Whistleblower Protection - Veil Or Shield?

Does whistleblower protection

in India really amount to

resolution of an issue or is it

just a toothless tiger!...

“PAPER TIGER” – is the closest phrase to define the Whistle

Blower Protection Law in India – with a legal sanctity of

more than half a decade, and yet no tooth and nail so that it

can be enforced.

(Based on the latest Indigo incident that has been put to

rest, by concluding that Indians need better flying etiquette.

The video that triggered the controversy poses the question,

is whistle-blower protection a claim to be raised or a right

to be protected? Is whistle-blower protection a management

prerogative or legal obligation? Are we ready? Are we

prepared? To rivet our governance structure around fair and

free disclosures of a whistleblower?)

The Whistle Blowers Protection Act 2011 – a legislation

intended at safeguarding the interest of the whistleblower

was passed in 2014 - is still undergoing revisions on the

scope and ambit of it. What the law aims to cover is just

a small fraction of the gamut of public disclosures, which

is at the heart of making “Ease of Doing Business” and

“Minimum Government and Maximum Governance”, a

reality in India. The law as it stands only comes to the rescue

of public officials and that too in pursuing income tax raids and criminal investigation of public interest. This lets the

major part of the business landscape in India, untouched

and unmonitored for abrasions and exceptions, that a

whistle-blower may be privy to but not encouraged to

disclose for the fear of victimization.

If one has to focus on the christening of this law, the

fundamental difference between the intention behind this

legislation in India and the West is evident. In the West,

it is called “Whistle Blower’s Reward and Protection Act”.

The ‘apostrophe’ suggests – the whistle-blower is the

kingpin of this legislation. Moreover, the title is welcoming

and embracing of a whistle-blower. Indian law however,

has taken more of a socialist approach – making it a ‘sect’

– which more often than not, is at loggerheads with the

management.

The recent incident of a passenger allegedly ‘manhandled’

(pun intended) by the airline staff – has once again brought

to light our discomfort with the word “whistle-blower” and

its ambiguity to merit “protection”. The employee leaked

the evidence to media, on being sacked by management

for capturing it on video and is now claiming that he has

been ‘victimized’ as a whistle-blower. With this incident,

the corporate world is now waking up to a new world of

challenges in dealing with evidences that may outlive

the whistle-blower and come to haunt the management,

depending on how the evidence was collected and how was

it used (or not used) by the management? This incident has

added a new dimension to the risk that the management

runs in having evidence that gives the reporter, a “whistleblower

HANDLE” as a result of the outcome where the

impact to the reporter is greater than the impact to the

people found to be guilty.

The vigilance mechanism under Section 177(9) of the

Companies Act, 2013 read Rule 7 of the Companies

(Meetings of Board and its Powers) Rules, 2014 is

intended to address this with emphasis on infrastructure

and heightened awareness about the need to SPEAK UP,

shifting the focus from the REPORTER to the ISSUE. With

the digital world erasing boundaries between individuals

and institutions, maybe the law now needs a new

makeover – offering protection to evidence, as much as

to the whistle-blower – so that it is not misrepresented or

abused on the basis of its outcome.

For every Indian company with a global presence,

zealously aspiring to match up to international standards

on compliance and governance – it’s time to play the

Devil’s advocate and question the status of a whistleblower

in its governance structure. Is a whistle-blower

an “informer” or an “intruder”? Today, compliance

is seen to be an investment in the future of the business.

The NAV of this investment would be the confidence that

a whistle-blower enjoys in raising issues without fear or

favor.

Let me conclude this with a story from Mahabharat:

Karna, a confidante of Duryodhana, the Kaurava

prince and Duryodhana’s wife Bhanumati were once

playing their favorite game of dice. They were engrossed

in the game and Bhanumati was almost losing the game

– which is when she saw her husband Duryodhana

walking towards her room. Karna who was sitting

with his back turned to the door could not obviously

see Duryodhana coming. On seeing her husband, as a

mark of respect, Bhanumati tried to rise - and Karna in

the thick of the game extended his arm persuading her

to sit back, allowing him to win. In this tussle - his hand

touched her waist band, it broke and the pearls scattered

all around.

Karna soon realized the embarrassment – with Duryodhana

walking in, finding his wife in a compromising situation.

Unperturbed, Duryodhana turned to Karna and asked,

“So, do I pick it or fix it?” This statement went to make

history in Mahabharat as a mark of the deep trust and

confidence that Karna and Duryodhana shared.

The strength of the governance system lies in the confidence

and trust that the management has in owning up to issues

– with the willingness to pick it and the readiness to fix

it – without questioning the intent or the motive of the

scattered pearls – the whistle-blower.

Whistleblower protection is a veil when the emphasis

is on safeguarding the reporter. It is a shield when the

emphasis is on the resolution of the issue. In the merging

line between the two lies the strength of compliance and

power of governance.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.