International Best Practices For Whistle-Blowers: What India Can Adopt?

The Whistle-blowers Protection Act (WBPA), 2011 was passed by the Parliament on February 21, 2014 to protect whistle-blowers from victimisation. The act was initiated after the brutal murder of Satyendra Dubey, the NHAI engineer who exposed the corruption in the Golden Quadrilateral Highway Construction project of US$10 billion in Jharkhand in 2003. Later after two years, one Shanmughan Manjunath, an Indian Oil Corporation officer was murdered for sealing the petrol pump when he found it selling adulterated fuel. The Act provides mechanism for inquiring against the acts of corruption, wilful misuse of power or discretion, or criminal offences by public servants.

Today after the seven years down, the Act has not been enforced. Instead, an amendment Bill was introduced in the Parliament in 2015 without public consultation that proposes to withdraw the immunity available to whistle-blowers under the Official Secrets Act (OSA) that provides punishment of imprisonment for 14 years. The Bill also restrains the information exposed by whistle-blowers in relation to sovereignty, integrity, security or economic interests of the State from being inquired. Further, information which relates to commercial confidence, trade secrets, in fiduciary capacity cannot form part of WBPA unless such information has been procured under RTI. The Bill defeats the purpose of the Act at its very face.

History

The need of protection for whistle-blowers was first highlighted in Report of Law Commission of India in 2001. The Committee even drafted a bill to address the issue. The Hota Committee (Committee on Civil Service Reforms) 2004 considered to protect civil servants who report confidential information of misuse of power and authority. However, it did not make any recommendation. Then, in response to the petition of Satyendra Dubey, government in 2004 came up with a resolution titled 'Public Interest Disclosure and Protection of Informers Resolution (PIDPIR) which gave Central Vigilance Commission (CVC) the authority to act on complaints from whistle-blowers.

Further, the report of Second Administrative Reforms Commission in 2007 also expressed the need to settle a law for protecting whistle-blowers. The Whistle-blowers Protection Act came into being in 2014 but since then it has not been enforced yet.

Besides all this, India is also a signatory to UN Convention Against Corruption since 2005 which provides adequate safeguards and protection to persons making complaints and facilitate reporting against corrupt public officials. The OECD 2010 Good practice Guidance on Internal Controls, Ethics and Compliance also recommends companies to ensure protection of whistle-blowers both internally and externally.

The WBPA however, does not cover corporate whistleblowing whereas corporates are the major stakeholders in such unauthorised acts. The vacuum has been filled by Regulation 18 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 which makes it mandatory for all listed companies to establish "whistle-blower policy" for directors and employees to report any unethical concerns. Then, Section 177 of the Companies Act, 2013 mandates every listed company to establish vigil mechanism to report any fraud or unethical activity for its directors and employees.

International Practices/ Principles

Many nations have passed legislations to ensure protection of public sector and private sector employees.

Some countries like Canada, USA, UK have 'one stop shop' approach to receive, manage, and investigate all whistleblowing matters. Canada has set up an Office of Public Sector Integrity Commissioner to receive reports and investigate the matters maintaining the confidentiality of the whistle-blower. Similarly, UK has Office of the Civil Service Commissioners to promote honesty, integrity and impartiality through public sector disclosures. US do so through Office of Special Counsel (OSC) and Merit System Protection Board (MSPB) to adjudicate decisions. Thus to ensure the proper enforcement of the legislative provisions, an independent agency needs to be established. The mechanism should be set up for dealing with frivolous complaints. The individuals must be imposed with hefty compensation for their malicious activities.

Also, the organisation to which the information is being passed by whistle-blowers should ensure the anonymity of these individuals. The WBPA, nor Listing Agreement or Companies Act provide mechanism for maintain the anonymity of the whistle-blowers. It is indeed important to realise that to save the lives of brave souls and also to encourage such matters being exposed, it is necessary that legal system of the country provides sufficient safeguards to the heroes. In Manjeet Singh Khera v/s State of Maharashtra, Justice K S Radhakrishnan very aptly held that,

"Situations are many where certain persons do not want to disclose the identity as well as the information/complaint passed on by them to the ACB. If the names of the persons, as well as the copy of the complaint sent by them are disclosed, that may cause embarrassment to them and sometimes threat to their lives."

Recently, on plea of RTI Activist Saket Gokhale who placed reliance on Avishek Goenka v/s Union of India, Ministry of Housing & Urban Affairs (MoUHA) directed all CPIOs to remove the details of RTI petitioners from public domain. The step in favour of activists is indeed appreciable.

Second, the Sarbanes-Oxley Act of US via Title 18 of the Code, Prevention of Corruption (Amendment) Act, 2010 of Ireland, Canada Public Servants Disclosure Protection Act, 2005 protects whistleblowers from fear of retaliation and reprisal and explicitly criminalise any form of threat of suspension, lay-off etc. Irish law is stricter in the regard. The laws of Australia, New Zealand provides effective protection against any civil or criminal liability. The law should ensure protection from retribution, punishment, discrimination from employers, institutions, etc. for whistle-blowers.

Third, the disclosure to media instead of employers has been seen to be more powerful and conscious decision. For instance, the revelation of 'Panama Papers' (1971) to the New York Times and The Washington Post by Daniel Ellsberg exposed the truth about US intentions on war with Vietnam in reality. The government was unable to hide the truth and that led to the end of war with withdrawal of US troops.

Fourth, to ensure the effectiveness of reporting by whistle-blower, awareness is needed on protections available to an individual. For example, US Securities and Exchange Commission's (SEC) Office of the Whistle-blower (OWB) participates to promote compliance mechanisms with various stakeholders. Similar role is played by Korea's Anti-Corruption and Civil Rights Commission (ACRC) which is responsible for effective implementation o the policy aspects related to the Act.

Fifth, countries must ensure effective financial payment system for whistle-blowers. Korea's ACRC is mandated under Anti-Corruption Act and the Act on Protection of Public Interest of Whistle-blowers, 2011 to those individuals (public and private both) who report to ACRC. Further, the Dodd-Frank Act authorises US SEC to reward and provide monetary awards to those who provide SEC with the confidential information. The Act can be further amended to give incentives to the individuals who disclose information about mishappenings inside the entity or organisation.

The act of whistleblowing requires a lot of courage and existence of flaws in the organisation can be exposed more appropriately by the people working with it. Some exceptional brave hearts do take a step ahead but the sword of corrupt power of top officials in the organisation is always hanging on their head. The law should ensure protection from retribution, punishment, discrimination for whistle-blowers. Transparency International, an organisation based in Berlin, shows corruption trends among nations released its Corruption Perception Index (CPI), 2020 and reports that India has slipped six places to 86^th position among 180 countries.

Thus, a number of countries and organisations have adopted effective measures to ensure the protection of whistle-blowers. The Act is the need of the hour in a democratic society to ensure transparency and accountability. The pre-condition of the whistle-blower law is independent legislation and judiciary. While judiciary has always shown a progressive approach for the protection of whistle-blowers, executive has remained adamant on its responsibilities. The RTI Act, The WBPA and The Lokpal & Lokayukta Act, 2013 could be harmonized for effective realisation of goals and smooth functioning of the justice delivery system. In absence of any proper legal framework, there would be gross violations of rights of whistle-blowers. Thus, it is the dire need of specific law in line with POSH Act, 2013 to deal with issues concerning whistle-blowers and keep check on internal and external mechanism.