It has been written by Ragini Sehgal and Sanuj Kanwar, students at UILS, Panjab University, Chandigarh.
It has been published by Rachit Garg.
Table of Contents
Daniel Ellsberg was a world-renounced whistle-blower and a military analyst, responsible for leaking the ‘Pentagon Papers’ in the year 1971 which led to the end of the Vietnam War, has recently passed away on June 16, 2023, at the age of 92, due to pancreatic cancer, sparking the discussions on the concept of ‘whistle-blowing’ all around the world. Whistle-blowers are those individuals who disclose certain secret public information, that had been concealed by the public authorities to bluff the general public. The concept of whistleblowing and the protection of whistleblowers in India, with a special reference to the real-life case of Satyendra Dubey, has been intricately discussed in this blog post.
The concept of whistle-blowing
A whistleblower is a person who reports or exposes illegal, unethical, or fraudulent activities happening within a public organization or Government, by risking their own job security and facing retaliation for bringing out the malpractices and corruption. Whistleblowers play an important role in holding powerful organizations and individuals accountable for their actions and helping to prevent harm to the public and the environment. The main advantage of whistle-blowing is that it can provide a detailed account of the manner of corruption, which might not be possible through the annual internal reports by investigating authorities. Also, the missing links of such reports of corruption and maladministration can be provided by these whistleblowers, which might also possess sufficient proof regarding the same.
Satyendra Dubey: the unsung whistle-blower of India
Satyendra Dubey was one of the first whistleblowers of India, his major role being highlighted in bringing out the corruption in the functioning of the INR 600 billion ‘Golden Quadrilateral Highway Construction Project’, initiated in 2001 by then Prime Minister Atal Bihari Vajpayee. It was the largest highway project in India and 5th longest highway construction in the world.
From the very beginning, Satyendra Dubey was brilliant in studies. He did his bachelors in civil engineering from IIT Kanpur and completed his master’s from Banaras Hindu University. After his master’s, he went ahead to join the Indian Engineering Service. Thereafter, he got deputed to NHAI in July 2002, where he became project director in the construction of certain sections of NH-2, which was a part of the Golden Quadrilateral Project. During his period of deputation in this project, he revealed the corrupt practices carried out by the engineers, the financial irregularities by the construction authorities, the low quality of construction material, etc., about which he complained to his senior and in return got a transfer letter by which he was transferred to Gaya, Bihar. Again, he observed the same sort of maladministration and corruption in the construction, he got 3 engineers suspended and re-constructed 3 km of under-quality road. Thereafter, he wrote a letter to the Prime Minister about the continuous maladministration of funds provided for construction purposes, The Prime Minister further wrote a letter to the Ministry of Road Transport and Highway in which his identity was revealed.
One day, while returning to his place after attending a wedding, Satyendra Dubey got mysteriously murdered, and the matter was sent to the CBI for further investigation The CBI’s report revealed that it was a robbery-murder case, but what made the matter mysterious is the murder of many eye-witnesses of the case, and the main accused also escaped away from the jail.
This led to widespread outcry in the public, which pressurized the Government to implement the Information Act of 2005, followed by the Whistleblower’s Protection Act of 2014, for the protection of the whistle-blowers and for protecting the anonymity of their identity.
Sparks for protection of whistleblowers
The Right to Information Act, 2005 was not the first time when a need was felt for the protection of whistleblowers in India. There were many other proposals prior to the RTI, for such purpose.
In 2001, the Law Commission of India proposed provisions for the creation of an authority to monitor and prevent corruption in the Public Departments.
Further, in 2004, Public Interest Disclosure and Protection of the Informer (PIDPI), was brought as a resolution by the Government of India to lay down guidelines for the protection of those who disclose information (regarding maladministration and corruption) in the public interest. This resolution was provided to make Central Vigilance Commission a monitoring body to receive such complaints and allot the cases to respective departments for further investigation. This Commission was made responsible for keeping the anonymity of the identity of the discloser.
Also, in 2005, UN Convention against Corruption was signed by India, which bestowed a greater responsibility upon the Government of India to take steps towards the protection of whistleblowers. In the same year, RTI Act was brought in light, as discussed in the following section.
RTI, 2005: a weapon of self-defence for the whistle-blowers
The Right to Information Act of 2005 is also known as the ‘twin sister of whistle-blowing’, because it has helped whistleblowers to collect the relevant data, in order to support their allegations against public departments, under the veil of being called as the ‘RTI Activists’. By seeking the information relevant to their demand, they have brought out a certain degree of transparency in the system and tried to bring the corrupt practices out for the public to criticize.
But the major drawback of this Act has been the lack of availability of information and the delay in processing of RTI Applications by the relevant public authorities. RTI Act brought about a ray of hope among the whistle-blowers, but their protection was put at even a greater degree of risk, as is evident from the increasing number of the killing and threats to the RTI activists and their families, Bihar and Maharashtra being a testimony of the same, as the states have witnessed the greatest number of deaths of RTI Activists. This is done by the people having power and authority in the Government, who use such power in order to curb any such source of information that can bring out their corrupt practices to the public.
Due to such a deplorable state of the whistle-blowers, even after the implementation of the RTI Act, the public pressurized the Government to work in a better way and bring further reforms to protect the whistle-blowers from such a danger-prone situation.
Furthermore, the Companies Act of 2013 contained certain provisions for the creation of an anti-corruption body/wing for every public office which would receive information regarding corruption in the department and would protect the life and tenure of such employees who disclose this information for the greater interest of the department.
But still, an Act targeting particularly the problems of whistleblowers was required, which led the Government to implement the Whistleblowers Protection Act of 2014.
Propelling through the Whistleblower’s Protection Act, 2014
The Whistleblowers Protection Act (as a bill) was passed in the year 2011 and was later implemented in 2014. It provides a mechanism for receiving complaints against corrupt public servants, those who are indulged in gross and willful misuse of their public post, and complaints against maladministration in certain public departments The Act further provides the procedure for enquiring into such a matter after the receipt of a complaint. This Act aims to keep the identity of such whistle-blowers anonymous, so as to prevent their victimization by the powerful public authority holders. It further aims to create such a system so as to encourage the whistleblowers to disclose such information in the public interest without any fear as to pressurize the corrupt public servants to work in the prescribed bona fide manner.
The Act attempts to organize the process of whistle-blowing by specifying the authority to which a complaint can be made while complaining about a certain post-holder, for instance, any complaint about the corrupt practices of a Union Minister has to be made to the Prime Minister, which can be done even through a letter or an E-mail. Also, the Act has set a limitation period for a complaint to be filed, i.e., 7 years from the date of the event or action of the public servant, which is complained of.
Also, certain provision has been made to check the misuse of power by the whistleblower. If after the inquiry, the complaint is found perverse or baseless, then the whistleblower can be charged with a fine up to INR 30,000 or imprisonment up to 2 years, or both. But this provision has been criticized at large because it contradicts the provision that the identity of the whistle-blower would be kept anonymous.
Also, anonymous complaints are not accepted under this Act and the complainant has to specify his identity and contact details to the authority receiving the complaint, and it is the duty of the receiving authority to keep the whistleblower’s identity anonymous. Also, the identity of the public servant being complained of is to be made clear by specifying who is the public servant referred to in the complaint, what post he is holding or has held, when did the cause of action arise, what exactly was the corrupt act, what are the allegations against him\her and what all proofs are available with the complainant, etc. Further, the complainant has to give a personal declaration in bona fide faith, declaring that the information given by him is believed to be true and correct, and not in a mala fide manner.
But this Act yet again has proved to be a failure as the number of whistleblowers being victimized is still continuously increasing, and their identity is not kept anonymous by the authorities receiving the complaints, as the receiver and the authority being complained of, are both public authorities, and both are in contact with each other, which leads to manipulation and mishandling of the complaints, resulting in the whistleblower becoming the target of such public authority.
Also, in 2019, SEBI published another regulation under SEBI(Listing Obligations and Disclosure Requirements) Regulation, 2015, to prevent ‘Insider-Trading’ and made provisions to reward those whistleblowers who disclose the employees/persons indulged in the practice of insider trading in the Government Companies. All these steps proved to be a success to a limited extent and yet left a huge void to be filled by further actions of the Government for the protection of the whistleblowers.
What can be the way forward?
The Parliament, by law, or otherwise, should constitute such an independent body, to look into the complaints by the whistleblowers, and that body should further ask the relevant authority to conduct an inquiry in the concerned department, without revealing the identity of the whistleblower to that public authority. Also, this independent authority should be bestowed with judicial powers so as to penalize any such person who is found responsible for leaking the identity of the whistle-blower.
The scope of this Act had been limited to the Public offices, and the internal systems of the private companies are not sufficient to combat the corruption in these offices, hence, certain provisions should be made to regulate and protect whistleblowing in the private sector especially because of the lack of job-security in this sector.
The whistle-blower is penalized for making false complaints under the 2014’s Act. In a similar manner, certain penal consequences should be imposed on those, who are found responsible for hampering the anonymity of the identity of the whistle-blowers. Further, a proper and unbiased investigation should be carried out by the relevant authorities in the cases of mysterious deaths of the RTI activists and the whistle-blowers, in order to punish the actual criminals.
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