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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Legal Article

Whistleblower Protection

Mirza Saaib Beg,
NALSAR Univeristy of Law
Akash Pratap Singh, NLU-Orissa

In 1971 Frank Serpico reported several of his fellow officers for bribery and related charges. He is the first officer to testify against police corruption. His heroic efforts gained international momentum after the movie Serpico , starring AL Pacino. I was watching the movie last night thinking about the whistleblowers protection programme that is so desperately required in India. It is essential to understand the risks these people undertake coming out with sensitive information, turning against their own associates and colleagues, risking their lives to combat corruption. Frank Serpico was shot in the face at point blank range with a .22 LR handgun during a drug raid. The bullet penetrated his cheek just below the eye and lodged at the top of his jaw and colleagues failed to place a dispatch to police headquarters indicating that an officer had been shot. Instead, Serpico was saved by an elderly man who lived in an apartment adjacent to the one being used by the suspects.

A meticulously conscientious executive is indispensable for unimpeded functioning of an effective justice system. It is not possible for the government investigative agencies to check every department for possible corrupt practices, on a daily basis, but someone involved with the organization is well aware of the daily transactions and may be of assistance to combat corruption. Sadly, unabated abuse of power in a stochastically arbitrary manner has become a diabolical concomitant of the executive systems acting in connivance with criminal cartels in an alarmingly increasing majority of countries in Asia. The role of legal enforcement agencies is truly paramount in order to achieve utopia of smooth and unimpeded functioning of an effective justice system.

It is indeed refreshing to see our government attempting to take steps aimed at protecting Whistleblowers in order to combat the iniquitous, morally and legally corrupt practices and a myriad host of gangrenous issues that plague and stunt the economic growth of India. The government is considering various measures to tackle corruption such as the formation of the office of the Lokpal or Ombudsman to investigate corruption cases, the Judicial Standards and Accountability Bill, 2010 that requires judges to declare their assets, lays down enforceable standards of conduct for judges, and establishes a process for removal of the Supreme Court and High Court judges and the Public Interest Disclosure and Protection of Persons Making the Disclosure Bill, 2010.

A whistleblower is a person who raises concern about frauds, corruptions, wrongdoings and mismanagement. In 2004, the death of whistleblower Satyendra Dubey, an engineer with the National Highways Authority of India (NHAI) led to the initial work on protecting whistle- blowers. Dubey was killed after he wrote to the ex-Prime Minister, A.B. Vajpayee's office about the corrupt practices in the construction of highways. The government issued a notification laying down certain guidelines for whistleblowing and protecting whistleblowers.  It introduced the Public Interest Disclosure and Protection of Persons Making the Disclosure Bill, 2010 in August 2010 to give statutory backing to the 2004 government resolution.  Commonly known as the Whistleblowers' Bill, it seeks to protect whistleblowers i.e. persons making a public interest disclosure related to an act of corruption, misuse of power or criminal offence by a public servant.  A similar case is that of Manjunath Shanmugham, a sales manager of the IOC. He was killed in 2005 for uncovering a racket that dealt in petrol adulteration. Following the public outrage surrounding these murders, the government proposed a Bill pertaining to the matter. The Department of Personnel and Training (DOPT) developed the Public Interest Disclosure (Protection of Informers) Bill. The Bill designates the Central and State Vigilance Commissions to receive disclosures from whistleblowers and lays down safeguards for protection of whistleblowers. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice which presented its report on June 9, 2011.

The Bill provides that anyone can file a complaint of corruption, with the Central Vigilance Commission (CVC), against any employee of the Central Government or organizations backed by the Central Government. The CVC is an authorized nodal agency for addressing complaints. It has powers similar to a civil court, such as powers to issue summons, order police investigation and provide protection to the whistleblower. However, the CVC is not authorized by Indian laws to address the complaints regarding matters that are already in court's purview, prejudicial to national security, international relations and proceedings of the Union Cabinet. The proposed law does not deal with corporate whistleblowers, though as per the recommendations of the Second Administrative Reforms Commission, the scope of the proposed law could be enlarged to deal with corporate whistleblowers too.

Whistleblowers are given protections in most countries around the world. US was one of the earliest to have the Whistleblower Protection Act of 1989, while the UK has the Public Interest Disclosure Act of 1998, and Norway has a similar law in place since January 2007. As of now, in India there is no statutory protection given to persons who come forward with information. Under the Indian Penal Code (IPC), whistleblowers and witnesses have only very limited protection. Sections 5 and 24 of the IPC provide limited protection to whistleblowers, but only against prosecution under the IPC.

Objective and Working of the Bill

The Whistleblowers' Protection Bill, 2011 seeks to provide "adequate protection to persons reporting corruption or wilful misuse of discretion which causes demonstrable loss to the government or commission of a criminal offence by a public servant." The CVC would not reveal the identity of the complainant but would have the authority to ignore frivolous complaints. The criteria for 'ignoring' a complaint has not been clearly explained. Further, limitations have been placed on matters which are sub-judice, prejudicial to national security, international relations, proceedings of the Union Cabinet or those beyond the limitation period of five years.

It is true that an organisation is entitled to confidentiality from its employees. But when there is corruption and fraud in defence procurement; unauthorized waste disposals from hazardous factories into water bodies; non-adherence to flight safety standards by airlines; false declarations by companies to boost their stocks, the overriding public interest may lie in protecting the public's right to be informed. Whistleblower protection measures are gathering a momentum in India aided by our recent slew of government and corporate scandals. It is only a matter of time till legislators comprehend the gravity of the situation and the dire requirement for their protection.

 
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