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Freedom of speech and expression subject to reasonable restrictions

is a fundamental right guaranteed by the Indian Constitution. The

freedom of speech is bolstered by the Right to Information. Power of
speech is a bliss to man. Freedom of Expression has always been emphasized
as a special right for the democratic, economic functioning of a society. This
is being included in Art.19 (1) (a) of our Indian Constitution i.e. the freedom
of the press.


“Give me the liberty to know, to utter, and to argue freely according to
conscience, above all liberties” – John Milton.

The freedom of speech is considered as one of the first condition of liberty. It

occupies an important and preferred position in the hierarchy of the liberty as
far as India is concerned.

‘Freedom’ means the absence of control, interference or restriction. Hence

the expression ‘freedom of the press’ means the right to print and publish
without any interference from the state or any public authority. Since, in
India, freedom of expression is guaranteed by Art.19(1)(a) of the
constitution, and it has been held by the Supreme Court1 that freedom of the
press is included in that wider guarantee, it is unnecessary to plead for the
freedom of the press in this country. Freedom of speech is not only
guaranteed by the constitution of statutes of various states but also by various
international conventions such as by Universal Declaration of Human Rights,
European Convention on Human Rights and Fundamental Freedoms,
International Covenant on Civil and Political Rights etc. These declarations
discusses about the freedom of speech and expression.

Moreover, it is important to note that liberty of one must not offend the
liberty of others. Patanjali Shastri J., in A.K. Gopalan case, observed, ‘man
as a rational being desires to do many things, but in a civil society his desires
will have to be controlled with the exercise of similar desires by other


Express Newspapers v. Union of India, 1958 S.C. 578 (614).
Art.19 (1) (a) secures to every citizen the freedom of speech and expression.
This has to be read with clause (2) which provides that the said right shall not
prevent the operation of law relating to the matters specified therein. The
freedom of the press is not confined to newspapers, and periodicals, but also
includes pamphlets, leaflets, circulars, and every sort of publication which
affords a vehicle of information and opinion[2]. There is no need to emphasis
that a free press, which is neither directed by the executive nor subjected to
censorship, is a vital element in a free state; but in particular, a free, regularly
published, political press is essential in the modern democracy. Therefore the
press keeps and enlightens the citizens to make political decisions, know the
opinion of others to weigh them up against each other. The press, thus
provides the information, adopts its own point of view, and thus works as a
direction giving force to the public debate. It stands as a permanent means of
communication and control between the people and their elected
representatives in Parliament and Government. Banning of publication in
any newspaper of any matter relating to any particular subject or class of
subjects would be obnoxious to the right of free speech. It is certainly a
serious encroachment on the valuable and cherished right to freedom of

The Freedom of speech and Expression includes the freedom of propagation

of ideas and is ensured by the freedom of circulation. ‘The right to freedom
of speech cannot be taken away with the object of placing restrictions on the
business activities of a citizen. Freedom of speech can be restricted only in
the interests of the security of state, friendly relations with the foreign states,
public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence. It cannot, like the freedom to carry
on business, be curtailed in the interests of the general public’[4].

‘It is the duty of the state to protect the freedom of expression since it is a
liberty guaranteed against the state. The state cannot plead its inability to
handle the hostile audience problem. It is its obligatory duty to prevent it and
protect the freedom of expression’[5].

Right to know, to information is other facet of freedom of speech. The right
to know, to receive and to impart information has been recognized within the
right to freedom of speech and expression. A citizen has a fundamental right
to use the best means of imparting and receiving information and as such to
have an access to telecasting for the purpose. The Right to Information Act,
2005, especially talks about people’s right to ask information from
Government official, which prohibits discloser of certain documents under
section 8 of the Act. These exceptions are generally the grounds of
reasonable restrictions over freedom of speech and expression under Article
19(1) of Constitution of India. By saying we can conclude that ‘right to
information is nothing but one small limb of right of speech and expression’.

The right to receive and right to impart has been established as a part of
freedom of speech and expression guaranteed by sub clause (a) of clause 1 of
Art.19 of the Constitution subjected to reasonable restrictions.

It has been held by the Supreme Court in Secretary, Ministry of I & B,

Government of India v. Cricket Association Of Bengal[6] that, “The freedom
of speech and expression includes right to acquire information and to
disseminate it. Freedom of speech and expression is necessary, for self-
expression which is an important means of free conscience and self-
fulfilment. It enables people to contribute to debates on social and moral
issues. It is the best way to find a truest model of anything, since it is only
through it that the widest possible range of ideas can circulate. It is the only
vehicle of political discourse so essential to democracy. Equally important is
the role it plays in facilitating artistic and scholarly endeavours of all sorts.
The right to communicate, therefore, includes right to communicate through
any media that is available whether print or electronic or audio-visual such as
advertisement, movie, article, speech, etc. That is why freedom of speech and
expression includes freedom of the press. The freedom of the press in turn
includes right to circulate and also to determine the volume of such
circulation. This freedom includes the freedom to communicate or circulate
one’s opinion without interference to as large a population in the country, as
well as abroad, as is possible to reach.”[7]


Good governance is an indeterminate term used to describe how public
institutions conduct public affairs and manage public resources. Governance
is the process of decision making and the process by which decisions are
implemented (or not implemented)”.[8]Good governance is about the
processes for making and implementing decisions. Its not about making
‘correct’ decisions but about the best possible process for making those
decision. The concept of “good governance” centres around the responsibility
of governments and governing bodies to meet the needs of the masses as
opposed to select groups in society.
Media usually refers to mass media, which is any medium that provides
citizens with information regarding all the current affairs of any area at a
large scale. It is unbiased reporting of facts through print, television, radio or

Traditionally and constitutionally, the media has no defined role in

governance. It doesn’t have the power to change any decisions made by the
various arms of a state––the legislature, executive and the judiciary. Yet, the
media plays one of the most important roles in the functioning of any society.
It amplifies the voice of citizens and communicates their opinions to the

Access to information is essential for a democratic society because it ensures

that citizens make responsible, informed choices rather than acting out of
ignorance or misinformation and information also serves a checking function.
It is well known that media overlaps other functional areas of democracy and
governance. For example, support for media may yield results in governance
activities, particularly those related to decentralization, anti-corruption, and
citizen participation in the policy process. The rule of law may be further
institutionalized by support for an independent media that keeps a check on
the judiciary, reports on the courts, and promotes a legal enabling
environment suitable for press freedom. Free and fair elections conducted
through transparent processes require a media sector which gives candidates
equal access, and reports the relevant issues in a timely, objective manner.

“If it were left on me to decide whether we should have a government without

newspapers or newspapers without a government, I should not hesitate a
moment to prefer the latter.” – Thomas Jefferson

According to the first Press Commission in India freedom of the Press refers
to hold opinions, to receive and to impart information through the printed
word without any interference from any public authority. Thus it is the right
of the citizen o publish without any prior permission from the government or
any other public authority, subject only to the legal liability for what he has
chosen to publish. Freedom of press has three essential features; namely
freedom of publication, freedom of access to all sources of information and
freedom of circulation. Press freedom, thus plays a vital role in the
formulation of public opinion on issues of public importance.

If media is to have any meaningful role in democracy and governance it must

be free and independent from the control of government. The ultimate goal of
media is to serve the public interest. The public interest is defined as
representing a plurality of voices both through a greater number of outlets
and through the diversity of views and voices reflected within one outlet.

Television and radio have made a significant achievement in educating rural

illiterate masses in making them aware of all the events in their language.
Coverage of exploitative malpractices of village heads and moneylenders has
helped in taking stringent actions against them by attracting government
attention. The media also exposes loopholes in the democratic system, which
ultimately helps government in filling the vacuums of loopholes and making
a system more accountable, responsive and citizen-friendly. A democracy
without media is like a vehicle without wheels.

Pandit Jawaharlal Nehru called media ‘thewatchdog of our democracy’. This

handed the media a huge responsibility in the functioning of our society.
Thus media plays the role of communicator in democracy. They make people
aware and conscious of their state of affairs by providing them with in depth
insight on important issues concerning people. Though freedom of press is
essential and indispensable for the successful functioning of the Indian
democracy, it is very often silenced by the executive, gagged by the
legislature, suppressed by judiciary, repressed and muzzled by the pressure

The role of media in India, the largest democracy of the world is different
from merely disseminating information and entertainment. Educating the
masses for their social upliftment needs to be in its ambit as well. In a
country where there is large scale poverty, unemployment and
underdevelopment media has a responsibility towards developmental
journalism. It has a role to play behind formation of public opinion which can
force the political parties to address the core issues haunting the country’s
progress. It is thus referred as fourth pillar of democracy. However; public
opinion can be manipulated by vested interests to serve their own goals.

Good governance is an ideal system which is difficult to achieve in its

totality. In other words, no country or society has ever said to achieve good
governance in totality. We can only come close to this by our activities with
the aim of making this ideal a reality. The journey of India from developing
nation to a developed nation will depend on the role played by the media in
the country. It needs to be focused on the real matters, which are mostly
social and economic in nature, instead of trying to divert the attention to the
non issues. Achieving the good governance requires the understanding and
participation of every member of the society. The media, their significant
roles, channels and contents, are considered to be the most powerful weapon
to make this achievement a reality.

Edited by Saasha Malpani

[1] [2]Lovell v. City of Griffin, 303 US 444; Sakal Papers(P) Ltd v. Union of
India, AIR 1962 SC 305.

[3]Virendra v. State of Punjab, AIR 1957 SC 896.

[4]Sakal Papers (P) Ltd. v. Union of India, AIR 1958 SC 578.

Laws related to Whistle-blowers in India


Monday, May 13, 2013 – Court in Maryland, USA; exactly after

five years and one month since a case was filed by a senior
executive of a leading (and largest) Indian Pharma company;
court announced a settlement between various Government
departments and the Pharma company whereas the company
pleaded guilty in this federal case.

This settlement made a distinct mark in Indian corporate world,

as well as in USA, to be one of the largest ever settlement by
any Indian company in which company agreed to pay $500mn to
govt. agencies of US – which was a whopping Rs.3,000 crore in
Indian currency.

All of this started and happened for a very simple reason that an
executive decided to notify regulators against some of the wrong
practices he noticed in the company- means he became a
WHISTLEBLOWER against the incorrect practices. This whistle-
blower had not only updated the agencies but also filed a case in
2007 and fought for 5 long years resulting in such a huge
settlement. Despite of battery of lawyers and attorneys, company
had to plead guilty and pay an amount never heard of in Indian
corporate world. This case was an example of the power vested
by law in Whistle blowers, albeit the ones with god faith, and also
a case study in which being on the side of truth made the whistle-
blower get almost $49mn (Rs270 crore) as compensation.

With this hindsight, this article is going to explain the law

governing Whistle-blowers, their roles and how the legal
framework is laid out to address such issues structurally.

Genesis of the Legal Framework around Whistleblowing

In certain cases which reached the door of Supreme Court of

India and were involving instances where the person, who blew
the whistle against corrupt and wrong practices in some of the
government organisations, were killed. Notably the case of NHAI
engineer Satyendra Dubey, who was killed after he wrote letters
to Prime Minister’s Office about colluded corruption by
contractors, Govt. Officers and Politicians in the Golden
Quadrilateral project in 2003. As this case provoked national
debate and protests to save people who stands-up against wrong
practices – Supreme Court pressed Government into issuing an
office order-known as Public Interest Disclosure and Protection of
Informers, 2004 appointing Central Vigilance commissioner as the
nodal agency.

This dialogue between Judiciary and Government spurted the

framing of Whistle-blowers Protection Act, 2011 – which was
passed by Lok Sabha in 2011, Rajya Sabha in 2014 and finally
enacted after President’s assent in 2014. Post its enactment it
has gone through few amendments in 2013 and 2015.

Definitions, Framework, and Relevance

Definition of Whistle Blowers Act is described as (quoted as it is)- “An
act to establish a mechanism to receive complaints relating to
disclosure on any allegations of corruption or wilful misuse of power or
wilful misuse of discretion against any public servant and to inquire or
cause an inquiry into such disclosure and to provide adequate
safeguards against victimisation of the person making such complaint
and for matters connected therewith and incidental thereto.”

i. Who is a Whistle-blower:

The term Whistle-blower and its use has been rather recent in
legal as well as corporate history of India, however as concept
this has been in existence for long. In general context a ‘Whistle-
blower’ can be a person or a group of persons, who are exposing
the fraud, corruption, wilful wrongdoing or similar unethical acts
those may be non-permissible under law, these whistle-blowers
can be employee or former employee or vendors or affiliates of
any organisation deviating from the good management practises.
There are different types of whistle blowers which are described
as following –

a. Internal

When whistle blower, while being employed with the organisation,

reports the wrong conduct or activities of an official or a colluded
effort by a group of people in an organisation.

b. External

When the issues pertaining to the wrong practises or wilful

misdeeds are reported by people who are outside the system –
these people can be individuals or in the form of organisations
such as media, public interest groups or any other such agency.
Such whistle blowers are known as external whistle blowers.

c. Alumni

When the whistleblowing is done by a person who is no more

employed by the organisation but he is acting on the willful
wrongdoings he has witnessed during his employment with the
organisation. Such ex-employees can unearth such deliberate
mismanagements with the relevant authorities.

ii. Framework

In the corporate world, the most important factor of reliability is

‘Transparent Governance’. Ability of an organisation to inculcate a
transparent governance system, which promotes adoption of
ethical business practises, can provide a significant thrust to have
sustainable growth and continued business for longer term. This
can be achieved by establishing efficient management systems
and robust policies to detect and minimise acts of frauds,
corruption in the company.

The existence of such policies in the form of legislative act has

been there even before the enactment of Whistle-blower Act, it
was well recognised under Section 177(9) of Companies Act that
all public listed companies have to mandatorily establish a vigilant
mechanism for employees and senior executives. On top of that it
has been made mandatory to establish a whistle blower policy
with clear and adequate safeguards against victimisation of

Viability of a whistleblowing policy depends solely upon the intent

with which an organisation firstly wants to create it and secondly
wants to implement it. Such policy should not only give direction
to complaints regarding any violation but also should specifically
convey the results and in worst case even the failure to report
should also fall into the violation of policy. Some of the key points
to understand the framework can be as following –

 The policy must provide a mechanism and channel to report violation on

any level. Such channels should be presided by the chairman of the
 Entire Pyramid of hierarchy, right from an entry level employee to the
director should be allowed to report any violations of the policy.
Discriminations, wilful negligence of quality, colluded frauds, and
misappropriation of budgets are some of the events those should get
 In the event of such reporting, the senior management shall take-up the
investigation and any false evidence shall be dealt with seriously.
 Zero harassment should be assured to the whistle-blower by the
management in the policy itself and no retaliation in whatsoever form
should be tolerated.
 Full confidentiality shall be maintained at all the times to safeguard the
 Such policy should have exception to not protect a whistle-blower from
disciplinary action if allegations are proven unfounded and with wilful
malicious intent.

iii. Whistle-blower Policy and Legislation in India

With the Pharmaceutical company’s case in which an Indian

executive of an Indian company took up the case of wrong
practises in the US courts under False Claim Acts of USA, it was
evident that the Whistle-Blower Policy and the framework around
it was not considered to be strong enough. However
Whistleblowing should be seen in conjunction with the recent
structural change Indian corporate world has gone through which
includes multiple new bills and amendments in numerous old
bills. In the context of Whistleblowing in largely corporate
settings (Public/Private both), it is wise to understand it in the
light of Companies act and the relevant regulators such as SEBI
and others.
a. The Companies Act and Whistleblowing

In the hindsight of numerous scandals and syndicated corruption

through Private and Public Sector companies alike, it was obvious
to have certain changes the way Business world is governed
through different Acts and Statute of Law. One such important
step was the enactment of The Companies Act 2013, which has
put more thrust on eliminating loopholes through stricter
compliance and vigilance mechanism.

Different sections of the Companies Act 2013, covers complete

framework of inquiry, investigation and inspection – all under one
chapter of the Act through sections 206 to 229. These provisions
increases identification of wrong practises by an external agent
and thus the agent can play an important role to become an
external whistle-blower. Section 208 of the act empowers an
Inspector (other than registrar) to go through the records and
recommend a further investigation in such matters of doubt;
whereas Section 210 of the Act empowers Central Govt. to order
an investigation on the receipt of such recommendations from
registrar or Inspector or in public interest or on intimation of a
special resolution passed by company to be investigated. In the
same lines Section 211 has led to the formation of Special Fraud
Investigation Office (SFIO) with power to arrest for offences
specified as fraud. In previous context Auditors were not legally
empowered to ascertain a fraud and they were just supposed to
be primarily reporting such misappropriation. However now it is
their onus to act as whistle-blowers and directly report any such
act to Central government or concerned authorities.
b. Securities & Exchange Board of India (SEBI) and

SEBI – The regulatory body for management of Public Limited

companies,following its mandate to strengthen corporate
governance standards in India, amended the Principles of
Corporate Governance by incorporating clause 49 of the listing
policy which mentions the formation of Whistle-blower Policy for
companies. However it is not mandatory to put a policy in place,
although numerous companies have adopted it wholeheartedly as
it improves the compliance and governance standards – on the
other hand it is mandatory to disclose adaption of such policy and
number of events reported under such policy along with the
number of cases resolved or pending.

c. The Whistle-blower Protection Act

As a bill passed by the Parliament in 2014 and consented by the

President in May, 2014 – Whistleblower Protection Act, 2014
replaces the government resolution of 2014 which empowered
Central Vigilance Commission to act on complaints from whistle-

In this act under section 3, any public servant or any other

person which may include any non-governmental organisation
may make a public interest disclosure to a competent authority.
Any such disclosure to the competent authority shall be treated
as Public interest disclosure in the context of this Act. The Act
provides empowerment to the competent authorities to give
direction to the relevant bodies/authorities for the protection of
complainant or witness.

This Act has few exclusions to be reported if it fall under any of

the categories of national importance such as,

1. Nation Security issues.

2. Economic/Scientific issue of Importance.
3. Cabinet Meetings/Proceedings.

Any such public interest disclosure falling into the excluded

categories, when received by competent authority shall be
forwarded to an authorised government office/body and the
competent authority will be taking a decision on such matter
whereas that decision shall be binding.

On the other hand this Act comes with few control mechanism on
complainants, such as

 Penalty of up to two years imprisonment and a monetary fine of up to

20,000 rupees for individuals found to be filing false complaints or the
ones with wilful vendetta.
 Along with this the Act provides a time limit of seven (7) years to file a
complaint dating from the time of occurrence of such corruption or
wilful act.

Challenges and Aspects of Improvements

The Whistle-blower Protection Act has got its own challenges
which have been identified and discussed by many national
international experts and people working against corruption. The
Biggest challenge that remains to be a major shortcoming of the
Act is about the Anonymity of a Whistle blower.

Under the Act, a whistle-blower can’t file a complaint

anonymously. It is clearly stated in the act that no action shall be
taken if any such disclosure does not express the identity of the
complainant. This is a serious shortfall of the Act – while in this
provision whistle-blower cannot remain anonymous, the authority
receiving complaint is supposed to safeguard the identity of the
complainant. Hence complainant is solely dependent upon the
authority to protect his/her identity – whereas in contrast US laws
provides complete anonymity for registering a complaint and
even for receiving monetary rewards such complainant can
remain anonymous provided he acts through a legal counsel.

This can be understood in the context of two separate case from

India and US – one in which an executive (Sherron Watkins) of
Enron corporation was hailed as a star by the corporate world and
society alike, She was given full confidentiality and protection
from government agencies and only at her will she disclosed her
identity wherein her expose led to the fall of a multibillion dollar
corporation. However on the other hand in India, when a
government engineer (Satyendra Dubey) blew the whistle and
wrote to PMO with details of syndicated corruption and very soon
all of his details reached the people alleged for corruption leading
to the unfortunate event of him being murdered. This event was
widely criticised across sections of society and acted as an eye
opener to the government.

Although in Indian context after few such instances of killing of

whistle-blowers, Whistleblower Act has empowered Central
Vigilance Commission to assess public disclosure requests and
safeguard such whistle-blowers. The CVC has got powers to order
the restoration to the position from which Whistleblower might
have been fires in retaliation – moreover the onus is on the
employer to prove that any action taken against employee
(whistle-blower) is not in retaliation. Another important feature of
the Act is the power vested upon CVC to penalise any officer who
has disclosed whistle-blower’s name without proper approval and
such punishment can be up to Rs.50,000 fine and imprisonment
of up to 3 years. However the Act does not empower authorities
to provide criminal penalties for any sort of physical harassment
or attack on whistle-blowers. Likewise the Act does not provide
much clarity for civil penalties for workplace discrimination and

Overall, the improvement can start on all of the above mentioned

aspects and the topmost priority can be defining the important
terms such as “Victimisation” – so that it can be used to
safeguard whistle-blowers without any ambiguity. Similarly it is
suggested by many experts that the vary definition of
“Disclosure” is very narrow and should be broadened to have
better effectiveness while covering such cases as in the form
disclosure of any wrongdoing by a volunteer.
Another interesting aspect of being a whistleblower is to have the
dilemma of Professional responsibility versus Organisational
Loyalty. In this case a potential whistleblower has to face a lot of
intrinsic questions before taking the plunge to become one – such
risks include the risk of job , professional relations and sometime
risk of life as well. This can be better dealt with the detailed
policy framework and strict enforcement of the same.

Conclusion – Whistleblowing in India and Steps to Assess the Merit of a Case

There has been numerous examples and case studies which can
act as a guiding book for someone who wants to either formulate
a whistle blower policy in an organisation to make governance
more transparent and efficient or if one wants to volunteer
against any wilful fraud going on in an organisation.

Whistleblower policy if implemented effectively, can become a big

deterrent to people with malign intents. Cases from the past
suggest that a case fought solely on merits and with full
preparation coupled with supportive legislative framework, can
lead to expose of very high level syndicated fraud such as Enron
Corporation and of many companies from Pharma and Defence
sectors – whereas if the framework and its implementation is
weak such as we have seen in past in India, honest whistle
blowers have faced very high discrimination, victimisation and in
some cases they lost the life also.

Now the question comes that what should be one’s strategy to

implement strong policy in an organisation as an executive;
whereas on the other hand as an executive or an employee what
should be the step by step process to take the plunge and risk
one’s career and may be life also to make sure that wrong
practises are exposed to the world and competent authorities
take action on it? This can be understood and implemented in the
structural way by answering few questions to himself by the
Whistleblower such as –

1. Person who is volunteering to expose a wrong act or a fraud, should first

assess that if this will fall into a case of personal interest or a case of
larger public interest. In the situation where it looks like a personal
interest and just an individual case – one should assess whether he has
explored the available grievance or anti-harassment mechanism or not.
2. One must ascertain about his own role and responsibility towards serving
the public interest against the urge towards organisational loyalty one
might have. Generally such dilemma comes up with every such case of
whistle blowing where one has to compare moral values and business
ethics versus relationship with colleagues and employer.
3. Willingness and mental preparedness to confront retaliation and lots of
undercurrent by your known people and colleagues.
4. By blowing the whistle against wrongdoings, a whistle blower disagrees
with the authority of that organisation and that will obviously bring a lot
of risk where not only authority but also hierarchy is violated by such
act. In such an extreme situation, the volunteer must be sure about the
content and specificity of the issue. If the issue cannot be articulated in a
manner that it gets substantial and correct type of audience, it will get
washed out and will not serve the correct purpose.
In order to have a corporate ecosystem free from all scams and
frauds, following high level of integrity and transparent
governance, The Whistleblower Act is a step in right direction
albeit it needs some more teeth and nails. The Whistleblower Act
coupled with The Companies Act 2013 makes up the deficit which
Indian Legal system has been facing however there have been
shocking cases of victimisation of whistleblowers and no one can
deny that corrupt practises can only be decreased and probably
not eliminated completely. Possibly the Act can have a second
level escalation mechanism which is a big missing point as of now
– due to which many complaints are watered down due to
external factors and the Whistle-blowers have no resort to
complaint against a wilful negligence against his complaint.

Success or failure of The Whistleblower Act is not much

dependent upon the quantified outcomes in the short term and it
should not be considered as a magic wand which will eliminate all
wrongdoings in our routine life – rather in longer term it may act
as a supporting tool to employees, professionals and
organisations which have an intent to maintain integrity and
transparent governance free from all possible corruption. It is
only the active participation from all stakeholders, which will
make the Act useful and instrumental in a collective fight against
corruption and all wrong practises.