WHISTLE BLOWERS

A NATIONAL FORCE TO COMBAT CORRUPTION

          “The lawyers have an affirmative whistle-blowing obligation to report other lawyers violating rules of ethics.” said Hon’ble Shree.  K.G. Balakrishnan, Chief Justice of India in the address at the National Seminar of the Bar Council of India at Cuttack on 14.4.2007. On 26^th November 2007 in an address to the nation on the “State of Administration of Justice” on the occasion of Law Day the Chief Justice Shree. K.G. Balakrishnan again observed “Corruption in the judiciary has become a highly talked about issue in recent times. A single judicial scandal can shake the confidence of the public in the whole judicial system. Corruption deserves to be curbed with an iron fist, whenever it is detected and ascertained beyond doubt. It is said that for every corrupt judge, there exist the inevitable corruptors in the form of lawyers, litigants, trustees and receivers, ministerial staff and intermediate agents or touts. Most are officers of the court and are bound by the same ethical and moral standards as judges. Thus, they have an affirmative whistle-blowing function to report incidents of others violating rules of ethics. It is the duty of lawyers to uphold rule of law and it is with the help of the members of the legal profession that a sense of security can be inculcated in the mind of the common man.”

India was shocked by the murder of Satyendra Dubey, a government engineer who exposed corruption in the national highway building program. India was rocked by the murder of Shanmughan Manjunath, a manager at a state-owned oil company whose body was found riddled with bullets in the back seat of his car for his cause to fight against selling of impure gasoline. The death of Dubey invited nation wide protest and demanded action. Hundreds of people are murdered every day all over India. What makes the death of Satyendra Dubey so very special? May be becusae of the unfulfilled of the dreams of an young IT enginer. Secondley  It is because of the ideology he hold against corrupt practices in the country.

It is now well established that Dubey's letter to the Prime Minister giving details of the corruption in the Golden Quadrilateral highway project, was routinely circulated. This in spite of the writer's earnest request that his name should not be disclosed as he feared vengeful reaction from the people involved in the scam. As it happens, Dubey's courage was not foolhardy: he anticipated trouble and wrote a second letter, again requesting anonymity. That too was ignored. Whether the Prime Minister's Office (PMO) did this deliberately or just through the usual carelessness isn't established, but the net result was that the whistle-blower's name fell into the hands of the very people against whom the whistle was being blown. With what consequences we all know.

The callousness of the administration which was yet another factor doesn't end there. It ended finally in the killing of this young dynamic, energetic and honest Engineer.

The Telgi fake stamp paper scandal went on for years, crossed State boundaries, deprived the government of hundreds of crores of rupees and would have continued to do so hadn't it been for a whistle-blower (in the Pune police department) and an activist with a conscience and a Gandhian approach (Anna Hazare). This is precisely why governments of all ideologies rush through acts like the Prevention of Terrorism Act (POTA), which gives the police powers of arbitrary detention of "other people", while ignoring proposed legislation like the Public Interest Disclosure (Protection of Informers) Bill (PIDB). Significantly, both POTA and PIDB were drafted by the same man at the same time. Former Supreme Court Justice B.P. Jeevan Reddy submitted both drafts two years ago. The response to POTA was a rare joint session of Parliament; the response to PIDB was the usual dusty shelf. If the Protection of Informers Bill had been made into law, Satyendra Dubey might still have been alive today. India has recently passed a federal Freedom of Information Bill in 2003 however it does not have a Whistleblowers Act recommended by the Constitution Review Commission in 2002. Moreover a draft bill on public disclosures recommended by the Law Commission lies in cold storage. Satyendra Dubey's death merits attention and a subsequent Public Interest Litigation urges the Supreme Court to direct the Centre to evolve a system to ensure protection to anybody who complains to the Government against corruption.

Some thing common is felt in all whistle blowers. They have one thing in common — a strong sense of right and wrong. And the “go ahead” and ‘blow the whistle’ even if they become ostracized from friends and co-workers or are fired. In fact, harassment and victimization of whistleblowers is the norm inspite of legislation, or they are ignored. That is why America has NGOs such as the National Whistleblower Center to counsel people on the consequences of their action and to handhold them and provide them with legal assistance during their battle. India too needs such counseling as much or more than it needs a Whistleblower Act, only then can we prevent other Dubey’s and Manjunath’s  from paying with their life for exposing corruption.

What is whistle blower and who is whistle blower?

The term whistleblower derives from the practice of English bobbies, {In England, one of the most prominent was the Thames River Police, created by the powerful West India Trading Company in 1798. The Thames River Police, numbering about 80 full-time men was so effective. World’s fisrt permanent police force was the  vision of 41-year old statesman Robert Peel, later a two-time Prime Minister of England. As the founder of the police force, the men on patrol became known popularly as "peelers" or "bobbies." The former nickname faded away and the moniker "bobbies" lives on today. The British police, popularly known as “bobbies,” wear a uniform that is nonmilitary in appearance. Their only regular weapon is a short, wooden truncheon, which they keep out of sight and may not employ except in self-defense or to restore order. Police on a dangerous mission may carry firearms for that specific occasion}  who would blow their whistles when they noticed the commission of a crime. The blowing of the whistle would alert both law enforcement officers and the general public of danger.

Law encyclopedia defines whistle blower as a person who disclosure, usually an employee, in a government agency or private enterprise; to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing.

The word whistle-blow is commonly understood to have the meaning to ‘go’ or to ‘start’ or to ‘move’. In effect the word has a meaning of an act of moving. In the subject of tackling corruption this word has a different meaning and sense. It means to ‘say openly’ of an inside matter by an insider to an outsider. More elaborately, to speak to the open world, either to the superior or to the public, about a matter which an insider sensed, heard or saw and which he among others inside are knowing, but have no moral courage or morality or honesty to speak out, for a good cause, with out any illegal or unholy motives. So the intention of the Whistle-blower is important. Whistle blowing must be with a good intention for a noble cause.

There are  two kinds of whistle blowers. [1] internal whistleblowers and [2] External whistleblowers.

[1] Internal whistleblowers report the misconduct to a fellow employee or superior within their company.                                                                       [2] External whistleblowers report misconduct to outside persons or authorities. Whistleblowers are commonly seen as selfless martyrs for public interest and organizational accountability; others view them as useless people trying for personal glory and fame.

Legal protection for whistle blowing varies from country to country.

In the United Kingdom, the Public Interest Disclosure Act 1998 provides a framework of legal protection for individuals who disclose information so as to expose malpractice and matters of similar concern. It protects whistleblowers from victimization and dismissal.

In the US, there are several acts in which legal protections vary according to the subject matter of the whistle blowing, and sometimes the state in which the case arises.

The Lloyd-La Follette Act of 1912, Water Pollution Control Act of 1972, Safe Drinking Water Act (1974), Resource Conservation and Recovery Act (also called the Solid Waste Disposal Act) (1976), Toxic Substances Control Act (1976), Energy Reorganization Act of 1974 (through 1978 amendment to protect nuclear whistleblowers), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Superfund Law) (1980), and the Clean Air Act (1990). Surface Transportation Assistance Act (1982) to protect truck drivers, the Pipeline Safety Improvement Act (PSIA) of 2002, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), and the Sarbanes-Oxley Act, enacted on July 30, 2002 (for corporate fraud whistleblowers) are examples of such Acts..

The democracies like USA, UK, Australia and New Zealand have whistleblower protection. With one telephone call to the media, one video on YouTube, one letter to the right public official, a corrupt company can be brought to its knees by a whistleblower. In the United States, for example, more than US $8 billion has been recovered as a direct result of whistleblowers’ actions. Whistle blowing can be an effective way to deter and detect corruption both in the private and public sectors and it provides better information flows, which increase the chances of successful prosecutions in corruption cases. But in order for whistle blowing to be an effective tool to fight corruption, legislation and clear processes are essential.

Legal protection for whistle blowing is different in each country.

·        In India the Central Vigilance Commissioner is vested with the responsibility of protecting the identity of informants, follow-up on information received, investigate if thought fit, and initiate criminal proceedings if required.

·        In the United Kingdom, the Public Interest Disclosure Act 1998 protects whistleblowers from victimization and dismissal.

·        In the United States, legal protections vary according to the subject matter of the whistle blowing, and sometimes the state in which the case arises. During 1988 the American Senate and House passed Whistle-blowers Protection Bill, but vetoed by President Reagan. This bill has never come up in the history of U.S.A. there after.

·        Canada enacted legislation three years ago to create a new employment-related intimidation offence, protecting employees who report unlawful conduct within their company. But there is no legislation to encourage private sector employees to speak out when their employer pays foreign bribes. CBC News reported that up to US$100 million out of a US$250 million fund was misused in a Canadian sponsorship scandal for a program promoting federalism in Quebec, through federal contracts that were paid for but for which little or no work was done. The scandal was revealed by Allan Cutler, a federal employee responsible for negotiating federal ad contracts, and was responsible for bringing down the Liberal Party of Canada in the 2006 elections, after 13 years in power. Cutler was subsequently fired, although later reinstated. In France, although the law protects civil servants who blow the whistle good faith, its effectiveness remains uncertain. No law protects employees in the private sector.

·        In France, a long standing secret was revealed in 2004: the identity of ‘Mister X’, the whistleblower who broke the Executive Life scandal. This scandal involved the illegal purchase, including kickbacks, of US company Executive Life by Credit Lyonnais. In the 1990s, Francois Marland, an intermediary between Credit Lyonnais, a French bank, and French insurer Maaf, blew the whistle to US prosecutors on the purchase of Executive Life, which violated restrictions on foreign ownership of US insurers, according to the Insurance Journal. That scandal and the ensuing settlement cost the bank US $771 million, including US $475 million paid for by French taxpayers. For his role in revealing the scandal, Marland received a US$715 million payout from a consortium of French bankers in 2005.

·        The German federal government approved a bill to allow civil servants to report serious crimes – including corruption – directly to a prosecutor instead of to their immediate superior; a second bill will cover civil servants. Both are pending before the Bundestag. No specific whistleblower-protection legislation applies to the private sector, though this is under consideration.

·        A Japanese law enacted in 2004 that took effect in April 2006, offering protection to public and private sector whistleblowers. The Unfair Competition Prevention Law protects whistleblowers who file complaints about foreign bribery.

·        Korea’s Anti-Corruption Act protects whistleblowers in state-owned companies, but no law encourages whistle blowing or protects whistleblowers against reprisals for exposing corruption in the private sector. Reports of bribery in the private sector therefore remain uncommon.

·        In New Zealand, the Protected Disclosures Act covers employees who report serious wrong-doing in the public interest, including bribery. But the legislative provisions have not been tested and may be no stronger than existing law.

·        Sweden has no specific whistleblower protection. Public servants are protected if they tip off journalists, and cannot be dismissed without "grounds of fact". However, the many other ways of harassing a whistleblower are not prohibited. A regulation in the Penal Code concerning "interference in a judicial matter" may offer some protection.

·        The Swiss government is moving to strengthen whistleblower protection. In February 2007, the Swiss Agency for Development and Co-operation opened a compliance office to motivate whistleblowers to report bribery and other malpractice. More and more private companies are opening whistleblower hotlines.

·        Case study: Switzerland’s most famous whistleblower is Christoph Meili, a Zurich night watchman who noticed that files documenting Jewish Holocaust bank accounts were systematically being destroyed by UBS Switzerland. His actions led to breaking the secrecy in banking circles and to an US $1.25 billion payment to Holocaust survivors. Meili suffered personally from exposing the truth, however. He was fired, received death threats and was investigated by the police for breaking Swiss banking secrecy laws, forcing him to seek asylum in the US, The New York Times reported. Although he successfully sued his former employer, resulting in an US$1.25 billion settlement, he never received much of that money, and is currently still working as a watchman in California.          

The need for a Whistle-blowers (Protection) Act in India is felt very heavily because India is ranked high in the level of corruption in the Global Competitiveness Report Index and Survey of the Political and Economic Risk Consultancy Ltd., Hong Kong.

In India a public servant is reluctant to give an open mind to others for fear of not the protection of law but of the distrust and lack of morality and honesty and fear of political, money and mussel power. Whistle-blower in its broader connotation is to say openly about the corruption in his own office by a public servant or department or minister or government.

A protection of law to a Whistle-blower will be boosting his moral fiber to disclose the corrupt practices in his knowledge. This is not a confidential or clandestine disclosure but to the superior or to the public through medias. So a protection far away similar to Section 24 of the Prevention of Corruption Act 1988 is needed.                 

Sec. 24. Statement by bribe-giver not to subject him to prosecution.              Notwithstanding anything contained in any law for the time being in force, a statement made by person in any proceeding against a public servant for an offence under Sections 7 to 11 or under Sections 13 or Section 15, that he offender agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under Section 12.

The Whistle-blower needs to be protected from

Ø     His own co-employees from the same office,

Ø     Out side corrupt officers,

Ø     Unions

Ø     Politicians and their followers

Ø     High level officers, and

Ø     Others who are interested in Corruption. The above categories are not applicable to all. But a & b are common to all.

When an act is promulgated and came into effect the Whistle-blower is in an advantageous position of protection of law and feeling dutiful and bound ness of the government machineries to protect the whistle-blower.

There are merits and demerits for this concept of tackling corruption.

Merits

Ø     The information is more authentic and reliable than an anonymous or pseudonymous petition.

Ø     The Whistle-blower is opening his mind after the subjective satisfaction of the matter by legal evidences other wise he will liable to answer under the penal provisions for defamation.

Ø     The Whistle-Blower can pass over several important information to the agency to which he discloses the secret because he is one of the competent people who know A to Z of that office.

Ø     The Whistle-blower for the others in the office etc is in a protective area under the Act. This will attract others also to whistle-blow for a better future of his country.

Demerits

1)     An open say of corrupt practice in an office or else where will give a message to the corrupt in an early and comfortable time in advance to destroy the evidences without keeping any traces at his convenience.

2)     An Act alone will never protect an honest Whistle-blower front the complained or opened or disclosed corrupt officer. Several factors are related to this. A general feeling of the common people is that the lawgivers are not the law protectors.

3)     The Act is the creation of legislature, which contains the politicians who are corrupt, and they will insist for some high technicalities and loopholes.

4)     The trust among the officers of the same department or office will loose. When a fellow worker openly say about the corruption in his office he will branded as a distrust man and he will banned from all officials functions like sendoff and promotion.

5)     An honest can be very easily bannered as corrupt by the other corrupt with out his knowledge. Such an intimidation may finally find a place for him behind the bars with fake and forged evidences in a judicial evidentiary system prevailing in this country. It is not the truth that is enquired it’s the justice that has to be found out by depositions after oath and keeping mum theory. Where in a country posthumous pardons were rarely given for murder cases after a long legal battle a fear of honest to whistle blow.

6)     Whistle-blower life will at stake in serious disclosures. Personal intimidation, physical assault harassment torture both mentally and physically social out casting fear of security of the family members etc will be major demerit for the disclosure the name or the identity of the Whistle-blower. In a country where the political, money and muzzle power is the order of the day no Act can protect a Whistle-blower is a fact known to the Whistle-blower.

7)     An average Indian is rustic lay labourer. He gives bribe for his satisfaction for getting his things done.  He is having no sense of guiltiness in doing this ugly transaction. In other levels mere money is not sufficient to satisfy a public servant minister etc it includes items in kind and call girls. In such society no body considered bribery as sin, so the Whistle-blower may not socially boosted for doing a disclosure.

8)     People give bribe and take bribe. This give and take policy, the speed money and mamools shows the moral degradation of the society as a whole. The moral degradation of the society will not allowed a person to blew the whistle or allowed others to be Whistle-blowers. Then who will ring the cat’s bell?

The Whistle-blower must not have any selfish motives. His hands must be clean. He should blow the whistle out of moral, honest and principal orientations and ideals. The Whistle-blower should follow the principles of Writ jurisdiction. He must exhaust the basic remedies and as a final approach he can disclose the corrupt practices openly. Whistle-blower must satisfy himself about the genuineness and reasonability of his action. The test of reasonability and prudentially is important before a disclosure. A wrong Whistle-blowing may destroy the reputation of honest public servant/public men. A Whistle-blower if ready to face the legal consequences can be an approver or co-accused or co-conspirator[1].

Various studies have shown that whistle blowers are subjected to

1. Isolation & humiliation

2. Formation of anti-you" group

3. Organizational stonewalling

4. Questioning one's mental health

5. Unusually close observation of what one says and does

6. Vindictive tactics to make one's work more difficult or insignificant

7. Talk about so called generous severance packages

8. Assassination of one's character

9. Disciplinary hearings before one has had a chance to address one's concern and

10. Possible suspension

          Whistle-blowers are not duty bound to blow the whistle when they are legally protected under the Act. A statutory warning is to be given as in the case of recording of confession statements u/s 164 of the Code of Criminal Procedure. That he is not legally bound to disclose the matter, which is under his exclusive knowledge as an insider.

          As a trial run Whistle-blowing can be implemented as an internal affair of some offices more popular for corruption without widely adopting it. So that the pros and cons m can be identified, tested and studied[2].

The tendency to corrupt activity is move serious and deleterious than actual catch of a corrupt officer while demanding and accepting illegal gratification[3].

Complaints can be lodged with the Central Vigilance Commission (CVC) by furnishing information regarding the corrupt practices/abuse of power for personal gains by employees of Central Government and Corporations and Companies of the Central Government. Specific complaints can also be made against schemes and practices of those organizations, which lack transparency and clarity. CVC is expected to investigate all genuine/serious complaints for action against corrupt officials. Details about lodging complaints can be had from CVC's website http://www.cvc.nic.in When a complaint is taken up for investigation, a complaint number is given so that the complainant can ascertain the status of the complaint also from the CVC's website http://www.cvc.nic.in/ Besides, each department have now developed its public grievance redress mechanism by appointing a senior officer as Director of Grievances' with the powers to call for files/papers relating to grievance. The public can approach him/her for the redress of its grievances. He/she is supposed to be available on every Wednesday between 1000 and 1300 hours. Grievance petition should include the following information -

Following the Supreme Court's directives on the petition filed by NGO Parivartan and the father of slain engineer, Satyendra Dubey, the Indian Ministry of Personnel, Public Grievances & Pensions issued an ordinance on April 21, 2004 has designated the Central Vigilance Commission (CVC) to receive written complaints or disclosures on any allegation of corruption or of misuse of office by any employee of the Central Government or of any office owned or controlled by the Central Govt. With this, India has become the fifth country to provide protection for Whistle Blowers.Thus, if a complainant desires to keep his identity a secret, he/she is entitled to protection if he/she makes his/her complaint under the Public Interest Disclosure & Protection of Informers Resolution 2004, under which the CVC is the 'Designated Authority'.

The famous whistle blowers are:

Ø     Ingvar Bratt, a former Bofors engineer who revealed himself as the anonymous source in the Bofors Scandal about illegal weapon exports.

Ø     Joseph Darby, a member of the United States military police who in 2004 first alerted the U.S. military command of prisoner abuse in the Abu Ghraib prison, in Abu Ghraib, Iraq.

Ø     Satyendra Dubey, who accused employer NHAI of corruption in highway construction projects in India, in letter to Prime Minister Atal Behari Vajpayee. Assassinated on November 27, 2003. Enormous media coverage following his death may lead to Whistleblower Act in India.

Ø     S. Manjunath, a formerly manager at Indian Oil Corporation Ltd (IOCL), and crusader against adulteration of petrol. He was shot dead on November 19, 2005, allegedly by a petrol pump owner from Uttar Pradesh.

Ø     Linda Tripp, a former White House staff member who disclosed to the Office of Independent Counsel that Monica Lewinsky committed perjury and attempted to suborn perjury, and President William J. Clinton committed misconduct, by denying the Clinton-Lewinsky relationship in the Paula Jones federal civil rights suit. A victim of retaliation by the Clinton Administration, Tripp won her lawsuit against the federal government for violating the Privacy Act of 1974 when it leaked personal information about her to the press.

Ø     Jeffrey Wigand, a former executive of Brown & Williamson who exposed his company's practice of intentionally manipulating the effect of nicotine in cigarettes on the CBS news program 60 Minutes. Famously known as the man who blew the whistle on Big Tobacco and almost single-handedly revealed the health dangers of smoking to the public.

Ø     Andrew Wilkie, an Australian intelligence officer at the Office of National Assessments who resigned in March 2003 over concerns intelligence reports were incorrectly claiming Iraq possessed weapons of mass destruction.

Ø     Joseph Wilson, former U.S. ambassador, whose July 6, 2003 editorial in the New York Times, "What I Didn't Find In Africa", exposed pretexts for the 2003 invasion of Iraq

On 3rd March, 2006, The Whistleblowers (Protection in Public Interest  Disclosures) Bill, 2006, Appendix A,  was introduced to provide for protection from criminal or civil liability, departmental inquiry, demotion, harassment and discrimination of whistle blowers, i.e., the persons who bring to light specific instances of illegality, criminality, corruption in any Government, public or private enterprise. However the bill is yet to be passed and assented to by the President. Every Nation or Commonwealth Parliament should legislate to protect bona-fide whistleblowers. Legislation may have both negative and positive elements:
On the positive side:
1. Recognize the role of bona fide whistleblowers,
2. Promote the establishment of ‘internal' mechanisms by which relevant issues of concern might be reported and addressed define the conditions under which a disclosure might be protected and
3. Any principles / prohibitions relating to the maintenance of confidentiality,
4. Establish a framework to ensure that those subject to complaint or allegations are treated according to principles of natural justice.

To wind up this short study the experience of a chief prosecutor who tried the famous Saddam of Iraq is worth mentioning. Mr. Jaffar al-Moussawi, the chief prosecutor who tried Saddam Hussein, revealed that he had been demoted and transferred after speaking out against what he described as "financial and ethical corruption" in the Iraqi High Tribunal. He said the Iraqi High Tribunal (IHT), set up to try former members of Saddam's regime, had transferred him from Baghdad to the northern city of Sulaimaniya as an investigative judge. "The decision to remove me was made after I wrote a memo on January 14 to the IHT head disclosing legal breaches and violations committed by judges inside the court," Moussawi said. "The more serious issue which I mentioned in my memo was the financial and ethical corruption inside the court." He also said he was being targeted for his request to the court to reduce Saddam minister Hashem's death sentence.

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)

APPENDIX A

Bill No. XI of 2006

AS INTRODUCED IN THE RAJYA SABHA ON THE 3RD MARCH, 2006

THE WHISTLE BLOWERS (PROTECTION IN PUBLIC INTEREST

DISCLOSURES) BILL, 2006

A BILL to provide for protection from criminal or civil liability, departmental inquiry, demotion, harassment and discrimination of whistle blowers, i.e., the persons who bring to light specific instances of illegality, criminality, corruption, miscarriage of justice, any danger to

public health and safety in any Government, public or private enterprise to an authority designated for the purposes and matters connected therewith

and incidental thereto.

BE it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:—

1. (1) This Act may be called the Whistle Blowers (Protection in Public Interest Disclosures) Act, 2006.

(2) It extends to the whole of India.

(3) It shall come into force at once.

2. In this Act, unless the context otherwise requires,—

(a) "designated Authority" means the authority designated by the Central Government to receive  complaints of public interest disclosures under section 6 and includes any new authority created in this behalf;

(b) "prescribed" means prescribed by rules made under this Act;

(c) "public interest disclosure" means specific disclosure  by an individual  involving illegality, criminality, breach of law, miscarriage of justice, danger to public health and safety and damage to environment and includes attempt to cover up such malpractices in any governmental establishment, public or private enterprise;

(d) "whistle blower" means any individual making public interest disclosure.

3. (1) The Central Government shall, within three months from the commencement of this Act, by notification in this behalf, appoint a designated authority for the purpose of receiving and processing complaints on public interest disclosure under this Act.

(2) The designated authority shall have offices in the capital city of each State and Union Territory in the country.

4. (1) A whistleblower desirous of making a public interest disclosure shall make it to the designated authority in writing or in electronic form either in English or Hindi.

(2) The designated authority shall keep the identity of the whistle blower secret:

Provided that the whistle blower shall comply with all the instructions issued by the designated authority in this regard to keep his identity secret.

5. (1) A whistle blower making public interest disclosure shall be given adequate protection by the designated authority in such ways and manner as may be prescribed.

(2) Without prejudice to the generality of the provision in clause (1), protection shall include protection from departmental enquiry, criminal and civil liability, delay in promotion, demotion harrassment, discrimination.

6. (1) The designated authority shall not entertain any anonymous complaints received by it in any manner.

(2) The designated authority may on such verifications as may be necessary in this regard cause such action to be taken against the complainant on false complaints as may be prescribed.

7. Any person retaliating against a whistle blower shall be punishable with an imprisonment which may extend to five years:

Provided that if the public interest disclosure by whistle blower happens to belong to the Central or State public sector undertakings or corporate sector, the period of imprisonment for the person so retaliating may extend to ten years.

8. The provisions of the Official Secrets Act, 1923 or any agreement or service conduct rules shall not be applicable to the whistle blowers in relations to public interest disclosures.

9. The provisions of this Act and the rules made there under shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

10. If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not Definitions

Provided that no such orders shall be made after the expiry of the period of three years from the date of commencement of this Act.

11. The Central Government may, by notification in the Official Gazette make rules for carrying out the purposes of this Act.

STATEMENT OF OBJECTS AND REASONS

There is no denying the fact that corruption is rampant in our country. Be it Government, public sector or private sector—everywhere, it has crept into the system. It is so deep rooted and channelised that when a whistle blower tries to raise his voice against corrupt practices from within the system, his voice is scuttled and he is made to suffer because of his audacity for his outburst. The instances of a whistle blower being fired, demoted, harassed or punished in other ways while the organization denies, ignores or quietly buries a disclosure are in abundance. It is true that under normal circumstances, an organization is entitled to total loyalty and confidentiality from its employees. But when there is serious malpractice or when people's lives are at stake—as in cheating and corruption; defence deals; destruction of national wealth; conspiracy against state; encounters of innocent persons; toxic leaks from a chemical factory; non-adherence of safety standards in factories, mines and other establishments; false declarations by a company; the public interest demands that such an event be disclosed and the person showing courage for this should be protected rather than punished. Auditors, vigilance commissions, regulators, the press, society and courts all play an important role in checking the malpractices to some extent. But it is difficult to lay hands on the inside information provided by the whistle blower. Even the recent Right to Information Act, 2005 is not of much use in this regard. Further, there is the legal bar in the form of Official Secrets' Act and Conduct Rules in the public sector or a Non-disclosure Agreement in the corporate sector by which the employees are gagged from disclosing matters to the public on pain of incurring criminal or civil liability for any breach. It is unreasonable to expect employees to sacrifice their jobs and future in order to protect the public interest. A few daredevils may do it but the majority will not venture out in the area. In trying to protect the whistle blowers, we will not only protect the society and ourselves but also serve as a deterrent to the Government and other organizations. In many countries, the laws relating to protection of whistle blowers have been enacted. The UK's Public Interest Disclosures Act, 1998 is a fine piece of legislation providing protection to employees in public, private and non-public sectors including those working outside the UK. Sarbanes—Oxley Act of 2002 enacted by US Congress granted sweeping legal protection to whistle blowers in  publicly traded companies. Under this Act, anyone retaliating against a corporate whistle blower can be imprisoned for 10 years with remedies available to the whistle blower include reinstatement, back pay with interest, compensatory damages, special damages, attorney fee and costs. The issue of protection to whistle blowers has assumed special significance in the light of the murder of National Highways Authority of India's Deputy General-Manager, Shri Satyandra Dubey, who raised his voice against the prevalent corruption in awarding road building contracts under Golden Quadrilateral Projects. Another brilliant officer of Indian Oil Corporation, Shri A. Manjunath, had to lay down his life for highlighting adulteration and mafia operations in the functioning petrol pumps. There are numerous cases in our country which speak volumes of the need for such legislation. Even the Law Commission has  recommended the need for a Whistle Blower Protection Act which will ensure transparency in the administration and will also provide a sense of security to the whistle blower.

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)