June 13, 2021

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Challenges of representing whistleblower in corruption related cases (Webinar brief)

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This seminar brief has been written by Prayrana Singh, from Navrachana University Vadodara.

Table of Contents

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Pramod Kumar Dubey, advocate, Supreme Court and Delhi High Court.

About the speaker

Mr Pramod Kumar Dubey studied law at Campus Law Centre, University of Delhi. He graduated in 1995 and started a career in litigation in Delhi Courts. During his 25 years at the bar, Mr Dubey has appeared in matters across various courts in India. Some of the notable cases he has been part of are the Tehelka commission case, the CWG Scam, Tarun Tejpal Rape case etc. Being an expert in criminal law the prosecution has also sought his counsel. He has undertaken various cases from the side of the prosecution such as- Arushi Talwar murder case and Gopal Kanda Murder case, Guru Scam etc.

Ramanuj Mukherjee 

Designation

CEO and Co-Founder, Law Sikho.

The origin of whistleblowers can be traced back to Britain and the British practiced this, blowing the whistle if the police and any agency officer observe the commission of the crime. The moment anyone sees or gets to know the commission of the crime, and if they blew the whistle then they are known as a whistleblower. This is the concept of the whistleblower; it means calling attention to wrongdoing that is occurring with an organization to the public or to those in the position of authority that person is bringing that fact to the notice of the competent authority by way of filing the complaint so that person is treated as a whistleblower. 

There was a recommendation of law because there was no law before 2014 and no protection was provided to the whistleblower. In 2001 the law commission of India made the recommendation for the elimination of this corruption and basically they wanted that the law should be enacted for the Protection of Whistleblower Act, however, it could not materialize that again in 2003 the attempt was made and the momentum of whistleblower came in India in 2003 as there is a long history behind 2003.

As one of the important cases is the Satyendra Dubey case. There was 31-year-old IIT Kanpur a civil engineer He was deputed as the director of the project undertaken by National Highway Authorities of India. Assigned by the Prime Ministers “Golden Quadrilateral Project” to connect the four corners of India. He found Sloppy project reports huge advances were given to contractors. Contracts awarded on the basis of forged documents. There was a loot of public money.

He wrote a letter to his superior. He wrote a letter to the prime Minister. The PMO didn’t bother to investigate. For an act of murderous negligence, he handed over the letter with Satyendra particulars to the Ministry of Road Transport and Highways At least 8 officials scanned the letter before passing it to NHAI. In 2003, Satyendra Dubey was found dead in Gaya. 

There was a lot of media attention and the people demanded that the person has put his life in the public interest and there is no protection from the government and government should protect the interest of the public at large after that it came to Supreme Court for adjudication and the Supreme Court give the direction enacted the law and formulated certain guidelines and the guidelines were having a resolution that is public interest disclosure and protection of informal resolution (PIDPIR)and this resolution gave the central vigilance commission (CVC) the power to act all the complaint from the whistleblower. This way the journey of the whistleblower started. Ultimately in 2007 US convention against the corruption resolution was passed by them as one of the signatories. After that in 2014, the legislature came for the protection of whistleblowers and the law was Whistleblower Protection Act 2011. 

There are four main types of whistleblower they are:

  1. Internal whistleblower: Internal whistleblower means the person employee of the organization and that person reveals any corruption, fraud to the senior management. 
  2. External whistleblower: External whistleblower means the employee who reports the corrupt activity or fraud to the media, the public at large, and another platform. 
  3. Government whistleblower: The facts were revealed by the government officers.
  4. Alumni whistleblower: It is an interesting type of whistleblower, on the person who is predecessor in the organization who reveals the fact of the corruption or the mismanagement in the organization.

The person considers to be the whistleblower who is not hiding his personal interest, who person has the domain data against the person and the person is revealing the information, disclosing the fact in the public interest so his personal interest should not come in the will, the entire effort would be for the protection of the organization and for the public at large.

One cannot claim as a whistleblower for personal gain like someone conducted a sting operation for the purpose of making money from the person concerned, extortion, and that person fails to do so then that person would not claim as whistleblower. One’s motive should be an interest of the public at large so that kind so the person would be treated as a whistleblower. If the person started working for self-interest then that person would be prosecuted as per the present law.

There is a provision for the whistleblower that is section 4 of the Whistleblower Protection Act and Section 4 has given six sub-clauses where it says the requirement of public disclosure of information, one can get the declaration of the information that should not be false, it should be substantiated with the evidence. The information is given in good faith. This is the requirement for giving the information.

The moment one gives the complaint, the competent authority would examine the content and material of the complaint, they will do the internal inquiry of the content and if they find substantial allegation then the competent authority would make the recommendation to the head of the department to the concerned organization and then the header department of the concern organization start conducting the inquiry and one most important thing is the head of the department to the concerned organization should not disclose that person’s personal identity. 

They should not reveal the person’s identity. But the person has to reveal his identity to the competent authority unless that person would not be able to give a complaint as the authority would conduct the inquiry on that person who made a complaint. Because that competent authority what kind of person he/she is, what is his intention, whether he is a real person or not, whether the complaint is for public interest or not, whether that person is carrying brief of some other person because in corporate sector one corporate person would leak the information and send the information through a whistleblower so that company would be affected there share market will come down so this is the common in the corporate sector, therefore, that person has to disclose his identity for records. 

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the competent authority makes the preliminary investigation to see the content of all the things after being satisfied with all the information and the document their duty is to recommend the complaint to the head of the department as per section 5 and it will come in the domain in the head of the department for the council of minister, HOD is the head prime minister, for the parliament, there would be speaker and member. This HOD will conduct the inquiry of finding the fact. If they found the investigation correct then that organization would be prosecuted. There are two processes first the complaint would be filtered examined at the primary stage and then the inquiry would be conducted by the HOD to make concerns and then as per the outcome of the inquiry the future proceeding would be initiated. 

Here there are three things a lawyer can do: the first is the lawyer would ask for the protection of the whistleblower’s identity, he can give the application or he can give the assurance that his life should not be in danger so the threat of life in some cases. Thirdly the person concerned could be subject to the media trial we can move the application to the court that this kind of thing should not be revealed ultimately it can affect the person concerned. The prime concern is to protect the identity of the whistleblower.

There is one case Manjeet Singh Khera v. State of Maharashtra 2013 concerned with the question of whether the prosecution is bound to produce the original identity of the whistleblower. Non-disclosure of the name of the whistleblower would not prejudice the right of the accused and balanced all the things.

In that 1984 Sikh- Riot case, Abhishekh Verma made the disclosure to the agency the name of the person. Then after that security was provided who have conducted so the person can ask for the security from the government, because that is of the interest of the society. That person can get direction from the court for seeking protection from the government. So the whistleblower can ask for protection from the government in case of disclosure of the identity. 

It was an admission & recruitment scam that uncovered corruption in the Madhya Pradesh Professional Examination Board, Vyapam (Vyavsayik Pariksha Mandal), which is a self-financed autonomous body by the State government, conducting several entrance tests for recruitment in government jobs and admissions in educational institutes. The scam unearthed how undeserving candidates bribed politicians and MPPEB officials, through middlemen, to get high ranks in these entrance tests.

More than 40 ‘unnatural’ deaths of whistle-blowers linked to the scam have been reported. Because of the involvement of powerful Politicians and many other people, there is no protection of whistleblowers as well as the public interest. It is a big blow of the system and scam. This is the complete failure of these entire acts. 

As compared to other countries our agencies are not so strong our system is more interested in opposing the bail, seeking the person behind the bar, less interested in protecting the witness. Mere enactment of the law would not give you any solution. In the US they are dedicated to their witnesses but in India, they are not. Once they record the statement of the witnesses they don’t bother about the security or anything about the witnesses. This is not their fault because they are over-burden; there is no sufficient number of officers in our agency. So they don’t have time to follow up on one case they have so many things. Sometimes witnesses forget the facts of the case and they don’t give sufficient time to refresh the facts and put pressure on the witness so there is no follow-up. They are least bothered about the witness protection. So we cannot compare ourselves with other countries.  


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