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WHISTLE BLOWING :- AN INDIAN PERSPECTIVE

Submitted by

Mohammad mudasser 09BM8024

Amit Sarangal 09BM8082

Renjith Peediackal 09BM8040

Ashish Doneria 09BM8013

Sujit Singh 09BM8054

Ravi Shankar 09BM8088

Ravinder Pal Singh Dhillon 09BM8039

Anshul Bhatia 09BM8010

Shilpa Gautam 09BM8085

Ravi Shankar 06CE3810

Yash Vardhan Aggarwal 09BM8063

Saurabh Kumar Gupta 06AG3804

Vishnu Komma 06MI3815

Rohit Singh 06AG3809

DEFINITION

Whistle Blowing

Whistle Blowing is a practice in which a person raises his voice and reports about the malpractices, fraud, misconduct, corruption in an organisation; usually after failing to remedy the matters from the inside, and at the cost of great personal risks. A person engaging in such an activity is called a Whistle blower and it requires a lot of courage on his part to bring out such matters. The individual, while reporting about the sensitive issues, might consider going out of the organisational hierarchy and complaining to the external agencies and public to get a positive action.

The Concern here is how many amongst us would want to stand up against the corrupted system?

Whistleblowing is not successful in india because of the risk associated such as the fear of being counter attacked by those in position

The loss of job & career,

Blackmailing & extortion

A threat to one’s family or even his own life as in the case of Satyendra Dubey and S. Manjunath who stood up against the prevailing corruption, and were murdered brutally.

The two incidents mentioned above may be the ones who have caught the media attention. There would have been many incidents which might have gone unnoticed or the voices of the whistle blowers would have been quashed by paying them either intangible or tangible rewards. Instances of whistle blowers being punished, demoted, suspended are not rare.

While whistleblowing is traditionally associated only with “insiders”, the RTI Act by democratizing access to information has made a potential whistleblower of every citizen – and similarly susceptible to reprisal. The seriousness and persistence of these attacks necessitates protection for these activists, as well as systemic changes to ensure a favourable climate for activism for state accountability.

The current set of proposed protections are inadequate for this purpose because they are targeted primarily at institutional reprisal (e.g., termination, delayed promotion). Other provisions such as confidentiality of whistleblower’s identity do not apply or need innovative thinking to be feasible (e.g., direct physical protection). It is thus important to expand the current set of protections in a manner meaningful to the scattered army of activists across the country.

US MEASURES ON WHISTLEBLOWING

It is really important to consider the interest of the whistle blowers for an unadulterated system. It is evident that these people take a huge risk by exposing the corruption in the organisation. Protection Initiatives regarding the whistle blowers began in US by passing the U.S. Whistle Blowers Protect Act, 1989. Later the U.S. Congress passed the Sarbanes – Oxley Act granting legal protection to whistle

blowers in publicly traded companies and 10 years of imprisonment to anybody retaliating against them.

Looking at the prevalent conditions in our country, enactment of the Whistle Blowers Protection Act is really important. India does not have a law to protect a whistle blower; however there is a Public Interest Disclosure Act, in which a person can file a complaint against any Central Employee or Central Government Institution to the Central Vigilance Commission. Sadly, the act is silent about the corporate whistle blowers.

THE PUBLIC INTEREST DISCLOSURE ACT

Main Provisions of The Public Interest Disclosure And Protection To Persons Making The Disclosures Bill, 2010

Scope: The bill will apply to authorities and companies under Central and state government control and cover all public servants and ministers.

Exclusions: Public servants of organizations referred in Article 33 (armed forces and intelligence); private companies and non-governmental organisations such as charities, trusts, voluntary organisations and similarly placed civil society organisations.

NOTABLE DEFICIENCIES OF THE WHISTLEBLOWER BILL

Limited Scope: The private sector, armed forces and intelligence agencies have been excluded. The private sector (including NGOs) is rapidly expanding both in terms of economic resources but also by becoming the primary/co-provider of citizen services (the State retreating in order to become the “facilitator”). Moreover current scandals such as Satyam, IPL etc show that corrupt practices are either already prevalent or gaining foothold in the Indian private sector as well

Limited Application: Protection for the whistleblower will kick-in only after s/he makes a complaint. RTI activists who often come under threat just by virtue of filing an RTI application will not be covered unless they file a complaint. For a rural activist working for instance to expose corruption in NREGA, the state vigilance commissioner may not be easily accessible

Narrow Definition of Permissible Disclosures:

There is no catch-all phrase to define the principles (e.g., endangering public health or safety, harming the environment) relying instead on enumerated corruption and criminal offences under existing Acts

Disclosure is time-bound: Landmark cases such as Bhopal gas leak, Delhi anti-Sikh riots, Babri Masjid demolition, Godhra have all exceeded the five-year statute of limitations applied to disclosable conduct; however the seriousness, culpability and need for resolution of these issues is far from diminished

Maladministration is not covered: While it was part of the previous draft (2002), has been removed in this draft. Gross negligence (e.g., callous disaster management) are thus out of ambit

Human rights violations for excluded organizations (Article 33) are not covered as exception (contrary to the provision in the RTI Act)

Single authority to receive disclosures: Bill allows the complainant to make disclosures only to centre/state vigilance commissions. Whistleblower legislation in other countries permits a range of options (including media and members of parliament) for the individual to make disclosures

Limited Protections to whistleblower:

No protections for RTI activists whose identity will already be in the public domain (through RTI applications)

Identity of the whistleblower can be revealed at multiple junctures, including to the head of the department of purported corruption and/or investigative agencies. Conditions that will necessitate revealing complainant’s identity are not clear – the more number of people privy to this information, the harder it will be to trace source if identity were to be maliciously leaked

No deterrent punitive action (e.g., immediate termination, loss of pension and mandatory imprisonment) is specified against those found guilty of victimization

Intimidation by physical harm need not just be focused on the whistleblower – immediate family could also be targeted

Imprisonment and fine for individuals found making false/frivolous complaints. There is risk of misuse of this clause to act as a deterrent to the whistleblower in the absence of strict accountability measures for the Competent Authority

CENTRAL VIGILANCE COMMISSION

Suitability of Central/State Vigilance Commissions as Competent Authority:

CVC does not have its own investigation capability and must outsource investigation to the police, CBI etc, which are not even statutorily independent (accusations about the misuse of CBI against both Congress and BJP while they are/were in power)

Several States in India have not yet set up mechanisms such as the Lokayukta. If this Bill were to become law, potential whistleblowers in such States will not have any means for reporting wrongdoing. However this Bill itself can provide the impetus for setting up Lokayukta type mechanisms in such States. Investigation is not time-bound and thus there is potential to use delay as tactic. The previous draft mandated that all inquiries must be completed within 6-months, up to a maximum of two-years with reasons for delay to be recorded in writing. However there is no such provision in current bill.

What Can Be Done? Some Potential Measures…

Protections for RTI Activists

For RTI activists, identity protection is irrelevant given that this information will already be in the public domain through the RTI application. Therefore a credible mechanism is needed to ensure protection from physical reprisal

One provision being mooted is fixing accountability on the local police station / Tahslidar / SDM / District Collector / Head of District Police. This could be done by the following: if an activist perceives threat to life or limb, s/he could file a complaint/FIR with the local police station, who must mandatorily take the complaint and the RTI matter into cognizance. In case the activist is still attacked, the onus would be on the policeman to prove due diligence and a failure would result in action against the office. The complaint would also help focus investigation on the named persons

To safeguard against refusal of police to lodge FIR, a draft FIR and complaint against police station could also be mailed to the Lokayukta and/or collector and/or state IC. In case of complaint against the police for refusing to file FIR, policeman could be treated as a conspirator and prosecuted as

such

Possible deterrent may include the automatic initiation of independent transparent investigation in case of unnatural death of RTI activist, and transfer of investigation of issue that was being probed by the activist to the Competent Authority

Accountability of Competent Authority

Presumably to ensure protection for the whistleblower and independence for the Competent Authority, enquiry and investigation under this Act will be exempt under RTI, and even the courts won’t have any jurisdiction over the CA. Further all/ most disciplinary action against public officials named in complaint will be taken internally. However the effectiveness of this Act is wholly contingent on the accountability of the CA and thus some external checks must be instituted. Some potential measures include:

A multi-constituency apolitical Transparency Committee through an open appointment process to review investigation of contentious cases

A consolidated activity report could be made public suo motu (can be the same one as that presented to the Parliament). The report could include aggregate information for:

Complaints: number received; categorization (frivolous, vexatious, genuine etc)

Investigation: organization/department; type (and size if applicable) of corruption; processing time;

resolution

Whistleblower: number; designation/level; categorization (genuine/malicious); punishment

Reprisals: number; type; resolution

Should whistleblowing be incentivized like the Whistleblower Reward Fund in Ghana, which gives the complainant 10% of monies recovered as result of complaint. If yes, what about non-pecuniary complaints like environment, health? For rewards not linked to recovery, is there a danger of overwhelming the CA by monetarily motivated false complaints?