The complicated mechanism of governance, corporate structures & other non
governmental organizations that hold and exercise abrupt power, make a lot of
profit by rendering public services, have a huge investment from tax payer's
The resource purchasing capacity of this entity is very large. With these
complicated structures , the give and take of consideration like in sole
proprietorship is not limited to 2 hands but the process of give and take of
this consideration itself has turned out into complicated process.
is framework of regulations and strict procedures to ensure no corrupt practices
take place but these large entities & there desire to make early money finds its
way to practices which are not in harmony with public interests. However, in
this entire organization there is often one person who is committed to his job
and cannot see scams right under his nose. Committed to their job with utmost
honesty , these people bear all the risks to themselves, their families ,
property and decide to expose the scams.
These people are called
Whistleblowers and very name suggests that they make people cautious of the
insider scams in the organization by exposing. There is a quote by former US
President Barack Obama Often the best source of information about waste,
fraud, and abuse in government is an existing government employee committed to
public integrity and willing to speak out. Such acts of courage and patriotism,
which can sometimes save lives and often save taxpayer dollars, should be
encouraged rather than stifled. We need to empower federal employees as
watchdogs of wrongdoing and partners in performance. The quote asks the
government to encourage the acts of whistleblowers and empower them. In order to
empower them a strong legislation is needed which can protect them from danger
to their life , loved ones & their property.
2. Case Laws
A Satyendra Dubey- Satyendra Dubey was an engineer appointed in golden
quadrilateral highway project of the NHAI. He had written letter to PMO office
addressing in it the corrupt practices by NHAI in giving the tender to
contractors. However the letter was not delivered at PMO office and instead
diverted to Ministry of road and transport which then forwarded this letter to
NHAI and eventually it fell into the hands of deputy head of this project who
had assigned Satyendra Dubey as project engineer. Satyendra Dubey was
pressurized about the allegations he made and eventually one day after
addressing the letter he was shot dead in 2003.
B] Unnatural death of Karnataka cadre IAS officer
Karnataka food and supplies commissioner Anurag Tewari was found dead under
mysterious circumstances. His family claimed that he was about to expose a scam
worth thousands of crores of rupees in Karnataka government. He was gathering
evidence to expose the scam. But before he could , he was allegedly killed.
C. social activist Satish Shetty murdered
Satish Shetty a social activist used Right To Information, Act (RTI) for inquiry
and subsequently became whistleblower by lodging a complaint against Mumbai
based IRB land developer and real estate firm for grabbing a huge land that was
set aside by govt for Mumbai - Pune highway. IRB had using forged documents
grabbed the land and sold to its subsidiary. After 2 ½ months of lodging
complaint Satish Shetty was brutally killed outside his house . 7 years after
CBI filed a closure report of the case on basis of insufficient evidence.
D RTI activist Lalit Mehta murdered 
Lalit Mehta an RTI activist who worked for National rural employment
guarantee programme was brutally murdered after he came across social audit of
NREGA projects. He found that the authorities were given huge sum for
implementation and employment of rural people under this scheme. He found that
the muster rolls created had more number of workers than actually were employed.
Forged signatures of the villagers were taken and job cards were issued in the
name of persons already died.
In all the above case laws we see there is one person working with the
corporation, government project and others are outsiders who by means of RTI
drew the light to scams taking place. Many people are internal whistleblowers
who are very closely associated with the day to day working, management, audits,
and business transactions entered by these entities.
However in not a single
company, or corporation, or government programs there is a confidential
mechanism or whistleblower policy or mechanism which can address letters of
allegations of fraud, corruption, misconduct in place to help whistleblowers in
smooth revelation which goes in proving that no corporations specifically owned
by government wants to empower whistleblowers and instead they do not want these
people to come around and expose the malpractices. This shows the very ethical
stand taken by these big entities who do not care for common man's money ( tax
payer). statistics shows that 62% of whistleblowers lost their jobs, 18%
transferred or were felt harassed, 11% complaint of reduced salary, 22% reported
criminal investigations and 11 were indicted.
This sets an example for others
who dare to do this acts in bona fide of public integrity or public interest.
In the case where Satayendra Dubey addressed letter to PMO which was diverted to
NHAI itself shows government attitude against Whistleblowers which is the very
reason that Whistleblower protection act was introduced in 2011, passed by Rajya
Sabha, assented by president but it was not brought into effect because the
rules necessary to effect this act were not framed and now The whistleblower
protection( amendment) bill, 2015 is still pending in Rajya Sabha. The national
crime record bureau does not specifically report of crimes as crimes done
against whistleblowers. offences of murder, death threats, harassment against
whistleblowers are not reported as offences of specific nature like we have
Economic Offences in place. Whistleblowers blows off the whistle of unjust
practices which they already know. Whistleblowers do not seek for inquiry unlike
in RTI act.
Where RTI applicants seek inquiry of particular nature. A report reveals that
many RTI applications are also turned down by Central Information Commissioners
by giving baseless reasons such as, that the pertaining inquiry falls under
ambit of section 8(1) of RTI Act. This is the reason many RTI activists have
turned as whistleblowers because they sensed some unprofessional conduct inquiry
of which was not permitted by Central Information Commissioners and then on
themselves they found out the misappropriations and exposed them.
3. Analysis of Whistleblower Protection Act, 2011 & Whistleblower Protection
(Amendment) Bill, 2015
Whistleblower protection act was passed by Lok Sabha in parliament in 2011 and
by Rajya Sabha on 21st February 2014 and received president`s assent on 9th June
2014. Before the bill could be brought in effect some amendments were introduced
in the bill Whistleblower protection (Amendment) act, 2015 which is still
pending in Rajya Sabha.
The object of whistleblower protection act is as
An Act to establish a mechanism to receive complaints relating to disclosure on
any allegation of corruption or willful misuse of power or willful misuse of
discretion against any public servant and to inquire or cause an inquiry into
such disclosure and to provide adequate safeguards against victimization of the
person making such complaint and for matters connected therewith and incidental
A. Chapter II, Public interest disclosure, section- (6) of WPA,2014 states
that unless the complainant discloses his identity or if he/she is found giving
incorrect identity details then no action will be taken against any public
interest disclosures by the competent authority.The competent authority is
not a uniform body and is different in relation to all different disclosures.
For eg. if there is any disclosure regarding union council of ministers the
competent authority is prime minister.
If disclosure is regarding any Central
Government employee or any other public servant then Central Vigilance
Commission is the competent authority. Disclosure related to any member of
legislative body is kept out of purview of CVC. If this is the case then the
whistleblower shall not be expected to disclose his name because if disclosure
is regarding any legislative member ultimately an insider of this body will be
the competent authority and not the CVC. For e.g. when Satyendra Dubey addressed
letter to PMO it was ultimately diverted to NHAI. So there is again no guarantee
of confidentiality and safety to whistleblowers in case of disclosure related to
any political party member which dilutes the purpose of the act , for the union
cabinet ministers are the chosen members of Prime minister.
B. The whistleblower protection (amendment) act has inserted following
clauses in section 4 sub section (1-a) that no complaint of any public interest
disclosure shall be entertained if it affects sovereignty, security,
integrity of India , the strategic, scientific, economic interests of state and
friendly relations with other state and all other clauses the disclosure of
which is forbidden.
The content of all other non-disclosure clauses is same
as section 8(1) of RTI actunder which RTI applicant cannot be given any
information. In a report on Preliminary findings of assessment of orders of the
Central Information Commission it is found that 60% of RTI applications were
denied stating that the information is of the nature as specified in section
8(1) and in cases where part of record qualified to be exempted for information
, the whole record was denied.
Similarly in whistleblower protection
amendment bill if any receipt of disclosure is made which subjects to clause
4(1-A) competent authority on receipt of such disclosure refers to an authority
authorized by Central or State government which will give a certificate by the
secretary of government stating that such disclosure falls under section
4(1-A)and hence inquiry cannot be made and the decision will be then binding on
competent authority. If the competent authority is at whims of government in
matters which affects the vested interests of government the act does not serve
its purpose. Disclosure regarding any scams like coal scams, 2G scams, etc may
not be entertained citing grounds of non disclosure under section 4(1)(1-a).
C. In section 4(1-A)(d) disclosure of information relating to commercial
confidence, trade secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party is forbidden. The clause
keeps commercial confidence, trade secrets completely out of disclosure. Nothing
is stated in regards that if the disclosure warrants public interest it will be
entertained by competent authority. This simply means that disclosure of bid
allocation, land purchase , extraction of resources and their manner, trade
secret such as processes of making product which proves hazardous to health of
people and environment will not be entertained by competent authority.
Electronics corporation of Tamil Nadu limited vs Tamil Nadu information
commission, the petitioner corporation rendered assistance to entrepreneurs
setting up information technology company for which they purchased lands and set
up IT parks. They had inspected the fields in the vicinity where 1500 families
worked in a nearby salt pan for 33 years. The survival of 1000 fisherman also
depended on these lands. The reality was that whenever petitioner had set up IT
park the cost of that land escalated . Hence the respondent had sought field
inspection report from petitioner corporation. However petitioner corporation
took shield of section 8(1)(d) of RTI Act. However the court held that,
information for checking suitability of these lands cannot be denied because
larger public interests warrants so. This was an example to illustrate that
there are instances where insider or an outsider knows certain commercial
secrets which warrants disclosure in public interest. The famous example in this
regard is of Satyendra Dubey who had made disclosure of poor building of
D. clause (h) of section 4(1)(1-a) of the whistleblower protection
(amendment)act,2015 prohibits disclosure of information, which would impede the
process of investigation or apprehension or prosecution of offenders. The object
of whistleblower act includes to provide mechanism for any complaint against
willful misuse of power. With increasing instances of custodial violence in our
country and detention of false offenders under political pressure or for ease of
assaulting and self incriminating, interrogating poor, underprivileged without
producing them before magistrate is in all ways safeguarding such police
officials and political parties by discouraging any such disclosures.
4. U.S Whistleblower Policy
A. The False Claims Act
It protects employees who believe that their disclosure reveals a violation of
law, rule of regulation, gross mismanagement, gross waste of funds, abuse of
authority, danger to public health and safety. The law provides a legal
framework to deal with military contractors who defrauded the federal government
by either overcharging of products or providing defective war material including
food and weapons.
B. The No Fear Act
It Was passed to protect whistleblowers against unlawful discrimination and
retaliation by their manager &supervisors. Provisions are laid down to pay
awards for discrimination and retaliation of violence out of the agency budget.
C. whistleblower protection enhancement act of 2012
It was designed to ensure that employees who serve in Intelligence community
or have access to classified information, can effectively report waste, fraud
and abuse while protecting classified information. The act requires each
Intelligence community agency to establish policies and procedures that prohibit
retaliation and create proper internal channel to make protected disclosure.
Recently, Dinesh Thakur, Ranbaxy employee - An American-educated
chemical engineer, was hired by Ranbaxy, back in 2003. He later became a
whistleblower, exposing massive fraud by the generic pharmaceutical giant, a
company that sold Americans drugs like the generic version of Lipitor. His
information led to Ranbaxy pleading guilty to seven felonies in a U.S. court in
May, and pay $500 million in fines and settlements.This shows the
stringency with which US whistleblower acts are enforced.
It is very clear that corruption, frauds, misuse of power and discretion is the
center of government policy to exercise their power , unjustly enrich themselves
at the expense of tax payers money and the confidence with which people had
elected them as their representatives. Government do not want to subject
themselves and their corporations to any inquiry, investigation against
disclosure instead it acts as authoritative body to monitor competent authority
and direct competent authority if it should investigate into disclosure or not.
With increasing Economic offences in India it has became important to encourage
internal whistleblowers to come forward and make disclosures.
As discussed in
the article about U.S whistleblower policy where matters of procurement of
defense equipment, classified information are not kept out of whistleblower
policy even if it constitutes disclosure relating to national security. Also
monetary award becomes payable if any whistleblower is subjected to retaliation.
Whereas in India a whistleblower is not guaranteed any protection and award if
subject to any sort of victimization, the provision of which is not clear in
whistleblower protection act. Section 4(1-A) in whistleblower protection
amendment bill is the same as section 8(1) of RTI act.
The government is
misconstruing the very purpose of both these acts. RTI act is a tool for
obtaining information which concerns public interest whereas whistleblower act
is a mechanism for people to make disclosure of any corruption, fraud etc ,
the inquiry into which will be done by competent authority. RTI act is for
people`s right to access information whereas whistleblower act is to encourage
stand against corruption. Hence, for this purpose if a whistleblower is making
any sort of disclosure be it of national, sovereign importance it must be
inquired for not conducting any inquiry will be turning a blind eye to acts
which can prove fatal to national interests.
1. Whistleblower protection act,2014
3.Critical analysis of the whistleblower protection mechanism in Indian law
4. RTI act,2005
5. Kanika Choudhry, whistleblowing: comparative analysis of India and U.S
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