Indian Perspective of Whistle Blowing.

Author of this Article: Mr.Barathan Balu, Final Year Law Student – SASTRA deemed to be University – Thanjavur – Tamil Nadu.

Introduction:

A whistle blower is a person who is unearthing the malpractice which is running in a company or in an organization. In India, the legislature passed the Whistle blower protection Act, 2014, to give the whistle blowers an unequivocal legislature protection. It gives some hope and optimistic belief for every insider who want to take the illegal things, corruption or any wilful misuse of the power to the notice of the concerned authorities. Even though there are laws with regard to protecting the whistle blowers in India one needs to take a close view on its implementation part. Ensuring effective implementation of a statute will provide justice for its purpose. The legal protection will only be effective against the wrongdoer with stringent punishment. The author would like to elucidate the legal position and the changes brought forth in protecting the whistle blower.

DEMAND FOR WHISTLEBLOWER PROTECTION IN INDIA:

There are plethora of reasons for the formation of a new law, however with respect to the whistleblower act, 2014, the protection for a whistle blower and action against misuse of power is the foremost concern.

One of the well-renowned incident is, the Murder of Satyendra K. Dubey in 2003 that had created a demand for this legislation. He addressed the prime minister to keep his identity safe in a letter against the corruption in National Highway Authority of India (NHAI). Per contra the disclosure of the same resulted, Mr. Dubey to meet his maker.

In the lights of the above-mentioned act, a whistle blower can make a complaint to the competent authority to issue direction to the public servants, authorities and the police officers to prevent victimization. The main issue under this statute is, whether the whistle blowers can be prosecuted under any other legislatures for disclosing information in the form of a complaint about the wilful abuse of the power. This statute provides immunity to whistle blowers against prosecution.

In Manjit Singh Khera Vs State of Maharasthra,[1] it was held that, the identity of a whistleblower can never be revealed to the accused facing prosecution under Prevention of Corruption Act, 1988.[2]

Would the laws actually reduce the rate of misuse of power by the authorities?

It was only in the year 2004, the Indian Government had taken the initiative towards the protection of whistle blower wherein Public Interest Disclosure and Protection of Informers Resolution (PIDPIR) was brought to light.

To unearth the unethical practices in an organization, the aforementioned legislation was not satisfying the required elements which is quintessential for a whistleblower law. Mere filing of a complaint and disclosure of information in this regard without guaranteed safeguard for the whistle blower will not comply with the suffice.

Long time before the arrival of Whistle Blower Protection Act, the securities and exchange board of India brought the protection for insider who discloses about the abuse of power in an organization in their regulations. Clause 49 of the listing agreement by securities and exchange board of India, has mandated a vigil like mechanism in listed companies. This mechanism allows an employee or any person in a company to inform about the unethical and corrupt practice in a company or even violation of the company’s code. This would be effective system if it provides safeguard against victimization.

The recent murders circumscribing vyapbham scam will show how vulnerable the position of a whistleblower in India. Backing with a legislation, the protection to the whistle blower is not up to the expectation of the standards. This is an admission and recruitment scam in Madhya Pradesh professional examination Board. This unearthed how the undeserving candidates get through their admission process. The whistle blowers who tried to uncover the scam were found dead in an unnatural way.

Whistle blower Act and Right to Information Act:

If the competent authority is a government authorized authority and if it falls under the prohibited categories, the decision of the authority will be the final and the binding one. In 2015, an amendment bill was brought by the National Democratic Alliance (NDA) government that listed 10 prohibited category wherein the statutory authority would decide upon the matters. Under the RTI Act, the Public Authority can disclose the information if it thinks that it is in the interest of the general public. This will in turn demotivate the insider to disclose information regarding the abuse of power.

Any information which a person cannot able to obtain under the right to information act, cannot be the subject matter of the whistle blower complaint. Moreover the designated authority have to first seek the permission of the information commission with respect to the kind of information that can be revealed under the Act. Hitherto, this cripples the whole statute.

The author would like to cite out that the law should not be interpreted in a manner where there is a total prohibition against all the exceptions from section 8 of the Right to Information Act. Section 8 of the said legislation speak about the information which cannot be disclosed through this act. Further this provision which has a non-obstinate clause which overrides the whole statute, in simple words it is a repository of the exemption of this law. Being the subject matter of the disclosure there is no total ban. There is only a calculated ban wherein if the secrets are disclosed eventually there would be repercussions on the sovereignty and integrity of India and so on.

Whistle blower protection act and Official Secrets Act, 1923:

Official secrets act, 1923 was enacted in the colonial period mainly to ensure secrecy and also deal with espionage issues. The said Act deals with punishment to the persons who discloses the information which is considered to be secret. Scrutinizing the Act meticulously will explicate that this act does not have a clear meaning of “What is secret or official secrets?” If the whistle blowers are prosecuted under Official Secrets Act, 1923 for disclosing information then the very purpose of the act will be defeated. This ambiguity and vagueness in the legal position should be settled down.

Prior to the amendment, if any public interest disclosure is made by the whistle blower he cannot be prosecuted despite the provisions in the Official secrets Act. Those provisions has now been amended. This has been another discouraging factor for a potential whistle blowers.

This amendment also has its own limitations. For instance,

For instance, A is disclosing secret, which attracts an offence under Official secrets act. This disclosing of secrets was not done before the competent authority. In such a case the disclosure will need to be scrutinized, whether it comes under the nature of disclosure made in public interest or disclosure not made in the interest of public interest. If the same was not done against the public interest then it will not prejudicially affect the state. Hence the interpretation need to be given by considering the manner it was committed. At the other hand the whistle blower is facing a risk in the new amendment were he can be prosecuted for not informing to the competent authority.

Will see another scenario, where a CBI investigation is done dishonestly and the same was reported by the whistle blower. This whistle blower complaint will come under the purview of exempted matters under the RTI act. Hence the protection given to the whistle blower normally cannot be accessed and worst case scenario is, the whistle blower will be prosecuted.

Conclusion:

Whilst this new legislation is certainly a most important step, still limitations and concerns remain. Primarily, the law fails to impose specific criminal penalties against the physical attacks on whistleblowers—and given the list of violent attacks on insiders in the past, it is a major concern.

The second important aspect is, the legislation is silent on providing civil actions against the workplace retaliations. Practically speaking, protection for whistle blowers is inadequate in this Act. Countries like Canada, United States and United Kingdom where the whistleblower protection laws are established have defined “Victimization” and “Disclosure” elaborately for the protection of whistle blowers. Per contra our legislation does not define “Victimization” and having a narrow meaning for “Disclosure”. Indian Legislation has once again failed to safeguard the effectiveness of the whistleblower.

There are many concerns like effective enforcement to be meticulously administered beyond the abovementioned deficiencies. Earning the public trust in government has become a tedious task and more importantly the enforcement plays a crucial role in the success of the new law. Leaving behind the history of scandals, the State has to rebuild the people’s confidence and make them feel that the new whistle blower law will honestly provide the kind of protection it guaranteed and serve the purpose. If this fails the insider will stay silent with respect to abuse of power. Hence proper enforcement coupled with described protection will bring the abuse of power to the light and will be serve as a tool from preventing it.

The new amendment has considerably weakened the whistle blower protection. The law should define the term “victimization”, for preventing the whistle blower from administrative harassment. The recent amendment has to be removed and no exceptions should be given. When the law is crisp and clear it will encourage the people to report the willful abuse of power and other corrupt practices.

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[1] (2013) 9 SCC 276

[2] Mravinash Kumar vs Gnctd

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