TOPIC- WHISTLE BLOWERS AND THE LAW. PARTHA PRATIM SINHA AT LEXCLIQ

           Whistle blowers and the law

 

Defined as the process by which employees working in a public or private corporation blow the whistle or disclose claims of malpractices by or within the organizations. It is also disclosing information about acts of corruption or dangers to the public or environment. This is generally done where the interest of the public is involved. This is particularly true where the projects are financed by the tax payers money. Another definition made by investigators in the field is the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control their employers to persons or organizations that maybe able to effect action.

The term whistle blowing is a universal phenomenon. A person goes public with the claims usually after failing to remedy the matters from the inside, at great personal risks to themselves. The person making the said allegations is termed as the whistleblower. Whistleblowers cannot remain silent and usually speak out on the face of improper behaviour. A person is termed as a whistleblower only when he/she discloses serious malpractices. India too has witnessed the appearance of whistleblowers from V.P.Singh to Manoj Prabhakar to P. Dinakar. Such practices range from corruption and fraud in defence procurement to cheating and plagiarism in scientific research. It is in this context that a whistleblower or whistle blowing is differentiated from other related practices such as in-house criticism, anonymous leaks etc.

Object and consequences:
Since the primary object to be achieved by the disclosure of a malpractice is to awaken the public about the wrongful acts of an organization, it also serves the purpose of filling in gaps or overcoming any lacunae which might have occurred due to inefficiency on the part of the corporation. Also, the goal is to stop the improper actions, penalize the wrongdoers and redress or compensate any victims, if any. This forms a reform perspective, in which the solution to problems is to replace corrupt people with honest ones and to establish good processes for monitoring and dealing with problems. The consequences suffered by a whistleblower after he discloses the information to the public is generally grave and irregular. It varies from ostracism to blacklisting. A whistleblower is subjected to numerous acts of cruelty ranging from petty harassment, spreading rumours, formal reprimands, transfer, suspension and can also become targets of termination. This is commonly termed as Shoot-the-messenger syndrome, though not many whistleblowers are physically shot, barring a few exceptions like Satyendra Dubey.

Taking the example of Frank Serpico, who joined the New York Police Force in 1960, where payoffs and kickbacks were rampant in the department at that time. When he refused to take the money, his fellow officers saw him as a potential danger. He approached the New York Times after his complaint about the corruption prevailing in the NYPD was ignored by the Police Commissioner and the Mayor. As a result of this brave act he became a target of his colleagues and criminals who tried to terminate him. The disclosure lead the then-Mayor John Lindsay to create an independent committee, the Knapp Commission, to investigate Police corruption in the NYPD. On June 18th of that year, Serpico testified against a former partner. Death threats continued and it all came to a head when he was shot point blank in the face while making a drug bust in Brooklyn. His colleagues did not call for help. He resigned from the force on June 15, 1972 and was awarded a medal of honour for conspicuous bravery and action.

Also, when Jeffrey Wigand simply told the truth, about what he saw and experienced as the head of research and development for Brown & Williamson Tobacco Corporation (B&W), the country’s third largest tobacco company- How the company misled consumers about the highly addictive nature of nicotine, how it ignored research indicating that some of the additives used to improve flavour caused cancer, how it hid and encoded documents that could be used against the company in lawsuits brought by sick or dying smokers. Wigand too become a victim of his honesty as he amid lawsuits, countersuits and an exhaustive smear campaign orchestrated by his company, Wigand lost his family, his privacy and his reputation. His wife divorced him, and their two daughters went to live with her. Despite these consequences he made front page news when he revealed that his former employer knew exactly how addictive and lethal cigarettes were. He delivered an impressive deposition in a Mississippi courtroom that eventually lead to the tobacco industry’s $246 Billion litigation settlement. This story lead to the making of a critically acclaimed movie called, The Insider, starring Russell Crowe.

Even in India when G.R. Khairnar a middle ranking public servant was reinstated at a time when he only had a month of service left before retirement. The object of pro-longing the appeal was to keep him out of service for most of his productive years.

This is generally the fate of those who decide to stand up against the system. Instead of evaluating the information provided by the whistleblower, the full power of the organization is turned against him. Whistleblowers are generally hardworking, conscientious employees who believe in the system. It is only when they see that there has been grave malpractice, they speak out in the expectation that their complaint will be treated seriously. When they are attacked instead, they seek immediate relief from some higher body that will dispense justice. But it has often been observed from experience that formal
channels are part of the problem. The reason behind this is that Appeal bodies are part of the system and usually seek or reach accommodation with other powerful groups. Hence, such bodies are hesitant to provide protection to whistleblowers who are employees of certain major organizations. Ideally, a government department and certain enterprises should voluntarily establish an internal procedure for whistleblowers as a matter of best practice. Providing for a speedy remedy within the organization is to be preferred for a number of reasons. Perhaps the foremost of these is that internal procedures may form part of a strategy to remove the stigma associated with justifiable cases of whistleblowing.

Employee’s duty:
In this regard an article published in Fortune, noted that 200 major U.S. Corps have recently appointed ethics officers, usually senior managers of long experience, to serve as ombudsmen and encourage whistleblowing. But this is highly dependent upon the truth in the statement made by the whistleblower. The individual who is making the disclosure must have sufficient information. If not, this can lead to consequences such as sound co-operative relationships in the organization can be unduly damaged Using force can contribute to an atmosphere or belief culture that the only way to get things done is through force. As noted, it would be considered as a mistake to think that the whistle blowing as a forcing strategy exhausts the opportunities for making an appropriate response to wrongdoing. The ideal framework is likely to include a combination of both internal and external reporting agencies. This will result in establishing guidelines that help to differentiate between circumstances when it is proper to utilize internal mechanisms or those when recourse should be had to an external agency. This however is inadvertently dependent upon whether or no the whistleblower should go public. There would seem to be a consensus of opinion that in circumstances where public exposure can be justified by an overwhelming and immediate concern for the public interest, such as when public safety maybe at risk or when there is no other alternative.

It is also required from employees that they should, as a matter of duty, be bound to disclose information or evidence in support of any acts of corruption. Therefore, the question arises of whether or not there should be a positive duty to report wrongdoing. It is worth noting that many corporations have now introduced codes of business conduct.

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