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WHISTLE BLOWER PROTECTON ACT: A REFLECTON OF PROGRESS AND PANDERING (By-Paras)
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WHISTLE BLOWER PROTECTON
ACT: A REFLECTON OF PROGRESS AND PANDERING
Authored By-Paras, research scholar,
CT university, Ludhiana, Punjab.
Prof. (Dr.) Simranjeet Kaur Gill,
Principal school of Law,
CT university, Ludhiana Punjab.
Abstract
Whistle-Blower
Protection Act plays important role to provide security to the person who
blowing whistle against any illegality committed by any government,
non-government and private organisation. This paper is attempted to reflect the
protection of whistle blower whose will be killed reason of make whistle
against illegality or wilful misuse of powers by the officials and also study
legal perspective to protect these people and provide appreciation award or
compensation in case unnatural death because of whistle blowing. This paper
also attempts to discuss position of Indian legislature on whistle blower
protection Act, 2011. Additionally, this paper aim to highlight the concept of
whistle blower and aware the people of its right, view publicly rights given
under whistle blower protection Act, 2011 included right not to reveal is
identity of the complainant which is punishable offence under Whistle blower
protection Act, 2011 and other remedy as security provided by legislature in
the whistle blower protection Act.
KEY
WORDS: _ reflection of progress, pandering, whistle, corruption,
accountability, transparency.
Introduction
Whistle
blower in present time most burning issue, protection of larger public
interest. “An Act to establish of corruption or wilful misuse of power or
wilful misuse of discretion allegation of corruption or wilful misuse of power
`or wilful misuse of discretion against any public servant and to inquire or
cause an inquiry into such disclosure and to provide adequate safeguard against
victimisation of the person making such complaint and for matter connected
therewith and incidental thereto” [1]. Whistle blower protection aims to
protect anyone who exposes corruption or wilful misuse of powers by a public
servant. There have been multiple instances of threatening, harassment and even
murder of whistle blower. Whistle blower protection act also important for
accountability and transparency. First case related to whistle blower in winter
v. Houston chronicle pub & co. [2] the term whistle blower derives from the
practice of English bobbies who would blow their whistle when they noticed
commission of crime. The blowing whistle would alert both law enforcement officers
and general public of danger. [3] The official secret Act should be
exempted under the whistle blower protection Act. There is need of time
overridden this because of public interest disclosures. In India the various
committee and commission submitted their report regarding whistle blower
protection act:
The
Santhanam committee report 1963
The
administration reform commission report 1967
Vohra
committee report
129th
law commission report
The
main object of this act is to examine the current position of whistle blower in
country and also understand the historical development of whistle blower
protection act. law also bind the person to inform the any illegality to the
concern authority. The section 39 of the criminal procedure code said
every person who is aware of the commission of crime or likely to occurrence of
commission of crime shall be informs to concern authority until or unless there
is reasonable excuse. The burden of proof to established reasonable proof is on
that person.
Importance Of Study
Whistle
blowing is an act to exposing someone act of illegality. To highlight the
matter in public as refer to public safety and security. Whistle blowing can
occur in large scale organisation, public or private sector exposing the
misconduct of that authorities. The website wiki leaks whistle blower make
shape to the whistle blowing policy worldwide.
whistle
blowing in an important aspect that has the inherent power to mitigate a
cross-like situation. The whistle-blower’s revelation needs to be handled
correctly and promptly for situated value creation in the organisation. It
cannot be disputed that many large corporate frauds have come to limelight only
through an insider’s revelation or a confession, and not through an audit
report or a regulatory investigation. It thus, become very essential to provide
to the whistle-blower a smooth route for his revelation through an efficient
whistle-blower law. The organisation needs to ensure that there is an easy
route to raise concerns, otherwise either the workforce will become silent, or
if the scandal comes out in the public, it will come out in the most
destructive way.[4]
OBJECTIVE
OF THE STUDY:
·
To
study briefly current position of whistle blower in India.
·
To
study legal perspective of whistle blower protection Act.
·
To
motivate the people to raise voice against any illegality.
·
To
study protection to whistle blower from identity revelation and state liability
regarding compensation in any kind of mishappening to person.
·
To
discuss the various right guarantee under whistle blower protection Act and
role of competent authority under whistle blower protection Act, 2011.
Research Methodology
The
research methodology which has been adopted doctrinal or non-imperial, primary
source has guided the research work with its available literature, on relating
to the whistle blower protection Act. Investigation of every kind which is
based on original sources of knowledge and method followed by research to
conduct research also keeping in view the worthiness of the topic.
Salient Features Of Whistle
Blower Protection Act, 2011
§ The act seeks to protect whistle
blower, i.e., person making a public interest disclosure related to an act of
corruption, misuse of power, or criminal offence by a public servant.
§ Any public servant or any other
person including a non-governmental organisation may make such disclosure to
the centre state vigilance commission.
§ Every complaint has to include the
identity of the complaint.
§ The vigilance commission shall not
disclose the identity of the complainant except to the head of the department
if he deems it necessary. The Act penalizes any person who disclosed the
identity of the complaint.
§ The Act prescribed penalties for
knowingly making false complaint.[5]
The Advantages:
There’s
no denying that whistle blowing—and a culture with promote whistle blowing---
can be extremely beneficial to the organisation, its employee, shareholder and
society and the general public at large. Violation, misconduct and malpractice
which would cost stakeholder dearly can be mitigated and the transgressor duly
punished. Says Kumar Bimal, vice president, marketing, Sonalika group,” An
organisation that is known to be free from corrupt practices tends to attract
the right talent. Employees, whose integrity and dedication toward the
organisation is impeccable, work as watchdog of the company’s values. Such
individual can assume the role of whistle-blower in case they suspect or sense
any Kind of wrongdoing within the organisation. Whistle blowing is an
important. Whistle blowing is an important aspect that the inherent power to
mitigate a crisis-like situation. The whistle-blower’s revelation needs to
handled correctly and promptly for sustained value creation in organisation.”
There
is no doubt that in today’s fast-paced world and mega corporation, institution
of a whistle blower policy is not a corporate luxury, but an organisation
necessity. The benefit of this policy many:
·
Fostering
good governance by encourages employee to escalate deceitful action by
colleagues/senior/third parties.
·
Promotion
of the organisational values thus nurturing a culture of openness in workplace
·
Sending
a clear message that severe action will be taken against unethical and
fraudulent acts.
·
Dissuading
employee from the committing fraud by instilling fear unfavourable consequences
when caught
·
Early
alerts to diffuse a potentially larger disaster.[6]
History Of Whistle Blowing
“whistleblowing”
comes from the common practice of law enforcement of law individuals’ officers
and referees blowing a whistle to indicate an illegal action. Today, a
whistle-blower is any individual who report a corporate or government entity’s illegal
or unethical conduct to the media or authorities. [7]
Qui
tam is writ of common law that allows for individual who help in the
prosecution of corporations and governments to be awarded the penalties
assessed to the guilty party. First used in 13th century England to
enforce the king law, qui tam was enforced in the American colonies and
eventually embrace by the first US congress.
In
1863, the false claim act was passed into law. Under the false claim act,
people who are not affiliated with the government are entitled to file against
government contractors. Most of these claims are entitled file claims against
government contractors. Most of these claims are filed against health care and
military contractors, with the recent example being Evelyn pringle, the women
who blew the whistle on Halliburton. [8]
The
practise of whistle blowing has been common for thousands of years, but enjoyed
a resurgence of public support during such monumental cases as:
·
The
pentagon papers
·
Deep
throat
·
Kerr-McGee
·
Enron
Some
of these cases relied on external whistle-blowers while other relied on
employee working on the inside. While monument, these are certainly not the
only instances of whistle blowing in modern times.
Whistle
blowing is protected by both state and federal laws. People who work inside and
outside of a company have a legal right and moral obligation to report illegal
and unethical behaviour. However, large corporations enjoy a number of
loopholes not available to ordinary citizen, and have resulted to thuggery to
silence those who speak out against them. Nonetheless, every year, citizen and
attorney who understand the necessity of protecting their family, friends,
community, and country against fraudulent, illegal and dangerous corporate and
government action are willing to speak up on behalf of us all. [9]
Role
And Functon Of Competent Authority Under Whistle Blower Protection Act, 2011:
The competent authority on receipt of the complaint
of public interest disclosure conceal the identity of the complainant unless
complainant himself disclose his identity. If disclosure of identity of
complaninant is necessary for inquiry then with the consent of the complainant
competent authority can reveal identity with taken special measure. If
complainant doesn’t want to disclose his name, then competent authority demands
the written evidence regarding the complaint. After inquiry competent authority
found matter is frivolous and there is no sufficient ground for proceeding with
inquiry the competent authority shall close the matter.
Weakness Of The Statues Of
Limitation
One
major weakness in many statutory whistle-blower protection laws in the short
statute of limitation for whistle-blower cases. Failure to comply with a
statute of limitation is one of the favourite defences in whistle-blower cases.
The statue is generally considered to start from the time an employee learns
that he or she will be retaliation against- not the last day wrongful
termination actions. Federal statues protecting whistle-blowers also have their
own statues of limitations, some as short as 30 days. The decision on how to
pursue the claim will become determine what statute of limitation is
applicable, the types of damages that are revocable, and in what forum the
claim will be adjudicated. In some states, if the employee is covered by a
federal statue, the employee may be pre-empted from bringing a state action.
Some employees have filed for both administrative and common law remedies.
Although this approach has been successful, it raises other issue besides
promotion, such as res judicata and collateral estoppel. The employee should
use extreme care in determine the pros and cons of each potential strategy.[10]
Punishment Under Whistle
Blower Protection Act:
Identity
of complaint should remain undisclosed: whistle blower protection Act provide
security to the complaint under section 16 of whistle blower protection Act
2011 if the person reveals the identity of the complainant his will be liable
under this Act punishment which may extend to three year and fine extend to
fifty thousand rupees.
Punishment
for false or frivolous disclosure: if any person intention with malafide
intension give false or frivolous compliant with intension to harm and mislead
shall be punished up to two year and fine which may extend up to thirty
thousand rupees.
Judicial Aspects
The
whistle-blower’s protection Act, 2011 seeks to provide “adequate protection to
person reporting corruption or wild full misuse of direction which causes
demonstrable loss to the government or commission of a criminal offence by a
public servant.” The CVC would not reveal the identity of the complainant but
would have the authority to ignore frivolous complaints. The criterion of
‘ignoring’ a complaint has not been clearly explained. Further, limitation have
been placed on matters which are sub-judice. Prejudicial of national security,
international relations and proceeding of the union cabinet or those beyond the
limitation period of five years.[11]
Bar Of Jurisdiction
No
civil court shall have jurisdiction in respect of any matter which the
competent authority is empowered by or under this Act to determine and no
injunction shall be granted by any court or other authority in respect of any
action taken or to be taken in pursuance of any power conferred by or under
this Act.[12]
Court
to take cognizance
No
court shall take cognizance of any offence punishable under this Act or the
rules or regulation made there under, save on a complaint made by the competent
authority or any officer or person authorised by it.[13]
No
court inferior to that of a chief metropolitan magistrate or a chief judicial
magistrate shall
try
any offence punishable under this Act.[14]
Case Laws:
SATYENDRA
DUBEY CASE:
“Satyendra Dubey is officer of Indian engineering
service. He is posted director of national highway authority at koderma. Indian
Gov. led by Atal Bihari Vajpayee had started ambitious golden quadrilateral
project to connect all major cities of India via four and six lanes. He noticed
that bidder take the project from the government and further pass to the
smaller contract mafia who is incapable of handling such large project. He
files complaint against it to higher authorities of N.H.A.I. and also wrote
letter to prime minister with request not disclosing his name but the letter
along with his bio data was forward to ministry of road transport and highways.
While returning from the wedding in Varanasi he was murdered in Gaya 27
November 2003”.[15]
SHANMUGAN MANJUNATHAN CASE:
He
is the manager of Indian oil corporation posted at Lakhimpur kheri in UP.
Manjunathan noticed that some of patrol pumps selling adulterated fuel. He
takes action against those patrol pump and sealed that patrol pumps. He was
murdered for sealing a corrupt patrol station and his body was found back seat
of the car. He was shoot six times”. This news created huge outcry in media.
The session court found all accused guilty and sentenced them to death.
Allahabad high court changed the verdict to life imprisonment of 5 while
acquitting the other two. Indian oil corporation paid a compensation of 2.6
million to Manjunath’s family.[16]
NARENDRA
KUMAR CASE:
Narendra
Kumar was an Indian police service officer (IPS) from 2009 batch. He was posted
in Morena district of Indian state of Madhya Pradesh. Morena was famous for
fine quality of sand found in Chambal River bed which is used in construction
of building. From past several years there is illegal mining in that area. On 8th
march 2012 he received information about illegal mining stones being carried in
a tractor. He went to check if the information was true or not. He reached the
spot asked the driver to stop but the tractor driver ignored his warning and
ran vehicle over him.
RINKU
SINGH RAHI:
He
was provincial civil service (PCS) civil servant and he was fighting against
corruption in sponsored welfare schemes in Uttar Pradesh (UP). He was born in
Aligarh and completed his B. tech degree in metallurgy at NIT, Jamshedpur in
2002. In the same year, he scored All India 17th rank in GATE but he
opted civil service career instead. Rahi ordered an inquiry into the allocation
of funds by social welfare department in Muzaffarnagar over the last five years
and he found discrepancies. Out of the allocated funds to be distributed as
part of old-age pension scheme, money was taken for 62,447 people but only
47,707 beneficiaries received it. There were no records for 55 million rupees
distributed to 22,000 OBC student and 110 million rupees distributed to all BPL
families. He also went on hunger strike to draw of Akhilesh Yadav government’s
reply on his pending RTI application. He was shot six times by local gagsters,
damages his jaw and the vision of one eye and he is currently working as a
coordinator at Bhimrao Ambedkar coaching centre in his hometown. [17]
VYAPAM
SCAM:
With
suspicious attack on whistle-blowers. The vyapam scam has highlighted the
vulnerability of those who show truth to power. The string of corruption
scandals that have surfaced in the last three months have established what may
believe ------ in a country the size and diversity of India. It is impossible
for a centralized mechanism to control corruption to succeed. the “na
khaunga na khane dunga” mantra based on a big brother approach, with some
high offices keeping a watch on the activities of all others, cannot be relied
upon to effectively contain the malaise of corruption. Unless proper
institution and system are put in place to empower those who expose wrong-doing
by offered them protection and ensuring that their complaints are effectively
investigate and acted upon, a mere a change of regime will not lead to
attachment in corruption. [18]
Vyapam
scam related to the entrance examination, admission and recruitment scam. The
body manipulate exam halls and exam sheets. The proxy candidate gives the paper
for behalf of another one and deserving candidate will be out of the merit
list. This scam unearthed in 2013 in the state of Madhya Pradesh. Many
politicians, high officials are involved in this scam. This scam alarms the
people national wide. The state government established committee to conduct
inquiry regarding this scam committee report that irregularities since 1991’s.
committee released the report in 2011 and state government on behalf of that
report take action and hundreds of people arrest under this scam.
Conclusion And Suggestion
The
whistle blower protection act needs of the society to protect who raise voice
against the wrong. This act also make provision regarding to identity of the
complaint can’t be reveal because it creates the security threat to the person
and this kind of protection clause also encourage other peers on to full fill
his duty binds by Law to raise voice against any kind of malpractice happen in
society. The main cons of the Act is Lokpal which will established under the
Lokpal & lokayuktas Act 2013 will not play role in scheme of whistle blower
protection Act, Lokpal should have also mentioned as a competent authority
under for the purpose of this act. Whistle blower protection Act, 2011 a
long-standing demand of activists and NGOs was cleared. It aims to protect
whistle blower who exposes malpractice or corruption and who have faced served
threat of harassment, assault and even murder. The seek to establish a
mechanism to register complaints on any allegations of corruption or misuse of
power against a public servant. There is also need to set up fast track
mechanism to dispose of the case under whistle-blower protection Act and also
time bound the competent authority to dispose of cases and inquiry regarding
the whistle blower protection Act.
·
The
whistle-blower protection Act,2011 need to amend so as provide incentives to
the person who expose the illegality in any organization after inquiry it has
been proved correct.
·
There
is need to elaborate and more flexible the whistle-blower protection acts regarding
as per secret service act if the information effects the larger public
interest.
·
The
whistle blower protection Act silent about role of Lokpal under this Act. The
Lokpal makes effective role to conduct inquiry under this act without any
biased and influence.
·
There
is also need government make special effective provision regarding case of
frivolous complaints under this act and also established manner to deal this
kind of cases without effecting genuine one.
·
There
is also need to make speedy and time bound inquiry under the whistle blower act
to make competent authority speedy dispose of the case which is basic
fundamental right.
·
There
is also need to amend in whistle blower Act to inconvenience regarding the
complainant. Some of the person not come forward as to see inconveniences after
whistle blowing any illegality.
·
The
Act should be amended to incorporate and make use of the Lokpal (national level
apex anti-corruption and grievance redress agency) which will be established
under the Lokpal & lokayuktas Act, 2013 as the Lokpal would generally
handle the same cases of corruption as would be handled by the competent
authority and hence making the Lokpal and lokayuktas the Competent authority
would solve the problem of dual organizational doing the same work.
·
The
meaning and definition of ‘competent authority’ should be amended so as to make
the ambit of the term wide and bring into its purview many
agencies/organisations which are not currently not included like the lower
judiciary.
·
A
clear statement should be made that employee who are aware of possible
wrongdoing within the organisation have a responsibility to disclose that
information to appropriate parties inside the organisation.
References:
1. Saksham Dwivedi, Prachi Agarwal, “The
Whistle-blower protection Bill, 2011: A review”, retrieved from http://indianlawjournal.com/volume6/issue-2/article7.html.
2. 795 S.W.2d 723 (1990), retrieved from
http://wwwlawteacher.net/free-law-essays/indian-law/whistle-blower-policy-and-indian.php.
4. Mithila Mehta, “whistleblowing policy
in a company’ The times of India 9th Sep 2013.
5. Retrieved from
www.wikipedia/whistleblowerprotectionact.
6. Poona, Arushi Malhotra, “Whistle
Blower in India”, International Journal of Research in Commerce & Management,
Volume No. 5, Issue No. 04, April, 2014, p.44.
8. S. Mahendra Dev, N. Chandrasekhara
Rao,” India: Perspectives on Equitable Development”, Academic Foundation, New
Delhi,2009, p339.
9. K.C Garg, Vijay Gupta, Poonam Gupta,
R.C Chawla,” Company law “, Kalyani Publisher, 2001
10. Kaushiki Sanyal, legislative Brief,
The Public Interest disclosure and Protection to Person Making Disclosures
Bill, 2010, PRS Legislative Research, 24 January 2011
11. Times of India,” Parliament Passes
Bill to Protect Whistle-blowers,”, New Delhi, Feb 21, 2014.
12. Section 21 of Whistle Blower’s
Protection Act,2011 (No. 17 of 2014)
13. Lok Sabha Debate, Parliament. House of People,
India, Lok Sabha Secretariat, 1992. p. 91.
14. Section 22 of Whistle-blower
protection Act, 2011 (No 17 of 2014)
15. Retrieved from
http;//knowlwdgeofindia.com/list-of-whistle-blower-in-India.
17. Kim Arora,” whistle-blower warrior”,
The times of India, Delhi, Jul 1,
2012.
18. Anjali Bhardwaj, Amrita Johri,
“whistleblowing in the time of vyapam,” the Indian express 13th Aug
2015.
Article Information
WHISTLE BLOWER PROTECTON ACT: A REFLECTON OF PROGRESS AND PANDERING (By-Paras)
Author Name: Paras
Title: WHISTLE BLOWER PROTECTON ACT: A REFLECTON OF PROGRESS AND PANDERING
Email Id: Advocateparas79@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/05
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International Journal for Legal Research and Analysis
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