Whistleblowers’ protection in India vs United States

Introduction

The term whistleblower is derived from the German word “whistle” which means uncovering wrongdoing. In the 19^th century, they referred it to as a sport where the referee blows a whistle to demonstrate foul play by the players this is how the term whistleblower is established.

Foremost, understanding the concept of whistleblowing is vital, ‘Whistleblowing’ is any immoral action, acts violating company rules and regulations, or illegal acts within a company i.e., either private or public and the person who discloses such activities is recognized as a ‘whistleblower’.[1]

The choice of countries is based on the country’s development statutes since the United States is a developed country and India is a developing country. There is a lot of provisions and enactment with regard to the protection of whistleblowers also, these countries have proper WPM (whistle-blowers policy mechanism) which is easy to find out the adequacy and inadequacy of provisions existing also these countries have proper systematic data regarding successes and failure of whistleblowing in various organizations.

Why do they need protection?

To promote the activity of whistleblowing for the welfare of the company we do need to assure the whistleblower distinct protection which will, in turn, result in mitigating corruption and violations and also detecting practices of bribery, and mishandling of funds in the company.

There are case studies as evidence in which the whistle-blowers are adversely affected for being honest and not doing anything wrong but just indicating the alleged illegal acts of others. it’s sheerly because of a lack of provisions and protection. We all agree employees are the primary source of information about what’s occurring in the company.

Only when they get absolute belief and when they feel free without any fear of being threatened with reprisal by any such higher authority then they will blow the whistle with protection. This is why protection for whistleblowers is extremely crucial.

Famous whistleblowers in India

Satyendra Dubay

In the early hours of November 27, 2003, Satyendra Dubey, a project engineer for the National Highway Authority of India (NHAI) who had exposed numerous instances of widespread rule-breaking and corrupt behavior in the construction project, was shot and killed as he made his way to his home after getting off a train in Varanasi.

Mantu was found guilty of murder (Section 302 IPC), robbery (Section 394 IPC), and possessing an unregistered weapon (Section 394 IPC) under the Arms Act. The other two defendants were found guilty of both willful inflictions of harm during the commission of robbery (Section 302/34 IPC) and murder done with a common intention.

The victim’s brother, Dhananjay Dubey, expressed his disappointment following the conviction of the three on March 22. He stated that the defendants were “pure innocent” and that the true criminals were still at large.

The financial and contractual anomalies in the construction project were described in Satyendra Dubey’s letter, which was sent directly to the then-prime minister Atal Bihari Vajpayee. In addition to requests for legislation to protect whistleblowers who reveal corruption, the murder had spurred rallies around the nation.[3]

Salim Baig

He practised ayurvedic medicine in the Moradabad district of Uttar Pradesh, a region more well-known for its delicate brass work than for its sleuths. When Mr. Baig accused the authorities of stonewalling, the state information commissioner fined the local superintendent of police the equivalent of more than $500.

Around this time, Mr. Baig submitted a few requests under the right to information Act for information regarding the sums paid for local roadwork in his area. He claims that as payback, the municipality chairman filed “fake cases” of extortion and rioting against him. Amit Jethwa revealed Gujarati unlawful mining in a forest. The cases were dismissed by the court, and Mr. Baig was awarded damages from the police chief.[4]

Lalit Mehta

Lalit, 36, a civil engineer by training, exposed extensive NREG corruption in Palamu. He was now a danger to the corrupt government officials and contractor lobby. The social audit of NREGS he conducted under the direction of economist Jean Drze was turning out to be the deciding blow to the contractor lobby.

But he was assassinated first. On May 15, the Chhatarpur Police discovered his body in Kandaghati. He appeared to have been strangled, as evidenced by the belt around his neck, and his face had been battered till it was completely deformed. The body was buried by the police the same day as unidentified. Later, it was excavated by his coworkers and transported to his home village, where his final rites were carried out.[5]

Satish Shetty

Sandeep Shetty, a relative of the murdered RTI activist Satish Shetty, had two writ petitions that asked the Bombay High Court to order the CBI to do additional research into the 2010 murder case denied on Friday. Sandeep declared that he will immediately file a petition with the Supreme Court and the Lokpal.

In a report submitted by the CBI in April of last year, which said that no prosecutable evidence had been discovered against four of the six accused in connection with the murder of Satish Shetty, a Pune court accepted it on September 18 of that year. The Pune court’s decision to accept the CBI report was challenged by Sandeep.

IRB Infrastructure Chairman Virendra Mhaiskar, an IRB liaison officer Jayant Danger, a former IRB attorney Ajit Balwant Kulkarni, Inspector Bhausaheb Andhalkar, Assistant Inspector Namdev Kauthale of LCB, and former Deputy Superintend of Police Dilip Arjunrao Shinde were among the six people the CBI had charged in the case.

The CBI stated that it has uncovered no evidence against the four other people, despite the fact that Andhalkar and Kauthale have been charged and are currently free on bail. On March 18, a bench of Justices Ranjit More and Bharti H. Danger issued a ruling on the two writ petitions.[6]

In the United States

Mark Felt

Even though Mark Felt’s narrative is well known, nobody knew who he was until 2005, when Deep Throat was introduced. Felt was an FBI Associate Director who turned informant and assisted in toppling the Nixon administration. Mark Felt: The Man Who Brought Down the White House, a recent film about him, will further elevate Felt, who passed away in 2008, to the forefront as one of history’s most famous whistleblowers, whose influence can still be seen in American politics today.

Felt was selected to lead the inquiry after five men broke into the Democratic National Committee’s offices at the Watergate hotel in 1972. His task was to ascertain whether the White House had been involved at all. Upon receiving orders from above to keep quiet, Felt made the decision that the only way to reveal the corruption and the White House’s involvement was through the media.

Under the alias Deep Throat, he frequently visited with reporters Carl Bernstein and Bob Woodward from the Washington Post, assisting them in learning the whole truth that eventually forced Nixon to resign.[7]

Edward Snowden

Whistleblowing has entered a new era thanks to the digital age. Hackers and whistleblowers alike can have a field day when it comes to accessing secret material because there is so much information available on digital networks. Snowden had a number of high-clearance jobs as a result of his skill as an IT specialist, including employment with the CIA and as a contractor for the US government.

In the course of his employment, he began to become aware of the NSA’s extensive surveillance programme, which he found to be, to put it mildly, troubling. He copied a sizable amount of information that contained numerous facts on their spying and surveillance techniques.

Whistleblowing is one thing, but when it comes to national security, it’s quite another, as the government will always use this as a justification to carry out any actions they see fit and to bring legal action against any suspected violators, regardless of guilt. Today, Snowden is still on the run, looking for political asylum, and taking refuge in nations that support his cause, primarily Russia.

Although the 1998 Intelligence Community Whistleblowers Act provides some protection to whistleblowers, Snowden is not taking any chances because of the sensitive nature of the information he has released.[8]

Linda Trips

Former government employee Linda Tripp covertly taped phone talks with Monica Lewinsky, a White House intern who later admitted to having an extensive physical relationship with President Bill Clinton. Midway through the 1990s, a controversy involving Monica Lewinsky and the president resulted in the impeachment of the Democratic president.

When they both worked in the Pentagon’s public affairs office, Tripp and Lewinsky grew close. Tripp began to covertly record the phone calls with the much younger girl, claiming that she did so on the suggestion of a literary agent. In return for immunity from charges of unlawful wiretapping, Tripp gave Independent Counsel Kenneth Starr, who was overseeing the Clinton Whitewater inquiry, access to the recordings in January 1998.[9]

Enactments in India

The Whistle Blowers Protection Act of 2011 was approved by the president on May 9, 2014.  The government took the reportedly unprecedented step of putting a draught of the bill online and inviting public comment for one month during the discussion, which was closely covered by the media. Law is applicable to misbehavior in the public sector.

The new law was eagerly awaited in a nation where dozens of people have recently been assassinated or injured for exposing governmental and corporate corruption, despite the fact that it does not offer physical safety.

Key highlights of the act:

The law sets a procedure for receiving complaints about allegations of corruption or willful abuse of authority or discretion against any public official and for conducting an inquiry into those allegations.

Sec 11 of the act, also offers sufficient protections against victimization of the complainant.

Sec 4: It permits anyone to disclose a public interest before a Competent Authority, including a public employee. The law has outlined numerous competent authorities in detail. The Prime Minister, for instance, is the competent authority to file a complaint against any union minister. The legislation clearly specifies that no action will be taken by a competent body if the complainant does not verify his/her name and forbids the filing of anonymous complaints.

Seven years is the maximum time frame for filing a case.

Exemptions: Under the Special Protection Group Statute of 1988, the Special Protection Group (SPG) personnel and officials are exempt from the application of the act.

Sec 20 Court of Appeal: Within sixty days of the order’s date, anyone who feels wronged by a decision made by the Competent Authority may file an appeal with the relevant High Court.

Sec 16 Penalty: Anyone who knowingly or recklessly divulges the identity of a complaint will be subject to a fine of up to Rs 50,000 and a period of imprisonment of up to 3 years.[10]

In the United States

In the United States, federal employees are shielded from retaliation by the Whistleblower Protection Act of 1989 in exchange for voluntarily exposing information about dishonest or unlawful acts taking place in a government entity.

This statute, which is often referred to as the WPA, forbids federal agencies from disciplining or threatening to discipline an employee or applicant for sharing information that they feel violated the law, a compliance rule, or another regulation.

Reports of improper management behavior, financial mismanagement, abuse of power, and a possible threat to public health or safety are just a few examples of the leaked material. Federal whistleblower complaints are investigated by the U.S. Office of Special Counsel, which also has jurisdiction over claims of retaliation against federal whistleblowers.[11]

Key highlights of the act:

Sec. 1212: Powers and functions of the Office of Special Counsel

Sec. 1213: Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters

Sec. 1214: Investigation of prohibited personnel practices; corrective action

Sec. 1215. Disciplinary action

Sec. 1216. Other matters within the jurisdiction of the Office of Special Counsel

Sec. 1217. Transmittal of information to Congress

Sec. 1218. Annual report

Sec. 1219. Public information

Sec. 1221. Individual right of action in certain reprisal cases[12]

Comparison

Although a whistle-blower is protected by Indian law, this protection is not as strong as it is in the US, where a distinct organization handles such cases. Entities listed on stock exchanges are required under the Companies Act of 2013 to establish an audit committee to look into whistle-blower concerns. It also offers protection against being victimized, but it does not offer a system to shield them.

The policies created by the businesses themselves serve as the sole basis for the protections.[13] In this essay, we have seen that there are much more laws in the United States than in India, with only one law having been passed in India in the past year. The definition of whistle-blowing in India was relatively limited, whereas in the United States, specific laws and solutions are in place to address the issue.

The need for the introduction of these laws in the United States of America has been sparked by the ongoing media exposure of corporate and government wrongdoing in the United States. We can now imagine that additional laws have been passed in India as a result of public pressure and widespread corruption.

There are numerous recommendations that India should go by, including the need for our media to be more proactive in disclosing information that is detrimental to the people or employees of an organisation. The government should create specific laws to address certain issues because generic legislation might not be successful.

In contrast to American law, Indian law has significant flaws, such as the absence of protection for whistle-blowers’ families. It is strongly advised that the Indian government adopt legislation that provide them with overall protection because whistle-blowers may be protected under Indian law but not by provisions protecting their family members or careers.[14]

Recommendations

There must be more to a whistle-blowing policy than just words on paper. The creation and adoption of a whistle-blower policy will neither promote moral behaviour or safeguard your business. To protect whistle-blowers from retaliation and other risks associated with their actions, the employer must adhere to the policy.

Organizational culture must encourage ethical considerations and provide opportunities for employees to act morally and responsibly. Whistle-blowers must be given the opportunity to express their concerns in an anonymous manner, and their anonymity must be upheld.

Our survey led us to the conclusion that while 72% of firms enable whistle-blower complaints to be made anonymously while maintaining anonymity, they still need to be improved further to encourage employees to voice their grievances and guard against reprisal.

To motivate employees to report misconduct, management must implement training programmes, establish the proper channels for doing so, and provide financial incentives. To properly raise the ethical concerns, whistle-blower policies must be enhanced.

The following can be done: Include a description of the policy in the staff handbook and contract. Include the policy in newcomer orientation packets. Use advertising poses while moving around the structure. Hold employee meetings and regular, small team gatherings. Put the policy online for staff to access.[15]

Conclusion

As per the above analysis, it is apparent that whistle-blower protection plays a major role in strengthening the organisation. As a result of a comparison study between India and the United States protection statutes for whistle-blowers, it is evident that US laws are more effective than Indian laws.

References:

[1] https://www.researchgate.net/publication/319985327_Whistle_blowing_Facing_challenges_in_India

https://journals.sagepub.com/doi/full/10.1177/0974686218769198

[2] https://www.researchgate.net/publication/319985327_Whistle_blowing_Facing_challenges_in_India

[3] https://www.thehindu.com/news/national/Three-get-life-in-Satyendra-Dubey-murder-case/article16625349.ece

[4] https://www.bbc.co.uk/news/world-south-asia-12696470

[5] https://www.downtoearth.org.in/coverage/nrega-activists-who-paid-with-their-lives-lalit-mehta-jharkhand-4727

[6] https://indianexpress.com/article/india/satish-shetty-murder-case-bombay-high-court-cbi-probe-accused-5734333/

[7] https://www.britannica.com/biography/Mark-Felt

[8]https://www.aclu.org/news/national-security/edward-snowden-whistleblower

[9] https://www.employmentlawgroup.com/timeline-us-whistleblowing/

[10] https://www.drishtiias.com/daily-updates/daily-news-analysis/whistleblowers-protection-act

[11] https://www.techtarget.com/searchcio/definition/Whistleblower-Protection-Act

[12] https://www.oig.doc.gov/OIGPublications/WP_Whistleblower-Protection-Act-of-1989.pdf

[13] https://www.thehindubusinessline.com/companies/why-indias-whistleblower-protection-programme-is-not-as-effective-as-that-in-the-us/article29794564.ece

[14] https://www.academia.edu/9901507/WHISTLE_BLOWING_COMPARATIVE_ANALYSIS_OF_INDIA_AND_U_S

[15] https://www.researchgate.net/publication/319985327_Whistle_blowing_Facing_challenges_in_India

This article has been authored by Muthulakshmi B, a student at Sastra University, Thanjavur.