Indian Law: The Whistleblower Protection Law

The whistleblower protection law has been enforced in various countries. Now, the government of India is planning to enact such a law, particularly after the murder of Satyendra Dubey, an engineer with the National Highways Authority of India (NHAI). Dubey was killed after he wrote to the ex-Prime Minister, A.B. Vajpayee’s office about the corrupt practices in the construction of highways.

Dubey had specified in his letter that his identity should remain concealed. True to word, the letter was forwarded to the concerned departments, without an attempt to conceal his identity. Dubey was murdered and his death led to a public outcry. 

Indian Law: Will these New Laws Empower or Endanger Citizens?

A similar case is that of Manjunath Shanmugham, a sales manager of the IOC. He was killed in 2005 for uncovering a racket that dealt in petrol adulteration. Following the public outrage surrounding his murder, the government proposed a bill pertaining to the matter.

The Department of Personnel and Training (DOPT) developed the Public Interest Disclosure (Protection of Informers) Bill. The bill provides that anyone can file a complaint of corruption, with the Central Vigilance Commission (CVC), against any employee of the Central Government or organizations backed by the Central Government.

The CVC is an authorized nodal agency for addressing complaints. It has powers similar as of civil court, such as powers to issue summons, order police investigation and provide protection to the whistleblower. However, the CVC is not authorized, by Indian laws to address the complaints regarding matter that are already in court’s purview, prejudicial to national security, international relations and proceedings of the Union Cabinet.

The bill is officially known as the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010. The proposed Indian law intends to protect the whistleblowers, facilitate the disclosure of information and uncover corruption and deceptive practices that exist in government organizations. 

Indian Law: Key Features of the Whistleblowers Protection Bill

Some of the key features of the proposed Indian law are as follows:

• It will protect the whistleblowers from any discrimination or victimization in their workplace.
• It provides for concealing the identity of a citizen who discloses information about the misuse of power and money. Those who reveal the identity of the whistleblower will be held liable and penalized, by the Central Vigilance Commission (CVC).
• The offenders will be liable for imprisonment up to 3 years and a fine up to Rs.50, 000.
• There will be penalization in case of delays in response, under the Right to Information Act. A fine of Rs.250 will be imposed for every day of delay beyond the set deadline.
• There will be penalization for officials who try to mislead the CVC.
• The bill provides for addressing complaints against public sector employees and employees of the Central and the State Government.
• The bill also ensures the honest government officials are not harassed in anyway but those individuals who file false complaints and charges will be liable for imprisonment up to 2 years and fine up to Rs.30, 000.

Indian Law: Criticism on the Whistleblowers Protection Bill 

According to Indian law reports, the bill has faced considerable criticism because its jurisdiction is restricted to the government sector and encompasses only those who are working for the Government of India or any of its agencies. It does not cover the employees of State Governments. The draft Bill aimed at protecting whistleblowers is a welcomed move. Given the fact that this bill, if it becomes law, is a very important legislation, the lack of public debate and consultation on the Bill seems to indicate the danger of it becoming another ‘paper tiger.’ 

Typically, the Ministries that propose draft legislations involve an elaborate process of public consultation to give the public a fair opportunity to criticize and scrutinize the provisions carefully. In this case, such an opportunity has been denied to the public and there is considerable criticism about it.

No doubt, the proposed law to protect whistleblowers will assist to detect corruption, ensure better information flow and pave the way for successful prosecution of corrupt individuals through clear and protected processes. However, the public in India have poor levels of confidence in fighting corruption because they fear retaliation and intimidation against those who dare to make complaints. Another worry pertains to the delay in disposing off these cases. Without public debate on the provisions of this proposed law, it is clear that there is no way for people to measure its effectiveness when the draft bill comes into force as law.

A whistleblower is a person who raises concern about frauds, corruptions, wrongdoings and mismanagement. For instance, a government employee who exposes corruption practices, within his department is a whistleblower. So is an employee of a private organization, who raises his voice against misconduct, within the company. 

The misconduct can be classified in several ways, such as:

• Violation of Indian laws.
• Posing direct threat to public interest.
• Violation of health or safety norms.
• Deceptive practices.

 A whistleblower may approach an external agency, such as law enforcement officers, media or social groups. He may also report the matter to other members of the organization.

 

A whistleblower’s dilemma         

The identity of those who expose corruption might be revealed under the Right to Information Act.

Corruption is the cancer of public life today. There is a universal growing recognition that corruption is anti-economic development, anti-poor and anti-national.

At last there are some systematic efforts being made to tackle the issue of corruption. The directive by the Supreme Court that candidates standing for election will have to declare details of their criminal record, their wealth and educational qualification has injected an element of transparency in public life. 

The passing of the Right to Information Act  is hailed as a major step to empowering civil society and making the government more accountable. Sunshine is the antidote for corruption and the more transparent public organisations become, there will be lesser scope for corruption.Equally important is the role played by people within a corrupt organisation in exposing corruption. These people are taking a great risk by exposing corruption in their organisations. Satyendra Dubey’s name flashes to mind readily. He was a sincere whistleblower in the National Highways Authority of India (NHAI) and had to pay a heavy price — his life.

This moved the Supreme Court to issue a directive to the CVC saying that action must be taken to protect whistleblowers.

Whistleblowers normally face a lot of problems in their careers. By exposing corruption among their superiors, they face the possibility of direct or indirect punishment. This could be in the form of lack of advancement and promotions ultimately leading to their careers failing.

The Whistleblowers’ Act at least protects the career interest of the whistleblowers and their identity. But a more important issue is the risk whistleblowers face in terms of physical harm. There is no provision for providing physical protection to them. That is the first part of the dilemma which whistleblowers in our country face.

The second aspect of the dilemma faced by whistleblowers is paradoxically because of the Right to Information Act! I recently learnt about an employee of a government of India public sector enterprise who tried to expose corruption amongst his superiors. He approached the chief vigilance officer of the organisation. The vigilance officer told him that while he may initiate action on his complaint, his identity as a whistleblower could not be protected because this may have to be revealed under the provisions of the Right to Information Act.

Here we see a classic example of the path to hell being paved with good intentions. In the case of whistleblowers who expose cases of corruption, should their identity also be revealed under the Right to Information Act? The only advice I can give is that the whistleblower should approach the CVC directly and make his case. CVC is under the Supreme Court’s directive to protect the identity of whistleblowers thanks to the tragic case of Satyendra Dubey.

But how many will be able to approach the CVC? This is the dilemma which every whistleblower in the country today faces. If we really want to make a breakthrough in tackling corruption and at the same time get the full benefits of both the Whistleblowers’ Act as well as the Right to Information Act, a practical solution will have to be found. 

The simple solution would be to make a provision in the Right to Information Act itself that the identity of whistleblowers will not be  revealed under the Act. This is definitely a problem that can be resolved. Where there is a will there is a way. Do we have the will to fight corruption?