Whistleblowers get the shield of 'truth'

Whistleblowers are facing tough times: Wikileaks Founder Julian Assange has just escaped an arrest on the charge of rape. Fact-seekers under the Right to Information Act are threatened, and, in some cases, like IIM graduate Manjunath who exposed petrol adulteration racket, murdered for exposing the rot in the system.

However, the Supreme Court has given a big hand to those who let sunlight into the establishment, especially journalists and editors. It dismissed the petition of the Indirect Tax Practitioners Association, which sought conviction of an editor who opened a can of worms in the judicial system.

The judgment, delivered by Justices G S Singhvi and A K Ganguly said there was a “growing acceptance of the phenomenon of whistleblower”. The editor in this case “can appropriately be described as a whistleblower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such a person by invoking provisions of the Constitution or the Contempt of Court Act.”

The judgment, which came while a law to protect whistleblowers was on the anvil, explained that a whistleblower was a person who raised a concern about a wrongdoing occurring in an organisation or body of people. Usually this person would be from that same organisation. The revealed misconduct might be classified in many ways; for example; 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 (to other people within the accused organisation) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issue).

Most whistleblowers are ‘internal whistleblowers’, who report misconduct on a fellow employee or superior within their company. “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 or report it,” the judgment said. 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 judgment explained.

In this case, the association moved against the editor of Excise Law Times, R K Jain, arguing that his analytical articles regarding irregularities and postings of members of the CESTAT would not only create a sense of fear and inhibition in the minds of the members but also apprehension in the mind of the advocates. The association also pleaded that by targeting particular members of CESTAT, the editor had scandalised the entire institution. The court not only dismissed the petition but also imposed a cost of '2 lakh on the association.

The judgment is also significant in that for the first time truth has been recognised as a defence against contempt of court charges. The court invoked a new provision introduced in the Contempt of Court Act. It said it was an important recognition of the fundamentals of our value system, namely the truth. If publication of truth is in public interest and bona fides, truth is a valid defence against prosecution, the court emphasised.