Whistle Blowing(1)

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Whistle Blowingy Whistle Blowing is a practice in which a person raises his

voice and reports about the malpractices, fraud, misconduct, corruption in an organisation; usually after

failing to remed y the matters from the inside, and at thecost of great personal risks. A person engaging in such an acti v ity is called a whistle blower. R isks :

y The loss of job & career,

y Blackmailing & extortion

y A threat to ones family or even his own life as in the case of Satyendra Dubey and S. Manjunath who stood upagainst the prevailing corruption, and were murdered brutally



Timeliney 1993: Mr. N. Vittal (then Chief Vigilance Commissioner) first initiateda whistleblower bill

y August 1999: Mr. N.Vittal requested the La w Commission to draft a Bill encouraging the disclosure of corruptpractices by public functionariesand protecting persons making such disclosures

y December 2001: La w Commission prepared a report on the Public Interest Disclosure Bill,and submitted itto Arun Jaitley (Then Minister of La w, Justiceand Company Aff airs)

y January 200 3: Draft of Public Interest Disclosure (Protection of Informers) Bill 2002 circulated

y November 200 3:The murder of SatyendraDubey for exposing corruption in NHAI led to widespread publicand mediaoutrageand mainstreamed demand for the the enactment of a whistleblowers bill

y Ma y 2004: GoI resolutionauthorized CVC to receive written complaints of corruption for Centralauthorities

y October 2005: RTI Act notified

y 2006:The Public Services Bill 2006 (Draft) for the regulation of public services in the country stated that within six months of the commencement of theact, the government must put into place mechanisms toprovide protection to whistleblowers



Timeline ( contd. )y Ma y 2008: First RTI activist (Lalit Mehta, Jharkhand) murdered

y 2006 2010: No progress to enact a whistleblower protection la w

y January August 2010: Ten RTI activists murdered plus one deadunder mysterious circumstances (see footnote 3 for details)

y August 2010: Draft Public Interest Disclosure And Protection ToPersons Making The Disclosures Bill, 2010 dra wnand approved

by Cabinet without public consultation. Bill introduced in LokSabhaand uploaded on the DoPT website inviting comments upto September 30, 2010[4]



Types of whistle blowing

Internal

Personal

External



When to blow the whistleKnowledge of inappropriateness

Bad Claims

Knowledge of impendingdooms



Criteria for justifiable whistle

blowingy The f irm through its product or policy will do serious

and considerable harm to the public.

y Once an employee identif ies serious threat to the userof the product or general public he or she should report it and make his or her moral concern known.

y If ones immediate superiordoes nothing effecti ve

about the concern the employee should exhaust theinternal procedures and possibilities within the f irm

y Whistleblower should have a documented ev idence.



Ethical Dilemma

The Mum Effect

The Deaf Effect

The Blind Effect



US measures on whistleblowingy Started off with U.S. Whistle Blowers Protect Act, 1989.

Later the U.S. Congress passed the Sarbanes Oxley Actgranting legal protection to whistle blowers in publicly

traded companies and 10 years of imprisonment to an ybod y retaliating against them. Looking at the prevalentconditions in our country , enactment of the WhistleBlowers Protection Act is really important.

y India does not have a law to protect a whistle blower;

however there is a Public Interest Disclosure Act, in which a person can f ile a complaint against an y CentralEmployee or Central Government Institution to the Central V igilance Commission



THE PUBLIC INTEREST DISCLOSURE ACT

Main Prov isions of The Public Interest Disclosure A nd Protection To Persons Making The Disclosures Bill, 2010

Scope:y

Applies to authorities and companies under central and stategovernment.y Also covers public servants and ministers

Exclusions: y Public servants of organizations referred in Article 33 (armed

forces and intelligence); pri vate companies and non-governmental organisations such as charities, trusts,

voluntary organisations and similarly placed ci v il society organisations.



Disclosure conduct

y A n y action which is an offence under the Prevention of Corruption Act, 1988 and/or a criminal offence;

y W ilful misuse of power/discretion which causes demonstrable loss to the Government or demonstrablegain to public servant

y Exclusions: Matters closed by an authorized Court or

Tribunal; where inquiry has been ordered under thePublic Servants Inquiries Act, 1850 or Commissions of Inquiry Act, 1952. Authority will also reject disclosures made 5 years after commission of alleged action



NOTABLE DEFICIENCIES OF THE

WHISTLEBLOWER BILL

y Limited Scope:y excludes: pri vate sector, armed forces and intelligence agencies

y Pri vate sector a major co-prov ider of serv ices and economicresources is not considered.

y Scandals like Satyam, IPL are alread y prevalent and gaining

foothold in Indian pri vate sectory Limited Application:

y Protection to whistleblower will be prov ided only after thecomplaint is f iled

y R TI acti v ists are ignored who are under threat even after they f ile

R TI applicationy For rural acti v ists exposing the corruption in NREGA , state v igilance

commissioner may not be accessible

y Narrow Definition of Permissible Disclosures:

y No catch-all phrase todef ine the principles rely ing instead on

enumerated corruption and criminal offences under existing Acts.



y Disclosure is time-bound:y Bhopal gas leak, Delhi anti-Sikh riots, Babri Mas jid

demolition, Godhra have all exceeded the f i ve- year statute of limitations applied to disclosable conduct.y The seriousness, culpability and need for resolution of these

issues is far from diminished.

y Maladministration is not covered:y While it was part of the prev ious draft (2002), has been

removed in this draft. Gross negligence (e.g., callous disastermanagement) are thus out of ambit

y Human rights violationsy for excluded organizations are not covered as exception

y Single authority to receive disclosures:y Complaints can only disclose information to centre/state

v igilance commissions. y Whistleblower legislation in other countries permits a range

of options (including media and members of parliament) forthe indi v idual to make disclosures



y Limited Protections to whistleblower:

y No protection for R TI acti v ists whose information is

available in public domain

y Even in vestigation agencies and head of department can reveal info. At different junctures. More the number of people pri vy to this info. Harder to identify the leak.

y No deterrent puniti ve action is specif iedy Family can also be targeted who are not focused

y Clause of imprisonment and f ine for false complaints can be misused in the absence of strict accountability

measures for the Competent Authority

Documents

Whistle Blowing(1)