Whistle blower protection

What is a whistleblower ?

Whistleblowers are considering those people who make public or government-oriented information regarding threats of any type within their organization.

However, in border terms, whistleblowing does not always imply exposing the failings of another person. In a more general sense, a whistleblower is someone who points out or uncovers the errors.

Merriam-Webster explains that: ‘a whistleblower is one who informs one party of wrongdoing by another’ and gives specific examples about workers, especially those put at risk by their employer and who seek outside help. For instance, an employee who reports to the government or law enforcement suspected embezzlement by the employer or colleagues.

As per Britannica, A Whistle-blower ‘is a person who makes secret information, usually about wrongs or illegal acts within his or her organization, public without formal permission.’ This for the most part is the self-proclaimed reason which most of the Whistleblowers tend to give.

Who is Whistleblower ?

A wistle-blower is usually an insider because the best knowledge of the internal whereabouts of an organization is best known to those who are in close proximity to its working but it is not atypical for an outsider to blow the whistle on fraudulent to conduct, provided he has concrete and bona fide information of the wrongdoings.

For some, there are no two ways about it, whistleblowers are nothing but snitches, betrayers of trust, and even industrial espionage agents who care little for their employer’s interests while seeking their own goals. Other derogatory terms like traitor, squealer, turncoat, or rat are not uncommon for someone who divulges wrongdoings of his colleagues or the organization that provides for his bread and butter.

A study conducted by Transparency International on whistleblower protection across 10 European countries between March and August 2009 revealed that the term whistleblower has the undertone of being an informant, a traitor, or a spy, or a snitch across the different countries which were involved.

1. If someone’s health and safety is in danger.
2. If it causes damage to the environment.
3. A criminal offenses
4. The company isn’t obeying the law.
5. Covering up wrongdoing.

What is whistleblower ?

Whistle blowing is the act of revealing an employer’s unethical practices to the external environment, for instance to the news media or relevant government bodies.

Whistleblowing (also known as whistle-blowing or whistle blowing) is, according to the Economic Times,  A whistleblower is a person, who could be an employee of a company, or a government agency, disclosing information to the public or some higher authority about any wrongdoing, which could be in the form of fraud, corruption, etc.

Whistleblower's Protection Globally

Though the work done by the whistle-blowers is indeed commendable, they have to face the wrath of their employers and the organization that they work for and more often than not, are retaliated against or persecuted, and are even shunned by their co-workers and have to face lives threatening ordeals.

Whistle blowers face nothing less than a double-edged sword, they may either choose to embrace silence thereby bringing about potential internal harm or face unknown retaliations. This makes laws for protection of whistle-blower and necessity, especially when the need of the hour is combating any form of corruption.

Table 1 provides the list of various international organizations working worldwide in the field of whistleblower protection.

Whistleblower Policy Framework in Indian Context

• Whistle Blowing is the act of exposing information in relation to wrongdoing or illegal behavior within an organization by an employee or other actors.

• A whistleblower is someone who notifies in instances of wrongdoing by another person or entity.
• The Law Commission of India while addressing the issue of corruption in 2001 for India also recommended a need for a whistleblower’s protection law. It had even drafted a bill on that.
• Following a petition after the controversial murder of an NHAI Official in 2004, the Supreme Court of India directed the Central Government to see to it that, ‘machinery be put in place for dealing with complaints from whistleblowers until appropriate legislation is made.’
• In response, the central government, in 2004, issued a notification which was captioned ‘Public Interest Disclosure and Protection of Informers Resolution (PIDPIR)’.
• This resolution gave the Central Vigilance Commission (CVC) power to deal with the issues raised by the informers.
• Additionally, in 2007, the report of Second Administrative Reforms Commission mentioned the fact that there was a need for a law specifically aimed at protecting the whistleblowers.
• From the year 2005, India is a signatory (however not yet ratified) of the UN Convention on Corruption which encourages nation states to protect public officers who report acts of corruption and in this case safeguard the whistleblowers and the experts.
• The Convention also has provisions that seek to protect the complainant from victimization.
• In order to obey such laws in the year 2011 a Whistleblowers Protection Bill was introduced which two years later became law.
• It is now compulsory for firms to acknowledge all such grievances, following the provisions of the Companies Act, 2013, and the regulations of the Securities Exchange Board of India.

Table 2 provides a snapshot of the developments in Whistleblower protection laws in India.

Law Commission Report on Whistleblower Protection Act, 2014

• In the year 1999: According to the Kumar Mangalam Birla Committee, there are some recommendations necessary such as formulating specific laws on complaint management. The Law Commission of India furthermore, recommends the Constitution of India be installed with a Whistleblower Protection Bill. However Bill no. 179 of the Law Commission of India does not detail whistleblowing but circumscribes more recommendations that are quite lengthy to be discussed here and suggests specific laws for whistleblowing.
• In the year 2001:

The Law Commission of India puts forward the proposal for a Whistleblower Protection Bill.

The 179th report of the Law Commission of India makes recommendations for whistleblowing considering larger dimensions.

• In the year 2002: Naresh Chandra Committee recommended laws for the protection of whistleblowers.
• In the year 2003: Creation of Serious Fraud Investigation Office (SFIO) under the Ministry of Corporate Affairs which would investigate economic frauds due to recommendations by the Naresh Chandra Committee and Cabinet resolution.

Murthy Committee Report emerges.

• In the year 2004: Corruption or misuse of power in the government agencies was dealt with by enacting the Public Interest Disclosure and Protection of Informers Resolution (PIDPIR). The Central Vigilance Committee is authorized to receive such complaints in anonymous mode also.

• In the year 2010 (September): Having been called for public scrutiny, the Whistleblower Bill was presented in the Standing Committee of Parliament.

• In the year 2011 (December): Whistleblower Protection bill 2011 is introduced and passed in the Lok sabha.

• 
  In the year 2014 (February 21): The Whistleblower Protection Bill (2011) was passed by the Rajya Sabha without the consideration for amendments. The Act is adopted, demonstrating the covers the general framework, definitions and practices associated with public interest disclosures.

Prominent Features of the Whistleblower Protection Act, 2014

The Protection of Whistleblowers Act, 2014 is quite significant and a rather distinct legislative framework for the country because this seeks to shield the individual who comes out with disclosures on malpractices particularly in the public sector. The Act, originating from proposals in 2011 and coming to fruition in 2014 amid escalating whistleblower cases, encapsulates several core provisions: -

• Mechanism for Complaint Receipt: The Act establishes legal grounds whereby individuals can tip-off regarding one, a list of alleged abuses of power, corruption, or any other illegality by public servants involved in implementing the Act.

• Whistleblower Identity Protection: This is done with a lot of emphasis explaining why code is necessary to ensure that the whistleblower is protected from retaliation though it is among the measures which can be deployed to protect the whistleblower from retaliation.

• Safeguards Against Victimization: The legislation also empowers the whistleblower further through provision of measures against their persecution; harassment or threats.

• Prohibition Against Frivolous Complaints: Thus, the Act denies the possibility of anonymous complaints and, at the same time, requires the whistleblower to provide his or her name All these measures are aimed at excluding undue and, at the same time, ignore the insubstantial and obviously malicious complaints while ensuring that bona fide tips and information are given due consideration and investigation.

• Penal Provisions for Retaliation: The Act endows provisions with penal consequences for persons or companies found guilty of retaliation against whistleblowers with the clear effect of bolstering the protection coat around the whistleblowers. Therefore, as far as the legislation in India aptly named the ‘Whistleblowers Protection Act, 2014’ are concerned it appeared to be a bright new act that would be really of much help to those willing and, of course, capable of combating the vice of corruption and misuse of power to the detriment of all.

• Court of Appeal: As per above noted provisions any person who is dissatisfied with any order of Competent Authority can appeal to the concerned High Court within a period of 60 days of the concerned order.

• Penalty: If any person disclose the identity of the complainant either through negligence or mala-fide will be liable for a term which may not exceed three years and/or a fine which may not exceed Rs. 50000.

• If the said disclosure is done mala-fidely and knowingly that it was incorrect or false or misleading then, the person will be punishable with imprisonment for a term extending up to 2 years and a fine extending up to Rs. 30,000.

• Annual Report: Each year, as per the provisions of Rule 7(2) of the Ministry of Legislative Affairs, the Competent Authority shall file a performance report on activities with the Central or State Government which will thereafter be circulated in Parliament or State Assembly as the case may be for necessary action.

• As explained in Whistleblower Protection Act of 2014, the Official Secrets Act of 1923 does not prevent the complainant from making his or her remarks to the relevant authorities which may be against the provisions of the former statute unless alliances to terrorism that may preserve state security.
• In 2015, there was introduced a bill enhancing the previous law, according to which, the organization of the whistleblower will comprise a prohibition on disclosure of documents, which contain information, however, that is prohibited from disclosure under the Official Secrets Act, even if such information is disclosed to report a crime and corruption or other wrongdoings. This of course weakens the essence of the 2014 Act.

Limitations of the Whistleblower Protection Act, 2014

• The Act is not extended to unlawful conduct in the commercial world. It also leaves out persons that are in the armed forces and intelligence services from among its list. More testing is required concerning the complaint processes, for instance, the whistleblower needs to be informed of the investigation and the final report as well as the corrective measure used.

• It also does not specify what is considered protected under the ambit of protection to external authorities, whistleblowers, media included. But these enable the placing of the onus on the employer in the circumstances of victimization of a whistleblower.

Way Forward

• Suitable legislation must be enacted to provide protection to innocent whistleblowers and the dilution of the act that is proposed by the 2015 Amendment Bill must be abandoned.

• Strengthening of the whistleblower protection mechanism will help in ensuring that the integrity of democracy is protected, cherished and upheld.

Conclusion

Whistle blowing may be defined as the reporting of illegality and or / unethical practice in organizations by individuals working within organizations. Yet these whistleblowers participate in a very important task of enhancing corporate responsibility and accountability they undergo the following adverse effects which are retaliated and victimized among others. This to support the assertion on the need to engage protective laws especially in the fields that may lead to bribery and corruption.

In India the Whistleblowers Protection Act, 2014 was passed which many legal luminaries regarded as the best legislative shield for whistleblowers. The Act provides for how complaints may be lodged, upholds the right to report anonymously, guarantees no retribution and actually penalizes acts of retaliation. This provision aims at stopping what I call the ‘false complainers’ and at the same time ensure that ‘people of integrity’ receive their protection any time they report any incidents of misconduct in the services hence, the balance of right of integrity and accountability. However, the Amendment Bill in 2015 which aims at putting restrictions on the disclosure regarding the Official Secrets Act, 1923 may water down the effectiveness of the Act itself, as the policy which was sacrificed for the sake of safeguards requisite for whistleblowers in cases of corruption and criminality.

For the institutions to encourage and support whistle blowing and enhance release of accountability information it is important for India to supplement its trickle down whistleblowing protection standards. This includes:

• Enhancing the Act: The government should hence revisit the proposed amendment in order to be able to demonstrate that the new change is not going to harm the achievement of the aim of the law sought under the United States constitution to protect the whistleblower.

• Promoting awareness: Education and sensitization should be conducted on the existence of the Act, =This should be based on the number of liberties conferred upon the public and the various duties placed on individuals.

• Facilitating reporting: Performance of whistle blowing frameworks has to be enhanced to the point whereby one can report immoral acts with little effort.

• Setting up safe and timely reporting mechanisms and policies in place, are the first and foremost important for entities to enforce such to avoid any form of retaliation on whistleblowers from both inside and outside an organization, thus guaranteeing their safety as well as good health.

To prevent the potential stigma of being a rat, inter-agency coordination and cooperation are the best ways through which solutions for the problems of corruption, fraud, incompetence, and other forms of persecution might be found. Thus, honest citizens will have the opportunity to express their points of view without fear and, in this way, the image of the government and country will be cleaner and more attractive for investors.

References

1. https://prsindia.org/billtrack/the-whistle-blowers-protection-bill-2011
2. https://www.pinesfederal.com/federal-employment-law/federal-whistleblower-defense/
3. https://www.britannica.com/topic/whistleblower  
4. https://economictimes.indiatimes.com/definition/whistleblower
5. https://lawcolumn.in/overview-of-whistleblowers-protection-act-2014/
6. https://www.researchgate.net/publication/364180591_Whistleblower_Protection_Legislation_in_India_A_Critical_Analysis
7. https://www.livelaw.in/lawschool/articles/whistle-blower-protection-act-satyendra-dubey-2630
8. https://www.drishtiias.com/daily-updates/daily-news-analysis/whistleblowers-protection-act/
9. Supra
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