WHISTLE BLOWING

WHISTLE BLOWING

A whistleblower is a person, disclosing information to the public or some higher authority about any wrongdoing, which could be in the form of fraud, corruption, etc.

Recently: It has been brought to light that Right to Information (RTI) users are facing death for keeping democracy alive, which is a threat to democracy itself.

Notable Examples in India

1. Public Sector
   • NHAI Scam 2003: Satyendra Dubey revealed many fraudulent tenders given and a political-criminal nexus in Highway construction. He was killed in 2003.
   • Vyapam Scam: Whistleblowers revealed malpractices like collusion among exam candidates, government officials, and middlemen occurring in malpractice in the Madhya Pradesh Exam board.
   • MGNREGS Scam: Lalit Mehta undertook a social audit of NREGA in Jharkhand which had severe corruption with the help of an economist and before he could unearth the scam, he was murdered.
2. Private Sector
   • Satyam Scam: The chairman of the Delhi metro rail blew the lid off the fraudulent audits in the company.
   • Infosys: A group of employees filed a complaint against the top management of the company, stating the company is using unethical and illegal practices to increase the profits.

Benefits of Whistle Blowing

1. For Organisations
   • Fights Corruption: Transparency International goes as far as saying that whistleblowing is the most effective tool for fighting corruption.
   • Efficient Workplaces: With the fear of exposure, many fraudulent and corrupt activities are curbed.
2. For Whistle Blowers
   • Empowering Employees: With such a mechanism, no employee feels small and is capable of making credible contributions.
   • Increases Accountability: The fear of whistleblower disclosures can make organisations more transparent and accountable.
   • Grievance Redressal: It can be an effective tool for grievance redressal and for the authority to know any malpractice taking place.

Issues with Whistle Blowing

1. Issues faced by organisations

• Hampers fierce decision making: It curbs a person’s decision making due to fear of reporting and whistle blowing.
• Misuse: It can be misused to cause harassment and defamation against employees by others.
• Hostility: It leads to a climate of hostility rather than solidarity amongst workers.
• Disloyalty: It may also come across as disloyalty to the organisation.
• Ruins Reputation: Although misleading complaints may not do anything, they can ruin the reputation of an organisation.

2. Issues faced by Whistleblowers

• Threat to life: They are prone to threats and retaliation.
• Social Isolation: Society does not look kindly upon those betraying their organisations.
• Loss of employment: Whistle blowing can also lead to termination of employment.
• Complaint Dismissal: Often many complaints get dismissed for being too sensitive or simply for being too suggestive.

3. Government

• Lack of state responsibility: To provide legal assistance, time-bound grievance redressal, compensation, and access to justice to the families of those killed.
• Collusion of officials: The whistle blowers were performing a basic civic duty of public vigilance, but the killing of RTI users is reflective of the collusion of the police with powerful interests.

Whistle Blowers Protection Act 2014

1. Key Highlights

• Legal Mechanism: The act provides the legal mechanism to make disclosures that may be made on any act of corruption, abuse of power or discretion, or criminal offence by a public servant.
• Protects Identity: It also provides safeguards to conceal the identity and protects against victimization of the complainant.
• Apex Body: The CVC is mandated as the apex authority to receive complaints and also inquire into them.
• No Anonymity: The law does not allow anonymous complaints to be made and no action will be taken on such complaints.
• Exemptions: The SPG personnel are exempted from this act.
• Witness Protection: Competent Authority can issue directions to the concerned Government authorities which shall take necessary steps, through its agencies, to protect such complainant.
• Court of Appeal: A person aggrieved by the authority’s order can approach the High Court within 60 days.
• Fine for misleading information: Any information or complaint made on malafide or baseless grounds will attract penal action and fine.
• Exempt Issues: Security of India, foreign relations; public order and morality; contempt of court; defamation or incitement to an offence; and Cabinet proceedings.

2. 2015 Amendment Bill

• More Exemptions: The bill increases the exemptions from earlier 5 to 10. Added breach of privilege of legislatures; commercial confidence, trade secrets, intellectual property that could endanger a person’s safety, etc. That which would impede an investigation, etc.; personal matters or invasion of privacy.
• Official Secrets Act: Disclosures cannot be made under the Bill, if it is prohibited under the OSA.

• Final Authority: The competent authority (to which disclosure is made) will take the final decision on whether the disclosure is prohibited.

Limitations to the Act

1. Implementation
   • Non-Operational: Although the Centre notified the Act 2014, it told Parliament that the Act cannot be in force without the passing of the 2015 amendment bill.
   • Lack of Willpower: The Amendment bill is still not passed after 5 years, showing a lack of political will.
   • Disclosure Hesitancy: The government needs to regain the people’s confidence and help them believe that the whistleblower law will really provide the type of protection it promises.
2. Formulation
   • No Penal Provision: The law has no criminal penalties for physical attacks on whistleblowers.
   • Inadequate Protection: It does not also provide civil penalties for workplace retaliation.
   • Time Limit: There is also a 7-year time limit to bring complaints, which may cause many issues to go unreported.
   • Penalty on Frivolous information: This clause may deter many disclosures who may fear their information may be struck down as misleading.
   • Lack of Anonymity: The inability to make anonymous complaints is a big deterrence to many who wish to keep their identity safe even from agencies.
   • Neglects corporates: The act focuses more on state entities than on corporate and private individuals.

Protection for RTI activists – Suggestions

• Socio-legal system: There is a need to move towards creating a socio-legal system that recognises RTI users under attack as human rights defenders and builds a framework that facilitates and protects them in their attempt to pursue issues of public interest.
• Expedition of cases: State governments must direct law-enforcement agencies to expeditiously complete investigations in all cases where RTI users are harassed.
• Compensation: Proactive efforts must be made to provide adequate compensation to the victim’s family.
• Disclosure of information of action taken: The State governments must take immediate efforts to institutionalise proactive disclosure of actionable information.
  • Example: Rajasthan’s Jan Soochna portal subsequently followed by Karnataka’s Mahiti Kanaja are outstanding examples of practical ways of mandatory disclosure.
• Publication of questions raised: In all cases of threats, attacks or killings of RTI users, the State Information Commission must immediately direct the relevant public authorities to disclose and publicise all the questions raised and the answers given to the user.
• Effective legislation: There is an urgent need to enact effective legislation to protect whistle blowers.
  • For example: In 2016, the Supreme Court came down heavily on the Union government for its reluctance in notifying the Whistle Blowers Protection Act of 2014.
• State law: State governments, such as Bihar and Maharashtra, which have recorded the highest number of murders of RTI activists, must introduce their own mechanisms for protecting whistle blowers by enacting at least a State-level whistle blower protection law.

Way Forward

1. Implementation

• Empowerment: The legislation needs to come into force and the centre must expedite its process.
• Public Awareness: The public must be empowered to approach the authorities and not be afraid to disclose crucial information.
• Incentive based: The disclosure must be incentivized, especially in cases reporting tax frauds or of fiduciary nature.
• Protecting Agency: The Act should provide for a Protection Agency that would not only protect whistleblowers but would also encourage new emerging whistleblowers.
• Cooperation with Lokpal: Both can be harmonized so as to bring about a smooth flow into the protection of people making public-spirited disclosures.

2. Formulation

• Anonymity: Anonymous complaints must be looked into as many people choose to come forward on such a condition.
• Witness Protection: There must be enough scope for witness protection or link it to the Witness Protection Scheme 2018.
• Penal Provisions: There must be rigorous punishment for any attempt to threaten or attack whistle blowers.
• Privacy: Utmost care must be taken to protect the privacy of the individual and his family.
• Define Vague Terms: There is a need to define various terms like Victimisation, which must be defined and explained as to what it includes.

Other Legislations in India for Whistle blowing

• Safeguards in the Companies Act 2013: The Companies Act, 2013, and rules thereunder provide that certain companies should establish a ‘vigil mechanism’ to report genuine concerns. Further, the Companies Act states that such mechanism should be accompanied by adequate safeguards.
• SEBI PIT (Prohibition of Insider Trading) Regulations: To reward whistleblowers and other informants for sharing information about insider trading cases.
• SEBI also requires all listed companies to have a whistle-blowing policy.

Other efforts

• Public Interest Disclosure and Protection Of Informers: In 2004, the Government introduced the PIDPI Resolution for the logging of complaints against alleged corruption or misuse of office by a Government officer or Department. The Central Vigilance Commission (CVC) was designated as the agency to administer complaints, which it continues to routinely route to its relevant section after masking the name of the whistleblower.
• Signatory to UN convention: India became a signatory to the UN Convention against Corruption in 2005. The Convention talks about the reporting of corruption done by the public or private entities and protecting the spectators and whistleblowers from the retaliation faced by them.

Best Practices from around the world

• South Korea: The Tax Service maintains two reward programs that allow individuals with significant information on tax law violations to report.
• Canada: Canada introduced a reward program for whistleblowers to report tax fraud.
• Australia: It provides the benefit of anonymous whistleblowing.
• Iceland: It has showcased whistle blowing as a legally and socially protected right.