INTRODUCTION
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Globalization of business is an accepted fact, as is the growing power of multinational corporations (MNCs) . Whistleblowing is a procedural way to reinforce the transparency necessary to free trapped capital, encourage foreign investment, and move economies especially transitional ones away from reliance on personal relationships and bribes. Empowering individuals to combat cronyism and call into question economic decisions made for personal gain rather than the general good should allow more resources to be allocated to those at the bottom of the economic scale. Whistleblowers have drawn nearly universal praise for helping to ensure that their employers obey the law. They perform valuable civic services by revealing information that their employers chose to suppress. Employees are in a unique position to uncover wrongdoing in the workplace. They can tell more readily than governmental inspectors whether their employers are violating safety standards. In recent years, while agency budgets have been cut, the employee whistleblower is often the only source of information about company activities that threaten public health and safety. The whistleblower thus becomes the public's, and the government's, only way of discovering employer misconduct. Whistleblowing as a governance tool becomes even more important in this context because it encourages responsive, and thereby responsible, governance practices. It gives individuals a say in their organization, and contributes to a feeling of procedural justice. Giving individuals a standardized way to speak and be heard also helps reinforce democratic ideas. This check on power is crucial for an effective democratic institution. Whistleblowing leads to accountability, and accountability helps defuse the resentment and opportunities for corruption.
The most commonly accepted modern definition of whistleblowing is "the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action." The expression “whistleblowing” is very wide in its scope. It also refers to a situation where in there exists such unfair practices that may hamper the growth of the Company. The word ‘Whistleblowing’ normally refers to the disclosure by individuals of concerns of malpractice as well as illegal acts or omissions at work. In 1997, the Nolan Committee on Standards in Public Life recommended the setting up of procedures for whistleblowing, which would allow individuals to rise, concerns internally within an organisation and externally in the USA.
Activities such as arbitrariness, illegality or a wrongful act by the such personality which may have a say in the company in one way or the other and the same must be brought into the notice of general public and courts so that they could become aware of the same and necessary actions may be taken accordingly in order to check any such activity. Such a dominant personality can be any one. It may be the State or any of its instrumentalities or even the private employers because they by virtue of their position and resources are capable of suppressing the wrongful conduct.
It is said that the concept of whistleblowing is the gift of foreign countries, particularly the USA. Here it will be relevant to mention that in India to the active role that the media enjoys and the Constitution also by the way of the Public interest petitions has devised the same mechanism. The case of M.C.Mehta is an example in this regard, a public spirited person who has time and again come out with such activities that have not only revived the hopes of the persons who were suffering from such atrocities by the so called influential class but it has also put a check on the existing law violators that have been punished by law, but such future persona also who could have performed the same activity.
THE US POSITION
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The USA is said to have taken the lead in enacting Whistleblower Protection Statutes. The Federal Act called the Whistleblower Protection Act of 1989 was one among the first of its kind that saw the daylight under the US regime. This enactment was more or less an amendment to the Civil Service Reforms Act of 1978. Under the said Act the object was to provide freedom to Federal employees to come out in the open and voice out irregularities, instances of fraud and disclose information which they reasonably believe evidences a violation of law, rule or regulation, a gross waste of funds, gross mismanagement, abuse of authority or a substantial and specific danger to public health and safety. The Adjudicating authority being the United States Merit System Protection Board and only if they had erred in the fact finding process would judicial scrutiny be available. The Office of Special Counsel created under the Civil Service Reform Act of 1978 was to represent the needs of the Whistleblowers before the US Merit System Protection Board. But later this could not meet the result for which it was formulated and it turned out to be a big disaster. As part of its merit system and philosophy of avoiding arbitrariness, the CSRA created "personnel actions" and "prohibited personnel practices. As a result of Mount Healthy Board of Education v. Doyle the cause of the Whistleblowers took a step backwards. The ratio of the case was even if the mistreated employee can establish a causative linkage between the earlier and later events, the employer can still legally get away with retaliatory action by proving that it would have taken the later action even if the earlier protected conduct had not occurred.
Thirty years ago, reactions to Ralph Nader's proposal to encourage whistleblowing as a means to stem organizational wrongdoing ranged from lukewarm support to strong opposition . Later on the Congress and State legislatures in the United States embraced whistleblowing as an important tool in the fight against misuse of public funds, abuse of power, and other types of wrongdoing. In the United States, and to a lesser extent in other common law countries, companies are being encouraged, or even compelled, to establish codes of conduct and whistleblowing procedures to enforce them. The U.S. Congress, building on an idea adopted from much earlier English legislation, passed a whistleblowing law as a way to supplement governmental resources in fighting fraud during the Civil War. This was before the Ralph Nader attempt by which he made a call to stem out the organizational wrongdoing.
The First Whistleblower:
In the 1794 Jay Treaty, the United States agreed to pay £600,000 sterling to King George III, as reparations for the American Revolution. The US Senate ratified the treaty in secret session and ordered that it not be published. When Benjamin Franklin's grandson published it anyway (perhaps our first whistleblower), the exposure and resulting public up-roar so angered the Congress that it passed the Alien and Sedition Acts (1798) so federal judges could prosecute editors and publishers for reporting the truth about the government.
Indeed, recent corporate scandals and the events of September 11, 2001, have increased support for whistleblowing. Whistleblowing has also gained advocates and acceptance as an organizational control strategy in other nations. The United Kingdom and the Australian states and territories were among the first governments to follow the U.S. lead in facilitating whistleblowing. Although whistleblowing laws enacted in the United States, the United Kingdom, and Australia have similar antecedents and objectives, legislative bodies in these countries have taken a variety of approaches to disclosures of wrongdoing. The premise behind recent governmental promotion of whistleblowing is that people of conscience work within these large, complex organizations, and would normally take action against wrongdoing except for fear of losing their jobs or other forms of retaliation. Thus, if adequately protected from retaliation, they will come forward with evidence of wrongdoing before external detection is possible. Harms from the wrongdoing could be reduced, wrongful behavior stopped, and the expense of public oversight and investigation would be reduced if such reporting occurs. Also, if whistleblowing proved a relatively common occurrence, wrongdoing would decrease because potential wrongdoers would be aware that their activities were not truly secret.
In the early 1970s, it took significant disasters such as the explosion of the Challenger, mass accidental poisoning of food, and publicity about extensive contractor fraud for whistleblowing to become a common tool of control. All three branches of government, at both the federal and state levels, now have adopted measures designed to encourage whistleblowing. While all measures protect the reporter from retaliation, other provisions vary considerably on issues such as to whom the whistle should be blown, whether motive should be considered, whether the whistleblower may benefit from reporting, what standard of evidence of wrongdoing should be required, and what remedy should be provided to a whistleblower who suffers retaliation.
Corporate Sentencing Guidelines:
In 1997, the Nolan Committee on Standards in Public Life recommended the setting up of procedures for whistleblowing, which would allow individuals to rise, concerns internally within an organisation and externally in the USA. As public policy supporting whistleblowing has matured, there has been a shift toward encouraging internal whistleblowing and away from the almost exclusive legislative emphasis on reporting outside the organization. This represents a change in emphasis away from a primary focus on punishment by governmental bodies toward earlier and more complete cessation of wrongdoing. There are many other advantages to internal reporting. It accords with the actions of most whistleblowers, is less harmful to the organization and the employee, and is considered more ethical. A variety of laws and decisions both directly and indirectly have caused employers to establish internal whistleblowing procedures in order to reap the benefits that these reports can deliver. The most important direct cause of organizational establishment of internal whistleblowing procedures is the Corporate Sentencing Guidelines. These guidelines check the wrongdoing in the company. Convicted organizations that have made little or no effort to prevent or reduce wrongdoing suffer increased monetary penalties and sanctions, including probation, and mandated negative publicity.
The Supreme Court has also prompted organizations to establish codes and internal reporting procedures through its hostile environment sexual harassment decisions. But the applications of these norms at the end depend on these organizations only and the extent to which they will abide by these norms is again their prerogative. The same will be evident from the way these guidelines have been enshrined by the companies. They have established such norms that are checking only some part of the corruption which includes all types of mismanagement. But certain other kinds of wrongdoing have been not included herein.
False Claims Act:
Under U.S. False Claims Act (FCA) individuals may litigate fraudulent claims on behalf of the government. On the basis of "qui tam" actions anyone who possesses evidence of fraud against federal or state programs can file a complaint. While the Act itself encourages external reporting through filing lawsuits in the government's name, the extraordinarily large whistleblowers' awards, fines, and recoveries paid to the federal government, and the dramatic increase in FCA whistleblowing, have led many organizations, especially those in the defense and healthcare industries, to self-police. Under the FCA, whistleblowers who successfully prosecute FCA claims against those who have fraudulently claimed federal funds receive up to thirty percent of recovered monies. Because of the amount of fraud, treble damages, and fines as high as ten thousand dollars per false claim, the average recovery for a successful FCA whistleblower is over one million dollars Recent revisions of the FCA have enhanced the financial incentives to file a lawsuit on behalf of the government. The enlistment of citizens in law enforcement is part of a larger trend to combat corruption and fraud through rewards instead of damages. As such, the remunerative approach of the FCA finds support in recent scholarship that suggests the use of financial incentives (carrots) as an alternative to the deterrence based punishment (sticks). The FCA awarded the whistleblowers who helped the government in making public the fraud that was prevalent in a particular corporation. The Amendment that was brought in the said Act in the year 1986 increased the percentage of share that a Whistleblower received from the government in case of a valid disclosure. Since the 1986 Amendment, the volume of qui tam litigation has increased dramatically. Between 1986 and 1992 over 400 suits were filed. By 1999 more than 2000 qui tam suits have been filed. The recovery of misappropriated funds increased from $ 2 million in 1986 to $ 243 million in the fiscal year 1995. The continued increase of recoveries, over $1 billion annually in each of the past three years, is indicative of the effectiveness of whistle blowing under the FCA.
The US is not the same after the Enron and the World Com scandal and the same has led to great reforms in the field of prevention of corporate corruption. In the midst of this new anti-corporate environment, corporate whistleblowers recently have received a lot of favorable press. For instance, Sherron Watkins has been described as the whistleblower that exposed the Enron fraud, although even she admits that she was not the first person at Enron to complain about its shady accounting practices. In response to a number of corporate scandals, the federal government enacted the Sarbanes-Oxley Act of 2002 (the "Act"). The Act creates a framework of government oversight of the accounting profession and its practices, imposes a number of certification requirements on corporate officers, restricts a number of corporate practices involving trading of securities by and loans to corporate officers, imposes reporting duties on lawyers, and provides protection for employees who disclose violations of law perpetrated by corporate officers and directors.
The American public corporation worked best because it was based on democratic principles of corporate governance, which mirrored and worked in synergy with the governing ideal of nation-states. The American corporation was grounded in a regime of full disclosure of information about enterprises that sought to minimize transaction costs and market inefficiencies of corporate debt and equity. Furthermore, it represented a form of enterprise in which exit within highly liquid markets was favored and shareholder interest given pride of place. The checks and balances of highly developed principles of corporate fiduciary duty, outside auditing of financial statements, constant disclosure, severe rules against advantaged transactions in corporate securities, and an active shareholders and creditors bar provided a model fit for emulation worldwide.
Before the enactment of the Sarbens-Oxley Act the laws in US regarding whistleblowers were not uniform. The extent of support that the whistleblowers received from the laws of the respective states was also not uniform. There were lacking in providing comprehensive statutory protection to the whistleblowers while some other states that had certain provisions were mostly based on the public law domain. However, the extent of the protection afforded under the public policy exception is often limited and is certainly not uniform across these jurisdictions and is also not uniform. Some states require that the public policy underlying a retaliatory discharge claim be "well-established," "substantial and widely accepted," "well-recognized and clear," "fundamental and well-defined," or "strong and compelling." Due to this the sources of public policy also differed for different States. An example of it is the New York laws on this point of view. It can be said here that even though financial fraud may result in massive layoffs if the company becomes bankrupt and can lead to individual penury or a complete loss of retirement savings, New York courts do not view fraud as a danger to the public welfare within the definition of the whistleblower statute.
Protection of the Whistleblowers in the Pre Sarbens-Oxley era:
It has to be said that the protection that was offered to the whistleblowers also was not much appealing and it also was situation dependant. The pre-Sarbanes-Oxley federal approach to whistleblower protection is similarly piecemeal. If a private-sector employee reports a violation of a federal statute, either internally or to a law enforcement agency, that employee may receive protection. One paradigm regarding whistleblowers casts the reporting employee as a type of scoundrel and inevitably focuses on the employee's disloyalty to the organization. Moreover they also feel the pressure of the surroundings and any future happening that may not only have a effect on them but may also seriously affect his family as well as his future employment.
Crisis in the US in the year 2001:
In the year 2001, the world saw the disclosure of fraud and corruption at the highest levels of the American corporate hierarchy. One example is when the controlling family of the Aldelphia Corporation used the public corporation as a personal banking service, thereby causing the corporation's collapse, and their criminal prosecution. Another example is Worldcom, where outright fraud in the preparation and reporting of its financial condition resulted in the misstatement of its value in excess of six billion dollars, causing its own collapse. Enron Corporation collapsed under the weight of its own convoluted Ponzi schemes and now faces investigation for possibly criminal manipulation of markets. It may have also contributed to the recent electrical crisis in California. There were other collapses and scandals as well. Among the most spectacular collateral collapses was that of Arthur Andersen, once one of the most powerful and influential accounting and related-service firms in the world. With its partners subject to criminal and civil investigation and its assets subject to a large number of civil suits by those who have suffered losses allegedly as a result of Andersen's provision of services, the company has been reduced to a shadow of its former self. Large chunks of the business were sold or spun off. The Andersen employees who could find other jobs took business with them. Even the largest banking enterprises have been affected. For example, Citigroup has been the subject of investigation with respect to its activities for several of these collapsed giants. These corporate scandals also have had other wide-ranging effects. Among these were the large lay offs of employees, which have contributed both to individual suffering and to the already lackadaisical performance of the U.S. economy. The scandals also contributed to continued weakness in the securities markets by reducing the value of the wealth of many people and, thus, potentially putting more strain on service sector spending by government. The popular press and other influential organs of organized political activity clamored for governmental "action" of some type. As a result, the federal government acted, and it acted in a big way. By passing the Sarbanes-Oxley Act, the federal government has changed the business landscape in significant ways for four groups most intimately connected with the governance of American public corporations--corporate managers and directors, accountants, and lawyers
Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes-Oxley Act has as its major goal the prevention of corporate corruption. An example of protection under the said Act has been devised out and the same can be configured out from the section 806, the portion of the Sarbanes-Oxley Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes-Oxley has on existing employment law. In response to the corporate scandals of 2002, Congress enacted the Sarbanes-Oxley Act (the Act) to prevent future corporate corruption and securities fraud. The Act contains a provision, § 806 that aims to protect whistleblowers such as Cooper and Watkins who report accounting fraud. The whistleblower provision of the Sarbanes-Oxley Act covers disclosures of information regarding not only accounting and financial manipulation, but also, in some circumstances, other types of fraudulent schemes; health and safety violations; environmental misconduct; product risks; consumer fraud; false claims against the government; disregard of statutes requiring disclosure to federal regulatory agencies; violations of anti-discrimination laws; violations of rules and statutes protective of labor; conspiracies to violate the antitrust laws; bribery of public officials, including foreign officials; and human rights abuses.
In a pre-Enron world, a CEO candidate was expected to conduct a certain amount of due diligence about a potential job opportunity--but much of that due diligence was directed at "fit" and corporate performance. In our new post-Sarbanes- Oxley Act world of liability, a CEO candidate must exercise care and judgment, and must conduct her due diligence in some significantly new ways. That care and judgment should focus on:
(i) internal corporate controls;
(ii) ethical rules in place; and
(iii) the composition and functioning of the board of directors, and principally the audit committee of the board.
Though Sarbanes Oxley Act of 2002 was the first Federal legislation to provide protection to whistleblowers of private companies, various States within the US have enacted statutes to protect employees of Private Corporations or companies. Most of these statutes unlike the Federal statute require the reporting of the disclosure to external agencies. Only in seven states require the whistleblower to contact an internal agency before reporting to an external agency. A few U.S. states provide for whistleblowing to a particular public officer. Some statutes that provide financial incentives for disclosures require contacting a government agency or filing a lawsuit. Most of these statues only require that an employee has a reasonable belief of the violation of a law or other covered conduct. However the SC of few states is of the contrary opinion. There is also a divergence on whether the employee has to blow the whistle in a reasonable manner or on a reasonable belief of the wrongdoing.
Sarbanes-Oxley Act Changes To Securities Law And Employment Law:
One of the major purposes of Sarbanes-Oxley is to promote the flow of accurate information to investors so that they can make informed decisions about how to allocate their resources. In particular, Sarbanes-Oxley provides federal statutory protection to whistleblowers who report fraud at publicly traded companies, provides criminal penalties for retaliation against whistleblowers, and requires publicly traded companies to institute procedures for handling internal complaints. Under § 806 of Sarbanes-Oxley, whistleblowers who report instances of fraud internally or to governmental agencies are statutorily protected from retaliation if they work at publicly traded companies. Sarbanes-Oxley therefore changes the landscape of whistleblower law by federalizing a portion of the law that had been composed of a patchwork of federal statutes, state statutes, and common law exceptions to the at-will employment rule. It can also be said that the Act protects whistleblowers that make internal reports of violations, as long as those reports are made to a supervisor or another individual within the organization. There is also scope for the protection to a whisteblower who makes a disclosure to a shareholder in case of a suit.
THE UK POSITION
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The UK Committee on Standards in Public Life defines it as raising a concern about malpractice within an organisation or through an independent structure associated with it. The United Kingdom's Public Interest Disclosure Act (PIDA) focuses on protection and facilitation of disclosures in the public or private sector. The PIDA aims to protect the person making the disclosure from reprisal when disclosures meet the criteria for protection under the Act. The related Civil Service Code specifically covers public sector employees and has a broader mandate than the PIDA. Two important elements of the Code are as follows. First, the Code allows for public sector employees to appeal internal disclosure decisions under the PIDA. Second, it also contains general principles of conduct, accountability, duties and loyalties of all. The legislative structure in the United Kingdom is distinctive insofar as the PIDA is an umbrella statute covering disclosures and reprisal protection for public or private sector employees, while the Code provides more specific mechanisms for public sector employees. The Code not only outlines the appeal procedure to reach the OCSC, but also provides a stricter set of obligations for public servants, including loyalty to their employer.
Development of Law:
Prior to the introduction of the Act on July 2, 1999, an employee's rights, duties and obligations were subject to vaguer obligations under common law and left him more exposed. The Court of Appeal went one step further in Lion Laboratories v. Evans. In this case, two employees wanted to disclose information which showed that the breathalyzer machines which their ex-employer manufactured were inaccurate. These machines were used by the police to measure alcohol levels in drivers. The Court of Appeal held that it was not necessary to find misconduct or wrongdoing and that the test was simply that information should be disclosed in the public interest. A public sector employee may have recourse against unfair treatment for having blown the whistle on his employer's activities under the European Convention on Human Rights (the ""Convention", to be incorporated in the United Kingdom by the Human Rights Act 1998 by mid-2000). Freedom of expression is protected under Article 10 of the Convention which states that ""everyone has the right to freedom of expression" while recognising that exercise of such freedom ""carries with it duties and responsibilities".
Until recently, the European Court of Human Rights (""ECHR") was reluctant to extend the right to free expression to a working environment. In Kosiek v. Germany and Glasenapp v. Germany, the complainants were teachers dismissed for active involvement in extreme right-wing parties. The ECHR decided in both cases that the dismissals did not interfere with their rights to freedom of expression. However, in Vogt v. Germany, the ECHR shifted its approach significantly.
BACKGROUND TO THE ACT:
Pressure has mounted in the United Kingdom in the last few years for legislative control on whistleblowing. Concern about the treatment of whistleblowers has been emphasised by Public Concern at Work, ("PCAW") an independent consultancy and legal advice body. PCAW have highlighted a number of cases in which scandals and calamities might have been averted had there been proper channels of communication through an authorised procedure. Examples include the Zeebrugge Ferry disaster when the Herald of Free Enterprise sank in 1987 with 193 deaths. The cause of the disaster was found to be that the bow doors had been left open. The Sheen Inquiry uncovered evidence that staff had five times raised their concerns about the bow doors and these concerns had been ignored or not communicated to senior management. It had even been suggested by a member of staff that a warning light should be installed to alert the ferry's captain that the bow doors had been left open. Fatally this suggestion was ignored. Other major cases in which disasters could have been avoided include Piper Alpha in 1988, the Clapham rail disaster and the exposure of fraud at the European Commission by Paul Van Buitnen.
The PIDA clearly focuses on the disclosure, rather than the person making the disclosure, as evidenced by the title of the statute, and on the extensive procedural requirements for a disclosure to qualify as protected under the Act. Moreover, the PIDA characterizes the person making the disclosure as a "witness" rather than a "complainant", which serves to detract from the stigma of a "whistleblower", and demonstrate the importance of serving the public interest by reporting wrongdoing. The PIDA covers wrongdoing in the public and private sector, and protects disclosures made by the public and private sector employees. However, the Code deals specifically with public sector wrongdoing and disclosures. The dual coverage and protection of the PIDA is a strong component of the United Kingdom's disclosure regime. By combining jurisdiction, the PIDA sends an important message that all employees are equally deserving of protection from reprisal. The United Kingdom's PIDA includes substantive and procedural criteria for making a protected disclosure. The substantive criteria simply require the person making the disclosure to make their disclosure in good faith and with reasonable belief. Procedurally there are strict requirements for a person making the disclosure to disclose via the internal mechanisms of their employer, before being able to be protected from reprisal or report to the OCSC.
Specifically, disclosures may only be made to the OCSC after internal procedures have been exhausted and the person making the disclosure feels the response if their employer is not reasonable. The details of the disclosure process are discussed in the proceeding section. Substantively, the standard a person making the disclosure is required to meet is generally similar to most other jurisdictions. However, the procedural criteria is a much higher than most other disclosure regimes. A person considering making a disclosure who wishes to appeal to the OCSC is required to submit their correspondence with their employer, in order to demonstrate that they have satisfied internal procedures and why the matter has not been resolved.
The stringent internal procedural requirements may impose undue burdens on any person considering making a disclosure and deter them from making a disclosure altogether. However, the OCSC has reported that currently there is no central tracking mechanism and thus there is little data on each individual employer's experience with disclosures. Hence, the reality of this premise is difficult to assess, but based on the relatively low number of appeal cases before the OCSC, one may be able to conclude that this is indeed the case. Nevertheless, an external organization entitled Public Concern at Work, has calculated that 1200 disclosure claims have been registered in the first three years of the PIDA's existence, with 400 cases at employment tribunals being successful for the person making the disclosure. However, still only a handful of public sector disclosure appeals to the OCSC have arisen over the last few years according to their 2001-2002 Annual Report.
The PIDA, 1998 is an all comprehensive statute and it protects the rights of employees in all the sectors. The Act covers almost all workers in Great Britain, including those who would not qualify as employees under the definitions of employment rights legislation. These workers include contractors, trainees, staff of public bodies, and professionals in the National Health Service (NHS). Thus, whistleblowers in the both the public and private sectors are entitled to protection. Among those excluded are "the genuinely self-employed (other than the NHS), volunteers, the intelligence services, the army or police officers. The stated aim of PIDA 1998, which inserted a new Part IVA into the Employment Rights Act 1996 (ERA 1996), is “to protect individuals who make certain disclosures of information in the public interest”. It sets out the type of disclosure that can give rise to protection (a ‘qualifying disclosure’); the circumstances in which a ‘qualifying disclosure’ will be protected (a ‘protected disclosure’); and the workers to whom the protection applies. Two points should be noted about this legislation. First, it does not give rights to those who do not have an employment relationship, for example, members of the public. Second, the statute makes no reference to the law of defamation.
Under the Act where a third party is responsible for the Act disclosure can be made to him otherwise internal disclosure would suffice. In certain instances the disclosure may be made to certain prescribed authority. This is totally contrary to the position in most American States which require disclosure to be made to an external agency. But it is a precondition that the whistleblower must believe that the allegations are substantially true. In addition to this, the whistleblower must meet one of three preconditions for such disclosure. These conditions include: (1) reasonable fear of reprisal for the disclosure to the employer or to a prescribed person under the Act; (2) reasonable belief of the concealment or destruction of evidence relating to the misconduct; and (3) previous disclosure of the misconduct to the employer or to a prescribed person.
Qualifying Disclosures:
Section 43B(1) of the Employment Rights Act defines a "qualifying disclosure" as one that a worker reasonably believes tends to show activities falling into one or more of the following categories: 1) a criminal offense; 2) failure to comply with any legal obligation; 3) a miscarriage of justice; 4) danger to the health and safety of any individual; 5) damage to the environment; or 6) the deliberate concealment of information tending to show any of these circumstances. These disclosures made in light of the ‘reasonable’ preconditions would be protected. These qualifying disclosures since they do not have any normative norms are analogous to the US situation. The protection hereunder is given not only for reports of ongoing conduct but for past activities too.
The Potential Impact of the Human Rights Act 1998 (HRA 1998) and the Freedom of Information Act 2000 (FOIA 2000):
Section 3(1) HRA 1998 requires courts and tribunals to give effect to primary and subordinate legislation in a way which it is compatible with the European Convention on Human Rights (ECHR) “so far as it is possible to do so”. In addition, section 6(1) HRA 1998 makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right”. Article 10(2) states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. However, Article 10(2) refers to the necessity for restrictions on this freedom in order to, inter alia, protect “the reputation or rights of others”. These provisions suggest that public authorities should be particularly tolerant of whistleblowing. More generally, section 12 HRA 1998 might be used to resist ex parte hearings in defamation cases. This applies where “a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression”. According to section 12(3), “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”.
Section 2(2)(b) FOIA 2000 also requires the public interest to be weighed in relation to the disclosure of information. More specifically, section 79 FOIA 2000 provides that
“where any information communicated by a public authority to a person (the applicant) under section 1 was supplied to the public authority by a third person, the publication to the applicant of any defamatory matter contained in the information shall be privileged unless the publication is shown to have been made with malice”.
This affords no protection to those who provide information to public authorities and such people will have to hope that the data protection principles and the law of confidence inhibit the republication of defamatory statements.
The Act allows whistleblowing to Media too but only as a last resort after fulfilling various conditions. From the foregoing provisions it would be very clear that the Act tries to keep the employers affairs confidential and that is why the disclosure is required to be made to the internal agency. Protection for the whistleblowers when retaliation is met is enforced through the labour rights legislation and other general employment protection acts. Apart from this compensation is also handed to the Whistleblower. Hence this Act as mentioned earlier comprehensively protects the whistleblowers in the UK.
In 1998 the Institute of Business Ethics carried out a survey of 178 of Britain's top 500 companies. It found that more than half of the companies surveyed had a code of conduct on ethics but in practice its content was often unknown to staff, customers and other stakeholders. The report highlighted that almost half of the companies surveyed had either no procedures or inadequate ones in place to protect corporate whistleblowers. The survey also found that very few companies involve employees in developing codes. Thirty per cent failed to give a copy of the code to every employee and only 11 per cent used staff surveys to help revise their codes. The findings of this survey should give pause for thought to companies who wish to employ best practice when introducing a code.
THE INDIAN POSITION
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In an ever increasing need for the Corporate Governance, the market regulators and the corporate world feel the desideratum for protecting the Whistle Blowers, to bring about better transparency and consequently improved market efficiency. The Report of the SEBI Committee on Corporate Governance Chaired by Mr. Narayana Murthy mooted the idea for a Whistle Blowers Policy as a mandatory requirement for all companies. The SEBI took cognizance of the recommendation and made provision for Whistle blower policy under Clause 49 (iv) of the Listing Agreement.
Justification for whistleblowing
The strongest justification for allowing the use of whistleblowing is that the people of India have the right to impart and receive information. The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the constitution of India. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity. The right U/A 19(1)(a) is, however, available only to the citizens of India and non-citizens can claim only right to know U/A 21 of the Constitution of India. Thus, the whistleblowing gets its legitimacy under the following:
(i) Freedom of information under Article 19(1)(a), and
(ii) Right to know under Article 21.
(1) Freedom of information under Article 19(1)(a):
Article 19(1)(a) of the constitution guarantees to all citizens freedom of speech and expression. At the same time, Article 19(2) permits the State to make any law in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by Article 19(1)(a) of the constitution in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation and incitement of offence. Thus, a citizen has a right to receive information and that right is derived from the concept of freedom of speech and expression comprised in Article 19(1)(a) . It must, however, be noted that freedoms under Article 19, including Article 19(1)(a), are available only to citizens of India. An alien or foreigner has no rights under this Article because he is not a citizen of India. Thus to confer protection upon non-citizens one has to depend upon and apply Article 21 which is available to all persons, whether citizen or non-citizen.
(2) Right to know under Article 21:
Article 21 enshrines right to life and personal liberty. The expressions “right to life and personal liberty” are compendious terms, which include within themselves variety of rights and attributes. Some of them are also found in Article 19 and thus have two sources at the same time. In R.P.Limited v Indian Express Newspapers the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy. In view of transnational developments when distances are shrinking, international communities are coming together for cooperation in various spheres and they are moving towards global perspective in various fields including Human Rights, the expression “liberty” must receive an expanded meaning. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. Article 21 confers on all persons a right to know which include a right to receive information. The ambit and scope of Article 21 is much wider as compared to Article 19(1)(a). Thus, the courts are required to expand its scope by way of judicial activism. In P.U.C.L v U.O.I the Supreme Court observed that Fundamental Rights themselves have no fixed contents, most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation. There cannot be any distinction between the Fundamental Rights mentioned in Chapter-III of the constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court.
The Narayana Murthy Committee had following points to contribute as mandatory recommendation:
a) Personnel who observe an unethical or improper practice (not necessarily a violation of law) should be able to approach the audit committee without necessarily informing their supervisors.
b) Companies shall take measures to ensure that this right of access is communicated to all employees through means of internal circulars, etc.
c) The employment and other personnel policies of the company shall contain provisions protecting “whistle blowers” from unfair termination and other unfair prejudicial employment practices.
d) Companies shall annually affirm that they have not denied any personnel access to the audit committee of the company (in respect of matters involving alleged misconduct) and that they have provided protection to “whistle blowers” from unfair termination and other unfair or prejudicial employment practices.
e) The appointment, removal and terms of remuneration of the chief internal auditor must be subject to review by the Audit Committee.
f) Such affirmation shall form a part of the Board report on Corporate Governance that is required to be prepared and submitted together with the annual report.
If we see the recommendations that have been provided in relation to the Audit Committee report then it will be evident that the Sarbens-Oxley Act has also provided the same points. In pursuance of these recommendations SEBI has inserted Whistleblower policy into the Clause 49 of the Listing Agreement. The recommendations given by the Narayan Murthy Committee have been accepted by SEBI and it has found form in Clause 49 of the Listing Agreement. And further the last recommendation has been implemented in Clause 49(IVA)(iv) of the Listing Agreement. Thus it is mandatory for every company to see to it that these measures are effectively implemented.
Further, it is well settled that while interpreting the constitutional provisions dealing with Fundamental Rights the courts must not forget the principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. The courts are under an obligation to give due regard to the international conventions and norms while construing the domestic laws, more so when there is no inconsistency or conflict between them and the domestic law . The courts in India can take clue from various foreign laws concerning whistleblowing by moulding the same as per the requirements of Indian conditions. The courts can also recognise the rights of the government to restrict the flow of information to general public. For instance, in P.U.C.L. v U.O.I the Supreme Court specified the grounds on which the government can withhold information relating to various matters. The Supreme Court observed: “Every right- legal or moral- carries with it a corresponding objection. It is subject to several exemptions/ exceptions indicated in broad terms. Generally, the exemptions/ exceptions under those laws entitle the government to with hold information relating to the following matters:
(i) International relations;
(ii) National security (including defiance) and public safety;
(iii) Investigation, detection and prevention of crime;
(iv) Internal deliberations of the Govt;
(v) Information received in confidence from a source outside the Govt;
(vi) Information, which, if disclosed, would violate the privacy of the individual;
(vii) Information of an economic nature (including Trade Secrets) which, if disclosed, would confer an unfair advantage on some person or concern, or, subject some person or Govt, to an unfair disadvantage;
(viii) Information, which is subject to a claim of legal professional privilege, e.g. communication between a legal adviser and the client; between a physician and the patient;
(ix) Information about scientific discoveries”
Thus, if a given case does not fall within the restrictions contained U/A 19(2) or abovementioned restrictions, the same cannot be withheld from the public scrutiny.
Safeguards to whistleblowers:
The existing laws contain various provisions that restrict the access to the whistleblowers and thereby prevent their disclosure. For instance, under section 173 (6) of Cr.P.C the police officer can form an opinion that any part of the statement recorded under section 161 of the Code of a person, the prosecution proposes to examine as its witness, need not be disclosed to the accused if it is not essential in the interests of justice or is inexpedient in the public interest.
Similarly, though section 273 of the Code requires the evidence to be taken in the presence of the accused, section 299 indicates that in certain exceptional circumstances an accused may be denied his right to cross-examine a prosecution witness in open court. The concerned person or witness may be the whistleblower, whose identity can be concealed by the courts in the interest of justice. Further, the Law Commission of India and other Commissions have also contributed significantly for the protection of whistleblowers.
The 14th Report of the Law Commission (1958) examined, inter alia, the question of providing adequate facilities to witnesses attending cases in courts. The 4th Report of the National Police Commission (1980) acknowledged the troubles undergone by witnesses attending proceedings in courts. The 154th Report of the Law Commission (1996) particularly noted: “Necessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality.” In its 178th Report (2001), the Law Commission recommended the insertion of section 164A in the Cr.P.C to provide for recording of the statement of material witnesses in the presence of Magistrates where the offences were punishable with imprisonment of 10 years and more. On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha and is pending enactment. The Law Commission’s 179th Report on Public Interest Disclosures and the Protection of Informers, states thus: “Good-faith whistleblowers represent the highest ideals of public service and challenge abuses of power. They test loyalty with the highest moral principles but place the country above loyalties to persons, parties or Governments”. The same also seems to be stress of the “consultation paper on witness identity protection and witness protection programmes” issued by the Law Commission. These provisions must be construed in a liberal manner by the courts to protect the whistleblowers.
Judicial response:
The response of the Supreme Court for providing protection to witnesses and whistleblowers is positive and justice oriented. The Supreme Court, in Gurbachan Singh v State of Bombay upheld a provision of the Bombay Police Act, 1951 that denied permission to a detenue to cross-examine the witnesses who had deposed against him. It was held that the law was only to deal with exceptional cases where witnesses, for fear of violence to their person or property, were unwilling to depose publicly against bad character. In Naresh Mirajkar v State of Maharashtra the Supreme Court recognised the validity of the procedure of holding an in-camera trial. The Supreme Court was of the opinion that in certain circumstances, the identity of the witness can be kept secret and concealed by holding an in-camera trial. The decision of Maneka Sanjay Gandhi v. Rani Jethmalani stressed the need for a congenial atmosphere for the conduct of a fair trial and this included the protection of witnesses. Similarly, in A.K. Roy v Union of India , stressing on the need to protect the identity of the informant, the Supreme Court held that the disclosure of the identity of the informant may abort the very process of preventive detention because, no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross-examination. In Kartar Singh v. State of Punjab the Supreme Court upheld the validity of ss.16 (2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which gave the discretion to the Designated Court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the names and addresses of witnesses in its orders. The court held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions. The same reasoning was applied to uphold the validity of Sec. 30 of the Prevention of Terrorism Act, 2002 (POTA) in People’s Union of Civil Liberties v. Union of India . In State of Maharashtra v Dr.Praful.B.Desai the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.
CONCLUSION
________________________________________
The most common response to the problems facing whistleblowers is to suggest better whistleblower legislation. Yet it is remarkable how ineffectual such legislation is. Not only are whistleblower laws flawed through exemptions and in-built weaknesses, but in their implementation they are rarely helpful. Indeed, it might be said that whistleblower laws give only the appearance of protection, creating an illusion that is dangerous for whistleblowers that put their trust in law rather than developing skills to achieve their goals more directly. Beginning in the 1990s, whistleblower laws have been enacted in most Australian states and territories, though not at the Commonwealth level. Such laws have a longer history in the United States, while Britain's law is quite new. The stated purpose of these laws is to protect whistleblowers from reprisals and more generally to encourage timely and responsible public disclosures to promote honesty in government. Few of the laws apply outside the public sector.
A fundamental problem with whistleblower laws is that they usually come into play only after disclosures have been made and reprisals have begun. Another problem is that there are many subtle ways for employers to undermine employees without providing clear-cut evidence of reprisals. Rumours and ostracism are two of the most common responses encountered by whistleblowers but are virtually impossible to document. Petty harassment is also potent. It might mean such minor things as unavailability of a company car, awkward rosters, slowness in processing claims, or requests for excessive documentation. Another problem with whistleblower laws is that they typically pit a lone employee against a powerful organisation.
The Indian matrix has adopted the American situation, without adopting the rationale behind the American situation. In America the whistleblower provisions could be provided because of other supplementary statutes present and the same holds even for UK. There they have additional statutes that supplement the main statute. In India these supplementary statutes have not been properly developed so as to act as a support to the main statute as a result of the same the enforcement mechanism is filed with loop holes. The laws here should be such that they should not only be regarding the disclosure of the non compliance of the mandatory legal requirements but also relate to the unlawful and unethical acts.
It is also to be noted here that the conduct of the Whistleblower has much relevance here. His conduct should be such that no finger could be raised against him. The case of Dalhberg v. Lutheran Soc. Serv. of N.D., has succinctly summarized this point as follows: In order to determine whether a report of a violation or suspected violation of law is made in good faith, we must look not only at the content of the report, but also at the reporter's purpose in making the report. The central question is whether the reports were made for the purpose of blowing the whistle, i.e., to expose an illegality.
It is seen that the law has to take its own course but if we have to have a better way out and also get the information as to the real happening behind the corporate veil then an appropriate law is the only recourse. But the problem will not end at this point. The important task will be implementation of such laws without being tampered with. A vigilant citizen can change the course of thinking of the masses with his spirited effort.
BIBLIOGRAPHY
Articles:
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Cases:
Foreign Cases:
1) A.G. v. Guardian Newspapers (No. 2) [1991] A.C. 109
2) Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998)
3) Anderson-Johanningmeier v. Mid-Minnesota Women's Ctr., Inc., 637 N.W.2d 270, 276 (Minn. 2002)
4) Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)
5) Dalhberg v. Lutheran Soc. Serv. of N.D 625 N.W.2d 241 at 254
6) Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
7) Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 282 (Iowa 2000)
8) Fleming v. Corr. Healthcare Solutions, 751 A.2d 1035, 1039 (N.J. 2000)
9) Flores v. Am. Pharm. Servs., Inc., 994 P.2d 455, 458 (Colo. 1999)
10) Francome v. Mirror Group [1984] 1 W.L.R. 892;
11) Glasenapp v. Germany (1987) 9 E.H.R.R. 25
12) Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985)
13) Island v. Buena Vista Resort, 103 S.W.3d 671, 679 (Ark. 2003)
14) Kosiek v. Germany (1986) 9 E.H.R.R. 328
15) Leibowitz v. Bank Leumi Trust Co. 548 N.Y.S.2d 513 (N.Y. App. Div. 1989)
16) Lion Laboratories Limited v. Evans [1984] 2 All E.R. 41
17) Madison v. USF&G Fin. Serv. Corp., 693 N.E.2d 293, 296-97 (Ohio Ct. App. 1997)
18) McGuire v. Elyria United Methodist Vill., 787 N.E.2d 53, 57 (Ohio Ct. App. 2003);
19) Vogt v. Germany (1996) 21 E.H.R.R. 205
20) Wichita County v. Hart, 917 S.W.2d 779 (Tex. 1996)
Indian Cases:
1) A.K. Roy v Union of India (1982) 1 SCC 271
2) Gurbachan Singh v State of Bombay AIR 1952 SC 221
3) Kartar Singh v. State of Punjab (1994) 3 SCC 569
4) Kharak Singh v State of U.P AIR 1963 SC 1295
5) Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167
6) Naresh Mirajkar v State of Maharashtra AIR 1967 SC 1.
7) P.U.C.L v U.O.I JT 2003 (2) 528
8) P.U.C.L. v U.O.I AIR 2004 SC 1442
9) P.V.Narsimha Rao v State AIR 1998 SC 2120.
10) People’s Union of Civil Liberties v. Union of India (2003) 10 SCALE 967.
11) R.P.Limited v Indian Express Newspapers AIR 1989 SC 190
12) State of Maharashtra v Dr.Praful.B.Desai 2003 (3) SCALE 554
13) State of U.P v Raj Narayan AIR 1975 SC 865
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