Protecting the whistleblowers

Seram Neken *

A whistleblower is a person who exposes malpractices in an organization either public or private sector agency. The revealed misconduct may be on violation of a law, rule or regulation and a direct threat to public interest, such as fraud and corruption. The term whistleblower is derived from the practice of English police officers, who blow their whistles when they notice the commission of a crime. The whistle alerts other law enforcement officers and the general public of danger.

Whistleblowers may report the allegations either to an internal person or to an external one like police, vigilance department and the media. Most whistleblowers are internal whistleblowers, who report wrongdoings to a fellow employee or a superior within their company. External whistleblowers, however, report the allegations to outside persons or bodies. In these cases, depending on the information's severity and nature, they may report the misconduct to lawyers, the media, law enforcement agencies or any watchdog agency.

Whistleblowers frequently face reprisal at the hands of the organization, individual or group which they accuse. The consequences are generally grave varying from ostracism to blacklisting. A whistleblower is subjected to numerous acts of cruelty ranging from petty harassment, spreading rumours, formal reprimands, transfer, suspension and even termination from service. They are even killed for no fault of theirs.

Instead of evaluating the information provided by the whistleblower, the full power of the organization is turned against him. Whistleblowers are generally hardworking, conscientious employees who believe in the system. It is only when they see that there has been grave malpractice, they speak out in the expectation that their complaint will be treated seriously. However, they often face the superior's shoot-the-messenger syndrome.

Fortunately, Law will now protect people who expose corruption in government and private sector agencies in public interest. Officially called the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, the Central Government has approved the whistleblowers protection bill on 9th August last.

It aims at protecting the identity of citizens who reveal information about the misuse of public authority and public money. Once this bill becomes law, it would empower the Central Vigilance Commission (CVC) to penalise those who reveal the identity of whistleblowers or threaten them.

The penalty under the proposed legislation for the guilty is up to three years of jail and a fine of up to Rs.50,000. According to the draft statute, the CVC as a nodal agency will have the powers of a civil court. The bill, with provisions to prevent disciplinary action or any other kind of victimisation of whistleblowers, will cover complaints against all central and state government employees as well as public sector employees. It will now be tabled in parliament. The impact of this new statute will be far and wide.

Frequent cases of murders and attacks on people who expose irregularities in government or private sector agencies in public interest have compelled the government to provide legal protection for the whistleblowers.

The first step towards protecting whistleblowers was taken in 2004 when the ministry of personnel, public grievances and pensions notified a resolution on April 21 that empowered the Central Vigilance Commissioner to act on the complaints of whistleblowers and protect them. This was considered to be an interim arrangement pending enactment of a law.

This interim arrangement was made in the light of the growing pressure on the government to protect whistleblowers following the murder of Mr. Satyendra Dubey, a young engineer working for the National Highways Authority of India (NHAI), on Nov 29, 2003. Dubey had confidentially complained against corruption in the implementation of the Prime Minister's Golden Quadrilateral road project in Bihar.

Since the primary object to be achieved by the disclosure of a malpractice is to awaken the public about the wrongful acts of an organization, it also serves the purpose of filling in gaps or overcoming any lacunae which might have occurred due to inefficiency on the part of the agency.

Also, the goal is to stop the improper actions, penalize the wrongdoers and redress or compensate any victims, if any. This forms a reform perspective, in which the solution to problems is to replace corrupt people with honest ones and to establish good processes for monitoring and dealing with problems.

The Law is expected to encourage disclosure of information in public interest and to protect people who expose corruption in government. The proposed law seeks to empower any person to file a complaint of corruption or disclosure against any central, state and public sector employee to the Central Vigilance Commission (CVC).

Further, as the nodal authority, the CVC will have powers of a civil court to summon, order police investigation and provide security to the whistle-blower. Also, under the law, if a whistle-blower's identity is compromised or if he is victimised, the individual's superiors will be held liable.

The media can also play an essential role in uncovering and reporting on cases where a person commits the offence of taking detrimental action against another person making a protected disclosure. As such the media would be taking a positive position in the task of whistleblower protection.

As the Latin proverb says 'corruptisima re publica plurimae leges' meaning 'in the most corrupt state are the most laws', India identified as land of corruption and fraud need such laws to deal with miscreants. As the whistleblowers' role is very great in reducing the magnitude of the problem, they need protection by the government and the society.

The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 will certainly help reduce the quantum of favoritism and corruption that is deep-rooted in Indian society today.