official Secrets Act, 1923 and allows the complainant to make public interest disclosure before competent authority even if they are violative of the later act but not harming the sovereignty of the nation. In 2015, an amendment bill was moved that proposes, whistleblowers must not be allowed to reveal any documents classified under the Official Secrets Act of 1923 even if the purpose is to disclose acts of corruption, misuse of power or criminal activities. This dilutes the very existence of the 2014 Act {2}.

Purpose of the RTI Act differs from the whistle blowers protection Act: The Statement of Objects and Reasons of the RTI Act 2015 states that the prohibited categories have been modelled on the 10 categories of information that cannot be revealed under the Right to Information (RTI) Act, 2005. However, this comparison may not be appropriate. The purpose of the RTI Act is to make information with public authorities accessible to all citizens in order to promote transparency and accountability.

There may be circumstances where it may not be desirable for public institutions to reveal all types of information to citizens. In contrast, the Whistleblowers Act provides for corruption related information to be given by an individual to a Competent Authority. The Competent Authority, in all cases, is a high level Constitutional or statutory authority. This information is not made public and the inquiry into the allegation is required to be discreet, with the identity of the complainant, public servant, and related documents being kept secret.

Judicial trend towards whistle blowers protection act 2014: A whistleblower is a person who releases information about the wrongdoing of any government or public official or discloses some corruption on the part of public office holder to the public. He may be a person who is a part of government functionary. Whistle blowing constitutes an important element of information law. Indian Judiciary define the meaning and role of whistle blower in many cases like, Manoj H. Mishra v. Union Of India & Ors on 9 April, 2013

A whistleblower is a person who raises a concern about the wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues {4}.

Shri Harishchandra Joma Mhatre v. Central Vigilance Commission ... on 25 January, 2010 .{5} In this case Supreme Court asked a question i.e whether name of the appellant as a 'whistle blower’. The Supreme Court considered safety of whistle blower as its priority and stated that information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes must be remain secret during the proceeding of the case.


Conclusion:
Corruption is a phenomenon, which denotes the deviation from the formal duties of a public role because of private pecuniary or status gains. It is the corruption of mind and corruption at work place which leads to illegal activities and the person who is involved tries to hide it and those who uncover their activities are informer or whistleblower. By implementation of Whistle Blowers Protection Act in both union territories, the corruption rate will reduce as the investigation authorities now get more deadly powers in their hands as well as the whistle blower now have protection rights under this Act.

References.
N.V. Paranjape, Right To Information Law In India, 256 (Central Law Agency,30 D/1 Motilal Nehru Road, Allahabad, 1st ed., 2014).

End Notes:

  1. Mohinder Verma, Whistleblowers in J&K all set to get legal protection against victimization, DailyExcelsior,29/08/2019,https://www.dailyexcelsior.com/whistleblowers-in-jk-all-set-to-get-legal-protection-against-victimization/
  2. Whistleblowers Protection Act, 23 Oct 2019, https://www.drishtiias.com/daily-updates/daily-news-analysis/whistleblowers-protection-act.
  3. Official Website Indian Kanoon, https://indiankanoon.org/doc/85312877/.
  4. Official Website Indian kanoon, https://indiankanoon.org/doc/1891820/

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