Whistle Blowers
A whistle blower is a person who raises a concern about the wrongdoing occurring in an organization or body of people.[1] He can be an employee working within the organization or a contractor or a customer who becomes aware of or notices any illegal activities occurring within the organization. These activities can be of the form of fraud, corruption, misconduct, deceiving employees, indiscipline, willful misuse of power, criminal activity, health and safety violations, non-compliance with the regulations, etc.
One of the basic requirements of a person being accepted as whistle blower is that his primary motive for the activity should be in furtherance of public good. In other words, the activity has to be undertaken in public interest, exposing illegal activities of a public organization or authority.[2]
The person who becomes aware of such wrongdoing may report the same to senior officer of the organization or and outside authority like media personnel. Based on reporting authority, there are basically two types of whistleblowers-
- Internal Whistleblower
- External Whistleblower
1. Internal Whistleblower
These whistleblowers report the wrongdoings of the company to a superior authority within the organization. For e.g. an employee may report a fraud committed by his co-worker to his CEO or head human resource.
Several organizations have their own policies and whistle-blowing mechanisms which specify the way of reporting such incidents and the procedure attached thereto. Many companies also have their internal ‘hot line’ or ‘tip line’ to aid the internal whistleblowers in reporting the misconduct happening inside the company.
In case of internal whistle-blowing, neither any government investigation takes place nor there is any actual litigation. The required actions are taken by the company internally without the involvement of any outside authority. However, in some cases the company reports such matters to appropriate government authority for formal investigation to avoid harsher sanctions that may incur if government becomes aware of such wrongdoing on its own notion.
2. External Whistleblower
These whistleblowers reports the wrongdoing happening inside a company to an outside authority like law enforcement agencies, media groups, regulators, higher government officials, etc. For e.g. a contractor may report a big scam to appropriate government agency.
Under this, private or classified information of the company or organization is revealed to an outside authority to ensure greater public interest as the fraud, illegal activity or any other wrongdoing happening inside the company or organization might be detrimental to public at large. This may subject it to external inquiries and constraints. Such cases often land up in litigation process inside the courts.
People often go for external whistle-blowing due to the reason that the internal mechanism often fails to deal with organization failures largely because of their own officers being involved in it or the advantages they may accrue as a result of such fraud or illegal activity.
These acts are usually motivated by a commitment to secure public interest. Blowing the whistle or complaining against the wrongdoings of the company to competent authority helps in accomplishing public good. Such complaint can be filed by anyone in writing or by mail.
Apart from these two types of whistleblowers, United State of America (U.S.A.) also determines a third type of whistleblower i.e. Cybersecurity Whistleblowers. They protect the consumers and employees in online spheres like hacks, breach in cloud storage systems, unsecure practices, etc.
However, while doing so, the whistle blowers may be made to suffer and the report they are making for public interest may go against their interest and therefore there is comes a need for a proper whistle-blowing mechanism and for their protection. To provide for this, the Companies Act 2013 mandates certain companies to establish a whistle-blowing mechanism under section 177 to report any wrongdoing or any other unethical behavior to management.
The Whistleblower Act also helps to protect the whistleblowers from job termination and mis-treatment. The Central Information Commission, New Delhi observed in Avinash Kumar Vs. Aruna Asaf Ali Government Hospital, GNCTD[3] that Whistle Blowers Protection Act, 2011, notified in 2014 provides a mechanism to investigate alleged corruption and misuse of power by public servants. It encourages anybody to question the wrongdoing of any form of fraud, corruption or mismanagement.
The act seeks to protect whistleblowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offense by a public servant. This Act is made due to demand by civil society after several incidents of threat or harassment to whistle blowers such as Satyendra Dubey, who was killed in 2003, for blowing whistle in a corruption case in the National Highway Authority of India’s Golden Quadrilateral Project.
According to this act, a whistleblower can make a complaint anonymously and his name shall not be revealed even if he makes a complaint by his name. This provision has been enacted to protect him from termination or any other form of victimization. Any person who reveals the identity of the complainant shall be punishable with imprisonment for a term which may extend up to 3 years and fine which may extend up to Rs 50,000 under section 16 of the act. The cyber security whistleblowers in U.S.A. are protected under Section 806 of Sarbanes Oxley Act of 2002.
[1] Indirect Tax Practitioners Association v R K Jain [(1010) 8 SCC 281]
[2] Manoj H Mishra v Union of India & Ors [(2013) 6 SCC 313]
[3] MANU/CI/0198/2015
This Article Written by Sheersha Saxena, Student of ICFAI University, Dehradun
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