INDIAN JOURNAL OF LAW AND POLICY

REVIEW VOL. 1 August 2016

WHISTLEBLOWER LEGISLATION IN INDIA: COMPARISION WITH INTERNATIONAL STANDARDS

ANSHUL AGNIHOTRI, SANKUL KABRA B.COM.LL.B.(Hons.), Institute of Law, Nirma University, Ahmedabad

ABSTRACT:

“Silence is a powerful enemy of social justice” remarked AmartyaSen in his book

Argumentative Indian. The principle that is closely associated with whistleblower

laws is an alternate remedy to silence. When a public officer indulges into corrupt

practices or misuses his power, the person having the note of the same may inform the

relevant authorities, prescribed by the act, which is known as whistleblowing. As the

whistle is blown against the person who holds public office, such an official may

misuse his power, as he is in a habit, and threaten the whistleblower. Therefore, this

law aims at safeguarding the whistleblowers from getting victimized and falling prey

to the harassment from the public officials against whom the whistle is blown. In a

welcomed step from the Parliament, this legislation is very rigid and does not stand

against the International standards. This paper aims at analyzing the whistleblower

legislation in India and brings out the comparison with international standards and

practices.The main theme of this paper revolves around the comparative study of this

Act with the international best practice standards in countries like United States of

America, U.K., Canada, South Africa, Australia, Ghana for the laws regarding

protection of whistle blowers. No doubt, the legislation for the protection of the

whistle blowers is the need of the hour but the legislation having so many lacunas

cannot be proved an effective legislation neither to protect the whistle blowers nor to

increase and reward the efforts of whistle blowers.

Keywords- Whistle blower, protection, International standards.

2016] IJLPR 32

INTRODUCTION

The Whistle Blowers’ Protection Act, 2011 (hereinafter the Act) received the assent of

the President on 9th May 2014. The basic objective of this Act is to protect the people

who are blowing the whistle against corruption in public sector. An important

objective of a whistleblower law is to provide a safe alternative to silence. Unless the

law has sufficient strong provisions that compel the appropriate authorities to

investigate the allegations of wrong doing and protect the honest whistleblower from

any kind of victimisation the task of combating the corruption would be a dream in

today’s scenario. Few countries in the world have actually adopted very strong

provisions regarding whistleblower’s protection which are aimed at controlling

corruption1 in both private and public sector.

The preamble of the act provides that this it is a legislation to establish a mechanism

to receive complaints relating to disclosure, to inquire into such disclosure and to

provide adequate safeguards against victimisation of the person making such

complaint. The disclosures may be an instance of corruption or wilful misuse of

power. The Act lays down who may make disclosure, about what they may make

diclosure, to whom they may make disclosures, inquiry into the disclosures, powers of

the competent authority, protection of the persons making disclosure, offences and

penalties and other provisions.

WHISTLE BLOWERS & WHISTLE BLOWING

In this era of globalisation, economic motives precedes over all virtues and morals.

‘Whistleblowing’ literally means blowing the whistle or make a noise to alert others

for the misconduct going on in any organisation. In the context of business ethics,

whistleblowing means that one person alerts the organisation that some fraud or scam

is going on which is harming both the organisation and stakeholders. Therefore, a

whistle blower is a person who raises his voice against the wrong doing taking place

in an organisation or a body of people. Usually this person would be from the same

organization.

There is no legal definition of what constitutes whistleblowing provided by the Act.

1 Section 77 of the Anti corruption Act, 2008.

2016] IJLPR 33

The International Labour Organisation (ILO) defines it as ‘the reporting by the

employees or former employees of illegal, irregular, dangerous or unethical practices

by employers.2Experts defined whistleblowing as the disclosure by organisational

former or current members of illegal, illegitimate and immoral practices under the

supervision and control of their employers to the ‘competent authority’. 3 A

whistleblower is the one who blows the whistle on corruption, crime and other

unethical misconduct. It may be defined a whistleblower as the one who acts to

prevent harms to others, not to him or herself or possess the evidence which would

compel any reasonable person.

Almost all the countries across the globe are facing the problem of bad governance

both at government and corporate level. However, recently whistleblowers’ actions

have some good impact on governance and reducing the level of corruption. Whether

it is a public or private sector the whistleblower has an indispensable role to play.

Their efforts and actions are being acknowledged as providing an useful public

service. Due to liberalisation, modernisation and globalisation the frauds and scams of

many numbers and types are increasing day by day which is need to be exposed in

public by an honest whistleblower. The common key characteristics in whistleblowing

include: (i) public interest dimension (ii) disclosure of wrong doing connected to

workplace (iii) reporting of wrongdoings through designated channels or persons.4

REASONS FOR ACTING AS WHISTLEBLOWERS

It is believed that the reaction of employees towards illegal and unethical practices

within the organisation fall into three wide categories. First one, is to blow the

whistle; second one is to decide not to participate in unfair practices; third one is to

participate in it for personal gains. According to a survey, most of the Indian people

fall in the second category by avoiding the risks of their life in other categories.

The question arises why only some employers prefer to blow the whistle in India.

Firstly, there is a risk of life and job for an employee if they whistle about the

malpractices going on in an organisation as mostly the top officials are involved in the

2 International Labour Organization Thesaurus (2005) 3Near, J.P. and M.P. Miceli, “Organisational dissidence: The case of Whistle Blowing”, Journal of Business Ethics, 4:4, (1985). 4 U4 Anti- Corruption Resource Centre, Good Practice in Whistleblowing Protection Legislation(2009) p.3

2016] IJLPR 34

illegal practices. Secondly, there is lack of evidence and witnesses to support their

allegations against organisation. Thirdly, no effective laws are present in the country

to protect the whistleblowers from victimisation. As it evident from the recent years,

the person who blows the whistle in public sector is considered as accolade because

the main beneficiary is public at large.

NEED OF THE WHISTLEBLOWER’S PROTECTION

Life is not a bed of roses for a person who blows the whistle against corruption going

on in an organisation. It requires the tremendous courage to expose the wrong doings

going on in an organisation in which one is working as an employee.5 Once the

identity of whistleblower is revealed to the wrong doers then it is tough to protect the

person from victimisation at the hands of employers and top officials. In this scenario,

if laws also don’t give support to the whistleblowers then their efforts will be in vain

and in future no one will dare to expose the corruption going on in an organisation.6

Satyendra Dubey was a Government Engineer working for the National Highways

Authority of India (NHAI). In 2002, he blew the whistle against the corruption and

irregularities by NHAI officials and contractors who were engaged in on the flagship

Golden Quadrilateral roads project. Dubey disclosed the wrongdoings by writing a

letter to the Prime Minister and requested to conceal his identity but his identity is

revealed in the public.7 In 2003, he was murdered in Gaya, his hometown. He paid the

heavy price i.e. his life for standing against corruption. Shanmugam Manjunath, a

marketing manager at Indian Oil Corporation was brutally murdered in 2005 after

sealing the petrol pump that is selling the adulterated petrol.These two incidents

shows that whistleblowing in India is a dangerous job.8 Indian laws regarding the

protection of whistleblowers are ineffective, narrow in scope and not properly

enforced because they merely make recommendations instead of making mandatory

strict provisions.

Whistleblower’s protection is imperative to encourage the reporting of misconduct,

5“Whistleblower Protection”, Lawyers Update, Vol. XVIII, Part 5, May 2012. 6Id. 7VenkateshNayakPublic Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010- A Comparison with International Best Practice Standards, Commonwealth Human Rights Initiative (CHRI), 2010. 8Id.

2016] IJLPR 35

fraud and corruption. The risk of corruption is heightened in the environment where

the reporting is either not supported or protected. This is the requirement in both

public and private sector. Providing the effective protection for whistleblowers

supports an open organisational culture where employees are not only aware about the

procedure to report the corrupted and unfair practices but also have the confidence

that they will not be victimised.

International instruments aimed at combating corruption have also recognised the

importance of framing and enforcing the whistleblower’s protection laws.

Whistleblower protection have been introduced in the United Nations Convention

against corruption,9 the 2009 OECD Recommendations of the Council for further

combating bribery of Foreign Public Officials in International Business Transactions

(Anti-Bribery Recommendations), 10 the 1998 OECD Recommendations on

Improving Ethical Conduct in Public Services,11 the Council of Europe Civil and

Criminal Law Conventions on Corruption,12 and the Inter American convention

against Corruption. 13 Such international provisions have strengthened the legal

framework of the countries to establish effective whistleblower’s protection laws.

COMPARISON WITH INTERNATIONAL STANDARDS

In order to have a better understanding that why the improvement is needed in theAct,

it is necessary to understand the objectives of whistleblower laws enacted worldwide.

Mainly, the whistleblowers cover two major areas:-

(a) They provide a mechanism for a person to make a disclosure about a wrong doing

that occurred, is occurring or likely to occur in a public body in the public interest.

(b) They provide a mechanism for protecting the whistleblower from any

victimisation may be caused by the accused persons.

9 UNCAC Articles 8, 13 & 33. 10OECD Anti Bribery Convention, 2009 Recommendation for Further Combating Bribery of Foreign

Public Officials in International Business Transactions, Section IX.iii. and Section X.C.v., and Annex II to

the Recommendation, Good Practice Guidance on Internal Controls, Ethics and Compliance, Section

A.11 11 OECD Recommendations on Improving Ethical Conduct in Public Services, Principle 4 12Council of Europe Civil Law Conventions on Corruption, Article 9; Council of Europe Criminal Law Conventions on Corruption, Article 22. 13 Inter American convention against Corruption, Article III(8).

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COMPARATIVE ANALYSIS

This comparative study is based on 10 best practice standards across the globe. These

10 best practice standards will be compared with India’s whistleblowers’ protection

Act. For comparison, five countries are chosen i.e. United States of America, U.K.,

Canada, South Africa, Ghana.

By taking these 10 international standards and comparing it with five countries there

is a comparative analysis below:-

(1) Public Interest Disclosure must include wrong doings committed or likely

to be committed by Ministers.

(A) INDIA- The Act does not cover the wrong doings done by the

Ministers. This Act empowers the person to disclose any wrong

doings by a public servant.

(B) U.S.A.- This standard does not apply to U.S.A. It is possible for

the person in this country to disclose about the wrong doings of the

persons who are appointed by President and approved by Senate.14

(C) U.K.- There is no specific provision in this country related to this

standard but there is no bar to disclose the wrong doings committed

by the Ministers.15

(D) CANADA- There is no bar in the disclosures related to Ministers

i.e. only providing adequate information with proper evidences are

enough to put the allegation against any person.16

(E) SOUTH AFRICA- In this country also, there is no bar against the

disclosures about the corruption by Ministers.17

14The Whistleblower Protection Act: An Overview, Congressional Research Services Report to US Congress, op. cit., p.2 (accessed on 16.08.2015). 15For the complete text of UK’s Public Interest Disclosure Act, 1998 see the website of the Government of the United Kingdom: http://www.legislation.gov.uk/ukpga/1998/23/contents (accessed on 16.08.2015). 16For the complete text of the Public Servants Disclosure Protection Act, 2005 see the website of the Department of Justice, Government of Canada: http://laws.justice.gc.ca/eng/P‐31.9/index.html (accessed on 16.08.2015). 17 For the complete text of South Africa’s Protected Disclosures Act, 2000 see the website of the Department

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(F) GHANA- In this country also the law does not bar the disclosures

against Ministers if they have reasonable grounds on believing it.18

(2) Public Interest Disclosure must include all bona fide warnings of various

types of acts, unlawful practices including all serious human rights

violation.

(A) INDIA.-The Act does not cover any wrong doings in non-

governmental sector. The private and social sectors have been left

out.

(B) U.S.A.- The Sarbanes Oxaley Act, 2002encourages corporate

whistleblowing.19

(C) U.K.- In this country, the protection is provided in the private

sectors except educational institutions who make disclosures about

wrong doing.

(D) CANADA- There is no specific law which permit the the

employees of private sector to blow the whistle.

(E) SOUTH AFRICA- The Act covers the whistleblowing even in

private sectors.

(F) GHANA- The act does not specify any specific law as to which

sector the law applies. But the combined reading of provisions

indicates that it covers private, public as well as social sectors.20

(3) Public Interest Disclosure must cover the wrong doings in the private

sector as well as members of armed forces and special services.

of Justice and Constitutional Development, Government of South Africa: http://www.justice.gov.za/ legislation/acts/2000‐026.pdf (accessed on 16.08.2015). 18 For the text of Ghana’s Whistleblower Act, 2006 see the website of Ghana’s Parliament: http://www.parliament.gh/files/Whitsleblwer%20Act%20720.pdf (accessed on 16.08.2015). 19 For the complete text of the Sarbanes-Oxley Act, 2002 see: www.soxlaw.com (accessed on 12.09.2015) 20Supra note 18.

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(A) INDIA- Members of armed forces, employees of intelligence

agencies are prohibited from reporting any wrongful action directly

or indirectly to the organisation.

(B) U.S.A.- The Military Whistleblower Protection Act allowed

whistleblowers of the armed forces to make confidential

disclosures about wrong doings.21

(C) U.K.- In this country, the law covers both public and private sector

including those who are hired on a contractual basis. But it does

not cover the police forces, armed forces and national security

related organisation.

(D) CANADA- The Canadian armed forces, Canadian Security

Intelligence Service are excluded from the Act.

(E) SOUTH AFRICA- The police forces, armed forces and

intelligence services are not excluded from the right of

whistleblowing.

(F) GHANA- The police forces, armed forces and intelligence

services are not excluded from the right of whistleblowing.22

(4) Issues in relation to the media law protection of journalist sources must

be codified.

(A) INDIA- Under the Act, the person can make the disclosure to the

media but no clear provision guaranteeing the protection to

journalist sources.

(B) U.S.A.- The Act permits to disclose the wrong doings to ‘any

person’ . However, protection is not given to the sources.23

21History of Military Whistleblower Protection Act and Statute Preventing the Use of Mental Health Evaluations in Reprisal: Website of the Office of the Inspector General, US Department of Defense: http://www.dodig.mil/INV/mri/pdfs/Timeline.pdf: (accessed on 16.08.2015) 22Supra note 18. 23Supra note 14.

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(C) U.K. – The Act does not specifically mention this principle

butotherlaws relating to media permits the confidentiality to

journalist sources.24

(D) CANADA.- This principle is recognised in the Canadian law.

(E) SOUTH AFRICA.- The Act permits the person can make the

disclosure to the media25 but does not guarantee the protection to

sources but the protection is provided to the person under Freedom

of Press.26

(F) GHANA.- The Act is silent on this principle. However, the

National Media Commission includes in the list of the persons to

whom the disclosures can be made.

(5) Public and private sector bodies must be incentivised to establish internal

mechanisms of whistle blowing.

(A) INDIA- The Act does not require public authorities to create

internal whistle blowing mechanism.

(B) U.S.A.- The Act envisages the possibility of disclosing the wrong

doing to the head of the department.

(C) U.K.- The Act encourages the whistleblower to disclose the wrong

doing using the internal procedures of the organisation although it

is not mandatory.27

(D) CANADA- This principle is recognised in Canadian law in public

sector.

24Supra note 15. 25 Speak out for Service Delivery; The protected Disclosures Act as a tool for Organisational accountability, ODAC, South Africa, p. 23. 26 The Act of Rights in South African in Constitution, Section 16, Constitution of The Republic of South Africa. 27Supra note 15.

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(E) SOUTH AFRICA- The Act permits the whistleblowers to disclose

the wrong doings to the employer for this purpose. The Companies

Act,2008 encourages internal mechanisms for whistleblowing.28

(F) GHANA- The Act encourages the whistleblower to disclose the

wrong doing using the internal procedures of the organisation

although it is not mandatory.29

(6) Disclosures of wrong doing must be properly investigated and

information must reach the senior management promptly.

(A) INDIA- The Competent Authority can be asked to the Head of

Department for making comments and opinions. It is not clear that

inquiry will be conducted openly or secretly

(B) U.S.A.- The disclosure can be made to the Special Counsel but he

did not have the power to investigate about it. The disclosure will

not be reported to the head of the agency.30

(C) U.K.- The Act is silent on this principle.

(D) CANADA- Disclosures do not need to be pass though official

hierarchy unless the whistleblower elects to do so.

(E) SOUTH AFRICA- The Act is silent on this principle.

(F) GHANA- The Act permits the person to disclose the wrong doings

to range of persons and authorities.31

(7) The whistleblower must be informed about the progress of investigation

in the disclosure and provided with the copy of final report and

recommendations of corrective action.

28 For the complete text of South Africa’s Companies Act, 2008 see the website of Acts Online: http://www.acts.co.za/companies_act_2008/whnjs.htm (accessed on 16.08.2015) 29Supra note 18. 30Supra note 14. 31Id.

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(A) INDIA- The Act does not place any obligation on the Competent

Authority to inform any whistleblower about the progress of

investigation.

(B) U.S.A.- The Act incorporates the principle.

(C) U.K.- The Act is silent on this principle.

(D) CANADA- The law permits the Competent Authority to inform

the public about the wrong doings after it is found true.

(E) SOUTH AFRICA- The law is silent on this principle.

(F) GHANA- The principle is not covered in this Act.

(8) The whistleblower’s identity must not be without his/her prior consent in

order to prevent any kind of victimisation.

(A) INDIA- The Competent Authority can reveal the identity of

whistleblower if required.

(B) U.S.A.- The Competent Authority can reveal the identity of

whistleblower if required.

(C) U.K.- The Act does not cover this principle.

(D) CANADA- The identity is protected under the law.

(E) SOUTH AFRICA- There is no requirement in the Act to maintain

the confidentiality.

(F) GHANA- The identity is protected under the law.

(9) The law must create risks for the person who try to victimises the person

who blows the whistle with strict penalty.

(A) INDIA- The Act does not create any risks for victimising the

whistleblower by the accused persons.

2016] IJLPR 42

(B) U.S.A.- The Act creates a clear risk for the employer who

victimises the employee.

(C) U.K.- The Act is silent about this principle.

(D) CANADA- The employer who victimises the employee is liable to

go through disciplinary proceedings. The compensation is paid to

the victimised person.32

(E) SOUTH AFRICA- The laws do not create any personal risks on

the employer who victimises the employee but he is liable to pay

the compensation.

(F) GHANA- The laws do not create any personal risks on the

employer who victimises the employee but he can ask for

occupational restorement.33

(10) In case of victimisation, the law must reverse the burden of proof

on the employer.

(A) INDIA- The Act is silent about the burden of proof in case of

victimisation of an employee.

(B) U.S.A.- The Act adheres to the principle.

(C) U.K. -The Act makes it mandatory to show that it is the duty of an

employer to show the grounds why the employee is fired from a

job.

(D) CANADA- The Act is silent about the burden of proof in case of

victimisation of an employee. It is mandatory to show that it is the

duty of an employer to show the grounds why the employee is

fired from a job.34

32Supra note 16. 33Supra note 14. 34Supra note 16.

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(E) SOUTH AFRICA- The Act does not have any provision

regarding burden of proof in the case of victimisation. However,

it is mandatory to show that it is the duty of an employer to show

the grounds why the employee is fired from a job.

(F) GHANA- The Act reverses the burden of proof in case of

victimisation of the employee.35

OTHER LACUNAS

• The complaint can be made in the five years of the action only.

• There are not proper safeguards for the persons who are amking the

disclosure. All is based on the will of Vigilance Commission.

• For false complaint there is a penalty of two years imprisonment and 30,000

compensation.

• Act does not provide any witness protection program which is present in other

countries like U.S.A., Canada and South Africa.

• There is no proper definition of ‘disclosure’ and ‘victimisation’.

• The time period after which Act will be reviewed is not provided.

• There is no time limit for inquiry.

• The anonymous complaints will not be entertained by CVC.

• Offence which is defined in the Prevention of Corruption Act are taken into

considerations.

CONCLUSION

In general, the level of whistle blowing activity is likely to depend not just on the

legal protection granted to whistleblowers but also on the regulatory response to

whistle blowing. For instance, more prospective whistleblowers might come forward

if the policy regime is deemed to be responsive that is, if there is a higher probability

that whistle blowing will trigger enforcement action rather than be ignored –or if the

malfeasance uncovered by whistle blowing were expected to lead to severe penalties.

No doubt, the legislation for the protection of the whistle blowers is the need of the

hour but the legislation which is made in haste and having so many lacunas cannot be

35Supra note 14.

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proved an effective legislation neither to protect the whistle blowers nor to increase

and reward the efforts of whistle blowers.

However an important aspect here would be the tolerance of the society towards

corruption and unfair practices. In the Indian context it is of high importance that

organisations takes a serious view of instilling high sense of ethics and laws are

formulated to protect the employees who play the role of whistle blowers against

corruption both in the private and public sector. Comparing with the provisions of

other countries, theAct is very weak to protect the whistleblowers from the powerful

and influential employer.

REFRENCES

• Anthony Heyes and Sandeep Kapur , An Economic Model of Whistleblower

Policy:, April 2007

• Raising the alarm, Indian Business Law Journal, May 2009, Volume 2, Issue

10

• Near, J.P. and M.P. Miceli, “Organizational dissidence: The case of Whistle

Blowing”, Journal of Business Ethics, 4:4, (1985).

• Tavakoli, A, John P. Keenan and Cranjak Karanovic B. 2003. “Culture and

Whistleblowing An Empirical Study of Croatian and United States

Managers,” Journal of Business Ethics 49 64

• For U.K’s Public Interest Disclosure Act, see the website

http://www.legislation.gov.u.k./u.k.pga/1998/23/contents

• For U.S.A. Whistleblower Protection Act, 1989 see the website of

http.//thomas.loc.gov/cgi-bin/query/z?c101:S.20.ENR

• History of Military Whistleblower Protection Act and Statute Preventing the

Use of Mental Health Evaluations in Reprisal: Website of the Office of the

Inspector General, US Department of Defense:

http://www.dodig.mil/INV/mri/pdfs/ Timeline.pdf

2016] IJLPR 45

• For Ghana’s Whistleblower Act 2006 see the website

http://www.parliament.gh/files/Whistleblower%20Act%20720.pdf

• For South Africa’s Protected Disclosures Act, 2000 see the website of

http://www.justice.gov.za/legislation/acts/2000-026.pdf

• For the complete text of South Africa’s Companies Act, 2008 see the website

of Acts Online: http://www.acts.co.za/companies_act_2008/whnjs.htm

(accessed on 16.08.2015)

• For the Canada’s Public Servants Disclosure and Protection Act, 2005 see the

websitehttp.//laws.justice.gc.ca./eng/P-31.9/index.html.