India over the past few years has observed one sector that has undergone quite a many changes and that is definitely corporate sector. Although a major portion of these changes has been propitious but not completely. This sector has not been left in much peace with the various scandals of corporate world; showcasing the darker side of corporate world indeed. But to this dark world has a hope of light, i.e. whistleblowing. So discussing some behind the scenes of those big scandals, there always is one person from the internal part of this corporate industry who stood against the wrongdoing and instead of keeping lips sealed and ignoring the wrongdoing, decided to report it and this is whistleblowing.

Now in this article we will be initiating by understand in brief about whistleblowing, further to understand the background of Whistle Blowers Act we will be discussing in detail about various cases of whistleblowing, like that of Satyendra Dubey (2003) and Vijay Pandhare (2012) and through these we will trace the development of legal structure of whistleblowing and will even look the case studies of MN Vijaykumar (2018) and Gaurav Tanjea a.k.a Flying Beast case of 2020 that will help us draw about the difference in scenario of whistleblowing before the enactment and after the enactment and with this complete development of Whistle Blowers Protection Act, 2014 can be traced. Further article will go through some of the other provisions like Companies Act 2013 and SEBI - Listing Agreement 2004 that in some or the other way aid in whistleblowing. Further article will consist of whistleblowing regulations of Japan and New Zealand and then after hold a comparative study of whistleblowing policies of Japan and New Zealand with that of our Indian Whistle Blowers Protection Act, 2014.

Introduction
The concept of whistleblowing cannot be said to be have newly introduced in the corporate world, from many years this concept has been in existence and have been used in good. But the concept of Whistleblowing in the legislative world is not much old, as it had just been approximately a decade long period when we got our hand on Whistle Blowers Protection Act in 2014.

But the problem here is not with concept of whistleblowing it is with after effects of whistleblowing that are being faced by whistleblowers whether it be termination, unfavorable treatment or even risk of life not only of themselves but also of family member.

This is where the real problem lies. The conceptual basis of whistleblowing is completely fine as it is a motivating factor to stand against the wrongdoing irrespective of it being in one's own entity where they work, but this thing works only until the point when the whistleblowers identity is not being revealed or captured as the case may be and on top of that authorities instead of joining hands with the wrongdoer, would stand against them and take actions but this had not been the scenario; resulting in many cases that despite of being reported to authorities no action being taken instead reveals the identity of whistleblower and further consequences are faced by them.

Moving further in the article here we will discuss about the problems faced by whistleblowers, their contribution which led us with development of our Whistle Blowers Protection Act in 2014 and the cases thereafter. Even we will consider the whistleblowers act of Japan and New Zealand and draw a comparison of their law with ours.

Evolution Of Legal Structure For Whistle Blowers

The development of legal structure in regard with whistleblowing has not been in the picture since quite very beginning, it is only in the last decade we observed a systematic structure for whistleblowing. This development of legal structure has been developed because of the various case scenarios which occurred in different time interval which resulted in making us realize the necessity of legal structure for whistleblowing.

So now let hop in to brief details about those case studies:

1. Satyendra dubey case, 2003
   The Satyendra Dubey case of 2003 also been referred as - The Golden Quadrilateral Case[1] very frequently even been referred to as the founding stone case in the context of whistleblowing.
   
   The facts of the case consists of the details as -
   
   Satyendra Dubey was an Indian engineering service (IES) officer, posted as Project Director in Koderma, Jharkhand at the National Highway Authority of India (NHAI).
   
   His notable work includes a strict action against few of his team members involved in financial irregularities. Even on his finding about the low quality road he ordered the in charge for that department for that particular portion road to be reconstructed; which incurred in a significant amount of expenditure even quoted as expenditure for no reason. These incidents highlighted him and of course not everyone were not pleased by his actions as many local players were even involved in this matter and that expenditure for no reason was not quite a thing they like as they were not interested in the quality matter of the road in fact they were only involved for filling up their pockets and Satyendra's action dig a deep hole in their pockets. So in furtherance of these actions on November 27, 2003 in Gaya Bihar Satyendra was shot dead.
   
   The news ignited and even screamed in the parliament reaching to the ears of then Prime Minister Mr. Atal Bihari Vajpayee Sir, who in less than no time shifted the investigation from Bihar police to the Central Bureau of Investigation (CBI).
   
   CBI findings were that on finding of financial wrongdoing in the Golden Quadrilateral Project in Jharkhand region, were Satyendra was posted, he posted letter about the irregularities details and to the higher authorities of NHAI but on getting no response he wrote about it the Prime Minister Office, but instead of reaching to Prime Minister it was being shuffled here and there among the bureaucrats, reached to those who eventually took Satyendra's life. According to CBI findings although the hands that pulled the trigger of the weapon that shot Satyendra dead was not of Contractors who were involved in financial irregularities of NHAI, but they were indirectly had involvement with the ones who shot Satyendra.
   
   However it cannot be said that justice had been served but still the three convicted in murder of satyendra were sentenced to life imprisonment in 2010, by CBI court by judge Raghvedra Singh.
    
2. Vijay Pandhare, 2012
   The Vijay Pandhare, a chief engineer of water resource department and member of state level technical advisory committee, in Government of Maharashtra. He joined his service in 1980, and since the very beginning term of his job he was inquisitive on irregular activities in the department, and that is definitely the reason why he was transferred multiple times in his tenure. He blew the whistle on multicrore irrigation scam in Maharashtra and at present he is the member of Aam Aadmi Party (AAP).[2]The facts of the case include:
   
   Vijay Pandhare posted as chief engineer in Irrigation Department at Maharashtra Engineering Research Institute in Nashik, Maharashtra where no paper of irrigation department get furtherance without his verification; found out about irregularities regarding the inflation of cost amounting to approximately Rs. 3500 crore and even discovered hints connecting it with involvement of Ajit Pawar, the then and present deputy chief minister of Maharashtra and was holding the departments of irrigation during that period.[3]

On this finding Vijay wrote about it to the then chief minister Prithviraj Chavan and to K. Sankaranarayann, the then governor of Maharashtra, but no response was received. On this silence by governor and chief minister, he reached out to Anjali Damania, journalist and they both brought up the matter of this to the public. As soon as this news erupted into the market it shook the entire state and as a consequence of this controversy Ajit Pawar had to resign. After this both Vijay Pandhare and Anjali Damania had to face many hurdles but they still kept digging in and further exposed few more irregularities and filed few PIL, proving that Anjali being an outsider and Vijay being an insider both are very particular about the intolerance towards any king of wrongdoing.

Now after observing these studies it is quite evident that the whistleblowing had not been an easy task for any one of them, but they still stood for the nation and took it all on them alone. Although in majority of these scenarios the whistleblowing act was not in picture but now after all the phases of struggles and understanding the need for it we have the Whistle Blowers Protection Act in 2014.

So as a result of these cases and many more case which has not been mentioned like of Shanmugam Manjunath (Indian Oil Corporation Case, Lakhimpur UP), V. Sassendran (Malabar Cement Case Kerala) and many others, Supreme Court put pressure on Government on death of Satyendra dubey in the matter of whistleblowing and lack of legislature to protect him.

Furtherance of this Whistle Blowers Protection Bill, 2011was passed in the Lok Sabha, and later in Rajya Sabha, with the aim to safeguard the persons from any sort of difficulties or problems. But now the scenario has changed after the implementation of Whistle Blowers Protection Act, 2014; now whistleblowers get justice, their contribution is taken into consideration and now the higher authorities tends to look into the matter. Let's now have a look on case studies after the implementation of the act.

1. M.N. Vijaykumar, 2018
   MN Vijaykumar an Indian Administrative Services(I.A.S) officer in Karnataka Cadre was forced as a punishment 'compulsory retirement' for his action termed as indiscipline and that too just three days prior to the date when his service period was going to end. The facts of the case include:
   
   MN Vijayakumar, a principal-secretary level I.A.S was from the batch 1981, cadre Karnataka. He produced enough of supporting documents disclosing the corruption in Karanataka government amounting approximately more than hundreds of crores; exposing the wrongdoing of government. Thus for this he was punished with compulsory retirement with stating reason as indiscipline actions just three days before his actual retirement; even he was denied of the retirement benefit; including these things he was charged up with seven indiscipline actions. Thus the case was brought up to Central Administrative Tribunal, Bangalore Bench, where he had Secretary (Ministry of personnel, Public Grievance & Pensions), Chief Secretary (Government of Karnataka), Secretary (Union Public Service Commission), Chief Vigilance Commissioner (Central Vigilance Commission) and Director (Central Bureau of Investigation on the other side.
   
   The judgment delivered by Honorable Dr. K.B. Suresh, dated on Sixth day of September 2018 stated that - 'MN Vijayakumar was acquitted from one out of the charge out of seven in the light of (that time new) Whistleblowers Protection Act 2014. Even in the judgment it was stated that he will be assumed to be retired on the actual date on which he was supposed to be retire and not on the day he was forced to take compulsory retirement. Also all the benefits of retirement that were due to him will be paid to him within one month.'[4]
    
2. Gaurav Taneja, 2020
   Gaurav Taneja, yes indeed the famous youtube celebrity also known as flying beast has been a whistleblower and that too exposed a very recent and popular case.
   
   Gaurav who was a pilot working for Air Asia was also quite active on youtube and had during his service showed many in-flights experience in his video logs; and had a decent number of followers on social media. So in some of his video he alleges that the airline is not following up with many governments issued standard of procedure. He disclosed that aircrafts have flaps, installed on the wings of aircraft for the purpose of aid in landing.
   
   Going into the details Gaurav mentioned, that the three flaps is being used for purpose of saving up the fuel and this is the reason airline management suggests on using it more often. But in the case of Air Asia it was mandatory for pilots to use three flaps while landing, 98% of the time and failing to maintain it airline management considered it as the violation of standard of operating system.
   
   Gaurav opened on June 15th, 2020 in his video about the incident on Imphal landing, that flaps are an essential attachment to the wings that supply for the purpose of slow and steady landing and on general situations where the weather conditions are normal landing can be done with three flaps but when the weather is not certain or stable, landing with three flaps is dangerous and it is been suggested for four flap landing; so in Imphal, which is mostly windy area the weather condition was not on the stable side, and in that particular month Gaurav had to do three out of ten landings at Imphal and to not risk the passengers safety he had used four flap landing. This is been taken by the company as violation and thus I became the reason for his termination from the services.

After he opened up about the incident and it directed in the matter that Air Asia is having compromised standard of procedure in regards with safety of passengers, DGCA (Director General of Civil Aviation) on official notification[5] stated - 'the authority have noted down regarding the irregular practice being followed by Air Asia and the concerned action will be taken'. In furtherance of this statement DGCA took action and issued suspension of two senior executives for a period of total ninety days stating the reason for violation of safety norms.

Now after observation of the cases before the act and cases after the enactment of the act it won't be wrong to point out that where on one hand before the act the whistleblowers had to gone through huge risk, even risking their life just for being standing with truth and even after that it wasn't even sure that their life would have paved the way for justice; but in the studies of case after the enactment it is evident that now to stand with truth the whistleblowers need not to risk their life, although there still exist certain risk like of termination or unfavorable treatment; but now they get justice, they can claim for what is right and this had been the journey of Whistle Blowers Protection Act, 2014.

Other Legal Structure In Regard With Whistleblowers

The Whistle Blowers Protection Act, 2014 expressly provide for - 'a mechanism to receive complaints relating to disclosure on any allegations of corruptions or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for the matters connected therewith'[6] but apart from this there stand many other laws concerned with whistleblowers. Further now let discuss about structure and scope of those regulations.

1. The Companies Act, 2013
   Section 177- Audit Committee; sub-section 9 of the act along with regulation 7, of Companies (Meeting of Board and its Powers) 2014, makes it mandatory for - 'every listed company or such less class or classes of companies, as may be prescribed, shall establish a vigil mechanism for directors and employees to report genuine concerns in such manners as may be prescribed'[7], thus empowering people to raise concern for wrongdoing to the competent authority.
   
   Even sub-section 10, of same section provide for adequate safeguard for the persons who use all such provided vigil mechanism and even provide for direct access to chairperson of the audit committee in certain classes of the case. All this is very valuable for the company as it very accurately provides a medium for whistleblower to expose any wrongdoings in the company.
    
2. Securities Exchange Board of India - Listing Agreement, 2004
   SEBI listing agreement in its clause 49, I. Board of Directors; (A) Composition of Board: (ii), provides that where in the person at the position of chairperson of the board is a non-executive director, in that scenario at least one-third of the board should compromise of independent directors and where in the person at the position of chairperson of the board is an executive director, in that scenario not less than 50% of board shall compromise of independent directors.[8]
   
   So if the company has more effective and independent directors on the board, it results in less arbitrariness in the company and thus independent directors won't get influenced by any outsider force.
    

Moreover under the same clause, provision II. Audit Committee; (C) Powers of Audit Committee provides that the audit committee can seek information for any employee.[9] This provision indicates towards that on raising of issue by whistleblowers the committee will take action and even can for investigation purpose interrogate the employees.

Comparative Study Between Whistle Blowing Policies Of India And Other Nations

At this point after a detailed study of evolution of whistleblowing policies in India, we will now looking forward to understand the structure of whistleblowing policies of Japan and New Zealand; and then after will have a comparative analysis of India with other two.

Now the reason for shortlisting these two countries in particular is that, firstly the core purpose of all three nation is to promote public interest, moreover Indian law is applicable to public sector whereas Japan and New Zealand covers all other sectors too including public and administrative sector), so in this way we get to explore the law which particularly provide for public sector and the others who covers all including public and administrative sector. So now let begin with understand the foreign laws and then draw comparison.

1. Whistleblowing Policies of Japan
   The Whistleblower Protection Act in Japan has been enforced since June 18, 2004; serving the purpose of - 'to protect whistleblowers by providing for nullity, etc. for dismissal of whistleblowers on the grounds of whistleblowing and the measures that a business operator and administrative organ should all take concerning whistleblowing and to promote compliance with the laws and regulations concerning the protection of life, body property and other citizens and thereby to contribute to the stabilization of the general welfare of the life of citizens and to the sound socioeconomic development.'[10].
   
   It gives protection to whistleblower who has been dismissed on the ground of whistleblowing, that if the provided information have occurred or is about to occur the dismissal stands void.[11] Similarly if a whistleblower is a dispatched worker under article 2 of Japanese Whistleblower Protection Act and is been terminated because of the whistleblowing, that termination will be nullified.[12] Also it's been provided under article 5 of the act, that any business operator will not conduct any disadvantageous treatment towards the whistleblower, been placed back in office by termination of dismissal under article 2 & 3 of Act.
    
2. Whistleblowing policies of New Zealand
   New Zealand has for protection of whistleblowers, Protected Disclosures (Protection of whistleblowers) Act, come into enforcement on July 1, 2022. It serves for the purpose - 'to promote the public interest by facilitating the disclosure and timely investigation of serious wrongdoing in or by an organization and by protecting the people who disclose in accordance with this act.'[13] Under the act a discloser is entitled to protection under section 7 (4) of the act and even furtherance of protection is being provided under section 11 of the act.
   
   It even very clearly mention under section 13 of the act, that on receiving a protected disclosure[14], receiver should within 20 days, acknowledge the receipt and further consider the disclosure and even check whether the discloser has disclosed the information somewhere else or not and after all these checks, deal with the matter as per the procedure provided under section 13 (1)(d) or further in other sections[15]. Moreover section 20 of the act provides that the employer must not retaliate against a discloser who is employee and the employee must not be treated less favorably. Also if any employer does not abide to section 20, then the employee has a personal grievance under section 103(1)k of the Employment Relation Act 2000 (New Zealand)[16]. Further section 23 particularly provides immunity to the employee from any civil, criminal or disciplinary proceedings.
    
3. Comparison between Indian Whistleblowers Act from Whistleblowers act of Japan and New Zealand
   Since we have discussed over the Whistle Blowers Protection Act, 2014 (India), Whistleblower Protection Act, 2004 (Japan) and Protected Disclosures (Protection of whistleblowers) Act, 2022 (New Zealand); so now herby we can chalk out a comparative study over all three of them.
   
   So starting with basics, it's quite evident that where we after bit of hustle got our act in 2014, there japan had it since 2004 but on contrary to this New Zealand got it on very latest in 2022. Now according to my opinion Japan being a developed country had been active about whistleblowing since very long, approximately ten years prior to our law and even very particular about the protection of interest of whistleblowers on the other hand New Zealand got to this very recently in 2022 by replacing Protecting Disclosure Act 2000, is considered to very first country to have law about whistleblowing in its Protecting Disclosure Act 2000, but now with this new act they aim to provide organizations with tools and proper legal structure to support whistleblowers. Now case with India had seen a bit of hurdles, as we have gone through the case like Satyendra Dubey case, considered as the founding stone of whistleblowers, further with many others have managed to get facilitated our Whistle Blowers Protection Act, 2014.

The purpose served by Indian law is, to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or misuse; and even to provide safeguards to whistleblowers against victimization; while Japanese law provide protection to whistleblowers by nullifying of dismissal of whistleblowers that had happened on ground of whistleblowing and law of New Zealand serves the purpose of promoting public interest by facilitating disclosure and timely investigation of it and to even protect people who disclose.

Now in writers perspective I would like to state that if lined out the core purpose is protection of whistleblower, while Japanese do it by stating clearing aiming for making it void the termination of whistleblower, New Zealand does it providing immunity under section 23 of their act and our country does it by providing it under chapter V of our Act.

In detail Japanese law under their Article 3 ad 4 provides clearly that any termination of whistleblower on ground of whistleblowing will be nullified; also they under Article 5, prohibits any disadvantageous treatment with whistleblowers. New Zealand under section 20, 21 and 22 of their law provide employer must not retaliate the protected disclosure and neither treats them less favorably; also under section 23 they provide immunity to protected whistleblower. India law have dedicated chapter V for protection of whistleblower which under section 11, provides safeguard against victimization and under section 12 to protect the witness and any other person related thereto and under section 13, to protect the identity of complainant.

Japanese law doesn't have provision in regard with any penal provision on furnishing with incomplete or incorrect information or even for revealing whistleblowers identity; although even New Zealand doesn't have dedicated penal provision for providing with wrong information or revealing identity but it provide that receiver may not take action in certain cases[17].

But here in India the scenario is a bit different, here it is been provide that if concerned person has not provide with the report referred in section 5(3) of Whistle Blowers Protection Act, 2014 the penalty of up to Rupees 250 for each day is being imposed till very date the person supply with the report, however total amount of the penalty cannot exceed fifty thousand rupees and if the organization or person have intentionally furnished with incorrect or incomplete information than they will be subject to penalty of up to fifty thousand rupees. Even if a person whether negligently or in bad faith will be punishable with imprisonment for term not exceeding three years and a fine up to fifty thousand rupees[18].

Conclusion
After reading the article its evident Whistle Blowers Protection Act of 2014 has had a journey of its own and a journey that not has been easy definitely. While we observed about the sacrifice of the whistleblowers who stood against the wrongdoing and decided to take action against it but to some it cost them their life and for some it was there career that suffered and all these because we lacked in a proper legal structure to protect their interest.

But nonetheless with respect to the people who suffered we have made it to the way of getting a proper legislation as Whistle Blowers Protection Act in 2014, which now under various provisions provide for protection of the whistleblowers.

On the very end of article it would also be right to mention as we got into details of comparison of legal structure of different nations and India, that indeed we as a nation got a bit late on getting act for whistleblowers, as Japan had it since 2004 and New Zealand had a previous version of this in 2000, and now revised in 2022, but we have furnished our act with very particular provisions that provides numerous safeguard to whistleblowers and even provide penalty for to person who reveals identity of whistleblowers.

With final words it won't be wrong that we now as nation are taking stand against the wrongdoing and now even determined to even provide protection to the ones who stand there for the nation.

End Notes:

1. AT Migration, "Satyendra Dubey murder: CBI court convicts 3; brother cries foul" India Today, March 22, 2010, available at https://www.indiatoday.in/india/north/story/satyendra-dubey-murder-cbi-court-convicts-3-brother-cries-foul-69973-2010-03-21 (August 29, 2024)
2. Durga Ranjan, "Retired chief engineer Vijay Pandhare to join AAP", Inshorts, Sunday 01 December, 2013, available at https://inshorts.com/en/news/retired-chief-engg-vijay-pandhare-to-join-aap (August 29, 2024)
3. Government of Maharashtra official website, available at: https://www.maharashtra.gov.in/Site/1627/Deputy%20Chief%20Minister%20of%20Maharashtra (August 29, 2024)
4. Original application number 170/00463/2016/CAT
5. DGCA official website, available at: https://www.dgca.gov.in/digigov-portal/?dynamicPage=IncidentReports/500006/0/viewApplicationDtlsReq (August 29, 2024)
6. The Whistle Blowing Protection, 2014 (Act No. 17 of 2014)
7. The Companies Act, 2013 (Act No. 18 of 2013)
8. SEBI Listing Agreement, 2004-Clause 49 (I. Board of Directors: (A) composition of Board)
9. SEBI Listing Agreement, 2004-Clause 49 (II. Audit Committee (C) Powers of Audit Committee)
10. The Whistleblower Protection Act, 2004 (Act no. 122 of 2014, Japan), Article 1.
11. The Whistleblower Protection Act, 2004 (Act no. 122 of 2014, Japan), Article 3.
12. The Whistleblower Protection Act, 2004 (Act no. 122 of 2014, Japan), Article 4.
13. Protected Disclosures (Protection of Whistleblowers) Act, 2022 (Act no. 20 of 2022, New Zealand), section 3.
14. Protected Disclosures (Protection of Whistleblowers) Act, 2022 (Act no. 20 of 2022, New Zealand), section 9.
15. Protected Disclosures (Protection of Whistleblowers) Act, 2022 (Act no. 20 of 2022, New Zealand), section 15,16.
16. Protected Disclosures (Protection of Whistleblowers) Act, 2022 (Act no. 20 of 2022, New Zealand), section 21.
17. Protected Disclosures (Protection of Whistleblowers) Act, 2022 (Act no. 20 of 2022, New Zealand), section 8, 10 and 15.
18. The Whistle Blowing Protection, 2014 (Act No. 17 of 2014), section 15 and 16.

Award Winning Article Is Written By: Mr.Sarthak Khare

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