The Whistle Blowers Protection Act: Issues for Whistleblower Protection

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The Whistle Blowers Protection Act: Issues for Whistleblower Protection

WHISTLE BLOWING: A HOBSON’S CHOICE? CHERRY-PICKING BETWEEN STATE AUTHORITIES AND THIRD-PARTY INTERNET PLATFORMS

‘A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.’

James Madison [1]

I.                    Introduction

In any private or public organisation, it is typically the persons ‘on the ground’ who are the earliest to intuit trouble or potential danger—be it hazards to health and safety, financial corruption, or other unlawful acts. They act as whistle blowers, much like the canaries in coal mines as harbingers of toxic gases. In this whistle blower, corporations and governments alike possess an indispensable resource to uncover risks and deficiencies. Oftentimes, they may not see it that way. They may instead turn a deaf ear and a blind eye, or fail to protect the whistle blower from reprisals.[2]

An enlightened approach to whistle blowing assists accountability, responsibility and transparency. The Hon’ble Supreme Court of India has consistently held that disclosure of information in regard to the functioning of the government must be the rule and secrecy an exception.[3] However, the state of whistle blowers in India has not been very favourable and the steps taken for their protection, too, have been subpar.

The Whistle Blowers Protection Act, 2014 was enacted to set up a mechanism to receive complaints of corruption or wilful misuse of power by a public servant, and to provide safeguards against victimisation of the complainant. It has not yet come into force. Its proposed Amendment Bill of 2015 has been passed by the Lok Sabha and is currently pending consideration before the Rajya Sabha. It portends darker times for whistle blowers as it results in severely diluting the provisions of the Act with regard to exemptions to disclosures, and undermines the overriding power of the Right to Information (RTI) Act, 2005 in respect of public interest.

In 2014, during the hearing of a writ petition[4] filed a decade ago following the death of whistle blower Satyendra Kumar Dubey,[5] the Central Vigilance Commission (CVC) filed a 130-page affidavit on how it dealt with 3,634 complaints received from whistle blowers since January 2007 to September 2014, and virtually admitted its total failure in tackling graft in Central and State Government offices.[6] The ‘Hall of Shame’ statistics maintained by the Commonwealth Human Rights Initiative (CHRI) records a total of 405 attacks on RTI users from April 2006 till date.[7]

It would thus not be a happy development if the message that this Amendment Bill gives is that The Whistle Blowers Protection Act—which was enacted to promote public interest, transparency and accountability, and provide protection to the whistle blower—is, quite ironically, also susceptible to being used to water down the campaign against corruption.

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Simultaneous advancements in technology have led to the emergence of third-party internet whistle blowing platforms[8] that not only ease the process of whistle blowing, but are also gag-proof[9] and provide better anonymity protections[10] than our national legislation. The flip side is that they publish disclosures on a global stage, and thus, come with special and more threatening risks to national security and public interest.

This article juxtaposes the drawbacks of the Act with the positives of the third-party internet whistle blower platforms such as WikiLeaks, and contends that it is the combination of a lack of legitimacy that pervades our whistle blower protection law and the perception thereof, along with the corresponding enhanced protections that third-party internet platforms offer, that would incline a potential whistle blower to pick a third-party platform over our own State authorities. Since these new platforms come with their own disadvantages that are far more harmful to national security, the author also contends that the provisions of the Whistle Blowers Protection Act ought to be strengthened to raise the levels of legitimacy and trust in our own State mechanism. Doing so would make it a more viable alternative, and prevent the irreversible damage that could potentially be caused by whistle blowing online.

To this effect, Part II delves into the highly critiqued sections of the Whistle Blowers Protection Act and their proposed amendments, and sets the background for why there is a permeating lack of confidence in State authorities. Part III then weighs the perks and the perils of whistle blowing to a third-party internet platform, and explains how this alternative can potentially do more harm than good. Lastly, Part IV provides recommendations to the Act and the Amendment Bill based on international best practices, with a view to having a strong national legislation for the protection of whistle blowers that establishes a fine balance between the conflicting interests of government transparency and national security.

II.                 Whistle Blowers Protection in India: A Safe Alternative to Silence?

After nearly 64 years of our adopting the Constitution, at least three reports by National Commissions,[11] the passing of a resolution by the Government of India,[12] as well as directions from the Supreme Court in writ petition hearings,[13] the Whistle Blowers Protection Act, 2014 received the presidential assent on 9 May 2014. It has not been implemented yet. The Act seeks to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant; inquire or cause an inquiry into such disclosure; and provide adequate safeguards against victimisation of the person making such complaint.[14]

The Whistle Blowers Protection (Amendment) Bill, 2015 has been passed in the Lok Sabha and is currently pending consideration in the Rajya Sabha. It was introduced to give effect to amendments modelled on the provisions of sub-section (1) of section 8 of the RTI Act, to strengthenthe safeguards against disclosures which may prejudicially affect the sovereignty and integrity of the country, security of the State, friendly relations with foreign States or lead to incitement to an offence. In that regard, it amends sections 4, 5 and 8 of the Act.[15]

The proposed amendments have been ardently criticised[16] since they severely dilute the Act and weaken the fight against graft in sensitive sectors like defence and various sensitive ministries.[17] These misgivings were further rationalised after a Cabinet Note on the amendments to the Act stating, ‘People cannot have the absolute right to blow a whistle if they see wrong-doing’, came to light when it was accessed under the RTI Act.[18] In addition, the new draft rules to the RTI Act, that were released on 31 March 2017 for public consultation, proposed to empower the Central Information Commission to permit withdrawal of an appeal if an appellant makes a written request, and also states that pending appeals proceedings will abate on the death of the appellant.[19], [20]

The Supreme Court, which  till recently wanted urgent steps to protect whistle blowers and also considered an independent authority to receive complaints from them,[21] has, in January 2017, disposed of a 12-year old PIL demanding better handling of complaints from whistle blowers and protection of their lives, dubbing the issue canvassed as being ‘premature’ with a liberty to the ‘petitioner to come back to court’, after the Centre submitted before the new bench that when the enactment was examined by the government, it found certain deficiencies which it proposed to cure soon and pass the amendments in the budget session.[22]

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In the light of the above disturbing developments that do little to inspire confidence in a potential whistle blower, the following is an analysis of sections 4, 5 and 8 of the Act, along with their proposed amendments that are modelled after section 8(1) of the RTI Act:

A.     Public Interest Disclosure (section 4)

1.      Under the Principal Act

Section 4 of the Act lays down the requirements of public interest disclosure. Sub-section (1) overrides the provisions of the Official Secrets Act (OSA), 1923, and declares that any public servant or any other person including any non-governmental organisation, may make a public interest disclosure before the Competent Authority.[23], [24] While the Act does not define ‘public interest’, sub-section (2) read with sub-section (3) provides that any disclosure made under the Act shall be treated as public interest disclosure to be made before the Competent Authority. Such disclosure must be made in good faith, and the whistle blower shall make a personal declaration of his reasonable belief that the information disclosed and allegation contained therein is substantially true.[25] Sub-section (6) then goes on to provide that no action will be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the whistle blower or if such identity is found to be incorrect or false.[26] It follows therefore that anonymous disclosures, even if they possess merit and substantial public interest, shall not to be taken into consideration. This comes after the Supreme Court, in 2014, legitimised anonymous whistle blowing in Centre for PIL & Ors. v. Union of India & Ors., also known as the ‘CBI 2G Scam Diarygate’ scandal.[27]

2.      Under the Proposed Amendment

The proposed Amendment truncates the existing section 4(1) and reverses the overriding authority and supremacy of the Act over the OSA by deleting this safeguard altogether and renders the whistle blower at the risk of being prosecuted thereunder.[28] It also inserts sub-section (1A) that imports the ten exemptions to public interest disclosure under section 8(1) of the RTI Act as is, and conditionally allows disclosures of only those documents that are made available under the RTI Act.[29]

These exemptions are under the broad categories of information relating to the economic, scientific interests and the security of India and its relation with foreign State [clauses (a) and (f)]; information which would constitute contempt of court [clause (b)]; information which would cause a breach of the privilege of the legislature, or that which relates to Cabinet proceedings [clauses (c) and (i)] ; information including commercial confidence, trade secret, intellectual property, etc [clause (d)]; information available to a person in his fiduciary relationship [clause (e)]; information which would endanger the life or personal safety of any person, or that which would impede the process of investigation or apprehension or prosecution of offenders [clauses (g) and (h)] and information which relates to personal information and which has no relationship to any public activity or interest or which would cause invasion of the privacy of an individual [clause (j)].

Of these, six categories that are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Categories enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption and are subject to the information being already disclosed to the whistle blower under the RTI Act. This renders the premise of whistle blowing redundant, since information disclosed under the RTI Act is, by its very nature, deemed to be in the public domain. On the other hand, information leaked by a whistle blower is intrinsically secret. While both, the RTI Act and the Whistle Blowers Protection Act, seek to promote transparency and accountability through public interest disclosures, the ambit of both differ—in that, the former covers ‘public’ disclosures and the latter covers ‘protected’ disclosures. Therefore, a blanket import of the exemptions that apply in the first scenario into the second is an anomaly and does not further the purpose of making provisions for ‘protected’ disclosures.

While importing the bars under section 8(1) of the RTI Act, the Amendment Bill seems to ignore the overriding sections of same Act, which uphold public interest. The immediate sub-section (2) of section 8[30] read with section 22[31] of the RTI Act, provides that notwithstanding anything inconsistent therewith, in any of the exemptions outlined in section 8(1) of the Act, nor in the OSA and in any other law for the time being in force, a public authority is to allow the disclosure of the information if public interest in disclosure outweighs the harm to the protected interests. This does indeed give overriding power to the public authority to direct disclosure of files that are classified as ‘confidential’ under the OSA and where the information sought is covered by any part of section 8(1) of the RTI Act.[32]

The legal effect of this omission of the overriding sections is that the Amendment Bill effectively makes the Whistle Blowers Protection Act subservient to the OSA. Far from encouraging whistle blowers to expose corruption, it seeks to muzzle them under the garb of ‘protecting public interest’.

B.     Powers and Functions of Competent Authority (section 5)

1.      Under the Principal Act

Section 5 outlines the powers and functions of the Competent Authority on the receipt of public interest disclosure. Under sub-section (1), it requires the Competent Authority to ascertain the identity of the whistle blower and conceal his identity, unless the whistle blower himself has revealed it to any other authority while making the disclosure.[33] Sub-section (4) mandates the Competent Authority not to reveal the identity of the whistle blower while seeking any comments, explanations or reports from the authority in question. In the event the Competent Authority is of the opinion that it has become necessary to reveal the identity of the whistle blower to the Head of the Department (HoD) in question, it may do so, provided that the whistle blower consents to it in writing. In furtherance of the same, it must also direct the HoD to not reveal the whistle blower’s identity. If the whistle blower does not agree to his name being revealed to the HoD, he must make available all documentary evidence in support of his complaint to the Competent Authority.[34]

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Therefore, the proviso to sub-section (4) negates the very purpose of the law. The central philosophy of whistle blower legislation is to keep confidential the identity of the person making the public interest disclosure so that he may be protected from any consequent reprisals. The identity of the whistle blower remains hidden so long as he does not consent in writing to revealing it, but the trade-off thereto is that he must provide all the documentary evidence in support of his complaint. This puts too much onus on the whistle blower, who has already put himself at risk by disclosing whatever confidential information he has at his disposals. Asking for every possible evidence there is, is discouraging for a whistle blower who has a lot at stake with his initial disclosure of confidential information itself.

In consonance with the same, section 13 of the Act provides that notwithstanding anything contained in any other law for the time being in force, the Competent Authority is to conceal the identity of the whistle blower and his disclosure, unless decided otherwise by the Competent Authority, or if it has become necessary to reveal it by virtue of the order of the court.[35]

2.      Under the Proposed Amendment

The Amendment Bill proposes to insert sub-section (1A) which puts an absolute bar on an inquiry into any public interest disclosure which falls under the 10 exemptions imported from the RTI Act into section 4(1A) of the Amendment Bill. The proviso to this proposed section adds that on receipt of any public interest disclosure, the Competent Authority must first refer the disclosure to an authority authorised by the Central or State Government under section 8(1). This authority is to ascertain whether the disclosure contains any information of the nature specified under the 10 exemptions imported into section 4(1A), and the certificate given in this regard by such authority is binding on the Competent Authority.[36]

This effectively means that in the event there is a slightest doubt whether the information disclosed falls under the exemptions under section 4(1A), an authority sanctioned by the government itself, will certify whether the disclosure can be investigated or not. Such certification would be conclusive and be binding on the Competent Authority, effectively scuttling any prospective investigation into the same. This results in reducing the CVC and the SVC as nominal bodies set up for the purpose of having token whistle blower protection mechanisms in the country.

C.     Matters Exempt from Disclosure (section 8)

1.      Under the Principal Act

Section 8 deals with certain matters that are exempt from disclosure. Sub-section (1) contains protection for the authorities under inquiry to not furnish any information, answer any question, produce any document, or render any other assistance involving the disclosure of the proceedings of the Cabinet of the Union or State Government, if such inquiry is likely to fall under the reasonable restrictions outlined under article 19(2) of the Constitution of India.[37] Sub-section (2) puts a bar on giving of any evidence or producing of any document on any person which he could not be compelled to give or produce in proceedings before a court.[38] These are the only exemptions to disclosure provided under the Act.

2.      Under the Proposed Amendment

The proposed Amendment seeks to substitute section 8(1) with the same 10 exemptions sought to be added with the insertion of section 4(1A). The amended section 8(1) also possesses an overriding power and further strengths the absolute bar on disclosure of information that is in the nature of the exemptions. It provides that no person is required under this Act or under any other law in force, to furnish any information, answer any question, produce any document or render any other assistance in any inquiry, if doing so is likely to result in the disclosure of any information of the nature specified in section 4(1A). This is pursuant to the certificate issued under the aforementioned section 5(1A) of the Amendment Bill.[39]

By including a non-obstante clause and upholding the blanket ban of disclosure of information under the 10 exemptions, the legal effect of this provision is that it undermines all other laws in force including the RTI Act. It gives the authority under inquiry complete protection to not provide the information that is sought, if a certificate is issued to this effect by another authority sanctioned by the government. This provision is also in direct conflict with the contradictory overriding sections 8(2)[40] and 22[41] of the RTI Act which mandate disclosure of information, if the ‘public interest’ in its disclosure outweighs the potential harm to the ‘protected interests’.

Thus, in a nutshell, the proposed Amendment Bill, while doing away with the much-needed safeguard against the draconian provisions of the OSA, and heavily shielding the 10 exemptions under section 4(1A), upholds ‘protected interests’ but makes no allowance for a balancing ‘public interest’ to be considered in the equation. As a result, it leaves very little room for blowing the whistle, let alone being a safe alternative to silence for a whistle blower acting in public interest.

As the above analysis reveals, currently, deficient procedural justice characterises this key legislation that governs the public’s right to disclose government information in public interest, as well as the protection of such individuals who choose to blow the whistle.People cannot have the absolute right to blow a whistle if they see wrong-doinga cabinet note on the amendments to the Whistleblowers’ Protection Act

III.              Internet Whistle Blowing Platforms: Saviours or Threats?

It is this plague of procedural shortcomings illustrated in Part II and the perception thereof, that pose to be the chief motivation for a potential whistle blower to turn to gag-proof third-party internet whistle blowing platforms[42] as the current trend of online national security leaks demonstrate.[43] Professor Margaret Kwoka of Denver Sturm College of Law, contends that the recent national security leaks, like those of WikiLeaks, are different in significant ways from traditional whistle blowing leaks, and thus represent a new type of leak that she labels ‘deluge leaks’.[44] According to Kwoka, unlike whistle blower leaks, which expose targeted government policies about which a knowledgeable leaker is concerned, deluge leaks are characterised by lower-level government officials[45] without policy-making authority leaking massive quantities of information on a wide range of subject matter[46] largely out of a belief that government keeps too many secrets.[47]

Since the reactions garnered by these platforms and their respective leaks have been diverse, it would help to analyse and weigh the perks and the perils of choosing this alternative over the mechanisms set up by the Whistle Blowers Protection Act.

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A.     The Perks

Advancements in technology have cleared considerable obstacles in leaking confidential information.[48] Whistle blowers no longer need to spend time photocopying confidential records. Hard copies have been digitised to easily saved, copied and shared soft copies that are stored on the cloud. As government information systems become more centralised and more digitised, more low-level government officials and contractors have access to broad swaths of government information,[49] including national security related records.[50] These digital records are not only easy to access from any place and any time, but are also easy to hack into and steal—even by individuals unrelated to the organisation—if the website where they are stored uses substandard security measures and is not encrypted, as was revealed in the recent Aadhaar data theft case of August 2017.[51]

Furthermore, technology has upgraded to such an extent that tracing whistle blower leaks to their source has become near impossible due to stronger and easily accessible anonymity tools for submissions of information, making whistle blowing without reprisals a reality. For example, for anonymous submissions, WikiLeaks currently offers sophisticated online anonymity tools such as Tor, an encrypted anonymising network that is touted to be vastly more secure than any banking network;[52] and Tails, an operating system launched from a USB stick or a DVD, that leaves no traces when the computer is shut down and automatically routes one’s internet traffic through Tor.[53] On their Submissions webpage, WikiLeaks claims, ‘We keep no records as to where you uploaded from, your time zone, browser or even as to when your submission was made.’[54]

Thus, in contrast to whistle blowing envisioned by the Whistle Blowers Protection Act, which does not entertain anonymous disclosures[55] but functions via confidentiality between the person making the disclosure and the Competent Authority, and places the anonymity of the whistle blower in the hands of the Competent Authority at their discretion,[56] third-party internet whistle blowing platforms operate on the principle that ‘the best way to keep a secret is not to have it’.[57] Additionally, while the Act requires certain declarations to be made, particulars to be submitted, and following of regulations made by the Competent Authority on the part of the whistle blower while making the disclosure,[58] these online platforms have no such requirement—a mere submission of questionable confidential documents is sufficient to blow the whistle.

These factors, thus, make the online platforms a more attractive and practicable option for a potential whistle blower.

B.     The Perils

While the key benefits offered to whistle blowers by these platforms outweigh those offered by the Act, the question now is whether the risks associated with the same also favour the viability of this option. From all the disclosures that have been made online till date, the following three areas are brightest blips on the risk radar of publishing on these platforms, that are subject to the nature of the contents of the information that is leaked. These risks inherently make it harder for whistle blowers to minimise the harms and maximise the benefits of their disclosures in light of larger public interest. While most of the observations below pertain mainly to WikiLeaks, they apply to all third-party internet whistle blowing platforms mutatis mutandis.

1.      Threat to National Security

Protection of national security interests is a legitimate justification for secrecy. For example, the reasonable restrictions to our fundamental rights enumerated in article 19(2) of the Constitution of India, are vindicated because they are in the larger public interest. Publication of leaks of information under those heads, on internet platforms that are accessible globally, would have a serious repercussion on national security and diminish any benefit to the public in its pursuit to increase government accountability and transparency.

This is not to eclipse the benefits of these online platforms that have been accrued so far. For example, in the case of WikiLeaks, the revelation of the Iraq and Afghanistan war documents pertaining to the mistreatment of prisoners[59] and thousands of unreported civilian deaths,[60] as well as its contribution to the Arab Spring,[61] have been of great public importance. Edward Snowden, too, has been attributed with launching a national debate in the United States of America on privacy and the role of the National Security Agency (NSA),[62] on such large a scale, that the then President Barack Obama, had to engage a panel of advisors to review the NSA surveillance.[63]

Since these platforms mass-leak documents in bulk, there have also been gaffes wherein the data leaked has included sensitive and private information of ordinary citizens—the leaks of which do not have an iota of ‘public interest’, but are   a danger to individual privacy and national security.[64] Take for example, the 300,00 ‘Erdogan emails’ leak and the 19,252 emails in the ‘Hillary Leaks’. WikiLeaks, along with these copious amounts of data, also released databases that contained private information of millions of ordinary people, including a database of almost all adult women in Turkey in the case of the former leak,[65] and personal information of donors of the Democratic party of the USA, which included credit card, passport and social security numbers in the case of the latter.[66]

2.      Questionable ‘Public Interest’

Although the attempts have been made in the past to minimise harm through redaction and selective withholding, the later leaks elucidated above, have cast a doubt on whether WikiLeaks is crossing the line between government transparency and violations of privacy of ordinary citizens. According to sociologist Zeynep Tufekci, the problem lies in the fact that instead of curated whistle blower leaks that take public interest into account, the leaks of 2016 have demonstrated that mass-hacked emails are being dumped without any consideration for the privacy of the people.[67] As ideal it would be for these platforms to have a vetting process and publish only those disclosures or the parts thereof that are in public interest, it becomes difficult, if not impossible, to do so when such leaks involve such copious amounts of data. Moreover, WikiLeaks does not seem to be too keen to redact in the future either, as they declared in a tweet dated 27 July 2016: ‘Our accuracy policy. We do not tamper with the evidentiary value of important historical archives.’[68]Our accuracy policy. We do not tamper with the evidentiary value of important historical archives.

3.      Difficulty in Regulation of Reckless Leaks

Such rash leaking of confidential data that is against public interest must definitely not go unpunished, but the harsh reality is that punishment after a leak has occurred does not undo the damage caused by the leak—one cannot unscramble an egg. While technological innovations have certainly made it hard to trace the source of a leak and nab the negligent whistle blower, the whistle blower is not the only participant in the perpetuation of a reckless leak. Unlike the mechanism set up by the Whistle Blowers Protection Act, wherein there is only the whistle blower, the Competent Authority, and in certain cases, the authority under inquiry, who have access to the disclosed information,[69] online platforms involve three players in any disclosure and its subsequent distribution: the leaker, the platform and the media. When a whistle blower leaks confidential files to the online platform, it is the online platform that publishes the information that is accessible globally. This information is then reported nationally and/or internationally by the media. Without such a wide range of publication, such information—whose revelation would be against public interest and national security—would pose little threat because the chances of unwanted readers encountering the information would be slim. Therefore, the media ends up playing an even greater role than the leaker in the dissemination of the reckless leak. It was a similar situation and a threat to our national security, when the broadsheet, The Australian, published the story of 22,400 pages of leaked secret documents marked ‘Restricted Scorpène India’ revealing threadbare details of the Scorpène-class submarine project consisting of technical literature, manuals and other operational details.[70]

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Therefore, when it comes to disclosures on third-party internet platforms, the ostensible perks to whistle blowers are overshadowed by the perils to national security when considering the larger public interest. The common thread between the aforementioned risks, is that they are all associated with making the disclosure public on an easily accessible global platform, in contrast to whistle blowing confidentially to a State authority,[71] thereby avoiding unwanted eyes screening the exposé. The hazards of online whistle blowing can be mitigated if only the domestic mechanism is strengthened to overcome its lacunae, become more whistle blower friendly and regain faith in its legitimacy.

IV. Saving The Canary In The Coalmine: Recommendations and Concluding Remarks

Whistle blowing is an essential facet of a healthy democracy. But where there are serious repercussions on national security, secrecy can legitimately be claimed as it would then be in the larger public interest that such matters are not disclosed or disseminated.[72] Therefore, a fine balance must be struck between the two conflicting interests of government transparency and national security. The purpose of whistle blower protection is to provide whistle blowers with a safe alternative to silence, a security against reprisals, and ensure that the larger public interest prevails under all circumstances.

Not all is critiqued in the Whistle Blowers Protection Act and its Amendment Bill. For one, what is remarkable is the fact that while the term ‘whistle blower’ conventionally, and in most legislations,[73] refers to an employee operating within the government or a corporation who exposes corruption or wrongdoings therein, the Act broadens the scope of this term to consist of any public servant or any other person including any non-governmental organisation to blow the whistle or file a complaint against any public servant.[74]

However, in the light of certain provisions of the Act and its Amendment Bill, it is necessary for the State to accelerate the transition to a more effective and less symbolic legislation. To this effect, the author has the following recommendations for the Act based on international best practices.

A. Recommendations

1.      To include the overriding sections of the RTI Act and do away with the overriding sections of the Whistle Blowers Protection Act.

As explained under Part II, the proposed amendments to the Whistle Blowers Protection Act not only make it subservient to the OSA,[75] but also undermine the overriding authority of the RTI Act that advocates public interest.[76]

It is thus recommended that non-obstante clause under the original section 4(1) of the Act, that overrode the provisions of the OSA,must be retained. In the same vein, the Protected Disclosures Act 2000 (New Zealand) provides immunity from civil and criminal proceedings where a person has made a protected disclosure. This protection applies despite any prohibition of or restriction on the disclosure of information under any enactment, rule of law, contract, oath or practice.[77] It thus overrides any other law in the country that deals with official secrets.

It is also recommended that sections 8(2) and 22 of the RTI Act be held supreme, as they uphold public interest and override all exemptions to disclosures in force. Therefore, along with importing the exemptions of section 8(1) from the RTI Act, the provisions of section 8(2) must also be imported. The proposed section 8(1) in the Whistle Blowers Protection (Amendment) Bill must be done away with, since it conflicts with the overriding power of section 22 of the RTI Act.

2.      To outline a ‘public interest test’.

As observed by the Supreme Court in May 2015, a whistle blower cannot be penalised for disclosing confidential documents if he has acted in ‘public interest’.[78] Currently, the Act only defines ‘disclosure’[79] and declares that any disclosure made thereunder shall be treated as ‘public interest disclosure’.[80] Legislation in India is silent on the definition of ‘public interest’.[81]A public interest test is necessary to be evolved to ensure consistency in its implementation and to avoid conflicting, subjective interpretations thereof. The closest we have come to evolving a test for the same, are the ones evolved by the Supreme Court in 1993[82] and the Gujarat High Court in 2007–2008.[83] In contrast, the Government Information (Public Access) (GIPA) Act 2009 (Australia)[84] and the Ministry of Local Government and Community Development, Jamaica,[85] have formulated far more comprehensive tests. Keeping the tests evolved by our courts in mind, and finding a common ground between both the detailed tests of Australia and Jamaica, a corresponding comprehensive test could be evolved for India. Such test must take into account the following factors that may help in deciding whether public interest in the disclosure outweighs the harm to the protected interests:

Considerations in favour of the disclosure:

  • whether the disclosure informs the public about the operations of agencies;
  • whether the disclosure promotes and contributes to an open discussion and an informed debate on public affairs and issues of public importance;
  • whether the disclosure enhances the scrutiny of the decision-making process and contributes to greater government accountability and transparency;
  • whether the disclosure contributes to the administration of justice and enforcement of law or would prejudice the prevention or detection of crime or the apprehension or prosecution of offenders;
  • whether the disclosure affects the economic interests of India and ensures effective oversight of the expenditure of public funds;
  • whether the disclosure reveals any danger to public health, safety or to the environment, or substantiates that an agency or a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct; and
  • whether the disclosure would prejudice the protection of an individual’s right to privacy.

Considerations against the disclosure:

  • whether the disclosure might cause substantial risk to public interest and national security;
  • whether the disclosure might cause embarrassment to, or loss of confidence in, the government or the agency;
  • whether the disclosure carries the risk of misinterpretation by any person.

The public interest test of the UK goes a step further and stipulates that it is not necessarily a bar to a tribunal finding that disclosure is in the public interest either that—

  • self-interest is the worker’s principal reason for making the disclosure; or
  • that the disclosure concerns a dispute between the employer and the employees, and that the only people that the employee has in mind as affected are fellow employees.[86]

The UK test upholds that a disclosure concerned with an essentially personal complaint—whether individual or collective—may also be believed to be in the public interest because of some wider implications, or because, for example, addressing or exposing wrongdoing may be believed to further the public interest.[87]

The considerations provided above, though not exhaustive, must be utilised to weigh the competing interests and determine whether the scale swings in favour of or against the disclosure. The Competent Authority can then proceed with investigations into the disclosure if that is where the larger public interest lies, and accord the whistle blower protection. Conversely, the Competent Authority must also provide its reasons in writing if it declines to go ahead with any investigation or inquiry.

3.      To make provision for appeals.

Currently, the Act makes provision for appeals in relation to the imposition of penalties under sections 14, 15 or 16 to the High Court within a period of 60 days of the order appealed against.[88] But in the event that the Competent Authority declines to cause further inquiry pursuant to the disclosure and the whistle blower is not satisfied with the reasons cited by the said Authority, the Act does not provide for an independent, quasi-judicial appellate body that is designated or constituted for such review. It is recommended that a body for such purpose be constituted or designated. The GIPA Act 2009 (Australia) offers the right to review such decision through either an internal review or an external review by the Information Commissioner or the New South Wales Civil and Administrative Tribunal.[89]

4.      To make allowance for anonymous complaints and to provide for more effective channels of communication for the same.

The Act excludes anonymous whistle blower disclosures and provides that they will not be acted upon[90] perhaps because anonymity may make the whistle blower unaccountable, thereby attracting querulents and vexatious complaints. But putting an absolute bar on anonymous disclosures could also possibly veer a whistle blower to make the disclosure to an internet platform because of the surety of anonymity protection offered, and this would go against public interest if the disclosure contains sensitive information that is potentially threatening to national security. While it is very rare that legislation allows for and protects anonymous disclosures, the Sarbanes-Oxley Act of 2002 (USA)[91] certain State statues of Australia do make provisions for the same.[92]

An ideal channel of communication for such anonymous disclosures could be either taking a leaf out of WikiLeaks’ book and utilising a network like Tor, or establishing hotlines, a practice that has been followed in a number of G20 nations. Indonesia’s Corruption Eradication Commission, for example, has established a designated whistle blowing website.[93] South Korea’s Anti-Corruption and Civil Rights Commission has established a telephone hotline to receive whistle blower reports.[94] In certain states, Germany has implemented an anonymous hotline which allows interactions with the whistle blower while keeping the exchange anonymous.[95]

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5.      To expand on the grounds for the protection of the whistle blower.

The Act offers protection for actions taken in good faith only to the Competent Authority and not to the whistle blower.[96] It is recommended that such protection be extended to the whistle blower, and his bona fide intentions should be established by the application of a ‘reasonable belief test’. The test, as evolved in the UK, is a corollary to the public interest test. It considers whether the whistle blower held the view of ‘good faith’ and ‘public interest’, and whether it was a view which could be reasonably held.[97] However, motive may be irrelevant when the information sought to be disclosed is self-evidently in public interest by reason of its subject matter. Thus, a reasonable belief test must be subservient to the public interest test.

As regards ‘victimisation’, the Act provides a next-to-nought definition covering only ‘initiation of any proceedings or otherwise’ merely on the ground that a disclosure was made or assistance was rendered under the Act.[98] In contrast, the Protected Disclosures Act 2000 (South Africa) enlists extensively the possible circumstances that may be recognised as occupational detriment—

  • being subjected to any disciplinary action;
  • being dismissed, suspended, demoted, harassed or intimidated;
  • being transferred against his or her will;
  • being refused transfer or promotion;
  • being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage;
  • being refused a reference. or being provided with an adverse reference from his or her employer;
  • being denied appointment to any employment, profession or office;
  • being threatened with any of the actions referred to paragraphs (a) to (g) above;
  • being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities and work security.[99]

It is recommended that a similar comprehensive definition should be included in the Act and clarify the kind of victimisation that the Act offers protection against.

6.      To provide better safeguards against victimisation of the whistle blower.

The Act offers generalised and vague protections of directing ‘the concerned public servant or the public authority to protect’ the victimised whistle blower[100] and restoring the whistle blower ‘to the status quo ante’.[101] In comparison, various other legislations include the following protections, which could be imbibed in our Act:

  • Entitlement to transfer or relocate or reversal of transfer, with terms and conditions not being less favourable than the previous post or position that was held;[102]
  • Immunity from prosecution;[103]
  • Legal assistance;[104]
  • Police protection for the whistle blower and his family;[105]
  • Compensation.[106]

These protections must be offered to the whistle blower only if he approaches the Competent Authority with the disclosure, and once his bona fide intention and reasonable belief in the veracity of the disclosure have been affirmed.

7.      To make provision for incentives to whistle blowers.

Under section 17, the Act provides for punishment in the case of false and frivolous disclosure.[107] Correspondingly, rewards could be paid if and when the content of a disclosure is proven and requisite action is taken, and could take the form of financial incentives.[108] Such rewards could be similar to the False Claims Act of 1863 in the US which contains a qui tam provision providing the whistle blower between 25 to 30 percent of the total recovery, the percentage depending on the extent to which the whistle blower took the action that enabled the recovery.[109] On similar lines, The Whistleblower Act, 2006 (Ghana) establishes a full-fledged ‘Whistleblower Reward Fund’ and provides for a reward to the whistle blower if the disclosure leads to the arrest and conviction of the guilty.[110]

Such measures would surely be liable to be abused by persons out of vindictiveness, or for the purpose of retaliation, or for claiming rewards. It must, however, be left to the Competent Authority to determine whether the informant was acting bona fide or was actuated by malice.

B.     Concluding Remarks

As Lord Acton once said, ‘Everything secret degenerates, even the administration of justice, nothing is safe that does not show how it can bear discussion and publicity.’[111]

Academic research has highlighted that the plight of the whistle blower is often intense and there may be a psychological cost to putting one’s head above the parapet and blowing the whistle. Even the strongest-willed individuals may find the burden of standing out from the crowd unbearable over time.[112] While there are certainly some risks inherent in the legislative measures recommended in this article, it is better to run these risks than to leave the whistle blower to approach a third-party internet platform that opens up a Pandora’s box for national security. Therefore, a precondition for effective whistle blower and national security protection is the rule of law.

The whistle blower must first have the confidence of complete redressal from the statutory machinery provided under the Act. In order to build his confidence, the Act must conform to and be ensconced by the stringent protection of article 21 of the Constitution of India. It is only when the whistle blower is reasonably satisfied that his fundamental right to life and liberty will be strenuously protected by the State, that he will reveal information that would otherwise never see the light of the day, or would be exposed on a global platform.

Whistle blowing should never be a Hobson’s Choice—an inhouse legislation ought to always prevail over the dark areas of the internet.

This article reflects the position of law as on 30 October 2017.

[1] James Madison, ‘To WT Barry’ in Gaillard Hunt (ed), The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed (1st edn GP Putnam’s Sons New York 1900) vol. 9 (Correspondence, 1819–1836) [1910], para 2, available at http://oll.libertyfund.org/titles/1940 (last visited 24 October 2017).

[2] For example, in India, whistle blowers such as Satyendra Kumar Dubey, Shanmugam Manjunath, Amit Jethwa and Shehla Masood were murdered for exposing corruption after their identity became public.

[3] SP Gupta v. Union of India, AIR 1982 SC 149, para 66.

See also State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865, para 74 (held ‘In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by the public functionaries … The right to know, which is derived from the freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with the veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.’).

In more recent cases of Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 and Vineet Narain v. Union of India, 1998 AIR SC 889, a citizen’s right to know the affairs of the State has been talked of, whether in the context of a report submitted by a committee or as to the background of a candidate at the hustling.

[4] Parivartan & Ors. v. Union of India & Ors., WP(C) No. 93 of 2004.

[5] Satyendra Kumar Dubey, Deputy General Manager of the National Highway Authority of India (NHAI) blew the whistle on the malpractices in the NHAI’s Golden Quadrilateral Project in a letter addressed to the then Prime Minister on 11 November 2002. In his letter, Dubey exposed ‘a dream project of unparalleled importance to the nation, but in reality a great loot of public money because of very poor implementation at every state’, while revealing his identity but also requesting anonymity. However, within months, Dubey was murdered, in what the Central Bureau of Investigation (CBI) purported to be a ‘robbery attempt’. Dubey’s request for secrecy would have had legal protection had a Public Interest Disclosure Act or a Whistle Blowers Protection Act been in force as recommended by the Constitution Review Commission in 2001.

See Alok Pandey, ‘Satyendra Dubey Verdict: Killed for Resisting Robbery’, NDTV (Patna India 22 March 2010), at http://www.ndtv.com/india-news/satyendra-dubey-verdict-killed-for-resisting-robbery-413357 (last visited 24 October 2017) and National Commission to Review the Working of the Constitution, ‘Probity in Governance’ (21 August 2001) 596, 3.4, available at http://lawmin.nic.in/ncrwc/finalreport/v2b1-12.htm (last visited 24 October 2017).

[6] See Harish Nair, ‘Poor Show by CVC in Tackling Graft in Govt Depts Upsets Whistleblowers’, India Today (New Delhi India 23 February 2015), available at http://indiatoday.intoday.in/story/graft-corruption-government-departments-cvc-prashant-bhushan-parivartan-supreme-court-whistleblowers-cbi/1/420418.html (last visited 24 October 2017).

[7] ——, ‘Hall of Shame: Mapping Attacks on RTI users’ (2017) Commonwealth Human Rights Initiative, at http://attacksonrtiusers.org/ (last visited 24 October 2017).

[8] The popular ones, for example, include WikiLeaks (wikileaks.org), Al Jazeera Transparency Unit (ajtransparency.com), GlobaLeaks (globaleaks.com), etc.

See ——, ‘Leak Site Directory’, Leak Directory at http://leakdirectory.org/index.php/Leak_Site_Directory (last visited 24 October 2017).

[9] For example, in 2009, when Barclay’s Bank obtained a court order that mandated The Guardian, to take down leaked information exposing a tax-avoidance scandal, WikiLeaks broadcasted the leaked information instantly thereafter, and rendered the gag-order futile.

See David Leigh and Luke Harding, WikiLeaks: Inside Julian Assange’s War on Secrecy (1st edn Guardian Books London 2011) 63.

[10] See WikiLeaks, ‘About’ (2011) WikiLeaks, at  https://wikileaks.org/About.html (last visited 24 October 2017); WikiLeaks, ‘Submit Documents to Wikileaks’, WikiLeaks, at https://wikileaks.org/#submit (last visited 24 October 2017) and WikiLeaks ‘What is Tor?’, WikiLeaks, at https://wikileaks.org/#submit_help_tor(last visited 24 October 2017)(describing the commitment to anonymity and the encrypted anonymising network utilised for submissionsencrypted anonymising network encrypted anonymising network).

[11] See National Commission to Review the Working of the Constitution, ‘Probity in Governance’ (21 August 2001), 3.D, available at http://lawmin.nic.in/ncrwc/finalreport/v2b1-12.htm (last visited 24 October 2017); Law Commission of India, ‘The Public Interest Disclosure and Protection of Informers’ (One Hundred and Seventy Ninth Report December 2001), available at http://lawcommissionofindia.nic.in/reports.htm (last visited 24 October 2017) and Second Administrative Reforms Commission, ‘Ethics in Governance’ (Fourth Report January 2007), 3.6, available at http://arc.gov.in/ (last visited 24 October 2017).

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[12] The Government of India had issued a Resolution No. 89, dated 21 April 2004, authorising the CVC as the designated agency to receive written complaints from whistle blowers. The Resolution also, inter alia, provides for the protection to whistle blowers from harassment, and keeping the identity of whistle blowers concealed. Available at http://cvc.nic.in/pidpi.htm (last visited 24 October 2017).Set up system to protect whistleblowers: SC to government

[13] In 2004, in response to the petition filed after the murder of whistle blower Satyendra Kumar Dubey, the Supreme Court had directed that suitable machinery be put in place for acting on complaints from whistle blowers till specific laws on the matter are enacted. In 2016, with the whistle blowers protection law still pending in the Parliament and in the absence of any effective administrative set-up, a bench of Chief Justice TS Thakur and Justices AK Sikri and R Banumathi said there was ‘absolute vacuum’ which could not be allowed to go on, and directed the Centre to put in place an administrative mechanism for whistle blower protection.With Whistleblowers Protection law still pending in Parliament for years and in the absence of any effective administrative set-up to deal with the issue, a bench of Chief Justice T S Thakur and Justices A K Sikri and R Banumathi said there was “absolute vacuum” which could not be allowed to go on.

See Parivartan & Ors. v. Union of India & Ors., WP(C) No. 93 of 2004.Set up system to protect whistleblowers: SC to government

[14] The Whistle Blowers Protection Act, 2014, Statement of Objects and Reasons.

[15] The Whistle Blowers Protection (Amendment) Bill, 2015, Statement of Objects and Reasons, para 1–2(b).

[16] See generally Gaurav Bhatnagar, ‘Activists Urge Rajya Sabha MPs Not to Pass Amended Whistleblowers Bill as Is’ (2017) The Wire, at https://thewire.in/158568/rajya-sabha-whistle-blowers-act-amendments/ (last visted 24 October 2017) (details the various flaws of the Amendment Bill as pointed out by RTI activists Anjali Bhardwaj, Nikhil Dey, Venkatesh Nayak, Bhaskar Prabhu and Rakesh Reddy, in a letter to the Rajya Sabha, written on behalf of the National Campaign for Peoples’ Right to Information).

[17] Harsh Nair, ‘Taking a U turn, SC closes PIL on Whistleblower Protection’, India Today (New Delhi India 27 January 2017), available at http://indiatoday.intoday.in/story/whistleblowers-protection-act-supreme-court-pil-bofors-scam-centre/1/867544.html(last visited 24 October 2017).

[18] Himanshi Dhawan, ‘Centre Tries to Dilute Bill on Whistleblowers’, The Times of India (New Delhi India 5 August 2015), available at http://timesofindia.indiatimes.com/india/Centre-tries-to-dilute-bill-on-whistleblowers/articleshow/48353499.cms(last visited 24 October 2017).

See generally Venkatesh Nayak, ‘Cabinet Note on Whistleblowers Amendment Bill Reveals Govt Intention: Refusal to Give People Absolute Right to Blow Whistle’ (2015) Counterview.org, at https://counterview.org/2015/08/04/cabinet-note-on-whistleblowers-amendment-bill-reveals-govt-intention-refusal-to-give-people-absolute-right-to-blow-whistle/ (last visited 24 October 2017) (narrates the detailed justification provided by the Government of India for the restrictions sought to be placed on potential whistle blowers).s

[19] The Right to Information Rules, 2017, rule 12.

For a detailed account of the criticisms of this draft and the government’s response see Akshay Deshmane, ‘Draft Rules and Dissent’, Frontline (India 13 October 2017), available at http://www.frontline.in/the-nation/draft-rules-and-dissent/article9873787.ece (last visited 24 October 2017).

[20] According to Venkatesh Nayak of the CHRI, ‘If this proposed rule becomes law at the Centre, most other states will make similar amendments, thereby unwittingly jeopardising the life and safety of RTI users. These amendments must not be allowed to go through when the Whistleblower Protection Act, 2011 (sic) has been put in cold storage and parliament is being called upon to approve a regressive set of amendments that will effectively discourage all whistleblowing in the country and permit the prosecution of the few courageous ones under the Official Secrets Act, 1923.’

Quoted in Gaurav Bhatnagar, ‘New Draft RTI Rules Could Mean Greater Threats for Applicants’ (2017) The Wire, at https://thewire.in/121066/rti-draft-rules-threats/ (last visited 24 October 2017).

[21] In 2004, in response to the petition filed after the murder of whistle blower Satyendra Kumar Dubey, the Supreme Court had directed that suitable machinery be put in place for acting on complaints from whistle blowers till specific laws on the matter are enacted. In 2016, with the whistle blowers protection law still pending in the Parliament and in the absence of any effective administrative set-up, a bench of Chief Justice TS Thakur and Justices AK Sikri and R Banumathi said there was ‘absolute vacuum’ which could not be allowed to go on, and directed the Centre to put in place an administrative mechanism for whistle blower protection.

See Parivartan & Ors. v. Union of India & Ors., WP(C) No. 93 of 2004.Set up system to protect whistleblowers: SC to governmentSet up system to protect whistleblowers: SC to government

[22] Parivartan & Ors. v. Union of India & Ors., WP(C) No. 93 of 2004.

See also Harsh Nair, ‘Taking a U Turn, SC Closes PIL on Whistleblower Protection’, India Today (New Delhi India 27 January 2017) available at http://indiatoday.intoday.in/story/whistleblowers-protection-act-supreme-court-pil-bofors-scam-centre/1/867544.html(last visited 24 October 2017).

[23] The Whistle Blowers Protection Act, 2014, section 3(b) designates the following Competent Authorities with regards to their respective jurisdictions: the Prime Minister, the Chairman of the Council of States or the Speaker of the House of the People, the Chief Minister, the Chairman of the Legislative Council or the Speaker of the Legislative Assembly, the High Court, the Central Vigilance Commission (CVC), the State Vigilance Commission (SVC), or any other authority having jurisdiction in respect thereof.

[24] The Whistle Blowers Protection Act, 2014, section 4(1):

Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, any public servant or any other person including any non-governmental organisation, may make a public interest disclosure before the Competent Authority.

[25] The Whistle Blowers Protection Act, 2014, section 4(2)–(3):

  • Any disclosure made under this Act shall be treated as public interest disclosure for the purposes of this Act and shall be made before the Competent Authority and the complaint making the disclosure shall, on behalf of the Competent Authority, be received by such authority as may be specified by regulations made by the Competent Authority.
  • Every disclosure shall be made in good faith and the person making disclosure shall make a personal declaration stating that he reasonably believes that the information disclosed by him and allegation contained therein is substantially true.

[26] The Whistle Blowers Protection Act, 2014, section 4(6):

No action shall be taken on public interest disclosure by the Competent Authority if the disclosure does not indicate the identity of the complainant or public servant making public interest disclosure or the identity of the complainant or public servant is found incorrect or false.

[27] Centre for PIL & Ors. v. Union of India & Ors., IA Nos. 73 and 76 in Civil Appeal No. 10660/2010.

[28] The Whistle Blowers Protection Amendment Bill, 2015, proposes that in the principal Act, in section 4, for sub-section (1), the following sub-section shall be substituted—

Any public servant or any other person including a non-Governmental organisation may make public interest disclosure before the Competent Authority.

[29] The Whistle Blowers Protection Amendment Bill, 2015, section 4(1A):

Notwithstanding anything contained in sub-section (1), no public interest disclosure shall be made by any public servant or any other person including a non-Governmental organisation under this Act, if such disclosure contains—

  • information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security of the State, the strategic, scientific or economic interests of the State, friendly relations with foreign States or lead to incitement to an offence;
  • information, which has been expressly forbidden to be published by any court of law or tribunal, or the disclosure of which may constitute contempt of court;
  • information, the disclosure of which would cause a breach of privilege of Parliament or State Legislature;
  • information relating to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless such information has been disclosed to the complainant under the provisions of the Right to Information Act, 2005;
  • information which is available to a person in his fiduciary capacity or relationship, unless such information has been disclosed to the complainant under the provisions of the Right to Information Act, 2005;
  • information received in confidence from a foreign government;
  • 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;
  • information, which would impede the process of investigation or apprehension or prosecution of offenders;
  • cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers, except as otherwise provided under the Right to Information Act, 2005;
  • personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, unless such information has been disclosed to the complainant under the provisions of the Right to Information Act, 2005.

[30] The RTI Act, 2005, section 8(2):

Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1) of this Act, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

[31] The RTI Act, 2005, section 22:

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

[32] See Dr JN Barowalia, Commentary on the Right to Information Act (4th edn Universal Law Publishing Delhi 2017) 436.

[33] The Whistle Blowers Protection Act, 2014, section 5(1):

Subject to the provisions of this Act, the Competent Authority shall, on receipt of a public interest disclosure under section 4,—

  • ascertain from the complainant or the public servant whether he was the person or the public servant who made the disclosure or not;
  • conceal the identity of the complainant unless the complainant himself has revealed his identity to any other office or authority while making public interest disclosure or in his complaint or otherwise.

[34] The Whistle Blowers Protection Act, 2014, section 5(4):

While seeking comments or explanations or report referred to in sub-section (3), the Competent Authority shall not reveal the identity of the complainant or the public servant and direct the Head of the Department of the organisation concerned or office concerned not to reveal the identity of the complainant or public servant:

Provided that if the Competent Authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, become necessary to reveal the identity of the complainant or public servant to the Head of the Department of the organisation or authority, board or corporation concerned or office concerned, the Competent Authority may, with the prior written consent of the complainant or public servant, reveal the identity of the complainant or public servant to such Head of the Department of the organisation or authority, board or corporation concerned or office concerned for the said purpose:

Provided further that in case the complainant or public servant does not agree to his name being revealed to the Head of the Department, in that case, the complainant or public servant, as the case may be, shall provide all documentary evidence in support of his complaint to the Competent Authority.

[35] The Whistle Blowers Protection Act, 2014, section 13:

The Competent Authority shall, notwithstanding any law for the time being in force, conceal, as required under this Act, the identity of the complainant and the documents or information furnished by him, for the purposes of enquiry under this Act, unless so decided otherwise by the Competent Authority itself or it became necessary to reveal or produce the same by virtue of the order of the court.

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[36] The Whistle Blowers Protection Amendment Bill, 2015, section 5(1A):

The Competent Authority shall not inquire into any public interest disclosure which involves information of the nature specified in sub-section (1A) of section 4:

Provided that the Competent Authority shall, on receipt of any such public interest disclosure, refer such disclosure to an authority authorised under sub-section (1) of section 8 to ascertain whether the disclosure contains any information of the nature specified in sub-section (1A) of section 4, and the certificate given in this regard by such authority shall be binding on the Competent Authority.

[37] The Whistle Blowers Protection Act, 2014, section 8(1):

No person shall be required or be authorised by virtue of provisions contained in this Act to furnish any such information or answer any such question or produce any document or information or render any other assistance in the inquiry under this Act if such question or document or information is likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence,—

  • as might involve the disclosure of proceedings of the Cabinet of the Union Government or any Committee of the Cabinet;
  • as might involve the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet,

and for the purpose of this sub-section, a certificate issued by the Secretary to the Government of India or the Secretary to the State Government, as the case may be, or, any authority so authorised by the Central or State Government certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive.

[38] The Whistle Blowers Protection Act, 2014, section 8(2):

Subject to the provisions of sub-section (1), no person shall be compelled for the purposes of inquiry under this Act to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a court.

[39] The Whistle Blowers Protection Amendment Bill, 2015, section 8(1):

No person shall be required or authorised under this Act, or under any other law for the time being in force, to furnish any information or answer any question or produce any document or render any other assistance in an inquiry under this Act, if furnishing of such information, or answering of question or the production of the document or the rendering of assistance is likely to result in the disclosure of any information of the nature specified in sub-section (1A) of section 4, and for this purpose, a certificate issued by an authority, authorised in this behalf by the Central Government or the State Government, as the case may be, certifying that such information, answer, document or assistance is of the nature specified in sub-section (1A) of section 4, shall be binding.

[40] The RTI Act, 2005, section 8(2):

Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1) of this Act, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

[41] The RTI Act, 2005, section 22:

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

[42] The popular ones, for example, include WikiLeaks (wikileaks.org), Al Jazeera Transparency Unit (ajtransparency.com), GlobaLeaks (globaleaks.com), etc.

See ——, ‘Leak Site Directory’, Leak Directory at http://leakdirectory.org/index.php/Leak_Site_Directory (last visited 24 October 2017).

[43] These controversial events have spotlighted on three individuals—Julian Assange, founder of WikiLeaks; Chelsea Manning, an army intelligence analyst who leaked copious amounts of classified defence and diplomatic records; and Edward Snowden, a contractor who leaked several records concerning the US National Security Agency’s surveillance activities.

[44] Margaret Kwoka, ‘Leaking and Legitimacy’ (2010) 48(4) UC Davis Law Review 1387, 1391 available at https://lawreview.law.ucdavis.edu/issues/48/4/ (last visited 24 October 2017).

[45] Chelsea Manning was a US Army Soldier ranking Private First Class. Edward Snowden worked as a systems administrator for an NSA contractor. Therefore, both occupied comparatively junior or lower-level ranks.

See BBC, ‘Chelsea Manning: Wikileaks Source and Her Turbulent Life’, BBC (United States of America and Canada 16 May 2017) available at http://www.bbc.com/news/world-us-canada-11874276 (last visited 24 October 2017) and John Broder and Scott Shane, ‘For Snowden, a Life of Ambition, Despite the Drifting’, The New York Times (Washington United States of America 15 June 2013) available at http://www.nytimes.com/2013/06/16/us/for-snowden-a-life-of-ambition-despite-the-drifting.html (last visited 24 October 2017).

[46] Statistics suggest that the range of the leaks has been exceptional. Within a brief period of time, Chelsea Manning, released the Collateral Murder video, and approximately 77,000 documents about the war in Afghanistan, 390,000 documents about the Iraq war, 250,000 diplomatic cables between the US State Department and US embassies, and 700 documents about individuals held at Guantanamo Bay, via WikiLeaks. While the magnitude of Snowden’s disclosures remains unclear, the NSA chief projected that he disclosed up to 200,000 secret records.

See Gary Ross, Who Watches the Watchmen? The Conflict Between National Security and Freedom of the Press (National Intelligence University, Center for Strategic Intelligence Research Washington 2011) xxix, available at http://ni-u.edu/wp/ni-press-publications/ (last visited 24 October 2017); Mark Fenster, ‘Disclosure’s Effects: Wikileaks and Transparency’ (2012) 97 Iowa Law Review 753, 762, available at http://scholarship.law.ufl.edu/facultypub/250/ (last visited 24 October 2017); Mark Hosenball, ‘NSA Chief Says Snowden Leaked up to 200,000 Secret Documents’, Reuters (Washington United States of America 15 November 2013) available at http://www.reuters.com/article/us-usa-security-nsa/nsa-chief-says-snowden-leaked-up-to-200000-secret-documents-idUSBRE9AD19B20131114 (last visited 24 October 2017) and David Sanger and Eric Schmitt, ‘Snowden Used Low-Cost Tool to Best N.S.A.’, The New York Times (Washington United States of America 8 February 2014) available at https://www.nytimes.com/2014/02/09/us/snowden-used-low-cost-tool-to-best-nsa.html (last visited 24 October 2017).

[47] Margaret Kwoka, ‘Leaking and Legitimacy’ (2010) 48(4) UC Davis Law Review 1387, 1394 available at https://lawreview.law.ucdavis.edu/issues/48/4/ (last visited 24 October 2017).

[48] Andy Greenberg, a journalist who has studied WikiLeaks at length, observed that it ‘was the inevitable outcome of the changing nature of information and advancements in cryptographic anonymity’.

See Andy Greenberg, This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information (1st edn Dutton New York 2012) 7.

[49] For example, the grid Manning accessed is reportedly accessible to approximately 2.5 million military and civilian employees. As for Snowden, while there are no precise estimates as to the number of employees who could access the network database, ‘details about virtually all of the NSA’s surveillance programs were accessible to anyone, employee or contractor, private or general, who had top-secret NSA clearance and access to an NSA computer’.

See BBC, ‘Siprnet: Where the Leaked Cables Came From’, BBC (United States of America and Canada 29 November 2010) available at http://www.bbc.com/news/world-us-canada-11863618 (last visited 24 October 2017) and James Bamford, ‘Edward Snowden: The Untold Story’, Wired (San Franciso United States of America 22 August 2014) available at https://www.wired.com/2014/08/edward-snowden/ (last visited 24 October 2017).

[50] Margaret Kwoka, ‘Leaking and Legitimacy’ (2010) 48(4) UC Davis Law Review 1387, 1391 available at https://lawreview.law.ucdavis.edu/issues/48/4/ (last visited 24 October 2017).

[51] See Rajiv Kalkodi, ‘Absence of HTTPS from URL Helped Aadhaar Hacker’, The Times of India (Bengaluru India 6 August 2017) available at http://timesofindia.indiatimes.com/city/bengaluru/absence-of-https-from-url-helped-hacker/articleshow/59935428.cms (last visited 24 October 2017).Absence of HTTPS from URL helped Aadhaar hacker

[52] Rita Zajacz, ‘WikiLeaks and the Problem of Anonymity: A Network Control Perspective’ (2013) 35(4) Media, Culture and Society 487, 497, available at https://doi.org/10.1177/0163443713483793 (last visited 24 October 2017).

[53] See WikiLeaks, ‘Submit Documents to Wikileaks’, WikiLeaks, at https://wikileaks.org/#submit (last visited 24 October 2017) and WikiLeaks, ‘What is Tor?’, WikiLeaks, at https://wikileaks.org/#submit_help_tor(last visited 24 October 2017).

[54] WikiLeaks, ‘WikiLeaks: Submissions’, WikiLeaks, at https://wikileaks.org/wiki/WikiLeaks:Submissions (last visited 24 October 2017).

[55] The Whistle Blowers Protection Act, 2014, section 4(6).

[56] The Whistle Blowers Protection Act, 2014, section 5.

[57] Marcela Gaviria and Martin Smith, ‘Julian Assange Interview Transcript’, PBS Frontline, at http://www.pbs.org/wgbh/pages/frontline/wikileaks/etc/transcript.html (last visited 24 October 2017).

[58] The Whistle Blowers Protection Act, 2014, section 4.

[59] See Nick Davies, ‘Iraq War Logs: Secret Order That Let US Ignore Abuse’, The Guardian (22 October 2010), at https://www.theguardian.com/world/2010/oct/22/iraq-detainee-abuse-torture-saddam (last visited 24 October 2017).

[60] See David Leigh, ‘Iraq War Logs Reveal 15,000 Previously Unlisted Civilian Deaths’, The Guardian (22 October 2010), at https://www.theguardian.com/world/2010/oct/22/true-civilian-body-count-iraq (last visited 24 October 2017).

[61] See Sami Ben Hassine, ‘Tunisia’s Youth Finally Has Revolution on Its Mind’, The Guardian (13 January 2011), at https://www.theguardian.com/commentisfree/2011/jan/13/tunisia-youth-revolution (last visited 24 October 2017).

[62] See Editorial, ‘Edward Snowden, Whistle-Blower’, The New York Times (01 January 2014) available at https://www.nytimes.com/2014/01/02/opinion/edward-snowden-whistle-blower.html (last visited 24 October 2017).

[63] See David Sanger and Charlie Savage, ‘Obama Is Urged to Sharply Curb N.S.A. Data Mining’, The New York Times (Washington United States of America 18 December 2013) available at http://www.nytimes.com/2013/12/19/us/politics/report-on-nsa-surveillance-tactics.html (last visited 24 October 2017).

[64] See Karl Vick, ‘WikiLeaks Is Getting Scarier Than the NSA’, Time (12 August 2016) at http://time.com/4450282/wikileaks-julian-assange-dnc-hack-criticism/ (last visited 24 October 2017).

[65] See Zeynep Tufekci, ‘WikiLeaks Put Women in Turkey in Danger, for No Reason (Update)’, The Huffington Post (25 July 2016, updated 26 July 2016) at http://www.huffingtonpost.com/zeynep-tufekci/wikileaks-erdogan-emails_b_11158792.html (last visited 24 October 2017).

[66] Andrea Peterson, ‘Wikileaks posts nearly 20,000 hacked DNC emails online’, The Washington Post (22 July 2016) at http://wapo.st/29U8y4Y (last visited 24 October 2017).

[67] Scott Simon, ‘WikiLeaks Dump Method: Sociologist Says Not All Leaked Passes Public Interest Test’ (2016) NPR, at http://www.npr.org/2016/10/22/498954190/wikileaks-dump-method-destroys-privacy-sociologist-says-not-all-leaked-pass-publ (last visited 24 October 2017).

[68] Available at https://twitter.com/wikileaks/status/758463256113676289 (last visited 24 October 2017).

[69] The Whistle Blowers Protection Act, 2014, sections 4–5.

[70] Express News Service, ‘Scorpene Submarine Leak: Huge Setback for India As 22,000 Pages of Secret Data Leaked’, The Indian Express (New Delhi India 25 August 2016) available at http://indianexpress.com/article/india/india-news-india/scorpene-submarine-leak-huge-setback-india-as-22000-pages-of-secret-data-leaked/ (last visited 24 October 2017).

[71] The Whistle Blowers Protection Act, 2014, section 5.

[72] It has been held in SP Gupta v. Union of India (AIR 1982 SC 149)by a seven-judges bench of the Supreme Court that the Court would allow the objection to disclosure of document if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to the affairs of the State or the public interest does not compel its non-disclosure or that the public interest in the administration of justice in a particular case overrides all other aspects of public interest, it will overrule the objection and order the disclosure of the document. In balancing the competing interests, it is the duty of the Court to see that there is public interest that harm shall not be done to the nation or public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done.

[73] See eg, Kōeki tsūhōsha hogohō [Whistleblower Protection Act] Law No. 122 of Jun. 18, 2004, art. 2, para 1 (Japan) and the Public Interest Disclosure Act, 1998 (UK) c 23, section 43A.

[74] The Whistle Blowers Protection Act, 2014, section 4(1):

Notwithstanding anything contained in the provisions of the Official Secrets Act, 1923, any public servant or any other person including any non-governmental organisation, may make a public interest disclosure before the Competent Authority.

The Whistle Blowers Protection Amendment Bill, 2015, section 4(1):

Any public servant or any other person including a non-Governmental organisation may make public interest disclosure before the Competent Authority.

[75] The Whistle Blowers Protection (Amendment) Bill, 2015, section 4(1A).

[76] The Whistle Blowers Protection (Amendment) Bill, 2015, section 8(1).

[77] The Protected Disclosures Act 2000, s 18 (New Zealand).

[78] Common Cause and Ors. v. Union of India and Ors., I.A. No. 13/2014 and Crl. M.P. No.387/2015 in WP (C) No.463/2012, para 42.

[79] The Whistle Blowers Protection Act, 2014, section 3(d):

‘disclosure’ means a complaint relating to–

  • an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988;
  • wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party;
  • attempt to commit or commission of a criminal offence by a public servant, made in writing or by electronic mail or electronic mail message, against the public servant and includes public interest disclosure referred to in sub-section (2) of section 4.

[80] The Whistle Blowers Protection Act, 2014, section 4(2).

[81] The Supreme Court in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi & Another, (2012) 13 SCC 61, para 23, held: ‘In its common parlance, the expression ‘public interest’, like ‘public purpose’, is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black’s Law Dictionary (Eighth Edition)].’

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[82] The Supreme Court in RK Jain v. Union of India and Ors., 1993 AIR SC 1769, para 55, held: ‘The factors to decide the public interest immunity would include: (a) where the contents of the documents are relied upon, the interests affected by their disclosure; (b) where the class of documents is invoked, whether the public interest immunity for the class is said to protect; (c) the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents themselves came into existence; (d) the seriousness of the issues in relation to which production is sought; (e) the likelihood that production of the documents will affect the outcome of the case; (f) the likelihood of injustice if the documents are not produced.’

[83] The Gujarat High Court has answered the question of what is ‘larger public interest’ in the light of the RTI Act, 2005. In considering whether the public interest in disclosure outweighs in importance any possible harm or injury to the interest of such third party, the Public Information Officer will have to consider the following: (i) the objections raised by the third party by claiming confidentiality in respect of the information sought for; (ii) whether the information is being sought by the applicant in larger public interest or to wreak vendetta against the third party and in deciding that, the profile of the person seeking the information and his credentials will have to be looked into and if the profile of the person seeking information, in the light of other attending circumstances, leads to the construction that under the pretext of serving public interest, such person is aiming to settle personal score against the third party, it cannot be said that public interest warrants disclosure of the information solicited; and (iii) the Public Information Officer, while dealing with the information relating to or supplied by the third party, has to constantly bear in mind that the Act does not become a tool in the hands of a busy body to settle a personal score.

See Reliance Industries Limited v. Gujarat State Information Commission, AIR 2007 Guj 203 and High Court of Gujarat v. State Chief Information Commission, AIR 2008 Guj 37.

[84] The GIPA Act 2009 (NSW), sections 12 and 14.

[85] Ministry of Local Government and Community Development, ‘Public Interest’, Ministry of Local Government and Community Development, available at http://www.localgovjamaica.gov.jm/ati.aspx?c=pi (last visited 24 October 2017).

[86] Chesterton Global Ltd. v. Nurmohamed [2015] ICR 920 (EAT).

[87] Jeremy Lewis et al, Whistleblowing Law and Practice (4th edn Reprint Oxford University Press New York USA), 4.93.

[88] The Whistle Blowers Protection Act, 2014, section 20:

Any person aggrieved by any order of the Competent Authority relating to imposition of penalty under section 14 or section 15 or section 16 may prefer an appeal to the High Court within a period of sixty days from the date of the order appealed against:

Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

[89] The GIPA Act 2009 (NSW), part 5.

[90] The Whistle Blowers Protection Act, 2014, section 4(6).

[91] The Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, § 301, 2002 U.S.C.C.A.N. (116 Stat.) 745.

[92] The Whistleblowers Protection Act 1994 (Qld) s 27(1); the Public Interest Disclosures Act 2002 (Tas) s 8 and the Whistleblowers Protection Act 2001 (Vic) s 7.

[93] Corruption Eradication Commission of Indonesia, Whistleblower System, available at: http://kws.kpk.go.id/ (last visited 24 October 2017).

[94] OECD, G20 Anti-Corruption Action Plan: Protection of Whistleblowers (2011), 12, available at https://www.oecd.org/g20/topics/anti-corruption/ (last visited Oct 24, 2017).

[95] OECD, G20 Anti-Corruption Action Plan: Protection of Whistleblowers (2011), 21, available at https://www.oecd.org/g20/topics/anti-corruption/ (last visited Oct 24, 2017).

[96] The Whistle Blowers Protection Act, 2014, section 24:

No suit, prosecution or other legal proceedings shall lie against the Competent Authority or against any officer, employees, agency or person acting on its behalf, in respect of anything which is in good faith done or intended to be done under this Act.

[97] See Jeremy Lewis et al, Whistleblowing Law and Practice (4th edn Reprint Oxford University Press New York USA), 4.93.

[98] The Whistle Blowers Protection Act, 2014, section 11(1):

The Central Government shall ensure that no person or a public servant who has made a disclosure under this Act is victimised by initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act.

[99] The Protected Disclosures Act 26 of 2000 § 1 (South Africa).

[100] The Whistle Blowers Protection Act, 2014, section 11(2):

If any person is being victimised or likely to be victimised on the ground that he had filed a complaint or made disclosure or rendered assistance in inquiry under this Act, he may file an application before the Competent Authority seeking redress in the matter, and such authority shall take such action, as deemed fit and may give suitable directions to the concerned public servant or the public authority, as the case may be, to protect such person from being victimised or avoid his victimisation:

Provided that the Competent Authority shall, before giving any such direction to the public authority or public servant, give an opportunity of hearing to the complainant and the public authority or public servant, as the case may be:

Provided further that in any such hearing, the burden of proof that the alleged action on the part of the public authority is not victimisation, shall lie on the public authority.

[101] The Whistle Blowers Protection Act, 2014, section 11(4):

Notwithstanding anything contained in any other law for the time being in force, the power to give directions under sub-section (2), in relation to a public servant, shall include the power to direct the restoration of the public servant making the disclosure, to the status quo ante.

[102] The Public Interest Disclosure Act 1994 (ACT) ss 27, 28; the Whistleblowers Protection Act 1994 (Qld) s 46; the Protected Disclosures Act 26 of 2000 § 4(2)–(3) (South Africa) and the Whistleblower Act, 2006 (Ghana), section 14(3). A proposal for this safeguard can also be found in Law Commission of India, ‘The Public Interest Disclosure and Protection of Informers’ (One Hundred and Seventy Ninth Report December 2001), 107, available at http://lawcommissionofindia.nic.in/reports.htm (last visited 24 October 2017).

[103] The Australian Competition and Consumer Commission adopts a policy of ‘full amnesty’ (immunity from prosecution) for the first person who blows the whistle on cartel activity such as price fixing and market sharing.

[104] The Whistleblower Act, 2006 (Ghana), section 16.

[105] The Whistleblower Act, 2006 (No. 720 of 2006), section 17 (Ghana).

[106] The Public Interest Disclosure Act, 1998 (UK) c 23, section 8.

[107] The Whistle Blower Protection Act, 2014, section 17:

Any person who makes any disclosure mala fidely and knowingly that it was incorrect or false or misleading shall be punishable with imprisonment for a term which may extend up to two years and also to fine which may extend up to thirty thousand rupees.

[108] This was also proposed in National Commission to Review the Working of the Constitution, ‘Probity in Governance’ (21 August 2001), 3.D, available at http://lawmin.nic.in/ncrwc/finalreport/v2b1-12.htm (last visited 24 October 2017)

[109] The False Claims Act 31 USC § 3730(d) (1863).

[110] The Whistleblower Act 2006 (No. 720 of 2006), sections 20–27 (Ghana).

[111] Quoted in Dr JN Barowalia, Commentary on the Right to Information Act (4th edn Universal Law Publishing Delhi 2017) 409.

[112] C Fred Alford, Professor of Government at the University of Maryland, discusses the issue in his seminal work Whistleblowers: Broken Lives and Organizational Power (Cornell University Press Ithaca 2001), concluding that seniority offers little protection, and that there is no difference whether concerns are raised within or outside an organisation. Kate Kenny of Queens University Belfast in her article ‘Whistleblowing in the Finance Industry’ (2013) says that she was surprised by ‘the amount of work that goes into being a whistleblower, meaning the constant reading of documents, rebutting of arguments, exposing of lies and learning about the law, all while struggling to hold your personality together; in short by the fact that it’s a full time job which, usually without warning, takes over your life’: quoted and cited in Jeremy Lewis et al, Whistleblowing Law and Practice (4th edn Reprint Oxford University Press New York USA), 1.10.

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