India needs a Whistleblowers Protection Act

In trying to protect whistleblowers, we are actually trying to protect ourselves. Many employees may be afraid to speak out even with the legal protection, but its very existence will deter government and corporate wrongdoings to a considerable extent. "If you must sin, sin against God, not against the bureaucracy. God may forgive you, but the bureaucracy never will!" — U.S. Admiral Hyman Rickover BACK IN 1971, Daniel Ellsberg — a former Marine and Vietnam War veteran, who was working as an analyst at the Rand Corporation — `blew the whistle' on a top-secret Defence Department document on the Vietnam War, which came to be known as the Pentagon Papers. Claiming to be driven by his conscience, Ellsberg revealed to the New York Times and the Washington Post how successive U.S. Presidents had dragged the country into an immoral and unwinnable war, and had lied to Americans about its course and outcomes. His disclosure played a major part in turning the tide of public opinion against the Vietnam War. The U.S. Government responded by prosecuting Ellsberg on 12 charges, leading to a total sentence of 115 years if convicted. That was not all. The dirty tricks department at the Nixon White House launched a smear campaign against Ellsberg; engaged the Watergate burglars to break into his psychiatrist's office in the hope of finding something defamatory; tapped his telephones; engaged thugs to physically attack him; and tried to influence the trial judge with the offer of the post of FBI Director. When these plots were exposed, the judge had to abandon the trial and acquit Ellsberg. Nixon's machinations against Ellsberg formed the basis of two of the three articles of impeachment against him. The Guardian recently named Daniel Ellsberg "the most important whistleblower of the past half century." The term `whistleblowing' is a relatively recent entry into the vocabulary of public and corporate affairs, although the phenomenon itself is not new. It refers to the process by which insiders `go public' with their claims of malpractices by, or within, organisations — usually after failing to remedy the matters from the inside, and often at great personal risk to themselves (adapted from Nick Perry, 1998). It is this willingness to stand up for a principle and court risk openly that distinguishes whistleblowing from such related practices as in-house criticism, anonymous leaks, and the like. The whistleblower is considered a hero or a traitor, a do-gooder or a crank, a role model or a non-conformist troublemaker — depending on one's point of view. Whistleblowing is a universal phenomenon. India has also had its share of prominent whistleblowers from V. P. Singh to Manoj Prabhakar to P. Dinakar. It is true that under normal circumstances, an organisation 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 corruption and fraud in defence procurement; deaths in `encounter' of innocent persons; toxic leaks from a chemical factory; non-adherence to flight safety standards by an airline; creative accounting and false declarations by a company; cheating and plagiarism in scientific research, for example — the overriding public interest may lie in protecting the public's right to be told, and the whistleblower's right not to be punished for doing so. Without whistleblowers, we may not get to learn about problems until it is time to mourn the consequences. In the words of the noted U.S. journalist Reed Irvine "Coal miners used to carry caged canaries into the mines with them. When the canaries stopped singing, they knew they were in trouble and they had better get out fast. Whistleblowers in government and other large organisations are, in a way, our canaries. When they are free to `sing,' those institutions are healthy. When they are silenced, we are in trouble." No doubt, audit, ombudsman, vigilance commissions, regulating agencies, the media, civil society, and courts all play a role in deterring government and corporate transgressions to some extent. But however formidable their investigative skills, that initial inside information provided by a whistleblower is crucial. Even a powerful Freedom of Information Act, which discloses information without the need for leaking, offers only a partial solution. As the journal Index on Censorship (1995) put it "Users would have to specify what they wanted to know. But where there is no reason to suspect that something is amiss, no one may bother to ask." In December 2002, Time magazine created history of sorts by naming three whistleblowers Sherron Watkins of Enron, Coleen Rowley of the FBI and Cynthia Cooper of WorldCom as its `Persons of the Year' for 2002 for their bravery in exposing how American institutions, from corporations to government agencies, really operate. Their stories are too well known to need repetition here. But the past three decades have seen a number of even more courageous whistleblowers whose disclosures attracted international headlines. Let us recapitulate a few of the more prominent cases * Frank Serpico is the legendary ex-cop of the New York Police Department (NYPD) whose story was the subject of a best-selling book, and a film starring Al Pacino — both titled `Serpico.' When he became a cop in 1960, payoffs, kickbacks and protection rackets were rampant in NYPD. Refusing to look the other way, Serpico complained to the Police Commissioner and the Mayor, but they ignored him. Frustrated, Serpico revealed NYPD's dirty laundry to the New York Times in 1971, after which the cops as well as the criminals started gunning for him! Matters came to a head when he was shot in the face during a raid; his colleagues did not come to his help. Serpico quit NYPD in 1972 but NYPD has become a more honest force since his time. * Peter Wright worked in Britain's Security Service M15 between 1955 and 1976. In his whistleblowing autobiography The Spycatcher (1987), Wright described the shadowy world of the secret services that often transgressed propriety and the law — how the M15 had `bugged and burgled its way across London'; how it had conspired to discredit the Labour Prime Minister Harold Wilson; how the M16 had plotted unsuccessfully to assassinate Egypt's President Nasser during the 1956 Suez crisis; and so on. The British government's attempts to ban the publication of the book on the ground that `he owed a life-long duty of confidentiality,' and to extradite him from Australia where he had settled after retirement, were unsuccessful — with the House of Lords declaring that in a free society `public interest sometimes required the disclosure of confidential information.' * Jeffrey Wigand is the one-time head of Rand D of America's third largest tobacco company, Brown and Williamson. In a 1995 interview to "60 minutes," he spoke about the company's knowledge of nicotine's addictive properties, its reckless use of harmful additives, its quashing of research on safe cigarettes, and a variety of other abuses. He was the central witness in the U.S. government's lawsuit against the tobacco industry, which eventually led to the $246 billion federal tobacco settlement. The story of his whistleblowing and subsequent harassment was made into a critically acclaimed movie, `The Insider,' starring Russell Crowe. * Dr. Stephen Bolsin is a former anaesthetist at the U.K.'s Bristol Royal Infirmary (1988-95) who blew the whistle on a large number of unnecessary deaths of children occurring during heart surgeries due to the incompetence of the hospital's surgeons. Ostracised by other doctors, Dr. Boslin was forced to emigrate to Australia in 1995. But his disclosure led to enquiries by the General Medical Council and the government; the debarment from future practice of two surgeons and the hospital chief in 1998; and also several far-reaching reforms in the National Health Service (NHS). It also acted as a catalyst for the enactment of the U.K.'s Public Interest Disclosure Act of 1998. It is evident from these case studies that whistleblowing is not for the faint of heart. Instances of the whistleblower being fired, demoted or punished in other ways while the organisation denies, ignores or quietly buries the disclosure are universal. Apart from the social pressure against turning one's boss or colleagues in, there is the legal bar in the form of the Official Secrets Act and Conduct Rules in the public sector or `a non-disclosure agreement' in the corporate sector by which employees are gagged from disclosing matters to the public on pain of incurring criminal or civil liability for any breach. It follows that no measure to curb government and corporate transgressions in India or elsewhere will bear fruit unless legal immunity and protection against retaliation is given to responsible and conscientious whistleblowing. It is unreasonable to expect employees to sacrifice their jobs and their future in order to protect the public interest; a few brave souls may do it but the vast majority of employees will not. In trying to protect whistleblowers, we are actually trying to protect ourselves. Many employees may be afraid to speak out even with the legal protection, but its very existence will deter government and corporate wrongdoings to a considerable extent. The U.S. Whistleblowers Protect Act of 1989 (amended in 1994) protects public interest disclosures by federal employees. An Office of Special Counsel (OSC) was created to aid whistleblowers in the investigation of their disclosures and prevention of retaliatory action against them. It has had only modest success due to a series of hostile judicial rulings undercutting the protection afforded by the Act. More than 40 States have passed similar or even stronger legislation in respect of State employees. After the spectacular collapse of Enron and WorldCom, U.S. Congress passed the Sarbanes-Oxley Act of 2002 granting sweeping legal protection to whistleblowers in publicly traded companies. Anyone retaliating against a corporate whistleblower can now be imprisoned for up to 10 years. The Department of Labour (DoL) is required to complete its adjudication of whistleblower cases within 180 days, failing which the whistleblower may either elect to stay with DoL or seek a de novo trial in court. Remedies include reinstatement, back pay with interest, compensatory damages, special damages, attorney fees and costs. The U.K.'s Public Interest Disclosure Act of 1998 is a unique piece of legislation providing protection to employees in the public, private and non-profit sectors, including those working outside the U.K. Under the law, employment tribunals have power to `freeze' a dismissal and make unlimited compensation awards. South Africa has followed the U.K. example in providing protection to employees of all organisations through its Protected Disclosures Act of 2000. A number of countries such as Australia, Canada, South Korea, Argentina, Russia, Slovakia, Mexico and Nigeria have enacted or are in the process of enacting whistleblowers protection legislation (but only to government employees). During the past decade, scams, swindles, and rip-offs have become a regular feature of the Indian political and corporate landscape, costing taxpayers, investors and banks000 of0000000 of rupees. Enactment of a Whistleblowers Protection Act is even more necessary for India than it was for the U.K. and the U.S. Together with the Freedom of Information Act (which received Presidential assent on January 19, 2003), it can be a potent tool for promoting good governance in the country. What we lack at the moment are public interest groups like the Government Accountability Project and the National Whistleblower Centre in the U.S., and the Public Concern At Work in the U.K., to lobby for whistleblowers' rights and defend employees against retaliation. 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 constitute `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. 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. K. ASHOK VARDHAN SHETTY