Monday, March 21, 2005

Suggestions to Whistleblowers Protection Act

Enactment of a Whistleblowers Protection Act is even more necessary for India than it was for the U.K. and the U.S.This can be a potent tool for promoting good governance in the country.Based on the experiences of other countries, I wish to suggest a set of general principles, which could usefully underpin any effective Indian legislation on the subject:

* With the consent of the required number of State governments, Parliament should try to enact a single Act for all employees working in any tier of government (including employees of any instrumentality of government whether autonomous or semi-autonomous), and also for employees working in any form of organisation in the private and voluntary sectors.Employees of contractors, sub-contractors and agents of an organisation; applicants for employment, former employees and overseas employees; attorneys and auditors should also be covered.

* The Official Secrets Act should be overridden to provide for a public interest defence and the `gagging clauses' in employment or severance contracts should be declared void in respect of public interest disclosures.* It is a moot point whether the Act's protection should be extended to members of the armed forces, the secret services and the police. In my opinion, it should be — subject to the condition that the disclosures shall not jeopardise operations or endanger the lives of personnel. The judiciary may have to remain outside its purview unless the Contempt of Courts Act is first amended to provide for a public interest defence.

* What constitutes `public interest disclosures' need to be clearly defined. In my opinion, the protection should apply to specific disclosures only involving an illegality, criminality, breach of regulatory law, miscarriage of justice, danger to public health or safety and damage to environment, including attempts to cover up such malpractices.

* The whistleblower must reasonably believe that his information about a malpractice is substantially true, and must act in good faith. Those caught making anonymous or pseudonymous leaks should not be protected. The period of limitation for filing a complaint must be sufficiently long (say, 1 year).

* The Act must encourage employees to raise the matter internally in the first instance and mandate organisations to establish suitable mechanisms for this purpose. Where it is not reasonable to raise the matter internally, or where attempts to remedy the matter from the inside have been unsuccessful, employees who make an external disclosure in a specified way should also be protected. What should be the `specified way' is a matter of debate. In my opinion, apart from certain `designated offices' (such as SEBI, Pollution Control Boards, etc.), public interest disclosures to MPs and MLAs; employee unions and associations; and reputed public interest groups must be protected. Disclosures to the media may also be protected in rare cases but the burden of proof to show reasonable cause must be overwhelmingly on the whistleblower. The protection should extend to all forms of retaliation and the remedies should be similar to those provided in the Sarbanes-Oxley Act, including criminal liability for retaliation.

* There should be a `fast track mechanism' for adjudication of cases on the lines of the Sarbanes-Oxley Act. Whether the existing Administrative and other tribunals should be strengthened to do the job or new agencies created are points for decision. Zero tolerance As things stand today in India, the chances of enacting such legislation may seem remote. But whistleblower protection measures are gathering a momentum of their own around the world, aided partly by spectacular government and corporate scandals. It is just a question of time before we shift from our present culture of zero tolerance of whistleblowing to a culture of zero tolerance of whistleblower retaliation.

No comments: