This post is written by Utkarsh Jain, a student of Symbiosis University, Noida. As a law student, Utakarsh is interested in researching on topics pertaining to commercial laws.
The Greek philosopher Plato has said “Necessity is the mother of invention” and invention doesn’t just mean products or services, it applies to societal concepts and belief as well. Social interaction, industrial revolution or even electronics didn’t just show up at the doorstep out of thin air but were created to fulfil a void in humanity and how humans lived in the society. Law as a concept was developed because people who committed actions thought of it, as unethical or against the societal norms should not earn the privilege to go unpunished. But for a long time, actions committed that afflicted personal harm causing bodily injury were considered as the only actions that seemed punishable. Law developed and actions that damaged mental stability or the livelihood were also taken into account. A layman usually associates law with a heinous and vile crime such as murder that falls under the umbrella of criminal law but ignores the crimes that affects the most no. of people’s livelihood are the corporate frauds that unstabilise the financial security of numerous citizens and leave them helpless as the financial institutions in which they had utmost faith to invest their money fairly had failed them. And unlike a usual criminal, the conspirators of these financial frauds either escape right under our noses or their punishment are equivalent of a slap on the wrist.
Psyche behind the crime:
With a massive population of 450 people per square kilometre, India has seen highly unequal distribution of resources and the people that rise up from these ashes to make a name of themselves, they do not feel that they owe society any credit for their success and therefore do not have any repent on committing financial frauds and destroying the livelihood of a common middle man. The law regarding financial frauds seems strong and impenetrable prima facie but through the cracks in the system, the criminals escape unscathed with no regret whatsoever of the pecuniary damage that they have caused to the economy. These criminals work hard themselves, make a killing, and then abscond themselves through the loopholes which begs the question, why should we be good?
So .... Why be good?
A man, a simpleton to be precise named Satyendra Dubey was highly educated, immensely skilled and morally impeccable. He was a mere project engineer with one of the biggest authorities, the National Highway Authority of India working in the Golden Quadrilateral project in Bihar. He had humble beginnings, was extremely talented and yet down to earth.
But even working at a high position in one of the biggest highway projects, upon suspicion of corruption of the taxpayer’s money, Satyendra Dubey showed colossal courage and lodged a complaint under the umbrella of whistle blowing to the higher authorities in 2003. Unfortunately, Satyendra Dubey was murdered in 2003 only but his actions led to imprisonment of 3 corrupt officials and also the creation of the Whistle-blower Protection Act, 2014 which helped potential whistle-blowers to complaint about the corruption as well as hide their identity (under section 4 (vi)) while doing so for their own protection. An amendment which suggested the whistle blowers to compulsorily reveal their identity as well as have a Right to Information filed regarding the same had been squashed. In 1972, a whistle blower whose name was discreet for a multitude amount of years had provided information impertinent to politics which later came to be known as the Watergate Scandal and to protect the identity of the whistle-blower, he was named “Deep Throat”. The whistle blower was an associate director at the Federal Bureau of Investigation named “Mark Felt” whose identity was kept secret 11 years after President Nixon’s death and 31 years after his resignation. The information provided help counter impenetrable corruption at the highest levels of politics and was only successful due to the fact that the source was immensely protected and the news broke in media creating a whirlwind of public support for him.
The whistle-blowers act though does not explicitly mentions authority on corporations, but various company regulatory acts such as the Companies Act, 2013 as well the SEBI LODR (Listing Obligations and Disclosure Requirements), 2015 does help potential whistle-blowers to reveal dormant deception that may occur in the near future. A unembellished shareholder activist name Arvind Gupta, exposed a loan fraud at one of the most reputable banks in India, the ICICI Bank due to which the CEO Chanda Kochhar had to step down in lieu of her illicit activities.
Facing the Reality:
As of now, the Whistle-Blower Protection Act is not operational as the centre has stated that it needs to safeguard sensitive information and not disclose security data critical to national interests. The government has even gone to state publicly that the existing regulatory framework is satisfactory enough to protect the livelihood of potential whistle blowers but if the existing frameworks were sufficient then how come Satyendra Dubey’s identity was disclosed which further led to his death?
Fortunately, the Companies Act, 2013 and the SEBI (Security Exchange and Board of India) have made it mandatory for some companies to have certain mechanisms to protect the whistle blowers in their bylaws or other documentations as well as hide their identity. As a positive impact of implementation of these policies, the National Stock Exchange (NSE) has seen over 3000 complaints regarding business conducted by the companies and thus gave exposure to the actions of the business on a large scale simultaneously gaining media attention so that the company is accountable and answerable for their actions.
To sum it up
Fear has always been a very important whistle-blower. Our emotion and our history can provoke fear that may arrest us at any time or at any place. Above and beyond, fear might be contagious and its scent, sometimes compels us to bend the rule tan to break it. Statutes aren’t just created to punish the wrongdoers but also to intimidate those who may seem to think that to manipulate their way to success is acceptable. Although it may seem immoral to say that to keep people in fear is pertinent but those who have fear are the ones who think of committing illegitimate acts. If a person is honest and has sincere intentions, they will never have a fear of anything. The pecuniary institutions now are fairly regulated with ample amount of complaints to keep them under check while the general public can also now invest having an appropriate amount of information. So, where the scope of massive development remains is the government where each whistle blower is as safe as Satyendra Dubey was. Even the government has no intention of properly implementing the Whistle blower Protection Act as they are safeguarding their own egocentric interests at the cost of unfair governance with no bona fide regulation.
To say that it is high time for government to justify and account their decisions regarding their own regulation is an understatement because India is the world’s biggest democracy and such policies make the citizens feel like they are ruled by a monarch. Just like the Watergate Scandal helped counter corrupt practices at a higher level to maintain peace and security not just for the political world but also for an everyday citizen, the protection of whistle blower’s identity is as crucial as indicting a murderer for his murder as if it had not been for the dedication of the officials to not disclose the identity of the “deep throat”, Nixon would have never resigned and corruption would still be at its peak in the United States.
To conclude, fear must be provoked in the minds of those with ill intentions and that is only possible with an irreproachable law and even though it won’t guarantee unparalleled success, it would still be a small step for man but a giant leap for mankind.
