THE PUBLIC INTEREST DISCLOSURE AND PROTECTfON TO PERSONS MAKING THE DISCLOSURES BILL, 2010 ARRANGEMENT OF CLAUSES

Bill No. 97 of 2010
THE PUBLIC INTEREST DISCLOSURE AND PROTECTfON TO
PERSONS MAKING THE DISCLOSURES BILL, 2010
ARRANGEMENT OF CLAUSES
CHAPTER 1
I. Short title,extent and commencement.
2. Definitions.
CHAPTER I1
PUBLIC IKTEREST DISCLOSURE
3. Requirements of public interest disclosure.
CHAPTER 111
INQIN RUELATIIORN TO YPUBL IC INTEREST DISCLOSIIRE
4. Powers and functions of Competent Authority on receipt of public interest disclosure.
5. Maners not to be inquired by Competent Authority.
CHAPTER IV
POWEROSF COMPETENT AUTHORITY
6. Powers of Competent Authority.
7. Certain matters exempt from disclosure.
8. Superintendence of Competent Authority over appropriate machinery.
9. Competent Authority to take assistance of police authorities, etc., in certain cases.
CHAPTER V
PROTECTIOTNO THE PERSONS MAKING DISCLOSURE
10. Safeguards against victimization.
I I. Protection of witnesses and other persons.
12. Protection of identity ofcomplaint.
3 . Power to pass interim orders.
CHAPTER VI
OFFEXES AND PE~ALTIES
14. Penalty for Furnishing incomplete or incorrect or misleading comments or explanation or
report.
15. Penalty for revealin,% identity of complainant.
16. Punishment for false or frivolous disclosure.
7 Punishment to Head of department in certain cases.
18. Offences by companies. .-
19. Appeal to High Court.
20. Barofjurisdiction
21. Court to take cognizance.
CHAPTER vn
MISCELLANEOUS
22. Report on disclosures.
23. Protection o f action taken in pood faith.
24. Pouer ofcentral Government to make rules.
25. Power of State Government to make rules.
26. Powers to make regulations.
27. Notification and rules to be laid before Parliament.
28. Notification issued and rules made by State Government to be laid before State
Legislature.
29. Power to remove difficulties.
30. Repeal and savlngs.
Bill No. 97 of 2010
THE PUBLIC INTEREST DISCLOSURE AND PROTECTION TO
PERSONS MAKING THE DISCLOSURES BILL, 2010
BILL
to esrablrsh a mechanism to receive complaints relating to disclosure on any allegation of
corruption or wilful misuse ofpower or wilful misuse of discretion against any public
servant and to inquire or cause an inquiry into such disclostrre and to provide
adequote safeg~rards against victimization of the person making such complaint and
for matters connected therewith and incidental thereto. 3
BE i t enacted by Parliament in the Sixty-first year ofthe Republicoflndia as follows:-
CHAPTER I
1. ( I ) This Act may be called as the Public Interest Disclosure and Protection to Short title.
5 Persons Making the Disclosures Act, 2010. extent and
commence.
(2) It extends to the whole of India except the State of Jammu and Kashmir. ment.
(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint; and different dates may be appointed for different provisions
of this Act and any reference in any provision to the commencement of this Act shall be
10 castr-:ed as a referent: !- ?hr corning into Fa:- of that provisicn.
2
2. In this Act, unless the context otherwise requires,-
(a) "Central Vigilance Commission" means the Commission constituted under
sub-section (Io)fs ection 3 ofthe Central Vigilance Commission Act. 2003; 45 of 2003.
(b) "Competent Authority" means in relation to-
(;) any public servant referred to in sub-clause (A) ofclause(r), the Central 5
Vigilance Commission or any other authorityas the Central Government may, by
notification in the Official Gazene, specify in this behalf under this Act;
(it) any public servant referred to in sub-clause (6) of clause (I), the State
Vigilance Commissioner, ifany, or any officer of a State Government or any other
authority as the State Government may, by notification in the official Gazette, 10
specilj in this behalf under this Act;
(c) "complainant" means any person who makes a complaint relating to disclosure
under this Act;
(d)"disclosure" means a complaint relating to,-
(1) anattempt to commit or commission ofan offence under the Prevention 15
ofCorruption Act, 1988; 45 of 1988
(1;) wilful misuse of power or wilful misuse of discretion by virtue of
which demonstrable loss is caused to the Government or demonstrable gain
accruesto the pblic servant;
(iii) an-mpt to commit or commission of a criminal offence by a public 2 6
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 3;
: .: .(e).'electronic mail.. or "ekctronic, mail message'. means a message or informa- 25
tioncreated or iranrmined or received on an computer, computer system, computer
resource or communication device including attachments in text, image, audio, video
and any other electronic record, which may be transmitted with the message;
V) "Government company" means a company referred to in section 617 ofthe
CompaniesAct. 1956; 3 0 I 01' 1956
(g)"notification" meansa notification published in the Gazette ofIndiaor, as the
case may be, the Official Gazette of a State;
(h) "public authority" means any authority. body or institution falling within the
jurisdiction of the Competent Authority;
,
(i) "public servant" means any employee of- 3 5
(A) the Central Government or any corporation established by or under
any Central Act, any Government companies, societies or local authorities owned
or controlled by the Central Government and such other categories of employees
as may be notified by the central Government, from time to time, in the
Official Gazette; 40
(B) the State Government or any corporation established by or under any
StateAct,Government companies, Societies or local authorities owned or controlled
by the State Government and such other categories of employees as may
benotified by the State Government, from time to time, in the Official Gazene.
(j).'prescribed means prescribed by rules made by thecentral ~overnmenat nd 45
the State Government, as the case may be. under this Act:
(k) "regulat~ons" means the regulat~onsm ade by the Competent Author~ty
under th~sA ct
CHAPTER ll
PUBLIC INTEREST DISCLOSURE
5 3. (1) Notwithstanding anything contained in the provisions of the Official Secrets Requirements
19 of 1923. Act, 1923, any public servant [other than those referred to in clauses (a) to (&ofarticle :3 of of public
lnferesl
the Constitution] or any other person including any non-governmental organisation, may d,sclosure
make a public interest disclosure before the'competent Authority:
Provided that any public servant, beinga person or member referred to in clause (o)or
10 clause (b) or clause (c) or clause (d) of article 33 ofthe Constitution, may make a public
disclosure if such disclosure does not, directly or indirectly, relate to,--
(a) the members of theAnned Force or any matter relating to Armed Forces; or
(b) the members of the Forces charged with the maintenance of public ordei; or
(c) persons employed in any bureau or other organisation established by the
15 State for purposes o f intelligence or counter intelligence or any matter relating to such
bureau or other organisation;
(d) persons employed in, or in connection with, the telecommunication systems
set up for the purposes of any Force, bureau or organisation referred to inclauses (a)
to (c) or any matter relating to such telecommunication system, bureau or organisation.
2 0 (2) 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.
(3) 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.
25 (4) Every disclosure shall be made in writing or by electronic mail or electronic mail
message in accordance with the procedure a. may be prescribed and contain full particulars
and be accompanied by supporting documents, or other material, if any.
( 5 ) The Competent Authority may, if it deems fit, call for further information or
particulars from the person making the disclosure.
30 (6) No action'shall be taken on public interest disclosure by the CompetentAuthority
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.
CHAPTER Ill
35 INQUIR;'IN RELATION TO PllBLlC INTEREST DISCLOSURE
4. (1) Subject to the provisions ofthis Act, the Competent Authority shall, on receipt Powers and
" of a public interest disclosure under section ;,- funclionr of
Competent
(a) ascertain from the complainant or the putilic servant whether he was the Authoflty 011
person or the public servant who made the disclosure or not; rerelpt of
publlr interes,
4 0
(b) conceal the identity of the complainant unless the complainant himself has d'sC1OsU'e
revealed his identity to any other office or authority while making public interest
disclosure or in his complaint or otherwise.
(2) The Competent Authority shall, upon receipt of the complaint and concealing the
identity of the complainant, or the public servant in the first instance, make discreet inquiry,
in such manner as may be prescribed, to ascertain whether there is any basis for proceeding
further to investigate the disclosure.
(3) If the Competent Authority, either as a result of the discreet inquiry, oion the basis 5
ofthe disclosure itselfwithout any inquiry, is oftheopinion that the disclosure requires to be
investigated, it shall seek comments or ekplanation or report from the Head of the Department
of the organisation or authority, board or corporation concerned or ofice concerned
within such t i m & may be specified by it.
(4) While-seeking comments or explanations or report referred to in sub-section (3), 10
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 thg 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 15
disclosure, become.necessary to reveal the identity of the public servant to the Head of the
Department of the organisation or authority, board or corporation concerned or ofice
concerned, the Competent Authority may reveal the identity of the complainant or public
servant to such Head of the Department of the organisation or authority, board or mrporation
concerned or'offtce concerned for the said purpose. 2 0
(5) The Head of the organisation or office concerned shall not directly or indirectly
reveal the identity of the complainant or public servant who made the disclosure.
(6) ~he' com~ete~nut thor i tyi,f after conducting an inquiry, is o f t he opinion that-
(a) the facts and allegations contained in the disclosure are frivolous or
vexatious; or 2s
(b) there are no sufficient grounds for proceeding with the inquiry,
it shall close the matter.
(7) After receipt of the comments or explanations or report referred to in sub-section
(3), if the Competent Authority is of the opinion that such comments or explanations or
report reveals either wilful misuse of power or wilful misuse of discretion or substantiates 30
allegations ofcorruption, it shall recommend to the public authority to take any one or more
ofthe following measures, namely:-
(I) initiating ploceedings against the concerned public servant;
(ir) taking appropriate administrative steps for redressing the loss caused to the
Government as a result of the corrupt practice or misuse of office or misuse of discre- 35
tion, as the case may be;
(iir) recommend to the appropriate authority or agency for initiation of criminal
proceedings under the relevant laws for the time being in force, ifso warranted by the
facts and circumstances of the case;
(iv) recommend for taking of corrective measures; 4 0
(v) take any other measures not falling under clauses (I) to (IV) which may be
necessary for the purpose of thisAct.
Matters not to 5. (1) Ifany matter specified or an issue raised in a disclosure has been determined by
be inquired by a Court or Tribunal authorised to determine the issue, after consideration of the matters
Competent
Authority. specified or issue raised in the disclosure, the Competent Authority shall not take notice of 45
the disclosure to the extent that the disclosure seeks to reopen such issue.
5
(2) The Competent Authority shall not entertain or inquire into any disclosure-
(a) in respect of which a formal and public inquiry has been ordered under the
37 of 1850. Public Servants (Inquiries) Act, 1850; or
(b) in respect of a matter which has been referred for inquiry under the
60 o f 1952. 5 C~mmissionsoflnquiryAct1, 952.
(3) The Competent Authority shall not investigate, any disclosure involving an
allegation, ifthe complaint is made afler the expiry of five years from the date on which the
action complained against is alleged to have taken place.
(4) Nothing in this Act shall be construed as empowering the Competent Authority to
(0 question, in any inquiry under this Act, any bonajide action or bonajide discretion
(including administrative or statutory discretion) exercised in dischargeofduty by the employee.
CHAPTER lV
POWEROSF COMPETENT AUTHORITY
6. (1) Without prejudice to the powers conferred upon the Competent Authority under Powers of
15 any other law for the time being in force, the Competent Authority, may require, for the Compelenl
Authority. purpose of any inquiry any public servant or any other person who in its opinion shall be
able to furnish information or produce documents relevant to the inquiry or assist in the
inquiry, to furnish any such information or produce any such document as may be necessary
for the said purpose.
2 0 (2) For the purpose of any such inquiry (including the preliminary inquiry), the
Competent Authority shall have all the powers of a civil court while trying a suit under the
5 of 1908. Code of Civil Procedure, 1908, in respectofthe followingmatters, namely:-
(a) summoning and enforcing the attendance of any person and examining him
on oath;
25 (b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(4 requisitioning any public record or copy thereof from any Court or office;
(e) issuing commissions for the examination of witnesses or documents;
V) such other maners as may be prescribed.
30 (3) The Competent Authority shall be deemed to be a Civil Court for the purpose of
2 of 1974. section 195 and Chapter XXVl of the Code of Criminal Procedure, 1973, and every
proceeding before the Competent Authority shall be deemed to be a judicial proceeding
45 of 1860. within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian
Penal Code.
(4) Subject to the provisions of section 7, no obligation to maintain secrecy or other
restriction upon the disclosure of information obtained by or furnished to the Government or
19 of 1923 any public servant, whether imposed by the Official Secrets Act, 1923 or any other law for the
time being in force, shall be claimed by any public servant in the proceedings before the
Competent Authority or any person or agency authorised by it in writing and the Govern-
40 ment or any public servant shall not be entitled in relation to any such inquiry, to any such
privilege in respect of the production of documents or the giving of evidence as is allowed
by any enactment or by any rules made thereunder:
Provided that the Competent Authority. while exercising such powers of the Civil
Court, shall take steps as necessary to ensure that the identity of the person making
45 complaint has not been revealed or compron~ised
Certain malters
exempt
from disclosure.
Superinlendence
of
Campelenl
Authority
over appropriate
machinery
Competenl
Authority to
take assistance
of police
authorities,
elc, in certain
cases.
Safeguards
againsl
victimisation.
7. ( 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,-
(a) as might involve the disclosure of proceedings of the Cabinet of the Union
Government or any Committee ofthe Cabinet;
(b) 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 lndia 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.
(2) Subject to the provisions of sub-section ( I ) , 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.
8. ( I ) Every public authority shall, for the purposes of dealing or inquiry into the
disclosures sent to it under sub-section (3) of section 4, create an appropriate machinery for
the said purpose.
(2) The Competent Authority shall exercise superintendence over the working of
machinery created under sub-section ( I ) for the purposes of dealing or inquiry into the
disclosures and give such directions for its proper functioning, from time to time, as it may
consider necessary.
9. For the purpose of making discreet inquiry or obtaining information from the
organisation concerned, the Competent Authority shall be authorised to take assistance of
the Delhi Special Police Establishment or the police authorities, or any other authority as may
be considered necessary, to render all assistance to complete the inquiry within the specified
time pursuant to the disclosure received by the Competent Authority.
CHAPTER V
10. ( I ) 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.
(2) If any person is being victimised or likely to be victimiscd 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.
(3) Every direction given under sub-section ( 1 ) by the Competent Authority shall be
binding upon the public servant or the public authority against whom the allegation of
victimisation has been proved.
7
(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 ofthe public servant making the disclosure, to the
srarzw quo ante.
5 11. If the Competent Authority either on the application of the complainant, or Pratectlon of
witnesses, or on the basis of information gathered, is ofthe opinion that either the complainant or K'tne"es "ld
other persons.
public servant or the witnesses or any person rendering assistance for inquiry under this Act
need protection, the Competent Authority shall issue appropriate directions to the concerned
Government authorities (including police) which shall take necessary steps, through
10 its agencies, to protect such complainant or public servant or persons concerned.
12. The Competent Authority shall, notwithstanding any law for the time being in Proteetion af
force, conceal, as required under this Act, the identity of the complainant and the Of
conlplainal~t. 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
15 reveal or produce the same by virtue of the order of the court.
13. The Competent Authority, at any time after the making of disclosure by the Power to pass
complainant or public servant, if it is ofthe opinion that any corrupt practice required to be Orders.
stopped during the continuation of any inquiry for the said purpose may pass such interim
orders as it may deem tit, to prevent the immediate stoppage of such practice.
20 CHAPTERVI
OFFENCEASN D PEN4LTlES
14. Where the CompetentAuthority, atthe time ofexamining the report or explanations Penally for
or report referred to in sub-section (3) of section 4 on thecomplaint submitted by organisations f ' ~ ' " ' ~ h ' " s inor
officials concerned, is of the opinion that the organisations or officials concerned, without complele or in- cnrrsc, rnis- 25 any reasanable cause, has not furnisKed the report within the specified time or mola,fidely leadirlg
refused to submit the report or knowinsly given incomplete, incorrect or misleading or false nlents or exreport
or destroyed record or information which was the subject of the disclosure or ob- planarioll or
structed in any manner in furnishing the report, it shall impose a penalty which may extend to
two hundred fifty rupees for each day till report is furnished, so, howevcr, the total amount
30 of such penalty shall not excecd fifty thousand rupees:
Provided that no penalty shall be imposed against any person unless he has been
given an opportunity of being heard.
15.Any person, who negligently or ~nala,fidelyr eveals the identity of a complainant penalt? for
shall, without prejudice to the other provisions ofthis Act, be punishable with irnprisonment revealins
35 for a term which may extend up to three years and also to fine which may extend up to fifty ~ ~ ~ ~ ~ i thousand rupees.
16. Any person who makes any disclosure rnala,fidely and knowinsly that it was Puni~hrnent
incorrect or false or misleading shall be punishable with imprisonment for a term which may for fa's' Or
frivolous extend up to two years and also to tine which may extend up to thirty thousand rupees. d,sclosure
40 17. (1) Where an offence under this Act has been committed by any Department of Punirhrnenl ro
Government, the Head of thc Department shall be deemed to be guilty of the offence and )''ad of
shall be liable to be proceeded against and punished accordingly unless he proves that the ~~~~~~L~~~~~
offence was committed without his knowledge or that he exercised all due diligencc to
prevent the commission of such offence.
45 (2) Notwithstanding anything contained in sub-section ( I ) , where an offence under
this Act has been committed by a Department of Government and it is proved that the
offence has been committed with the consent or connivance of, or is attributable, such
officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.
Offences h)
cornpanlcs.
Appeal to
Hlgh Court.
Bar of jurtsd~cflU"
8
IS. ( I ) Where an offence under this Act has been committed by a company, every
person who at the time the offence was committed was in charge of, and was responsible to
the company for the conduct of the business ofthe company as well as the company, shall
be deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly: 5
Provided that nothing contained in this sub-section shall render any such person
liable to any punishment provided in this Act, if he proves that the offence was committed
without his knowledge or that he has exercised all due dili~enceto prevent the commission
of such offence.
(2) Notwithstanding anything contained in sub-section (I), where an offence under (0
this Act has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to, any neglect on the part of
any director, manager, secretary or other officer of the company, such director, manager.
secretary or other officer shall also be deemed to be guilty of the offence and shall be liable
to be proceeded against and punished accordingly. If
Explanation- For the purposes of this section,-
(a) "company" means any body corporate and includes a firm or other association
of individuals: and
(h) "director", in relation to a firm, means a partner in the firm.
19. Any person aggrieved by any order o f t he Competent ~ u t h o r i t )re lating to impo- 20
sition ofpenalty under section 14 or section 15 may prefer an appeal to the High Couri 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 o f the said
period of sixty days, if it is satisfied that theappellant was prevented by sufficient cause from
preferring the appeal in time. 25
Explanation. For the purposes of this section, the "High Court" means the High
Court within whose jurisdiction the cause of action arose.
20. No civil court shall havejurisdiction in respect of any matter which the Competent
Authority is empowered by or under this Act to determine and no injunction shall begranted
by any court or other authority in respect of any action taken or to be taken in pursuance of 30
any power conferred by or under this Act.
21. ( I ) No co& shall take cognizance of any offence punishable under this Act or the
rules or regulations made thereunder, save on a complaint made by the Competent Authority
or any officer or person authorised by it.
(3) No court inferior to that of a Chief Metropolitan Magistrate or a Chief(Judicia1 35
Magistrate shall try any offence punishable under this Act.
CHAPTERVII
MISCELL~NE~US
22. (1) The Competent Authority shall prepare a consolidated annual report of the
performance of its activities in such form as may be prescribed and forward it to the Central 4 0
Government or State Government, as the case may be.
(3) On receipt of the annual report under sub-section (I), the Central Government or
State Government, as the case may be, shall cause a copy thereof to be laid before each
House of Parliament, or the State Legislature, as the case may be:
Provided that where any other law for the time being in force provides preparing of 45
such annual report by the Competent Authority, then the said annual report shall contain a
separate part on the performance of activities under this Act by the Competent Authority.
23. No suit, prosecution or other legal proceedings shall lie against the ~o6~:tent Proteclion of
Authority or against any officer, employee, agency or person acting on its behalf, it? respect rake"
10 good faith
of anything which is in good faith done or intended to be done under this Act. .;
24. ( I ) Thecentral Government may, by notification in the Official Gazette, make rules Power a f
5 for the purpose of carrying out the provisions of this Act. Central
G-~o~v e r nme n t ~
(2) In particular and without prejudice to the generality of the foregoing power, such to rules.
rules may provide for all or any ofthe following matters, namely:-
(a) the procedure for disclosure by writing or appropriate electronic means under
sub-section (4) of section 3;
10 (b) the manner in which the discreet inquiry shall be made by the Competent
Authority under sub-section (2) of section 4;
(c) the additional matter in respect ofwhich the Competent Authority may exercise
the powers of a civil court under clause V) of sub-section (2) of section 6;
(d) the form of annual report under sub section ( I ) of section 22;
(e) any other matter which is required to be, or may be, prescribed.
I 5 25. The State Government may, by notification in the Official Gazette, make rules for Power of State
the ~ u r ~ o osfe c armine out the ~rovisionso f this Act. Government to
, - make rules.
26. The Competent Authority may, with the previous approval of the Central Powers to
Government or the State Government, as the case may be, by notification in the Oficial regula-
Gazette, make regulations not inconsistent with the provision ofthe Act and the rules made """'
20 thereunder to provide for all matters for which provision is expedient for the purposes of
giving effect to the provisions of this Act.
27. Every notification issued and every rule made by the Central Government and Notification
every regulation made by the Competent Authority under this Act shall be laid, as soon as cErkop:; may be after it is issued or made, before each House of Parliament, while it is in session, for li,m,,,,
25 a total period of thirty days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in making any modification
in the notification or the rule or the regulation, or both Houses agree that the notification or
the rule or the regulation should not be made, the notification or the rule or the regulation
30 shall thereafter have effect only in such modified form or be ofno effect, as the case may be;
so, however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that notification or rule or regulation.
28. Every notification issued by a State Government and every rule made by a State N o l l f i c a t ~ o n
Government. and every regulation made by the Competent Authority under this Act shall be 'Ss"ed and
35 laid, as soon as may be after it is issued, before the State Legislature. rules made by
State
Governmunt
to be laid
before Stare
Legislalure.
29. ( 1 ) If any difficulty arises in giving effect to the provisions ofthis Act, the Central Power to
Government may, by order, not inconsistent with the provisions of this Act, remove the 'em"ve
diflicult~es difficulty:
Provided that no such order shall be made after the expiry of a period of three years
4 0 from the date of the commencement of this Act.
(2) Every order made ilnder this section shall, as soon as may be after it is made, be laid
before each House of Parliament.
Repeal and 30. (1) The Government of India, Ministry of Personnel, Public Grievances and Pensavtngs
sions (Department of Personnel and Training) Resolution No. 37111212002-AVD-111 dated the
2 1st April, 2004 as amended vide Resolution of even number, dated the 29thApril,2004 is
hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said 5
Resolution be deemed to have been done or taken under this Act.
STATEMENT OF OBJECTSAND REASONS
Corruptior~ is a social evil which prevents proper and balanced social growth and
economic development. One of the impediments felt in eliminating corruption in the
Government and the public sector undertakings is lack of adequate protection to the
complainants reporting the corruption or wilful misuse ofpower or wilful misuse ofdiscretion
which causes demonstrable loss to the Government or commission of a criminal offence by
a public servant.
2. The Law Commission of India had in its 179th Report, inreralia, recommended
formulation of a specific legislation titled "The public lnterest Disclosure (Protection of
Informers) Bill, 2002 to encourage disclosure of information regarding corruption or maladministration
by public servants and to provide protection to such complainants. The
Second Administrative Reforms Commission in its 4th Report on "Ethics in Governance"
has also recommended formulation of a legislation for providing protection to whistleblowers.
TheGovernment of India had issued a ResolutionNo. 89, dated the 21stApril,2004
authorising the Central Vigilance Commission as the designated agency to receive written
complaints from whistle-blowers. The said Resolution also, inter alia, provides for the
protection to the whistle-blowers from harassment, and keeping the identity of whistleblowers
concealed. It has been felt that the persons who report the corruption or wilful
misuse of power or wilful misuse of discretion which causes demonstrable loss to the
Government or commission of a criminal offence by a public servant need statutory protection
as protection given to them by the said Resolution of the Government of India would not
suff~ce.
3. In view of the position stated in the foregoing paragraphs, it has been decided to
enact a standalone legislation to, inier alia, provide-
(a) for bringing within the scopeofthe Bill, public servants being theemployees
ofthe Central Government or the State Government or any corporation established by
or under any Central Act or any State Act, Government Companies, Societies or local
authorities owned or controlled by the Central Government or the State Government
and such other categories ofemployees as may be notified by the Central Government
or, as thecasemay be. the State Government, from time to time, in the Ofiicial Gazette;
(b) adequate protection to the persons reporting corruption or wilful misuse of
power or wilful misuse ofdiscretion which causes demonstrable loss to the Government
or commission of a criminal offence by a public servant;
(c) a regular mechanism to encourage such person to disclose the information
on corruption or wilful misuse of power or wilful misuse of discretion by public
servants or commission of a criminal offence;
(d) the procedure to inquirt. or cause to inquire into such disclosure and to
provide adequate safeguards against victimisation of the whistle-blower, that is the
person making such disclosure;
(e) safeguards against victimisation of the person reporting matters regarding
the corruption by a public servant;
(f) punishment for rereeling the identity of a complainant, negligently or mala
Ji(g) punishment for false or frivolous complaints.
I2
4. The notes on clalises explain in detail the provisions of the Bill
5 . The Bill seeks to achieve the aforesaid objectives.
NEW DELHI;
The 12rh August, 20 10
PRITHVIRAJ CHAVAN
Notes on clauses
Clarlse 1 .-This clause provides for the short title, extent and commencement ofthe
proposed legislation. It is proposed not to extend the provisions ofthe proposed legislation
to the State of Jammu and Kashmir. It further proposed to empower the Central Government
to bring it into force on such date as it may appoint by notification in theofficial Gazette and
the Central Government may appoint different dates for different provisions of the Act.
Clause 2.-This clause defines various expressions used in the proposed legislation
which, inter alia, include the expressions "Central Vigilance Commission", "Competent
Authority", "disclosure", "electronic mail" or "electronic mail message", "Government
company", "public authority" and "public servant".
Clause :.-This clause lays down the requirements of public interest disclosure. It
provides that notwithstanding anything contained in the provisions of the Official Secrets
Act, 1923, any public servant [other than those referred to in clauses (a) to (d) of article 33
of the Constitution] or any other person including any non-governmental organisation,
may make a public interest disclosure before the Competent Authority.
It further provides that any public servant, being a person or member referred to in
clause (a) or clause (b) or clause (c) or clause (d) of article 33 ofthe Constitution, may make
a public disclosure if such disclosure does not, directly or indirectly, relate to, the members
of the Armed Force or any matter relating to Armed Forces; the members of the Forces
charged with the maintenance of public order; persons employed in any bureau or other
organisation established by the State for purposes of intelligence or counter intelligence or
any matter relating to such bureau or other organisation, persons employed in, or in
connection with, the telecommunication systems set up for the purposes of any Force,
bureau or orzanisation or any matter relating to such telecommunication system, bureau or
organisation.
It further provides that any disclosure made under the proposed legislation shall be
treated as public interest disclosure to be made before the Competent Authority which is
made in good faith and the person making such disclosure shall make apersonal declaration
stating that he reasonably believes that the information disclosed by him and allegation
contained therein is substantially true.
It further provides that every disclosure shall be made in writing or by electronic mail
or electronic mail message in accordance with the procedure as may be prescribed which
shall contain full particulars and be accompanied by supporting documents, or other
material and the Competent Authority may, if it deems fit, call for further information or
particulars from the person making such disclosure.
It also provides that no action will 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 ofthe complainant or public
servant is found inibrrect or false.
Clarlse 4.- his tlause provides for the powers and functions of the Competent
Authorityon receipt of public interest disclosure. It provides that the Competent Authority
shall, on receipt of a public interest disclosure, ascertain from the complainant or the public
servant whether he was the person or the public servant who made the disclosure or not
and conceal the identityof the complainant unless the complainant himselfhas revealed his
identity to any other office or authority while making public interest disc!osure or in his
comp!aint or otherwise.
14
It further provides that the Competent Authority, upon the receipt of the complaint
and concealing the identity of the complainant, or the public servant in the first instance.
make discreet inquiry, in such manner as may be prescribed, to ascertain whether there is
any basis for proceeding further to investigate the disclosure and in case the Competent
Authority, either as a result ofthe discreet inquiry, or on the basis of the disclosure itself
without any inquiry, is ofthe opinion that the disclosure requires to be investigated, it shall
seek the comments or explanation or report from the Head of the Department of the
organisation or authority, board or corporation concerned or office concerned within such
time as may specified by it and while doing so, the competent authority will not reveal the
identity of the complainant or the public servant. However, ifthecompetent Authority is of
the opinion that it has, for the purpose of seeking comments or explanation or report from
the Head of the Department of the organisation or authority, board or corporation concerned
or office concerned may reveal the identity of the complainant or public servant to such
Head of the Department ofthe organisation or authority, board or corporation concerned or
office concerned.
[t further provides that the Competent Authority, if aher conducting an inquiry is of
the opinion that, the facts and allegations contained in the disclosure are frivolous or
vexatious; or there are no sufficient grounds for proceeding with the inquiry, it shall close
the matter.
It also provides that aher receipt ofthe comments or explanations or report referred to
in sub-clause (3), if the Competent Authority is of the opinion that such commsnts or
explanations or report reveals either wilful misuse of power or wilful misuse of discretion or
substantiates allegations of corruption, it shall recommend to the public authority, for
initiating proceedings against the concerned public servant; or, for taking appropriate
administrative steps for redressing the loss caused to the Government as a result of the
corrupt practice or misuse of office or misuse of discretion, as the case may be; or, to
recommend the appropriate authority or agency for initiation ofcriminal proceedings under
the relevant laws for the time being in force, if so warranted by the facts and circumstances
of the case; or, recommend for taking of corrective measures; or, any other appropriate
measure which may be necessary for the purposes of the proposed legislation.
Clause 5 . Th is clause provides for the matters not be inquired by the Competent
Authority. It provides that if any matter specified or an issue raised in a disclosure has been
determined by a Court or Tribunal authorised to determine the issue, aher consideration of
the matters specified w issue raised in the disclosure, the Competent Authority shall not
take notice of such discloswe to the extent that the said disclosure seeks to reopen such
issue.
It funhcr provides that the Competent Authority shall not entertain or inquire into
any disclosure, in respect of which a formal and public inquiry has been ordered under the
Public Servants (inquiries) Act, 1850 or in respect of a matter which has been referred for
inquiryunder the Commissions of InquiryAct, 1952 and shall not investigate, any disclosure
involving an allegation, ifthe complaint is made aher the expiry of five years from the date
on which the action complained against is alleged tp have taken place.
It also provides that nothing in the proposed legislation shail be construed as
empowering the Competent Authority to question, in any inquiry under the proposed
legislation, any bono-/ide action or discretion (including administrative or statutory
discretion) exercised in discharge of duty by the employee.
Clause 6.-This clause lays down the powers ofthecompetent Authority. It provides
that without prqiudice to the powers conferred upon the Competent Authority under any
other law for the time being in force, the Competent Authority. may require, for the purpose
of any inquiry any public servant or any other person who in its opinion shall be able to
furnish information or produce documents relevant to the inquiry or assist in the inquiry, to
furnish any such information or produce any such document as may be necessary for the
said purpose.
IS
It further provides that for the purpose ofany such inquiry (including the preliminary
inquiry), the Competent Authority shall have all the powers of a civil court while trying a
suit under the Code o f c i v i l Procedure, 1908 and that all proceedings under the proposed
legislation shall be deemed to be proceedings for the purposes of scctions 193 and
228 o f t helndian Penal Codeand for section 195 a n d ~ h a ~ t e r xoxf t ~hel c ode ofcriminal
Procedure, 1973.
It further provides that subject to the provisions ofclause 7, no obligation to maintain
secrecy or other restriction upon the disclosure of information obtained by or furnished to
the Government or any public servant, whether imposed by the Official Secrets Act, 1923 or
any other law for the time being in force, shall be claimed by any public servant in the
proceedings before the Competent Authority or any person or agency authoriscd by it in
writing and the Government or any public servant shall not be entitled in relation to any
such inquiry, to any such privilege in respect of the production of documents or the giving
of evidence as is allowed by any enactment or by any rules made thereunder.
It also provides that the Competent Authority, while exercising the powers of the Civil
Court, shall take steps as necessary to ensure that the identity of the person making complaint
has not been revealed or compromised.
Clause 7.-This clause deals withcertain matters exempted 60m disclosure. It provides
that no person shall be required or be authorised'by virtue of provisions contained in the
proposed legislation 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
the proposed legislation, 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, which might involves the
disclosure of proceedings ofthe Cabinet ofthe Union Government and Cabinet ofthe State
or any Committee of the Cabinet.
It further provides that a certificate issued by a Secretary to the Govcrnment of lndia
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 which might involves the disclosure of proceedings of
the Cabinet of the Union Government and Cabinet of the State or any Committee of the
Cabinet shall be binding and conclusive.
It also provides that no person shall be compelled for the purposes of inquiry under
the proposed legislation to give any evidenceor produce any document which hecould not
be compelled to give or produce in proceedings before a court.
Clause 8.-This clause provides for the superintendence of Competent Authority
over appropriate machinery. It provides that every public authority shall, for the purposes
of dealing or inquiry into the disclosures sent to it under sub-clause (3) of clause 4, create
appropriate machinery for the said purposc and shall exercise superintendence over the
working ofsuch machinery and give suchdirections for its proper functioning, from time to
time, as it may consider necessary.
Clause 9.- This clause makes provisions for the Competent Authority to take
assistance of police authorities in certain cases. It provides that for the purpose of making
discreet inquiry or obtaining information from the organisation concerned, the Competent
Authority shall be authorised to take assistance of the Delhi Special Police Establishment
or the police authorities, or any other authority as may be considered necessary, to rcnder
all assistance to complete the inquiry within the specified time pursuant to the disclosure
received by the competent authority.
Clause 10.-This clause empowers by providingsafeguards against victimization. It
provides that the Central Government shall ensure that ria bersblb dr a public servant who
16
has made a disclosure under the proposed legislation is victimized 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 the proposed legislation and if
any person is being victimized or likely to be victimized on the ground that he had filed a
complaint or made disclosure or rendered assistance in inquiry. he may file an application
before the Competent Avthority seeking redress in the matter, and such authority while
taking an action may glve suitable directions to the concerned public servant or the public
authority, as the case may be, to protect such person from being victimized or avoid his
victimization.
It further provides that every direction given under sub-clause (I) by the Competent
Authority shall be binding upon the public servant or the public authority zgainst wlio~n
the allegation of victimization has been proved and notwithstanding anything contained in
any other law for the time being in force, the power to give directions under sub-clause (2).
in relation to a public servant, shall include the power to direct the restoration ofthe public
servant making the disclosure, to the starus quo ante.
Clause I I .-This clause provides for Protection of witnesses and other persons. It
provides that if the Competent Authority either on the application of thc complainant, or
witnesses. or on the basis of information gathered, is of the opinion that either the
complainant or public servant or the witnesses or any person rendering assistance for
inquiry under the proposed legislation need protection, the Competenl Authority shall
issue appropriate directions to the concerned Government authorities, including police.
which shall take necessary steps to protect such complainant or public servant or persons
concerned.
Clause 12.-This clause provides for protection of identity ofcomplainant. It provides
that the Competent Authority shall, notwithstanding anything contairieii in any other law
for the time being in force, conceal, the identity of the complainant and the docutnents or
information furnished by him, for the purposes of enquiry, unless so decided otherwise by
the Competent Authority itself or it became necessary to reveal or produce the same by
virtue of the order ofthe court.
Clause 13.-This clausc empowers the Competent Authority to pass interim orde1.s.
It provides that the Competent Authority, at any time aRer the making ofdisclosure by the
complainant or public servant, if it is of the opinion that any corrupt practice required to be
stopped during the continuation of any inquiry for the said purpose may pass such interim
orders as it may deem fit, to prevent the immediate stoppage ofsuch practice.
Cluuse 14.-This clause makes provision for penalty for furnishing incomplete or
incorrect or misleading comments or explanation or report. It provides that the Competent
Authority, at the time of examining the report or explanations or report on the complaint
submined by organisations or officials concerned, is of the opinion that the organisations
or oficials concerned, without any reasonable cause, has not furnished the report within
thespecified time or malafidely refused to submit the'report or knowingly given incomplete,
incorrect or misleading or false report or destroyed record or information which was the
subject of the disclosure or obstructed in any manner in furnishing the report, shall impose
a penalty which may extend to two hundred fifty rupees for each day till report is furnished,
however, the total amount of such penalty not to exceed fitly thousand rupees but no
penalty shall be imposed against any person without giving him an opportunity of bcing
heard.
Clause 15.- This clause contains tlte prov~sionib r penally for revealing identity o f
complainant. I t provides that any person, who neglige~entlyo r molajidely reveals the
identity of a complainant shall be punishable with imprisonment for a term which may
extend up to three years and also !o fine which may extend up ro fifiy thousand rupees.
Clafrse 16.-This clause provides for punishment for false or frivolous disclosure. It
provides that any person who makes any disclosure mulajidely and knowingly that it was
17
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.
Clause 17.-This clause provides for punishment to the Head of the Department in
the Government. It provides that where an offence under the proposed legislation has been
committed by any Department of the Government, the Head of the Department shall be
deemed to be guilty of the offence and shall be liable to be proceeded against and punished
accordingly unless he proves that the offence was committed without his knowledge or
that he exercised all due diligence to prevent the commission of such offence.
It further provides that if an offence has been committed by a Department ofGovemment
and it is proved that the offence has been eommitted with the consent or connivance of, or
is attributable to any other officer, such officer shall also be deemed to be guilty of that
offence and shall be liable to be proeeeded against and punished accordingly.
('lo?~,s1e8 .---This clause contains provisions for offences by companies. It provides
Illat where an oflencc under the proposed legislalion has been committed by a company,
every person directly in cli:~rge of, and responsible to, the company for the conduct of its
business at the time of commission of offence shall be deemed to be guilty of the ottence
and shall be liable to be proccedcd against and pl~nisheda ccordingly unless he proves that
the offence was committed without his knowledge or that lie exercised all due diligence to
prevent the commission of such ottence. It also provides that where any oflence under the
proposed legislatio~lia s becn co~nmittedw ith thc consent or connivance of, or attributable
to any ~ieglecot n the part of. any director, nianager, secretary or other oficer clfthecompany,
such director, manager. secretan or other officer shall also tie deemed to be guilty of that
offence and shall be liable to be proceeded against and punished accordingly. 'The
t:,r~~Ian[rrioton thc clause seeks to define the terms "company" and "director".
Clause 19.-This clause makes provision for filing ofan appeal to the High Court. It
provides that any person aggrieved by an order made by the Competent Authority relating
to imposition of penalty, for furnishing incomplete or incorrect or misleading comments or
explanation or report under clause 14 or for revealing identityofcomplainant under clause
15 may prefer an appeal to the High Court within a period of sixty days from the date of the
order.
It further provides that the High Court may entertain an appeal after the expiry of the
said period of sixty days, if it is satisfied that the appellant had sufficient cause for not
preferring the appeal within the said period.
Clouse 20.-This clause provides for exclusion ofjurisdiction ofcivil courts. It provides
that no civil court shall have jurisdiction in respect of any matter which the Compelent
Authority is empowered by or under the proposed legislation to determineand no injunction
shall be granted by any court or other authority in respect ofany action taken or to be taken
in pursuance of any power conferred by or under the proposed legislation.
Clouse 21.-This clause provides for courts to take cognizance of an offence. It
provides that no court sliall take cognizance of any offence punishable under proposed
legislation, save on a complaint made by the Competent Authority or any officer or person
authorised by it and no court inferior to that of a Chief Metropolitan Magistrate or a Chief
Judicial Magistrate shall try any offence punishable under the proposed legislation,
Clause 22.-This clause seeks to empower the Competent Authority to prepare a
rcport on disclosures. It provides that the Competent Authority shall prepare a consolidated
annual report ofthe performance of its activities in such form as may be prescribed by the
Central Government and forward it to the Central Government or State Government, as the
case may be, which would be laid. before Parliament by the Central Government and; before
State Legislature by the State Government.
I t further provides that ifany other law for the time being in force provides preparm2
of the annual report by the Competent Authority. then the said annual rcport shall contail1
18
a separate part on the performance of activities under the proposed legislation by the
Competent Authority.
Clouse 23.-This clause provides for protection of action taken in good faith. It
provides that no suit, prosecution or other legal proceedings shall lie against the Competent
Authority or against any officer, employee, agency or person acting on its behalf, for
anything which is in good faith done or intended to be done under the proposed legislation.
Clause 24.-This clause confers power on the Central Government to make rules. It
provides that the Central Government may, by notification in the Official Gazene, make rules
to carry out the provisions of the proposed legislation. Sub-clause (2) enumerates matters
for which such rules may be made by the Central Government.
Clause 25.-This clause confers power on the State Government to make rules. It
provides that the State Government may, by notification in the Official Gazene, make rules
for the purpose of carrying out the provisions of the proposed legislation.
Clause 26.-This clause empowers the CompetentAuthority to make regulations. It
providcs that the Competent Authority may, with the previous approval of the Central
Government or the State Government, as the case may be, by notification in the Official
Gazette. make regulations not inconsistent with the provisions of the proposed legislation
and for giving effect to the provisions of the proposed legislation.
Clause 27.-This clause provides for laying of rules, regulations and notifications
before Parliament. It provides that every rule made and every notification issued by the
Central Government and every regulation made by the Competent Authority under the
proposed legislation shall be laid before each House of Parliament.
Clause 28.-This clause provides for laying of rules, regulations and notifications
before the State Legislature. It provides that every rule made and every notification issued
by the State Government and every regulation made by the Competent Authority under the
proposed legislation shall be laid before the State Legislature.
Clause 29.-This clause makes provision for power to remove difficulties. It provides
that if any difficulty arises in giving effect to the provisions of the proposed legislation, the
Central Government may, by order, not ~nconsistentw ith the provisions of the proposed
legislation, remove the difficulty.
It provides that no such order shall be made aRer the expiry of a period of three years
from the date of commencement of the proposed legislation. It also provides that every
order under this clause shall. as soon as may be after it is made, be laid before each House
of Parliament.
Clause 30.-This clause relates to the repeal and savings. It provides for the repeal of
the Resolution of the Government of India, Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training) issued vide No. 371/12/2002-AVD-Ill,
dated the 21stApril. 2004 asamended vide Resolutionofeven number, dated the 29thApri1,
2004.
It further provides that notwithstanding the said repeal, anything done or any action
taken under the said Resolution be deemed to have been done or taken under the proposed
legislation.
MEMORANDUM REGARDING DELEGATED LEGISLATION
Sub-clause (1)of clause 24 empowentheCentral Government to make, by notification
in the Official Gazette, rules for carrying out the provisions of the proposed legislation. Subclause
(2) enumerates the matters in respect of which such rules may be made. These
matters, inter olio, specifies the procedure for disclosure in writing or appropriate electronic
means under sub-clause (4) of clause 5; the manner in which the discreet inquiry is to be
made by the Competent Authority under subslause (2) ofclause 4; the additional matter in
respect of which the Competent Authority may exercise the powers of a civil court under
sub-clause (2) of clause 6; the form of annual report under sub-clause (1) of clause 22.
2. Clause 25 empowers the State Government to make, by notification in the Official
Gazette, rules, for carrying out the provisions of the p;oposed legislation.
3. Clause 26 empowers the Competent Authority, with the previous approval of the
Central Government or the State Government, to make, by notification in the Official Gazette,
regulations. consistent with the provisions of the proposed legislation and the rules made
thereunder to provide for all matters for which provision is expedient for the purposes of
giving effect to the provisions of the proposed legislation.
4. Clause 27 provides that rules and regulations made by the Central Government are
required to be laid before each House of Parliament and rules and regulation made by the
State Government are required to be laid before each House ofthe State Legislature.
5. The matters in respect of which rules and regulations may be made are matters of
procedure or administrative detail and it is not practicable to provide for them in the Bill
itself. The delegation of legislative power is therefore of a normal character.
to establish a meshanism 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 and to inquire or cause an inquiry into such disclosure and to provide
adequate safeguards against victimization of the person making such complaint and
for matters connected therewith and incidental thereto.
-- (Shri Prithviroj C h m . Minister of Statefor Persunnel,
Public Grimaxe Md Pensions)