Whistle Blower Act in India
Four years ago, India was rocked by the murder of Satyendra Dubey, a government engineer who exposed corruption in the national highway building program. Two years later, Shanmughan Manjunath, a manager at a state-owned oil company, laid bare a scheme to sell impure gasoline. His body was found riddled with bullets in the back seat of his car. Is this what honest person should get in India After all, Satyendra Dubey may not have died in vain. His death was neither the first, nor will be the last that vested interests will perpetrate, but Dubey’s death uniquely galvanised nation-wide protest. That he was an alumnus of IIT mattered. IIT-ians across the world demanded action. Now at last, India has taken the first tentative step towards a full-fledged law to protect whistleblowers.
There is no occasion to celebrate any political sagacity or remorse that might have caused this development. It did not. The government --one with those around the world-- had to be dragged every inch of the way by angry public opinion. The Supreme Court did considerable prodding. The Hon’ble Court was acting on two public interest litigations seeking a permanent mechanism to protect whistleblowers. Finally on April 21, the Ministry of Personnel issued a notification granting immunity to all employees of the government except those in armed and intelligence services. For the moment, the protector of whistleblowers will be the statutory office of the Central Vigilance Commissioner. He is vested with the responsibility of protecting the identity of informants, follow-up on information received, investigate if thought fit, and initiate criminal proceedings if required. Once the on-going general elections are over, the new government is expected to apply its mind in framing a bill to supercede the current notification. A robust law is however, some years away. India is about to join an elite club of just four democracies [USA, UK, Australia and New Zealand] which have whistleblower protection. These democracies have not had these laws in place for too long. The US had its law in place only in 1989 and the other countries have followed after that.
K Ashok Vardhan Shetty has written a fine review [in the Hindu] of the role whistleblowers have played in improving transparency in governments. He suggests that Daniel Ellsberg of the USA would easily be the patron saint of modern day whistleblowers. In 1971, Ellsberg released the so-called Pentagon Papers that blew the cover of successive US governments that went about creating the mess called the Vietnam War. Ellsberg was a war veteran and later as an analyst at Rand Corporation had access to sensitive, classified documents. Stung by his conscience Ellsberg leaked these to the public.
Appreciate the step of court, India has taken the first tentative step towards a full-fledged law to protect whistleblowers.I read some on Whistleblowers at http://www.lawisgreek.com/indian-law-who-whistleblower
It is heartening to know that, the long awaited Act for Whistleblower protection has been recently cleared by the Cabinet and is likely to be tabled during ongoing session of the Parliament. However, the proposed law neither has provisions for encouraging whistle blowing by providing for financial incentives; nor deals with corporate whistleblowers and does not extend its jurisdiction to the private sector. The penalties and imprisonments could possibly have been higher so as to have efficacy of high deterrence, along the lines of the Sarbanes Oxley Act (SOX) and the recently enacted Dodd–Frank Act. India Inc ought to have learned lessons after the experience of the massive recent fraud at Satyam.
Whistle blowing can be an effective tool to deter and detect corruption both in the private and public sectors and it provides better information flows, which increase the chances of successful prosecutions in corruption cases. But in order for whistle blowing to be an effective tool to fight corruption, legislation and clear processes are essential.
Whistle blowing is still continues to be perceived by many in India, as acts, which are not constructive, a matter of personal vendetta or revenge, intention to embarrass the organization, and so on so forth. On the other hand, the whistleblowers have often faced reprisal, greatly suffered and endured, often for many years, after the complaints have gone unheeded. One of the reasons attributable to this is poor levels of confidence in the ability of the legal and regulatory environment to ensure promised protection against retaliation.
For developing a better corporate governance practices in the India, it is imperative to empower and encourage the whistle blowers, the policy concerning them needs to be comprehensive rather than applicable to one set of people only and be made mandatory for one and all, with clear guidelines and provisions for inspiring financial incentives, prosecuting intimidation of or retaliation against the complainants, including imposition of fines/ penalties for frivolous or mischievous complaints and last but not be the least fast track disposal of cases.
Mere approval of an act is not sufficient, formation of a special committee to look after the safety of whistle blowers, plus declaration of appropriate treaty is required,, yet a lot is to be done in this section
Great if the law is enacted...
SEBI may make whistleblower mechanism mandatory for companies: http://economictimes.indiatimes.com/articleshow/6302201.cms - However, whistle blowing can be effective tool to deter and detect corruption both in the private and public sectors, when whistle blowers are empowered & encouraged and the policy concerning them is comprehensive and holistic and is made mandatory for one and all, with clear guidelines and provisions for substantial financial incentives – which inspire them, prosecuting intimidation of or retaliation against the complainants, including imposition of fines/ penalties for frivolous complaints and last but not the least fast track disposal of cases.
P R Chandna
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