The corporate world has seen a tremendous boom in past years, one side of the coin is vast growth and opportunities whereas the flip side is darker which includes frauds, corruption, mismanagement, and abuse of power inside the organisation, this when exposed results in loss of confidence of investors and ultimately leads to a huge impact on the global economy. These frauds cannot be seen from the outside world until and unless an internal member of the organisation who work with dedication and care about the company’s success and well-being reveals the true picture of corporate. This exposure is termed as WHISTLEBLOWING.
In the corporate world, whistleblowing plays a crucial role in maintaining transparency, accountability, and ethical standards. Here, a whistleblower is an employee, a worker, their group, government regulators, or an outside agency who reports suspected wrongdoing. This whistle-blower provides information to the employer, an authenticated person, or a committee investigating suspected illegal or improper activities, or to law enforcement.
While whistleblowing is a powerful tool for combating wrongdoing, it also comes with its own set of legal rights, challenges, and impact on both individuals and organizations because one cannot understand that how difficult it is exactly for a whistle-blower after taking the decision to blow the whistle. Exposing corruption and any abuses has never been easy in India. A whistleblower puts his wellbeing at stake just to highlight issues and bring that to attention. It is hard to imagine the consequences faced by them after deciding to blow the whistle. A whistle-blower puts his life under threat throughout. Whistleblowing in corporate settings can have significant consequences, both positive and negative. On the positive side, it can expose wrongdoing, promote transparency, and uphold ethical standards, leading to improved corporate governance and public trust. However, whistleblowers often face challenges such as retaliation, loss of job security, social isolation, and legal battles.
In India, the legal framework concerning whistleblowing and the protection of whistle-blowers has predominantly focused on listed companies. The Companies Act, 2013 [1], mandates the establishment of a “vigil mechanism” for directors and employees of listed companies and other prescribed companies. This mechanism serves as a channel for reporting wrongdoing and aims to prevent victimization. There is an additional requirement of publishing the details of the mechanism on the company’s website and in the report of the board of directors[2]. Further in case of repeated frivolous complaints being filed by a director or an employee, the audit committee or the director nominated to play the role of audit committee may take suitable action against the director or the employee including reprimand[3].
The Securities Exchange Board of India (“SEBI”) has mandated that every listed company should have a whistle-blower policy and make employees aware of such policy to enable employees to report instances of leak of unpublished price sensitive information. SEBI has also increased the monetary incentive to ₹10 crores, signalling a commitment to empowering whistle-blowers and combating insider trading.
The Whistleblower Protection Act, 2014, provides a framework for protecting whistleblowers in India. It aims to encourage individuals to come forward with information about wrongdoing without fear of retaliation.
Recent developments, such as the inclusion of whistle-blower protection and a public interest exception in the Trade Secrets Protection Bill recommended by the Law Commission of India in its 289th report in March 2024, are significant steps toward promoting ethical practices and accountability in businesses and industries. Whistle-blower protection plays a vital role in fostering a culture of transparency and accountability, empowering individuals to speak up against misconduct without fear.
Despite legal protections, whistleblowers often face significant challenges and risks. One of the primary challenges is the fear of retaliation from employers or colleagues. Whistleblowers may experience harassment, isolation, or even termination as a result of their disclosures and whistleblowing can jeopardize their careers, especially if the organization has a culture that discourages dissent. This fear can deter individuals from speaking up, even when they witness wrongdoing.
Another challenge is the potential for legal repercussions or defamation lawsuits. Whistleblowers must ensure that their disclosures are based on credible evidence and do not violate confidentiality agreements or trade secrets. The stress of whistleblowing in a corporate context can have a significant psychological impact, including anxiety support services for mental health may be lacking or inadequate navigating these legal complexities while fulfilling their ethical obligations can be daunting for whistleblowers.
Effective resolution not only addresses specific instances of wrongdoing but also strengthens trust within the organization, encourages transparency, and contributes to a healthier, more ethical work environment.
In India, public and listed companies not following a whistleblowing policy, may face legal consequences under various laws and regulations. Some key provisions and laws that are relevant in this context include:
Companies Act, 2013: Section 177, as mentioned earlier mandates the establishment of a vigil mechanism (whistleblower policy). Failure to comply with this provision can lead to penalties and legal actions against the company.
SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015: Listed companies are required to have a whistleblower policy under Regulation 22 of the SEBI (LODR) Regulations. Non-compliance with these regulations can also result in penalties imposed by the Securities and Exchange Board of India (SEBI).
Prevention of Corruption Act, 1988: Companies involved in corrupt practices or not addressing reports of corruption through their whistleblower mechanisms can face legal action under this Act, which deals with corruption-related offenses.
Protection of Whistleblowers: The Whistleblower Protection Act, 2014, provides protection to whistleblowers in certain sectors. While this Act primarily focuses on protecting whistleblowers from victimization, it indirectly emphasizes the importance of having effective whistleblowing mechanisms in organizations.
Corporate Governance Guidelines: Various corporate governance guidelines, such as those issued by SEBI, RBI (Reserve Bank of India), and other regulatory bodies, may also require companies to have robust whistleblowing policies in place. Non-compliance with these guidelines can lead to reputational damage and regulatory actions.
Having said the above, there are no specific laws dealing with the protection of whistleblowers applicable to private, unlisted companies or unincorporated entities and their employees. For these entities, employers are free to formulate and adopt a whistleblower policy to encourage employees (or any other person for that matter) to report matters. Accordingly, for private establishments, the whistleblowing regime remains largely discretionary, and policy driven. This highlights the unfortunate state-of-affairs and the overall uncertainty towards private, unlisted corporates, when it comes to utilizing whistleblowing as an effective tool to blow the lid on suspicious and unfair practices and the flouting of law. Thus, the existence and adherence to whistleblowing policies remains largely discretionary. Few strategies for effectively promoting awareness about whistleblower policies in private companies and smaller organisations are:
- Comprehensive Policy Documentation: Start by developing a clear, concise, and accessible whistleblower policy that outlines the procedures for reporting misconduct, guarantees confidentiality, and prohibits retaliation.
- Training Programs: Conduct regular training sessions for employees at all levels to educate them about the importance of whistleblowing, how to identify misconduct, and the steps to report it safely. These programs should emphasize the company’s commitment to protecting whistleblowers.
- Communication Channels: Establish multiple communication channels for reporting misconduct, such as anonymous hotlines, dedicated email addresses, or secure online platforms. Ensure that these channels are well-publicized and easily accessible to all employees.
- Promote a Speak-Up Culture: Encourage a culture where employees feel comfortable speaking up about wrongdoing without fear of reprisal. Highlight success stories where whistleblowing led to positive outcomes or improvements in the company’s operations.
- Management Support: Obtain buy-in and active support from senior management and leadership. Leaders should lead by example, demonstrating zero tolerance for retaliation against whistleblowers and actively promoting ethical behaviour.
- Rewards and Recognition: Consider implementing rewards or recognition programs for employees who report misconduct through the whistleblower system, reinforcing the value of ethical behaviour and integrity.
- External Resources: Provide employees with access to external resources, such as legal advice or whistleblower protection organizations, to enhance their confidence in using the reporting channels.
The effectiveness of a whistleblowing process hinges on the assurance of protection for both employees and employers, ensuring that policies are not just words on paper but actively enforced and supported throughout the organization’s hierarchy. By implementing these strategies, entities can create a culture of accountability, integrity, and transparency, where employees are empowered to speak up against misconduct and contribute to a healthier and more ethical work environment. In addition, ensuring formation of effective and independent vigil mechanisms, a robust legislation are crucial to be implemented in India, in order to ensure that when it comes to unlisted and private companies, the protection of whistle blowers and the manner in which such complaints are dealt with does not remain subjective and at the discretion of the management. To foster a conducive environment, it is imperative to cultivate a compliance culture, emphasize the significance of reporting, and fortify anti-retaliation measures. Ultimately, the need of the hour is to make employees “FEEL SAFE.’’
[1] Section 177 of the Companies Act, 2013; Rule 7, Companies and (Meetings of Board and its Powers) Rules, 2014
[2] Section 177 of the Companies Act, 2013
[3] Rule 7, Companies and (Meetings of Board and its Powers) Rules, 2014