The whistleblower
BY A . G . N O O R A N I | 8/1/2015
DEMOCR ACY, though as old as the Greek, has not passed the age of childbearing. New institutions can yet crop up to strengthen the traditional ones when people feel that they are not effective enough.

Not long after the last world war, the English-speaking world acquired a fascination for the age-old Scandinavian institution of the ombudsman. In 1961 a report on The Citizen and the Administration by Sir John Wyatt Wylie noted that so great was the reputation of the Danish ombudsman that `he has even been receiving complaints in recent months from persons in this country of maladministration in the United Kingdom.

Australia and New Zealand adopted the model. So did the UK by the Parliamentary Commissioner Act, 1967. His main task is to expose maladministration; that is misuse or wrong exercise of administrative power to the detriment of a citizen`s rights even if it did not constitute corruption or any criminal offence.

Gross delay in payment of pension to a widow, for instance, constitutes maladministration.

Pakistan`s mohtasib is also an ombudsman.

Despite half a century`s debate and reports galore, India has yet to enact a law to establish its own model, the Lokpal. The states, meanwhile, went ahead and set up their Lokayuktas by law. Some have been effective enough to exact a toll of ministerial heads.

Meanwhile, another institution crept its way into public confidence the whistleblower. In the United States, Richard Nixon`s misdemeanours led to the Civil Service Report Act, 1978. Its Whistleblower Protection Act, 1989 is only a graft on that statute and fortifies the Act of 1978 with additional safeguards. It is based on a congressional finding that `protecting employees who disclose government illegality, waste and corruption is a major step towards a more effective civil service.` The act lays down an elaborate scheme, with the office of Special Counsel at the apex, to protect the whistleblower. He does not operate in a vacuum but in a clime and a set-up in which the civil servant enjoys considerable protection from reprisal.

British civil servants are also secured by the Public Interest Disclosure Act 1998 (the `Whistleblower`s Act`) against dismissal or other sanctions, if they make `protected disclosures` of malpractices such as a criminal offence, a miscarriage of justice, a risk to health or safety, etc.

In terms of whistleblowers in India, the Supreme Court stepped in five years ago with a landmark ruling. It refused to hold the editor of a law journal guilty of contempt of court because he had exposed irregularities in the transfers and postings of a quasi-judicial tribunal.

The court did not stop at that. It accorded judicial approval to the growing phenomenonof whistleblowers. The new arrival`s status and functions were clearly defined. `A whistleblower is a person who raises a concern about the wrongdoing occurring in an organisation or a body of people. Usually this person would be from that same organisation. The revealed misconduct may be classified in many ways, such as a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption.

Whistleblowers may make their allegations internally (for example, to other people within the accused organisation) or externally (to regulators, law-enforcement agencies, to the media or to groups concerned with the issues).

Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or a superior within their company.

The court added: `One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behaviour orreport it. There is some reason to believe that people are more likely to take action with respect to unacceptable behaviour, within an organisation, if there are complaint systems that offer not just options dictated by the planning and controlling organisation, but a choice of options for individuals, including an option that offers near absolute confidentiality.However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information`s severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies.` The Supreme Court thus sanctioned exposure of misconduct to the media. It approvingly recalled this ruling in another case on May 14, 2015.

The whistleblower has arrived. But, this does not dispense with the need for statutory protection against reprisal. In recent weeks India has been rocked by a scandal of monumental proportions in Madhya Pradesh concerning recruitments and appointments in educational institutions. The whistleblower, a doctor in state employment, was swiftly punished by transfer to another city; so was his wife, also a government doctor.•
The writer is an author and lawyer based in Mumbai.

Published in Dawn