Country success is not only dependent on the economic progress; it should be coupled with effective governance and transparency in the administration of the government. Both Good governance and transparency are inseparable twins which must co-exist together.
‘The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010’ - Is the scope of the proposed legislation on public interest disclosure is sufficient?
The history and experience of most nations show that no matter a country’s level of development, while there is government, there will always be some degree and variation of corruption, with officials using public office for private gain. Creating effective governance in the country is a complex matter. Country success is not only dependent on the economic progress; it should be coupled with effective governance and transparency in the administration of the government. Both Good governance and transparency are inseparable twins which must co-exist together. Improving Governance is a part of a development process. It is argued that corruption can be curbed by systematic changes in governance through introducing participation, transparency, accountability and probity in administration. The right to good governance is also considered as an essential part of the citizen’s rights that one can expect from the government. Accordingly, a number of initiatives have been taken by the government to incorporate citizen’s concerns as inputs in the formulation of policy as well as in the quality and reliability of services. These can be brought through various tools, including the Citizens’ Charters; Right to Information, e-Governance and new proposed one is law on whistle blower protection. Law on whistle blower and his protection is a welcome step towards better good governance and transparency in India. Whistle blowing is the act of disclosing information by an employee or any stakeholder about an illegal or unethical conduct within an organisation. It is highly important that people who are willing to fight against corruption in both public and private sector, should be protected by law and that their interest are safeguarded.
2. Need for Legislation on protection of whistleblower
Corruption is a social evil which prevents proper and balanced social growth and economic development. One of the impediments felt in eliminating corruption in the Government and the public sector undertakings is lack of adequate protection to the complainants reporting the corruption or wilful misuse of power or wilful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant. The Law Commission of India had in its 179th Report, inreralia, recommended formulation of a specific legislation titled "The public interest Disclosure (Protection of Informers) Bill, 2002 to encourage disclosure of information regarding corruption or maladministration by public servants and to provide protection to such complainants. The Second Administrative Reforms Commission in its 4th Report on "Ethics in Governance" has also recommended formulation of legislation for providing protection to whistleblowers. The Government of India had issued a Resolution No. 89, dated the 21stApril, 2004 authorising the Central Vigilance Commission as the designated agency to receive written complaints from whistle-blowers. The said Resolution also, inter alia, provides for the protection to the whistle-blowers from harassment, and keeping the identity of whistleblowers concealed. It has been felt that the persons who report the corruption or wilful misuse of power or wilful misuse of discretion which causes demonstrable loss to the Government or commission of a criminal offence by a public servant need statutory protection as protection given to them by the said Resolution of the Government of India would not suffice.
There have been multiple instances of threatening; harassment and even murder of various whistleblowers due to which there is a crying need of legislation in this area arises. There are so many murder cases of whistleblower reported in the media which becomes a matter of concern for the government to come up with the law on the protection of whistleblowers. Some of them are mentioned as follows:
Case 1: The Satyendra Kumar Dubey murder case, 2003 had triggered off great demands for a Whistle-blower Protection Act, but basically it was a war fought by media alone. Late Mr. S.K. Dubey was working as deputy general manager in National Highway Authority of India, and had written a letter to the then Prime Minister Shri Atal Vajpayee complaining of the corruption which was going on in a particular project. The government kept silent on the issue and the ends of justice could not be met with. However the whole case certainly did bring in the limelight the entire “protection of whistleblower‟ issue. The case was supported by many NGO‟s and Voluntary Organizations. “No other incident has brought the demand for a Whistle Blowers Act into such a sharp focus as Dubey’s case did and yet nothing happened” What the legislature has to realize is that it is not a matter of one Mr. Dubey, there are thousands of such cases every single day in India but people are reluctant to raise their voice as they are aware that there is no law to protect their interests. The need of enacting legislation on whistle-blower protection is at an all-time high and the government as well as the legislature should work upon it. Our legislature should take effective steps in this direction as have been taken by many countries now and provide legal safeguards to people who are willing to blow the whistle. Such a step would certainly lead to if not a corruption free state; at least it would lead to a right minded state. The government should ensure that there are no more cases like that of Mr. S.K. Dubey who lost his life for he was a responsible citizen of this country. It is astonishing and quite worthwhile to take a look at the steps taken by the legislatures of certain countries in order to regulate the functioning of whistle blowers and their security.
Case 2: Manjunath Shanmugam working with Indian Oil Corporation (IOC) was a graduate of the Indian Institute of Management, Lucknow. He refused bribes and ignored threats to his life in his fight against adulteration by the petrol pump owners. He paid the price. He was shot dead on 19 November, 2005 allegedly at the behest of corrupt petrol pump owners.
Case 3: A Karnataka official SP Mahantesh, said to be a whistle-blower in controversial land allotments by societies was murdered in May 2012. Mahantesh was working as Deputy Director of the audit wing in the state’s Cooperative department and had reported irregularities in different societies involving some officials and political figures.
Case 4: A senior police officer alleged that Mayawati's government was corrupt and had embezzled large amounts of money. Shortly thereafter, he was sent to a psychiatric hospital.
So in the wake of these murders, activists are seeking a quick passage of the Whistleblowers Protection Bill in Parliament. The demands are that a law should be framed to protect whistleblowers, facilitate the disclosure of information and uncover corruption in government organisations and ultimately need was felt to come up with this legislation.
3. Whistleblower Protection in India – Background
A bill for protection of Whistleblowers was first initiated in 1993 by Mr. N. Vittal (the then Chief Vigilance Commissioner). In December 2001, Law Commission recommended that in order to eliminate corruption, a law to protect whistleblowers was essential and submitted its report on ‘Public Interest Disclosure Bill’ to Mr. Arun Jaitley (then Minister of Law, Justice and Public Affairs) along with the draft bill. In January 2003, the draft of Public Interest Disclosure (Protection of Informers) Bill, 2002 was circulated. The murder of Satyendra Dubey in 2003 for exposing corruption in NHAI and the subsequent public and media outrage led to the demand for the enactment of a whistleblower’s bill. Following the event, in 2004, the Supreme Court directed that machinery be put in place for acting on complaints from whistleblowers till a law is enacted. Government of India notified a resolution to enable Central Vigilance Commission to receive complaints of corruption for Central Authorities in May 2004. Right to Information Act was notified in October, 2005. In 2006, The Public Services Bill 2006 (Draft) stated that within six months of the commencement of the act, the government must put into place mechanisms to provide protection to whistleblowers. In 2007, the report of the Second Administrative Reforms Commission also recommended that a specific law be enacted to protect whistleblowers. India is also a signatory (not ratified) to the UN Convention against Corruption since 2005, which enjoins states to facilitate reporting of corruption by public officials and provide protection against retaliation for witnesses and experts. On August 26, 2010 Union Minister of State for Personnel, Public Grievances and Pensions Prithviraj Chavan introduced the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, or the Whistle-blower Bill, in the Lok Sabha. Since 2010, at least 12 RTI activists have been murdered for seeking information to “promote transparency and accountability in the working of every public authority” of India.
4. Position of whistleblower law in various countries
Importance of law on whistleblower and his protection has also been felt by the International community. Most of the countries have already passed legislation on this aspect. Therefore an overview of global legislation and conventions is vital.
Ø Whistleblowers’ protection under United Nations Convention against Corruption (UNCAC): Enforced in December, 2005 the Convention has 140 signatories and amongst them 93 states has ratified the provisions. Article 8, 13 and 33 of the Convention enumerate the duties of public officials to report matters in case of non-performance of functions by other officials. It further lays protection regime for honest reporters and ensures the maintenance of their anonymity.
Ø Whistleblowers’ protection under OECD Convention on Bribery of Foreign Public Officials in International Business Transactions (OECD Convention): Ratified by 37 nations, the Convention aims “to address the supply side of bribery by covering a group of countries accounting for the majority of global exports and foreign investment.” Whistleblower regulations are a core part of the Convention where countries are mandated to establish complaint procedures, and to protect whistleblowers in the public and private sector. It is to be noted that India has not ratified this Convention.
Ø Position in U.S.A: After the collapse of giant corporate firms like Enron, WorldCom and Arthur Anderson, the American Congress passed the Sarbanes-Oxley Act in the year 2002. The main aim of the Sarbanes-Oxley Act is to meet absolute accuracy in financial statements. The Act has also given great importance to whistle-blower protection for employees of publicly traded companies. The Act strongly condemns retaliation against whistleblowers and it also encourages the act of whistle blowing. The Sarbanes-Oxley Act mostly deals with public companies and all of their employees are covered under the statute but eventually the employees of the private companies are also covered under Section 1107 of the Sarbanes-Oxley Act, 2002. The said section protects the employees of both public and private companies who make true disclosures which relate to the commission of a federal offence. The creation and implementation of Sarbanes-Oxley Act has had a great impact on global trade. The investors feel more secure as there is a law against corruption. The Act has certainly boosted the investment rate and USA even though not the first certainly has set an example for others to follow. Apart from the Sarbanes-Oxley Act there already is a Whistle-blowers protection Act of 1989, which protect federal employees who blow the whistle.
Ø Position in U.K: The United Kingdom also has a strict law for the protection of whistle-blowers. The Public Interest Disclosure Act 1998 which came into force in the year 1999 has been used on many occasions to protect the interests of whistle-blowers. The various details relating to disclosures and blowing the whistle have been intensively discussed in Part IV A of the Employment Rights Act of 1996. The legislature of U.K. has very clearly set out the rules for regulation and protection of whistle-blowers. It provides protection to all public, private and non-profit sectors.
Ø Position in Australia: Australia too is not behind in protecting the interests of its shareholders, it has enacted The Public Service Act of 1999. The act provides protection to the employees of the Australian Public Service, who blow the whistle. Various other countries have also enacted a Whistle Blowers Protection Act and in a way secured the interests of innocent shareholders. However in India there is a lack of non-profit organizations and voluntary organization who can lobby the rights of whistle-blowers until they are given legal status as there are in U.S.A and U.K. Despite the lack of proper legislation in this field and the irresponsibility of the legislature, there are certain companies who are resorting to whistle blower protection policy.
Ø Position in Canada: Legislation was enacted to create a new employment-related intimidation offence, protecting employees who report unlawful conduct within their company. But there is no legislation dealing with the private sector employees to speak out when their employer pays foreign bribes. Hence people like Allan Cutler ho exposed scams in federal contracts were never protected under legal regimes.
Ø Position in France & Germany: Even with exposure of Executive Life Scam in the year 2004 in France, no specific law governs in France. Similarly, two bills are pending before Bundestag in Germany regarding the civil servants approaching the prosecution directly, instead of their management. But the protection with regard to private sector is still under consideration.
Ø Position in Japan & Korea: The Unfair Competition Prevention Law enacted in 2004 which came into effect in 2006, in Japan, protects whistleblowers who file complaints about foreign bribery. In Korea, Anti-Corruption Act protects whistleblowers in state-owned companies, but no law encourages whistle blowing or protects them against reprisals for exposing corruption in the private sector. Thus, the reporting of bribery in private sector remains abysmally low.
5. Position in India – proposed law on whistleblower protection
The Government of India has been considering adopting a whistleblower protection law for several years. In 2003, the Law Commission of India recommended the adoption of the Public Interest Disclosure (Protection of Informers) Act, 2002. In August 2010, The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was introduced into the Lok Sabha, lower house of the Parliament of India. The Bill was approved by the cabinet in June, 2011. The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was renamed as The Whistleblowers' Protection Bill, 2011 by the Standing Committee on Personnel, Public Grievances, Law and Justice. The Whistleblowers' Protection Bill, 2011 was passed by the Lok Sabha on 28 December 2011. The Bill is however currently pending in the upper house of Parliament, Rajya Sabha for discussion and further passage. The Bill was introduced in Rajya Sabha on 29 March 2012 by V. Narayanasamy, Minister of State for Parliamentary Affairs.
Ministry of personal, public grievances and pensions.
Legislative Progress:
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