Whistleblowers And Their Protection In India: An Overview
History is witness that there have always been informers who reveal inside information to others. Ancient Greeks talked about whistleblowing centuries before. Lykourgos, the Athenian orator, in his speech against Leokratis said: neither laws nor judges can bring any results, unless someone denounces the wrongdoers.
Even in Ancient India, the concept of a Whistleblower was in existence , Kautilya proposed- “Any informant (súchaka) who supplies information about embezzlement just under perpetration shall, if he succeeds in proving it, get as reward one-sixth of the amount in question; if he happens to be a government servant (bhritaka), he shall get for the same act one-twelfth of the amount.”
The term whistleblowing probably arises by analogy with the referee or umpire who draws public attention to a foul in a game by blowing of the whistle which would alert both the law enforcement officers and the general public of danger.
The term ‘whistle-blowing’ is a relatively recent entry into the vocabulary of public and corporate affairs although the phenomenon itself is not new.
Whistle blowers are individuals who expose corruption and fraud in organizations by filing a law suit or a complaint with Government authorities that prompts a criminal investigation in to the organizations alleged behavior.
US civic activist Ralph Nader coined the phrase in the early 1970s to avoid the negative connotations found in other words such as "informers" and "snitches".
Some important Definitions of whistle blowing are
R.M Green (1994) defines a whistleblower as an Employee who, perceiving an organizational practice that he believes to be illegal or unethical, seeks to stop this practice by alerting top management or failing that by notifying authorities outside the organization.
Sekhar (2002) defines whistleblowing as an attempt by an employee or a former employee of an organization to disclose what he proclaims to be wrong doing in or by that organization.
Koehn (2003) whistle blowing occurs when an employee informs the public of inappropriate activities going on inside the organization.
Boatright (2003) whistleblowing is the release of information by a member or former member of an organization this is evidence of illegal and/or immoral conduct in the organization that is not in the public interest.
Types Of Whistleblowers
Internal: When the whistleblower reports the wrong doings to the officials at higher position in the organization. The usual subjects of internal whistleblowing are disloyality , improper conduct, indiscipline, insubordination, disobedience etc.
External: Where the wrongdoings are reported to the people outside the organization like media, public interest groups or enforcement agencies it is called external whistleblowing.
Alumini: When the whistleblowing is done by the former employee of the organization it is called alumini whistle blowing.
Open: When the identity of the whistleblower is revealed, it is called Open Whistle Blowing.
Personal: Where the organizational wrongdoings are to harm one person only, disclosing such wrong doings it is called personal whistle blowing.
Impersonal: When the wrong doing is to harm others, it is called impersonal whistle blowing.
Government: When a disclosure is made about wrong doings or unethical practices adopted by the officials of the Government.
Corporate: When a disclosure is made about the wrongdoings in a business corporation, it is called corporate whistle blowing.
Whistleblower Protection Act 2011
There have been multiple instances of threatening, harassment and even murder of various whistleblowers. An engineer, Satyendra Dubey, was murdered in November 2003; Dubey had blown the whistle in a corruption case in the National Highways Authority of India’s Golden Quadrilateral project. Two years later, an Indian Oil Corporation officer, Shanmughan Manjunath, was murdered for sealing a petrol pump that was selling adulterated fuel. A movie/Film has been made based on the said incident titled ‘Manjunath’(2014).
Whistle Blowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might take the form of fraud, corruption or mismanagement.
The Act was approved by the Cabinet of India as part of a drive to eliminate corruption in the country's bureaucracy and passed by the Lok Sabha on 27 December 2011. The Bill became an Act when it was passed by the Rajya Sabha on 21 February 2014 and received the President's assent on 9 May 2014.
Corruption 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 willful misuse of power or willful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant.
It was decided to enact a separate legislation to provide adequate protection to the persons reporting corruption or willful misuse of power or discretion which causes loss to the Government or who disclose the commission of a criminal offence by a public servant.
Pros & Cons
The Act, under section 3, provides that any public servant or any other person including a non-governmental organization may make a public interest disclosure to a Competent Authority.
What is important under this Act is the term “Public Interest Disclosure” which is meant to be any disclosure by a public servant or any other person including any non-governmental organization before the Competent Authority notwithstanding anything contained in the provisions of the Official Secrets Act, 1923 in Public interest. 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 shall be received by such authority as may be specified by regulations made by the Competent Authority.
The name of the Act itself makes it very clear that the purpose of this act is the protection of the persons who make public interest disclosure or have assisted in such matters from possible victimization or harassment and the Central Government has to ensure such protection . The Competent Authority has been empowered to give proper direction to the concerned authorities for the protection of complainant or witness either on an application by the complainant or based on its own information. It can also direct that the public servant who made the disclosure may be restored to his previous position.
The Vigilance Commission has to protect the identity of the complainant and related documents, unless it decides against doing so, or is required by a court to do so. Furthermore, the Commission is empowered to pass interim orders to prevent any act of corruption continuing during inquiry.
If any person is being victimised or likely to be victimised on the ground that he/she had filed a complaint or made disclosure or rendered assistance in inquiry than he/she 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 victimization.
The Whistleblowers Protection Act, 2011 has neither provisions to encourage whistleblowing (financial incentives), nor deals with corporate whistleblowers; it does not extend its jurisdiction to the private sectorand it does not include the definition of victimisation. Further, competent authorities under the Act are very limited and right of appeal is not provided to the complainant in case he/she is not satisfied by any order of the competent authority. Appeal provisions have been provided only relating to imposition of penalty.
Actions on anonymous complaints have not been included in the ambit of the Act. The Lokpal (National level apex anti‐corruption and Grievance Redress agency) which will be established under the Lokpal & Lokayuktas Act, 2013 will have no role to play in the scheme of protection of Whistleblowers. , the Lokpal should also have been mentioned as a competent authority under the Act for the purpose of receiving complaints.
The Act does not specify a procedure for inquiring into complaints of about acts of corruption, willful abuse of power or willful misuse of discretion or offences committed by members of the lower judiciary
1. There should be dissemination of Information about the meaning and concept of Whistleblowers Protection Act. Seminars should be conducted in Government organizations as well as Private Organizations to inform employees and employers of the importance of the Whistleblowers Protection Act. The modes of making disclosures have to be explained to the employees.
2. The Whistleblowers Protection Act, 2011 should be amended so as to include protection to private enterprises. A model Whistleblowers Policy could be framed by a special committee constituted under the Whistleblower Protection Rules . The Whistleblowers policy would then be compulsorily established and followed in Private enterprises keeping the skeleton of the Model formulated under the Whistleblowers Protection Rules but supplementing it with each companies own rules and regulation as the circumstances differ in each and every company.
3. The Whistleblowers Protection Act, 2011 should be amended so as to include the giving of incentives to Whistleblowers whose disclosures are proved to be correct after the hearing and have substance.
4. The Whistleblowers Protection Act , 2011 should also be amended to include the definition of ‘victimization’ . The amendment is very necessary as the entire Act deals with protection to whistleblowers from their victimization and if the term itself is not clear than the entire Act looses all meaning.
5. Further more although the Act makes a provision for Anonymous Disclosures ,the Act does not speak about complete anonymous disclosures. The Competent Authority formed under the Act does not talk about complete anonymous disclosure. The Act makes provision for revealing the identity of the Whistleblower. If this is done there are chances of the whistleblower being victimized. The researcher feels that what can be done in this case is that a separate Whistle Blower Protection Agency can be formed under the WhistleBlower Protection Rules so as to provide protection to Whistleblowers by assessing the danger which the whistleblower is susceptible to by making the disclosure.
6. The Act should be amended to incorporate and make use of the Lokpal (National level apex anti‐corruption and Grievance Redress agency) which will be established under the Lokpal & Lokayuktas Act, 2013 as the Lokpal would generally handle the same cases of corruption as would be handled by the Competent Authority and hence making the Lokpal and the Lokayukta the competent authority would solve the problem of dual organizations doing the same work.
7. The Lokpal & Lokayukta Act, 2013 and the Whistleblowers Protection Act, 2011 could be harmonized so as to bring about a smooth flow in to the protection of people making public spirited disclosures.
8. The meaning and Definition of ‘Competent Authority’ should be amended so as to make the ambit of the term wide and bring into its purview many agencies/organizations which are currently not included like the Lower Judiciary.
9. The Act should provide for a Protection Agency which would not only protect whistleblowers but would also encourage new emerging whistleblowers and guide them in to making public disclosures in a correct manner.
10. The Act should also incorporate and bring into its ambit protection to a separate kind of Whistleblowers. The People and witnesses who come up to corroborate the disclosure made by the Whistleblower during the stage of inquiry should be provided with protection so that the offenders are not left scot free due to non proving of the disclosure made by the Whistleblower.
11. The State should find a way to deal with frivolous complaints, maybe by developing an efficient method to screen complaints. Taking away the provision for anonymous complaint complicates the process of whistle blowing and discourages people from coming forward with their complaints.
Although the Act has yet to come in force by a notification of the Central Government in the Official Gazette the provisions of the Act on the bare perusal of the Act seem inadequate and thus there are chances that the zeal of the Whistleblowers to make disclosure will be affected.
It has to be seen that the Act does not become a Paper tiger like the Benami Transactions (Prohibition) Act, 1988 and proper rules should be formulated and passed to give better effect and force to the Whistleblowers Protection Act 2011