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Behind Closed Doors: The Silent Revolution of Whistleblower Laws in India


Author: N. Pompi Devi, Institute of Law, Nirma University


Introduction

Years of progress has brought about an era of infinite growth and improvements. However, the aspect of powerful entities shielding themselves behind walls of secrecy is yet to be implored more. Under these circumstances, “whistleblowers” or those who are predominantly engaged with throwing a light onto the behind-the-scenes corruption, fraudulent trade secrets, etc. emerge as heroes who jeopardize their own safety for the welfare of the greater good.

Their revelations play the most important role in uprooting corrupt government practices, exposing million and sometimes even billion-dollar scams, amongst other factors while keeping public interest to the very forefront. Despite such positive impacts, India’s existing framework when it comes to protecting the interests of these whistleblowers remains largely fragile. The lack of development or analyses of the framework has led to loopholes within the system itself which has led to promotion of activities that lack transparency as well as unfair retaliation. Hence, keeping all of these aspects into consideration, the blog delves into the existing framework of India’s stance on whistleblower protection and also focusing on the proactive reforms that can be instituted so as to protect the heroes without capes. 


The Legal Genesis: A Law Born of Tragedy

India’s journey of bringing forth legislation for the protection of whistleblowers was one wrought with ups and downs. The murder of Satyendra Dubey who was killed in the year of 2003 prompted the start of whistleblower protection activities in India. He was a project director in association with the National Highways Authority of India who was promptly killed for exposing the corruption brewing within the ambit of the Golden Quadrilateral Project. This led to massive public outcry which led to strong and decisive demands for reforms. 

The assassination of Satyendra Dubey led to the introduction of the Whistle Blowers Protection Act (2014) which was largely focused on ensuring a means through which any complaint with regards to corruption or the unfair utilisation of powers can be received. Although the Parliament had passed the act as well as its official notification, the lack of inaction on the part of the government due to interpreted hesitation has led to no effective commencement of its operation. 

Moving forward, the Government then drafted a bill and brought forth the Whistle Blowers Protection (Amendment) Bill 2015. It immensely diluted the provisions introduced in the 2014 act and kept the requirement of protecting any secrets in the form of information under the Official Secrets Act (1923). This enabled the government to protect a large variance of its actions from the scope of public scrutiny. Rather than the bill establishing some form of protection for the whistleblowers under the Indian jurisdiction, it seemed to be having the underlying objective of protecting the state.

This resulted in the Act having a rather diluted and useless role under the ambit of protecting the individuals classified as whistleblowers. Despite the multiple objections and critiques raised by experts, legal scholars and international watchdogs, the Bill still serves to be a dark cloud that could any time reverse some of the changes brought forward by the Bill.


Corporate Whistleblowing: SEBI Takes the Lead

In a surprise turn of events, although the central legislation fails to catch up with the current requirements of whistleblower protection, the regulatory institutions of India have practiced a more proactive approach. Taking the example of the Informant Mechanism formulated by the Securities and Exchange Board of India (SEBI) in the year of 2019, is a safe mechanism of not only ensuring that complainants retain their autonomy, but their risks are rewarded with monetary benefits. 

In furtherance, normative measures like those listed under the Companies Act 2013 and the Listing Obligations and Disclosure Requirements (LODR) under the ambit of Securities and Exchange Board of India mandates that all listed companies should have a reporting mechanism that is void of any faults and also ensures transparency in its functioning. Doing so promotes a healthy environment in which complainants can bring forth genuine information in relation to internal frauds or tipping off without having to worry of strong repercussions. Unfortunately, such mechanisms are still yet to be properly developed and hence is very limited in its functionalities such as that of having a neutral oversight.


The Cultural Barrier: Silence Over Courage

India is a country that is bound by its roots of rich history, traditions, and deep-rooted cultures. As such, it becomes a conclusive understanding that a more in-depth analysis is required to foster an environment that is not hostile towards whistleblowers, keeping in mind that legislation alone cannot bring about such a change. Largely, the cultural narrative often dictates an understanding of those who expose the internal wrong doings of others in a negative light. As such, it leads to the terming of whistleblowers to either be as not trustworthy or traitors. This obviously leads to the preference of silence, even if there is blatant misuse of powers or fraudulent practices.

It must also be noted that the preferred silence over spoken truth may be attributed to facing emotional harassment such as that of professional isolation and even to the extent of suffering from physical assault. As such, it leads to the understanding that there is always a detrimental side effect as a result of speaking up the truth. This apprehension is further deepened by the absence of an anonymous yet neutral mechanism that ensures security.  


Judicial Recognition: A Flicker of Hope

Despite the many shortcomings of the current legal framework in India, the judiciary has occasionally recognised the importance of protecting whistleblowers which brings about a flicker of hope in there being good reforms. In the case of Manoj H Mishra v. Union of India (2013) the Supreme Court promulgated the need of ensuring that the security of whistleblowers are not jeopardized and implored that their vulnerability is a cause of great concern under the existing framework. Additionally, in the case of Centre for PIL v. Union of India (2011), the court expressed that whistleblowers play a very important role in securing democratic principles. 

It must be understood that despite such recognition by the courts, the judiciary still has their hands tied in the absence of a strong and operating legal framework.


The Road Ahead: Towards a Culture of Courage

The emergence of technology has immensely infiltrated India’s ecosystem which makes it more digital and data driven. This leads to newer opportunities to enable whistleblowers’ access for reporting any form of unfair or corrupt practices. However, such developments put India at a crossroad since the existing framework for the protection of whistleblowers largely remains to be ambiguous. 

As a result, it must become a priority to ensure that the whistleblower protection framework under the Indian jurisdiction becomes effective enough to actually perform its obligated duties. This can be done through a multi-faceted reform strategy that can first focus on operationalizing the 2014 Act without the inclusion of the 2015 regressive amendments. It can also in furtherance contemplate on the requisites of establishing independent authorities that can create safe mechanisms for filing complaints while maintaining anonymity of the complainants. It can also ensure that there are timely investigations done as a follow up to the complaints. 

Whistleblowers often go against big corporations to expose fraudulent practices, most of the time at the cost of their own personal safety and welfare. As such, their courage to speak up has led to the safeguarding of public interests, funds, exposed institutional frauds and failures, etc. Despite all of these acts of bravery, the legal framework of India fails to reciprocate by protecting them from any mental or physical harm. 

Henceforth, the public welfare actions taken by whistleblowers then becomes a strong imperative to institute changes and constitute its operations. A whistleblower protection framework with the least number of loopholes is not only a legal obligation but also a moral one. It requires for India to leave behind its culture of silence and adopt a system of supporting those who speak up for the benefit of the public at large.


References


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