There is no specific and concrete legal framework to ensure protection of the whistleblowers in India. Rajdutt Shekhar Singh, Principal Associate, Singh and Associates gives an insight about the protection which needs to be provided to the whistleblowers
| Rajdutt Shekhar Singh |
The Law Commission of India way back in 2001 recommended in its 179th report to formulate a specific legislation titled ‘The Public Interest Disclosure (Protection of Informers) Bill, 2002’ to encourage disclosure of information regarding corruption or maladministration by public servants and to provide protection to informers. Now even after a gap of more than 10 years, there is no specific and concrete legal framework to ensure protection of the whistleblowers in India. In the recent times, the voices have been raised in favour of a strong piece of legislation to combat dishonest, illegal, corrupt practices prevailed in the government machinery as well as in the private sector.
The recent Ranbaxy episode has whistled an alert that vigilance and participation of the people associated with the companies/organisations is required in form of whistleblowers to surface the activities which are not only against the core principles of the companies but also against the law of the land. In other jurisdictions such as the US, the UK etc. action can be initiated against private companies by invoking the whistleblower provisions of their enactments which allow private citizens to bring actions against wrongdoings of such companies and also provide protection to such whistleblowers.
In order to address issues related to public interest disclosure and protection to whistleblowers in India, a bill called Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 was introduced by the Indian Government in 2010. On December 27, 2011, the Lok Sabha passed the bill by renaming it as the ‘Whistle Blowers Protection Bill, 2011’ [Bill 2011], which interalia provides for adequate safeguards against victimisation of the person making disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant. As far as protection to the whistleblowers is concerned, the Bill 2011provides that if the Competent Authority is of the opinion that either the complainant or public servant or the witnesses, etc. need protection, the Competent Authority is empowered to issue appropriate directions to the concerned Government authorities (including police) which shall take necessary steps, through its agencies, to protect such complainant or public servant or persons concerned.
There are still a number of issues which require attention of the legislators such as the Bill 2011 does not address the protection to be provided to whistleblowers in the private sector and it does not include the definition of victimisation. Further, competent authorities under the Bill are very limited and right of appeal is not provided to the complainant in case he/she is not satisfied by any order of the competent authority. Appeal provisions have been provided only relating to imposition of penalty. There is no provision relating to reward to the whistleblowers. Actions on anonymous complaints have not been included in the ambit of the Bill.
In order to protect the informers/whistleblowers in absence of any concrete legislation on whistleblower protection, Indian judiciary has from time to time directed the Indian Government to formulate suitable guidelines/regulations to protect the whistleblowers. In this regard, the Supreme Court while hearing a writ petition regarding the murder of Satendra Dubey, who exposed corruption in NHRI, directed the government to form a suitable machinery for acting on complains from whistleblowers until a suitable legislation is enacted. In compliance of the directions issued by the Apex Court, the Government of India issued a Resolution No. 89, dated 21 April, 20041 authorising the Central Vigilance Commission as the designated agency to receive written complaints from whistle-blowers. The said Resolution also provides for the protection to the whistle-blowers from harassment, and keeping the identity of whistle blowers concealed.
In a similar manner, following the directions of Punjab and Haryana High Court, the Haryana Government issued a notification on September 6, 2011 (amended vide notification on 19.09.2012) with respect to a policy for providing security to Whistleblower/right to information activists/ complainants and witnesses in serious cases. Recently, the Maharashtra Government has also placed its policy for the protection and safety of whistleblowers before the Bombay High Court.
The pharmaceutical industry is also not an exception and this sector also requires participation of the general public to expose misconduct, irregularities, breach of rules and regulations prevailing in this sector. In the last several years, the Government has felt that spurious or fake drugs is a sensitive issue affecting not only the health of the citizens but also the reputation of the country’s pharma trade interests and therefore it was realised that people’s participation is significant to fight against the elements engaged in such illicit trade of spurious drugs. As an initiative, the Drugs and Cosmetics Act, 1940 was amended in 2008 whereby stringent penalties for manufacture of spurious and adulterated drugs were introduced. Certain offences relating to spurious and adulterated drugs were made cognizable and non-bailable. The amount of penalty was also increased from Rs 10,000 to Rs 10 lakh or three times value of the drugs confiscated, whichever is more.
Further, in order to encourage people’s participation, Ministry of Health and Family Affairs devised a reward scheme for whistleblowers in the fight against the menace of spurious or fake drugs, cosmetics and medical devices2. This reward scheme provides rewards to the informers who provide specific information to the designated authorities leading to the seizures of spurious, adulterated, misbranded and not of standard quality drugs, cosmetics and medical devices. As per this reward scheme, reward is to be given only when there is a confirmation of the seizure of spurious, adulterated and misbranded drugs, cosmetics and medical devices by the designated officers of the Central Drugs Standard Control organisation [CDSCO]. There is a provision that the reward of maximum of up to 20 per cent of the total cost of consignments seized is to be payable to the informer which should not in any case exceed Rs 25 lakh in each case.
The scheme also incorporate provisions related to protection of the whistleblowers by keeping secret the identity of the whistle blower / informer and it is the responsibility of the concerned officials to keep the details of the whistle blower / informer secret.
Unfortunately, this reward scheme has not brought any significant impact. Various complaints have been received since its inception, however, these complaints were found to be fictitious3. DCGI has noticed that problem is that a whistleblower is required to file an FIR for CDSCO to take any action4. Further, it lacks provisions ensuring protection of the whistleblowers.
Similar reward schemes have also been initiated by other government departments such as reward scheme introduced by Directorate General of Central Excise Intelligence under which Government of India grants rewards to informers who provide specific information leading to seizure of goods, currency, bullion or leads to detection of duty evasion including wrong declaration of quantity, description, value etc. The maximum amount of reward to the informers can be as high as 20 per cent of the duty evasion detected plus 20 per cent of the fine/penalty realised5.
Conclusion
The Resolutions made by the Government of India, Notifications issued by the State governments and directions passed by the Indian judiciary on “as and when required basis” with respect to the protection of whistleblowers may be termed as a temporary relief, however, it cannot in any manner be equated to an effective mechanism required to provide protection to the whistleblowers. The reward schemes introduced by the government have not been succeeded in attracting the participation of general public since these schemes do not comprehensively cover the provisions related to protection of whistleblowers and these issues can be addressed only by way of introducing a strong Whistleblower Protection Act. The proposed Whistleblower legislation should include corporate whistleblowers.
India has emerged as one of the most preferred destinations for export of drugs and various Indian pharma companies have US Food and Drug Administration (USFDA), MHRA (UK), TGA (Australia), MCC (South Africa), Health Canada etc. approved plants, for generic drugs manufacture. Therefore, the Drugs Authorities are required to be more diligent towards Indian pharma manufacturers engaged in export of drugs and the reward scheme introduced by Ministry of Health and Family Welfare should be reassessed to make it more effective.
References:
1. http://cvc.nic.in/whistleblow.pdf
2. http://www.cdsco.nic.in/ Whistle%20Blowe%20(3).pdf
3. http://www.thehindu.com/business/Industry/fake-drugs-whistleblower-plan-draws-a-blank/article4403904.ece
4. http://articles.economictimes.indiatimes.com/2012-09-09/news/33713590_1_spurious-drugs-cosmetics-and-medical-devices-fake-drugs
5. http://www.dgcei.nic.in/a/information.asp