Whistleblower Bill

Whistleblower Bill

“ When the ruler himself is right, the people naturally follow him in his right course. If governance is by men who are derelict, the governed will suffer.”

-         Aleksander Solzhenitsyn

           

It was in 2001 that the Law Commission of India came up with the idea to protect persons who make disclosure in public interest relating to acts of corruption, misuse of powers or acts of criminal offence by public servants. The basic premise was that honest public servants are normally unwilling to share information about corrupt officials and their wrongdoings for fear of adverse reaction, retaliation or fear of bodily harm. It was felt that a direct correlation exists between the willingness shown by public servants to disclose the activities of corrupt persons and the protection that could be given to him if his identity was concealed.  It was felt that if a legislation existed to provide legal protection to such persons then the amount of information about the corrupt activities of government officials would exponentially increase.

Historical perspective

            The 179^th report of Law Commission of India¹ on ‘Public Interest Disclosure and Protection of Informers’ published in December, 2001 recommended that a law was required to protect whistleblowers. This report went into a lot of details and discussed similar Acts in other countries. The Law Commission of India also put up a draft bill in this report to the Government of India.

            In 2004, the Supreme Court of India in response to a PIL, after the sensational murder of IIT Kanpur graduate Satyendra Dubey, directed the government to put in place a mechanism to act on the complaints made by whistleblowers and to protect their identity. The government notified a resolution in 2004 which made the Central Vigilance Commission the nodal authority to receive complaints regarding public interest disclosures.  CVC could enquire into complaints falling within the ambit of this resolution.  This resolution however lacked teeth as its role was limited to making recommendations only and CVC did not have any power to impose penalties.  This, therefore, discouraged people and restricted the number of persons who made complaints to CVC. This idea however found further support in the report of the Second Administrative Reforms Commission(2007)². The 4^th report of this Commission on “Ethics in Governance” supported the 179^th report of the Law Commission of India and stated that a legislation was indeed required on the lines proposed by the Law Commission to protect the whistleblowers. This report emphasised the need to ensure confidentiality and anonymity of all whistleblowers.  It also stated that they should be protected from victimisation or harassment of any kind.  One interesting aspect of this report was that it wanted the inclusion of the Corporate Sector also in this legislation to unearth cases of wrongdoings and frauds in public interest.

            India is a signatory to the UN Convention against Corruption³ since 2005 which exhorts countries to take measures to facilitate reporting of corruption by public officials and to provide protection against any retaliation, for all such people coming forward with such disclosure.

            As a consequence of all above the Government of India introduced the Public Interest Disclosure and Protection to Persons Making Disclosures Bill⁸ in the Lok Sabha on 26^th August, 2010. The Lok Sabha after prolonged deliberations referred this bill to a Standing Committee on Personnel, Public Grievances, Law & Justice. This Committee made a number of recommendations and submitted its 46^th report on 9^th June, 2011 which proposed a number of amendments to the original bill.  The important ones implied including the personnel of Defence, Police and Intelligence against whom disclosures would be permitted, prescribing a time limit for enquiries and also that authorities must take a final decision within a period of three months. The Standing Committee also put down a time limit of 07 years beyond which a complaint would not be entertained. They also shifted the burden of proof for the allegations of victimisation on the public authority and also laid down penal provisions for knowingly giving incomplete and false information.  This bill was passed by the Lok Sabha on 27^th Dec, 2011. The bill was thereafter taken up for discussion in Rajya Sabha which after a prolonged period finally passed this bill on 21^st Feb, 2014 - the last day of the Parliamentary session - without any discussion. Though the Parliamentary Standing Committee had made a number of very relevant recommendations, these were not considered and the Bill was passed in a hurry, before the all important Parliamentary Elections of 2014.

Indian Context

            In India there have been a number of celebrated cases wherein whistleblowers, who raised their voice against the wrongdoing and ill-gotten practices of corrupt persons in various spheres have been victimized, tortured or at times even done to death.

            Satyendra Dubey, an IIT Kanpur graduate joined NHAI in 2002 as a Project Manager where he unearthed serious financial irregularities in sub-contracting of work and irregular mobilization advances to contractors. Though he raised these issues and even wrote directly to the then Prime Minister, yet nothing was done to check such malpractices and he was shot dead in the night of 27^th Nov, 2003.

            Shanmugam Manjunath, an MBA from IIM Lucknow, after passing out joined IOC wherein he came down heavily on petrol pumps which indulged in selling  adulterated fuel. He conducted a number of surprise raids.  However, people whose business interests were being hurt shot him dead on 19 Nov, 2005.

            Shehla Masood, an RTI activist in MP was shot dead outside her house on 16^th Aug, 2011 when she was going to attend a rally by Anna Hazare. Similarly, Narendra Kumar, an IPS officer of 2009 batch and alumni of Aligarh Muslim University, was killed by the mining mafia in March, 2012 when he was trying to clamp down illegal mining in his area.  He was run over by a tractor when he was trying to stop the same. Vijay Pandhare - a Chief Engineer in the Water Resources Department of Maharashtra unearthed huge irregularities and cost inflation in irrigation projects in Maharashtra and alleged that over Rs.10,000 crores spent on lift irrigation projects were a total waste. His activism led to the resignation of then Dy CM of Maharashtra Ajit Pawar.  Similarly, Ashok Khemka, an IIT Kharagpur graduate and presently an IAS officer of Haryana Cadre, exposed irregularities in the procurement of seeds by Haryana government and also brought to their notice the suspicious land deals between Robert Vadra and DLF.  He has been unduly victimised and posted more than 45 times in his 20 year career. Rahul Sharma, an IPS Officer of Gujarat Cadre and alumni of IIT Kanpur also blew the whistle on the accused persons involved in Naroda Patiya massacre case during Gujarat riots by exposing their call data records. He was shunted out and suspended from service.

            The Comptroller and Auditor General in India has also, of late, acted like a whistleblower in the recent scams that have been brought to the knowledge of public  - the 2G scam, the Commonwealth games scam, the Coal scam etc.  All these clearly bring out how public money has been repeatedly squandered away to benefit some ‘select players’ in government and private sector. These examples reinforce the concept that there is an essential need to bring some of the private sectors also under the ambit of the RTI and the Whistleblower law. While all government departments and its functionaries are regulated by the strict provisions of the RTI and the proposed Whistleblower act, it is surprising to see that the private sector has been completely left out and none of these laws are applicable to it.  The recent scams unearthed by the CAG clearly show that the private sector has often acted in connivance with the government functionaries and siphoned off the public exchequer.

Whistleblower cases - Abroad

            Dinesh Thakur an employee of Ranbaxy Laboratories in US exposed his employers who were endangering the lives of people by producing drugs in India in unhygienic conditions. Ranbaxy was penalized to an extent of about $ 500 million  by US government.  Similarly Enron Corporation of the US was brought within the ambit of this law way back in 2002 when it was learnt that the Company’s auditors had cooked up book of accounts to give a rosy picture about the company and had misled the investors. It is, therefore, essential that the whistleblowers must be permitted to expose the misdeeds of the private sector before the common man. 

            Julian Paul Assange⁶, founder of Wiki Leaks made the world sit up and take notice by publishing secret US military and diplomatic documents which were unknown to the world.  He released over 2.5 lakh US diplomatic cables, more than 50% of which were confidential, which clearly showed how criminal laws had been breached, international agreements were thrown to the wind, extra judicial killings carried out and how human rights violations were carried out blatantly in different locations. A number of lawyers, academics and journalists expressed solidarity with Assange and hailed his act as that of an exceptional whistleblower of remarkable courage who advocated a transparent and righteous approach to journalism. The US government however wants to charge him for leak of diplomatic cables and wants him extradited. The Swedish Police has also issued an arrest warrant against him for sexual assault and he is presently hiding in the Embassy of Ecuador in London.

            Bradley Manning of US Army has been charged by his government for leaking over 2.5 lakh US diplomatic cables and 5 lakh Army reports to Wiki Leaks.  These relate to sensitive information pertaining to US strikes in Iraq, Afghanistan etc. He has now been sentenced to 35 years imprisonment and discharged from the US Army. Manning stated that he released all these secret information ‘out of moral concern and how humanity was being victimized’, yet the sentence meted out to him shows how vulnerable whistleblowers are and how such an action can have a deterrent and an chilling effect on all prospective whistleblowers.   

Edward Snowden, a Systems Administrator, working for a contractor with NSA, disclosed how US was intercepting large amounts of telephone and internet data, which violated rights to privacy and other international agreements.  Though US insisted that such interception was being carried out to prevent acts of terrorism, yet interception of mobile phone of German Chancellor and others showed that what was being done was absolutely undemocratic and illegal. Snowden stated that he wanted to ‘inform the public as to that which is done in their name and that which is done against them’. His act of disclosing information in public interest has been lauded by all concerned and he has been named as one of the 100 most influential persons of the world for the year 2014 by the Time Magazine¹¹.

Laws in different countries⁷

United States

            US has Whistle Blowers Protection Act 1989 (amended in 1994).  This Act was brought forth because the earlier Civil Requirements Act of 1978 had not been able to provide relief from official reprisals as transfers to ‘bureaucratic Siberia’, elimination of duty, reprimand etc.   An important provision of this Act is that ‘if the disclosure is reasonable and pertinent to public policy, then the time, manner, place, motives etc. will all become irrelevant’. The burden of proof here lies on the employer or the agency. The identity of the informant is always kept secret.  This Act also enables the whistleblower to claim damages and medical expenses etc. in order to restore the him to his original state. 

UK

            The Public Interest Disclosure Act of 1998 was the outcome of the Nolan Committee Report of 1995, a white paper on ‘Freedom of Information’ or ‘Right to Know’.  This Act came in the background of collapse of banks wherein it was felt that the employees knew all about the mismanagement in Banks.  It was felt that there must be a culture of openness within the organisation and that prevention is always better than cure. The UK Act aims to protect the whistleblowers from victimisation at work places and even enables them to seek compensation from their employers. This Act covers all the employees in the public, private and non-governmental sectors but goes on to exclude Army and Police.

Australia

            The Public Interest Disclosure Act of 1994 came out of the Fitz Gerald Report of 1993 which necessitated that a legislation was required which could prohibit a person from penalising any other person for making public disclosures about misconduct, inefficiency or any other wrongdoing within the system.  This Act states that penalty can be imposed for false or misleading information given knowingly.

Malaysia

The Whistle Blower Protection Act of 2010 enables disclosure of an improper conduct to an Enforcement agency. The Act ensures the confidentiality of information provider and also provides him immunity from civil and criminal proceedings. The Enforcement agency to whom information is made available by the whistleblower can ask for damages or compensation or seek injunction from the Court regarding the wrongdoings of the company.  There is also provision in this Act to give reward to the whistleblower for the information given.

Other Countries

            Hungary has a law which protects people in the public and the private sector from any kind of detrimental action, but there is no specific agency earmarked which can receive complaints from whistleblowers. Amongst the Eastern Bloc nations, Hungary seems to be the only country which has some kind of legislation to promote the whistleblower and protect him from any kind of illegitimate action. Romania, Luxemburg and Slovenia also have laws that protect the action of whistleblowers but their scope is limited. In case of Luxemburg and Slovenia, these laws and the related actions are included under the broader category of anti-corruption legislations. France does not have any specific whistleblower legislation but such related policies are governed by French Data Protection Authority. A change was brought about in 2005 when French companies affiliated with US companies were brought under the Sarbanes Oxley Act- a federal US law which contained provisions to protect the whistleblowers. 

            With the emergence of platforms as Wiki Leaks, a number of countries and especially the media have realised the importance of whistleblowers and the fact that these people can be valuable sources of information.  The cases of Julian Assange, Bradley Manning and Edward Snowden are classic examples in recent times which have attracted attention of people worldwide.  These people have responded to the call of their inner voice and have ‘leaked out information which is of vital interest to the society’.   A number of countries (147 countries) have shown their commitment to the UN Convention against Corruption, which has a provision for protection of whistleblowers, by enacting legislations in their countries. The important role played by whistleblowers is now being recognised by all the nations, slowly and gradually but surely. The Council of Europe and the OECD have also been actively espousing the cause of whistleblowers and calling upon nations to come up with legislation to protect their rights. 

            In a number of European countries, time and again the political leadership has made strong public statements supporting the whistleblower laws but not much has happened on ground.  An interesting observation made by M. Devine along these lines is ‘whistle blower protection is a policy that all government leaders support in public but few in power will tolerate it in private’.

           

Witness Protection⁴          

An important related legislation which can give tremendous support to the Whistleblowers Bill is ‘Protection of Witnesses Bill^5’ which is still pending before the Parliament since 2003 inspite of clear instructions by the High Court of Delhi in Neelam Katara V/s Union of India. The objective behind this legislation is to protect the identity of the right-minded conscience keepers and encourage them to come forward freely and fearlessly to depose against dreaded criminals and mafia elements before the Courts. The concealment of their identity would give prime witnesses the necessary anonymity and immunity and facilitate bringing the hardened criminals to the book more effectively.

Bill in its present form

The Whistleblower’s bill in its current form differs on a number of issues with the proposed Bill as given in 179^th report of Law Commission of India and also the 4^th report of II- Administrative Reforms Commission. The Law Commission had envisaged a vast scope for this Bill and included disclosures against Ministers and public servants whereas the current Bill talks about public servants only. The Law Commission had clearly defined victimisation and placed the burden of proof⁸  on the public servant but the current Bill neither defines victimisation⁹ nor is there any talk of burden of proof. Law Commission had also imposed a time limit¹⁰ for completion of enquiry but the bill in its present form makes it a never ending process. The Administrative Reforms Commission had strongly advocated protection of whistleblowers by ensuring confidentiality and anonymity. The present bill does not have any provision for anonymous complaints, thereby contradicting the basic premise that if protection is given, people will come forward and give substantial information about corruption. The Administrative Reforms Commission had also suggested inclusion of Corporate whistleblowers to unearth corrupt practices in private sector but the present bill is totally silent on this vital issue. The bill also does not have any provision for financial or other incentive for whistleblowing, but makes it an onerous task by refusing to take anonymous complaints and making no efforts towards protecting his identity.

The bill, it seems has lost its focus somewhere, by concentrating only on protecting the crusaders against corruption and not corruption per se.  Even their protection does not seem to be foolproof. The Whistleblower bill, which initially had grand plans to encourage disclosure of corrupt practices  and protect honest persons from victimisation, in the current form has come as a dampener for activists by refusing to protect his identity, not defining victimisation and leaving him vulnerable once again to the criminal and mafia elements - he was supposed to expose.

Conclusion

In the current scenario when our country is saddled with a number of scams, governance has taken a toll and the confidence of the common man and the investor has been shaken it is absolutely essential to cleanse and re-energise systems that are vital for improving the governance and investment climate in the country. People who are conscience-keepers and have the interests of the country - first and foremost- should be given due protection under the law to come forth and expose the wrongdoings, malafide and inappropriate practices in the public as well as private sector. This legislation will go a long way to encourage people to come forward and share information about corruption and misuse of powers by public servants so as to bring them to book.

           

            The bill, though in the present form is a watered down version of the original one with lofty ideals, yet it is a step in the right direction. This on the one hand will act as an incentive to all the right minded people to come forward and expose acts of corruption and misuse of official powers/position, on the other hand this legislation will put the fear of law in minds of the wrong doers and show the society’s resolve to act effectively against the corrupt officials. 

(3212 words)

 ( published in Indian Police Journal, Apr- Jun 2014 )

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Keywords

Whistleblower, 179^th Law Commission of India, 2^nd Adminstrative Reforms Commission, UN Convention against Corruption, Comptroller and Auditor General of India, Satyendra Dubey, Shanmugam Manjunath, Julian Assange, Edward Snowden, Witness Protection, Public Interest Disclosure and Protection to persons making disclosure Bill, Corporate whistleblowers.

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Abstract

Whistleblower Bill was brought in with grand plans to encourage the right minded and socially conscious citizens to come forward and expose acts of corruption, misuse of power and criminal acts of public servants. The thought behind was that if the honest officials are protected from victimization and their identity kept a secret, the amount of information about such corrupt activities would increase.

However the original bill, which was contemplated over a decade back, has undergone many changes and is today a much watered down version of the original version. The Law Commission (2001) had recommended two very vital issues namely defining victimization and putting the burden of proof on the public servant- both of which have been overlooked in the current bill. Similarly the Administrative Reforms Commission had advocated confidentiality and anonymity of complainants and also the fact that frauds in Corporate sector, must also be brought under the ambit of this bill. Both these aspects have also been lost sight of in the current bill which is now awaiting assent of the President of India.

Yet, the proposed Public Interest Disclosure and Protection to Persons making the Disclosure Bill, 2010, is a step in the right direction. It does provide scope for disclosures against public servants, enquiries can be conducted and there is penalty for lodging false complaints.

With corruption so endemic in our society, only time will tell whether the proposed Bill does encourage honest, law abiding and socially conscious persons to come forward and disclose acts of corruption and misuse of power or does this bill too, like many earlier ones become another paper tiger.

(269 words)

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References

1. 179^th Report of the Law Commission of India
2. ‘Ethics in Governance’, IV Report of the Second Administrative Reforms Commission.
3. UN Convention against Corruption, 2005 (http://www.unodc.org)
4. ‘Witness Identity Protection and Witness Protection Programmes’, 198^th Report of the Law Commission of India, 2006.
5. Law Commission of India’s Consultation paper on Witness Protection, Chapter III, 2004
6. The New Digital Age, Eric Schmidt and Jared Cohen, John Murray Publishers, 2013.
7. Whistleblower Protection Act 1989(USA), Public Interest Disclosure Act 1998(UK), Public Servants Disclosure Protection Act 2004(Canada), Public Interest Disclosure Act 1994 (Australia), Protected Disclosure Act 2000(New Zealand), Whistleblower Protection Act 2010(Malaysia).
8. ‘Public Interest Disclosure and Protection to persons making the Disclosure Bill, 2010’, PRS Legislative research, (www.prsindia.org)
9. Whistleblowers’ Protection Bill: Anti-graft only in name, G Sampath, Live Mint & the Wall Street Journal, 4^th March, 2014 (www.livemint.com)
10. Misuse of Whistleblowers Act needs to be checked, Raavi Birbal, The New Indian Express,6^th April, 2014.
11. The 2014 TIME 100, (www.time.com/time100-2014)

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