– Aryan Rawal
Introduction
Recently, the accusations that rose against the Infosys Chief Executive Officer (CEO) and other senior officials have brought back the focus on whistleblowers’ safety in India. In recent years, the number of whistleblowing complaints has risen in the corporate sector, particularly the complaints filed against Wipro and the State Bank of India (SBI) in 2018.
In India, the Whistleblower Protection Act, 2011 was enacted due to the multiple instances of threatening, harassment, and even murder of several whistleblowers. An engineer named Satyendra Dubey was murdered in November 2003 because he was a whistleblower in a corruption case against the National Highways Authority of India in the Golden Quadrilateral project.
This article exhaustively covers the meaning of whistleblower, types of whistleblowers, relevant provisions of the Whistleblowers Protection Act, 2011, the advantages and shortcomings of the Act.
Who is a Whistleblower?
The term whistleblowing or whistleblower arises by analogy with the referee or umpire who draws public attention to a foul in a game by blowing the whistle which would alert both the law enforcement officers and the general public of the danger. Whistleblowers are generally those entities who expose corruption and fraud in organizations by filing a lawsuit or a complaint with government authorities which stimulates a criminal investigation into the administration’s suspected behavior.
Types of Whistleblowing
Whistleblowers can be divided into multiple categories based on their position in the organization, they are as follows:
- Internal Whistleblowing: When the whistleblower reports the wrongdoings to the officials at the higher position in the organization, the person doing so is said to be an internal whistleblower. The usual subjects of internal whistleblowing shall comprise treachery, improper conduct, disorderliness, disobedience.
- External Whistleblowing: When a person reports the misconduct to the people outside the organization like media, public interest groups, or enforcement agencies it is termed external whistleblowing.
- Alumni Whistleblowing: When whistleblowing is done by the former employee of the organization, it is said to be alumni whistleblowing.
- Open Whistleblowing: If the identity of the whistleblower is revealed, it is said to be open whistleblowing.
- Personal Whistleblowing: Where the organizational misconducts are to harm one person only, revealing such wrongdoings is called personal whistleblowing.
- Impersonal Whistleblowing: When the wrongdoing is to harm others, it is called impersonal whistleblowing.
- Government Whistleblowing: When the wrongdoings or unethical practices adopted by the officials of the Governmentare exposed then it is termed as government whistleblowing.
- Corporate Whistleblowing: When the wrongdoings in a business corporation are exposed, it is called corporate whistleblowing.
The Whistle Blowers Protection Act, 2011
The Whistle Blowers Protection Act, 2011 is an Act enacted bythe Parliament of India which provides for a procedure to investigate suspected corruption and misuse of power by public servants and also protect anyone who exposes suspectedmisconduct in government bodies, projects, and offices. The offenses might take the form of fraud, corruption, or maladministration. This Act was approved by the Cabinet of India as part of a drive to eradicate corruption in the country’s administration and passed by the Lok Sabha on 27 December 2011. The Bill 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 that prevents proper and balanced social growth and economic development. One of the obstructions felt in eliminating corruption in the Government and the public sector undertakings lack adequate protection to the complainants reporting corruption or willful misuse of power or willful misappropriation of discretion which causes demonstrable loss to the Government or commission of a criminal offense by a public servant.
Subsequently, it was decided to enact separate legislation to provide adequate protection to the persons reporting corruption or willful misuse of power or discretion and disclose the commission of a criminal offense committed by a public servant. There are certain pros and cons of this Act. The term “Public Interest Disclosure” holds fundamental significance in the Whistle Blowers Protection Act, 2011. It refers to 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 for the purpose of disclosure under 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.
The Act provides for the establishment of a mechanism to receive complaints related to disclosure of allegations of corruption or willful misuse of power or discretion, against any public servant, and to inquire or cause an inquiry into such disclosure. The maximum time period for making a complaint under the Act is seven years.
The Act also provides adequate safeguards against the victimization of the person making such complaints. It allows any person, including a public servant, to make a public interest disclosure before a competent authority. The law has elaborately defined various competent authorities. The law does not allow anonymous complaints to be made and clearly states that no action will be taken by a competent authority if the complainant does not establish his/her identity.
Exemptions: The act is not applicable to the Special Protection Group (SPG) personnel and officers, constituted under the Special Protection Group Act, 1988.
Court of Appeal: Any person aggrieved by any order of the competent authority can make an appeal to the concerned High Court within a period of sixty days from the date of the order.
Penalty: Any person who negligently or maliciously reveals the identity of the complainant will be punished with imprisonment for a term extending up to 3 years and a fine which may extend up to Rs 50,000.
If the disclosure is made maliciously or knowingly that it was incorrect or false or misleading, the person will be punished with imprisonment for a term extending up to 2 years and a fine extending up to Rs. 30,000.
Annual Report: The competent authority prepares a consolidated annual report of the performance of its activities and submits it to the Central or State Government that will be further laid before each House of Parliament or the State Legislature, as the case may be.
The Whistleblowers Act overrides the Official Secrets Act, 1923 and allows the complainant to make public interest disclosure before the competent authority if they are violative of the Act, irrespective of whether it is against the sovereignty of the nation.
In 2015, an Amendment Bill was passed that proposed whistleblowers must not be allowed to reveal any documents classified under the Official Secrets Act of 1923 even if the purpose is to disclose acts of corruption, misuse of power, or criminal activities. As a consequence,the existence of the 2014 Act has been in jeopardy.
Pros and Cons of the Act
As we know, whistleblowers under the Indian jurisdiction are protected by the Whistle Blowers Protection Act, 2014. The law provides for the protection of their identity and also has strict norms to prevent their victimization. For instance, an organization cannot initiate proceedings against a whistleblower pending a probe into allegations. The same sections have been adopted in the Companies Act, which applies to listed companies, and are a part of the Securities and Exchange Board of India’s governance norms. All listed and public sector firms are mandated to have a whistleblower policy that outlines procedures and recourses available to complainants.
The competent authority has been empowered to give proper directions to the concerned authorities for the protection of the complainant or the witness either on an application by the complainant or based on its 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.
If any person is being prosecuted or likely to be prosecuted on the ground that he/she had filed a complaint or made a disclosure or reduced assistance in the inquiry then he/she may file an application before the Competent Authority seeking redressal in the matter, and such authority shall take appropriate 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 victimized or to avoid his victimization.
However, there are several shortcomings in the Whistleblowers Protection Act, 2011. Firstly, it does not contain any provision to encourage whistleblowing (financial incentives). Secondly, the jurisdiction under the Act does not extend to corporate whistleblowers in the private sector. Thirdly, the definition of victimization has not been included in the Act. Fourthly, the scope of competent authorities under the Act is very limited. Fifthly, the right to appeal is not granted to the complainant under the Act in case he/she is not satisfied by any order of the competent authority. The appeal provisions have been included only with respect to the imposition of penalty. Lastly, the Act does not specify a procedure for inquiring into complaints in relation to acts of corruption, willful abuse of power, or willful misuse of discretion or offenses committed by the members of the lower judiciary.
Conclusion
In order to move forward with regard to the protection of whistleblowers, it is necessary that shortcomings in the legislation should be addressed to provide protection to innocent whistleblowers or the amendments in the Act that is proposed by the 2015 Amendment Bill must be abandoned as these amendments weaken the aim of the act to an extent. Overhauling of the whistleblower protection mechanism will ensure that the integrity of democracy is upheld.
Endnotes:
[1] India, legal Service. Whistleblowers and Their Protection in India, www.legalservicesindia.com/article/1693/Whistleblowers-and-their-Protection-in-India.html#:~:text=Whistleblowers%20And%20Their%20Protection%20In%20India%3A%20An%20Overview&text=Whistle%20blowers%20are%20individuals%20who,to%20the%20organizations%20alleged%20behavior.
[2] “What Is Whistleblower? Definition of Whistleblower, Whistleblower Meaning.” The Economic Times, economictimes.indiatimes.com/definition/whistleblower.
[3] Arora, Meenakshi. “The Malicious Whistleblower.” The Indian Express, 27 Sept. 2020, indianexpress.com/article/opinion/the-malicious-whistleblower-freedom-of-speech-media-6618082/.
Insightful