WHISTLE-BLOWING MECHANISM IN INDIA

WHY IN NEWS:

• On 18^th January, 2021, Vice-President of India suggested the corporates to encourage whistle-blowing mechanism and provide adequate safeguards for the protection of whistle-blowers.

BACKGROUND:

• Whistleblowing is defined as an act of disclosing information by an employee or any concerned stakeholder about an illegal or unethical conduct within an organization.
• A whistleblower is a person who informs about a person or organization engaged in such illicit activity.
• The Law Commission of India in 2001, had recommended that, in order to eliminate corruption, a law to protect whistleblowers was necessary
• In 2007, the report of the Second Administrative Reforms Commission also recommended that a specific law needs to be enacted to protect whistleblowers.

NEED FOR A WHISTLE-BLOWING MECHANISM:

• To promote transparency:
  • An effective whistle blowing policy will facilitate a transparency among employees.
• Prevent victimization of whistle blowers:
  • A robust whistle blowing mechanism will protect anyone who exposes alleged wrongdoing in the institutions and projects.
• To promote an open enterprise culture:
  • Effective protection of whistleblowers will support an open enterprise culture where employees not only have confidence in reporting but are also aware of the reporting procedures.
• Reduce corruption:
  • Strengthening whistle blowing mechanism will helps to prevent misuse of power by public servants >> curb corruption
• To uphold rule of law and democracy:
  • Strengthening of the whistleblower protection mechanism will helps in upholding the principles of democracy and ensure public participation in governance
• To create a better work environment:
  • Whistle blowing helps in rectifying even the smallest incidents of wrongdoing, thereby instilling similar responsibilities in others and creating a better environment for all.

WHISTLE BLOWING MECHANISM IN INDIA:

• Whistleblower Protection Act, 2014:
  • Mechanism to receive complaints:
    • The act establishes a mechanism to receive complaints related to disclosure of allegations of corruption or wilful misuse of power or discretion, against any public servant, and to inquire or cause an inquiry into such disclosure.
  • Safeguarding whistle-blower:
    • The act also provides adequate safeguards against victimization of the person making such complaints.
  • Elaborately defined various competent authorities
    • It allows any person, including a public servant, to make a public interest disclosure before a Competent Authority.
  • Anonymous complaints are not entertained:
    • The law does not allow anonymous complaints
    • No action will be taken by a competent authority if the complainant does not establish his/her identity.
  • Time limit:
    • The maximum time period for making a complaint is seven years.
  • 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 mala-fidely reveals the identity of a complainant will be punishable with imprisonment and fine
  • Official Secrets Act, 1923 overrides the Whistleblowers Act
    • In 2015, an amendment bill was moved that proposes, 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.
• SEBI PIT (Prohibition of Insider Trading) Regulations:
  • It aims to reward whistleblowers and other informants for sharing information about insider trading cases.
• Companies Act, 2013:
  • It makes it mandatory for entities listed on stock exchanges to set up an audit committee to investigate whistleblower complaints.
• Judicial interventions:
  • Supreme Court, in 2004, pressed the government into issuing Public Interest Disclosures and Protection of Informers Resolution order designating CVC as the nodal agency.

CONCERNS:

• Multiple instances of threatening, harassment and murder of various whistleblowers:
  • Example: An engineer, Satyendra Dubey, was murdered in 2003
  • Dubey had blown the whistle in a corruption case in the National Highways Authority of India’s Golden Quadrilateral project.
• Issues with Whistle Blowers Protection Act:
  • No witness protection:
    • It also does not protect witnesses during investigation and any trial
  • Limited scope:
    • The act covers only central government employees; it does not include state government / private bodies.
  • Dilution in 2015:
    • As per the 2015 amendment, Whistleblowers should not be allowed to reveal any documents classified under the Official Secrets Act of 1923
  • Lacks criminal penalties for physical attacks:
    • The law lacks specific criminal penalties for physical attacks on whistleblowers
  • Time limit to make complaint:
    • There is a 7-year time limit to bring complaints, dating from the time the alleged corrupt practices occurred.
  • Restrictions:
    • The Act puts a restriction on disclosure of any information that could prejudicially affect the interest of sovereignty and integrity of India and good relations with foreign State.
  • No penalty against public servant:
    • There is no penalty against any public servant who may be victimizing the complaint.
• No effective implementation in organizations:
  • Whistleblower Policy document is not being used to provide guidance to employees on the whistle- blower programme in many companies.
• Passive stance of courts:
  • In 2011, the Supreme Court refused to frame guidelines for protection of whistle blowers in the country, saying that it cannot make law.

WAY FORWARD:

• Awareness generation:
  • The people must be made aware about the act and its usage.
  • Educating people is necessary so that they can understand the benefits of disclosing the wrongdoings.
• Protecting the identity of whistleblowers:
  • Individual’s identity shall not be disclosed at any cost until unless they give their consent on it or it is required in the public interest.
  • Such a mechanism will help to ensure robust protection to whistleblowers identity.
• Widening the scope:
  • Incorporating state government / private bodies will widen the scope of anti-corruption.
• Amendment to Whistleblower Protection Act:
  • The Act must amended in such a way that it overrides the Official Secrets Act, 1923

PRACTICE QUESTION:

Q. Examine the challenges associated with the existing whistle-blowing mechanism in India. Also analyze the need to provide adequate safeguards for the protection of whistle-blowers?