- Sarthak Yadav*
The Kali is a river that flows through the south Indian state of Karnataka, on the banks of which rests the city of Dandeli. The relatively small Kali River has been dammed 6 times already; on top of the myriad of industrial effluents discharged in the river by paper mills. When a seventh dam was proposed for the Kali river, it was opposed in part by one Ajit Maneshwar Naik, an environmental activist in Dandeli known to vocally fight against the pollution and excess damming of the river. Mr Naik was ultimately successful in his efforts for protecting the river and the environment surrounding Dandeli. Mr Naik was killed soon after.
The story of 57 year old Ajit Maneshwar Naik is not an isolated incident; it is another example of the fate that is all too common for environmental activists in India. It is no secret that India has, for the last decade or two, been focussing heavily on becoming a global manufacturing hub. As India continues to push forward with its industrial endeavours, the environment remains at a constant threat of exploitation and subversion. And while India possesses a number of laws aimed at protecting the environment, the protection offered to the ‘individuals’ protecting India’s environment is marginal at best.
The scope of this article is to examine the environmental whistleblower framework in India and the protection that environmental whistleblowers can expect. The author aims to illustrate both the undying need for a robust whistleblowing framework and the inadequacies of our current laws for the same. There is a significant lack of literature regarding whistleblowing specifically for environmental protection, and therefore, a scholarly endeavour on environmental whistleblowing is interconnected with corporate whistleblowing. Part I of the paper deals with whistleblowing as a concept and its definitions. Part II furthers the concept by analysing a need for whistleblowing protections, especially in an environmental context. In Part III, the environmental whistleblowing framework in different jurisdictions will be examined in order to draw a comparative analysis of global environmental whistleblower protections. Part IV then seeks to understand the legal framework behind environmental whistleblowing; and lastly, on the basis of the aforementioned, Part V will seek to provide recommendations for India’s framework.
Part I: Whistleblowing As a Concept
Whistleblowing relates to the “the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action”. The practice seeks to disperse sensitive information regarding a “wrong” into organissations or people that possess the power to remedy, or punish, such wrongs. It involves a) a deliberate act of disclosure, b) by a person who possesses privileged information, c) regarding an illegal or immoral act done consciously by an organisation, d) onto the public record. The difference between disclosing general workplace complaints and whistleblowing is that the latter affects public interest. The term originates from the policy of English policemen to blow a whistle whenever they spot a commission of a crime in order to draw attention to such crime.
According to the Indian Supreme Court, a whistleblower is a person who raises a concern about the wrongdoing occurring in an organisation or body of people, who usually belongs to the same organisation. The act complained of can be either completely illegal, or opposed to public interest (e.g. health and safety violations), and can be reported either within the organisation itself, or to outsiders with a stake in such information (such as media houses, regulatory bodies). Environmental whistleblowing, therefore, is whistleblowing that seeks to protect the environment i.e. the reporting of a wrong against the environment, by a person possessing reliable and privileged information, for either the prevention or remedying of the said wrong. As pointed out by environmental whistleblowing organisation WildLeaks, it is important to note that environmental whistleblowing deals with environmental ‘crime’; this includes not just whistleblowing regarding pollution, but whistleblowing relating to the trafficking of animals and plants, poaching, crimes against marine life, etc.
Part II: The Need for Environmental Whistleblowing
Whistleblowing usually enters headlines in a corporate context. Yet that does not mean that whistleblowing is restricted solely to cases of corporate fraud; whistleblowers act as a means to self-regulate organisations ‘regardless’ of industry. This happens due to the fact that whistleblowers belong majorly to the organisation and thus possess certain information regarding the commission of a misdeed, which they can report, internally or externally. Whistleblowers are an effective, decentralised way of ensuring compliance with the law. Even the U.S. Congress once remarked in this context, “The best source of information about what a company is actually doing or not doing is often its own employees”. Therefore, whistleblowers are an effective means of regulating all industries, yet their importance is especially underscored in the environmental sphere. The need for a robust environmental framework is twofold:
Firstly, there is an inherent requirement for whistleblowing in an environmental context. Environmental crime is globally recognised as a serious detriment to society; in 2016 the UN adopted a resolution recognising environmental crime as a part of organised transnational crime. It is valued at up to USD 250 billion in 2016, making it the fourth largest criminal activity in the world (just behind drug smuggling, counterfeiting and human trafficking). However, the scale of environmental crime only serves a means of highlighting the gravity of environmental crime, as such crime has a variety of socio-economic detriments to society. As environmental whistleblowing organisation Wildleaks remarks, environmental crime has a huge human toll: illegal logging directly funds armed conflict, and forest related crimes create friction with indigenous tribes leading to exploitation, violence and loss of livelihood. In India, 10.6 million hectares of original forests have been lost in fourteen years, 3 times more than the reported afforestation in that period. In the Himalayas, the loss of these original forests has resulted in a drastic loss in forest bird population. Environmental crime in terms of wildlife trafficking and poaching is also prevalent: poaching more than doubled during the COVID-19 pandemic in India, with 88 instances in 6 weeks (compared to 35 previously). As an extension of the abovementioned fact (that the members of an organisation are the most well placed to report wrongdoings in said organisation), whistleblowing frameworks can act as robust tools to expose occurrences of environmental crime either by way of pre-emptive reporting by a participant of an upcoming crime, or after the crime has been committed. The condition of anonymity, as observed later, serves as a primary level of defence for either direct witnesses or other people with knowledge to report perpetrators of environmental crime, who might not have reported the same through existing criminal procedure(s) which often require the declaration of their identity.
Secondly, there is a need for a ‘specific’ whistleblowing mechanism to effectuate the inherent need for environmental protection. As highlighted later, India’s current framework for environmental protection relies on the efforts of governmental boards (for regulation and investigation) and citizen suits. This is primarily due to the fact that environmental harm is usually irreversible, necessitating a prevention-based approach rather than a cure based approach, as illustrated by the Supreme Court of India. Additionally, as the UK All-Party Committee on Whistleblowing remarks, it is the ‘single most cost effective and important means of identifying and addressing wrongdoing.’ In the context of environmental protection, whistleblowing allows for misdeeds to be reported as and when they are carried out, which is faster and cheaper than relying on state bodies to constantly monitor all organisations. This is not only more efficient, but can also provide a quick resolution of environmental hazards and their timely containment. This need is corroborated, as in India’s current set-up, environmental courts are struggling with high case loads with a backlog reaching up to 33 years for resolution. In 2018, out of 103 cases registered under the Air and Water pollution acts, only 3 went to trial. A whistleblowing framework would allow private individuals to directly report wrongs to the requisite authorities instead of courts, thereby allowing prompt action and investigation for environmental non-compliance. Additionally, such a framework would allow for a prevention-based approach by providing an effective deterrent against environmental non-compliance.
A prevention based approach is enabled by the fact that the incentive for organisations to engage in environmental exploitation depends on a cost-based model. Organisations are likely to weigh on one hand the monetary costs that will be incurred if the organisation seeks to comply with all applicable environmental laws (for example, the cost of constructing a specialised hazardous waste treatment plant and the cost of hiring & training personnel for its operation), and on the other hand, the costs that will be incurred if the organisation simply does not comply with environmental laws (such as the maximum penalty that can be incurred if the organisation chooses to simply dump hazardous waste in the aforementioned example). In most cases, the costs of the latter are lesser than the costs for the former, and thus organisations actively seek to flout environmental laws. In India costs of non-compliance are undoubtedly low due to the inherently dangerous nature of environmental activism in India, thereby leading to a lower probability of wrongs being acted on by individuals/employees. Further, as previously mentioned, an enormous delay in environmental litigation allows organisations and individuals to continue with their environmental wrongs until a Court actually orders an injunction. This further disincentivises the reporting of said wrongs. Lastly, in cases of organisational whistleblowing, a lower cost of labour in India allows for employees who actually report wrongs to be terminated and replaced at a lesser cost, a fate all too common for environmental whistleblowers.All these factors signify a low cost for non-compliance with environmental laws. However, by establishing a whistleblower framework, the costs for non-compliance significantly rise (due to a large increase in the chance of punishment for misdeeds and a higher probability of environmental wrongs being reported), thus ensuring that organisations do not have incentive to violate environmental laws.
Therefore, there is a significant need of a dedicated environmental whistleblowing framework in India. Such a framework would allow for the protection of India’s depreciating flora and fauna, provide for a definitive measure of reporting environmental wrongs outside of the traditional judicial structure and significantly raise the costs of non-compliance with environmental laws.
Part III: Understanding Existing Environmental Whistleblowing Framework(s)
This section seeks to examine the current framework(s) in place to protect environmental whistleblowing. In order to provide context to India’s own framework, this section will examine the different whistleblowing frameworks of two other common law nations: the USA, and the UK.
A. The U.S.A.’s legal framework
The United States of America was the first country in the world to adopt whistleblower protections. Currently, on a federal level, the Whistleblower Protection Act of 1989, and the Whistleblower Protection Enhancement Act of 2012 (WPEA) govern general whistleblowing. These statutes apply only to governmental employees, and provide for protections regarding disclosures affecting violations of law, mismanagement of funds, abuse of authority and substantial danger to public health and safety. These statutes are only general statutes that deal with the functioning of governmental bodies.
In the context of environmental law, the US whistleblowing framework is governed by individual statutes providing for environmental protection, such as the Clean Air Act, and the Federal Water Pollution Control Act among others. These statutes provide protections for whistleblowers, by preventing their employers and organisations from discriminating against employees who engage in whistleblowing (both internal and external). Activities which can be considered discriminatory surface in the form of termination, demotion, unfavourable references, denial of promotion and denial of benefits. Additionally, the U.S. Environmental Protection Agency (EPA) allows for the submission of anonymous tips regarding environmental violations, allowing whistleblowers with information to protect their identity for fear of retaliation. Some statutes provide for positive incentives for whistleblowing, by providing monetary rewards for accurate disclosures.
The ability of the EPA to allow for the submission of anonymous complaints allows whistleblowers to protect their identity and avoid non-employment related retaliation. The U.S. Congressman William Ford, while passing these protections, noted
we are only seeking to protect workers and communities from those very few in industry who refuse to face up to the fact that they are polluting our waterways, and who hope that by pressuring their employees and frightening communities with economic threats, they will gain relief from the requirement of any effluent limitation or abatement order.
Therefore, the U.S. environmental framework allows for the disclosure of environmental violations by employees, if they possess information regarding said violations, or have been asked to engage in violative acts. Additionally, the U.S. framework provides for protections for those who engage in whistleblowing, in order to ensure that environmental violations are not left unreported due to fear of retaliation.
B. The United Kingdom’s legal framework
In the United Kingdom, the general whistleblowing provisions are governed by the Public Interest Disclosure Act 1998, (PIDA) and the Enterprise and Regulatory Reform Act 2013. Under the PIDA, workers can make “protected disclosures” to a list of governmental bodies termed as “prescribed persons”, following which the worker is protected from suffering retaliation or detriment by their employer. A protected disclosure can involve criminal offences, miscarriages of justice, dangers to health & safety, covering up of wrongdoings and risks & damage to the environment. Each prescribed person is required to publish a report at the end of every financial year, which lays down the disclosures received, actions taken and effect onto the prescribed person. It is pertinent to note that the report should be made in a manner that does not identify any person or employer, whistleblower or otherwise involved in the report.
Specifically in terms of environmental whistleblowing, the U.K. does not have a dedicated framework for the same. The environmental whistleblowing framework of the U.K. revolves around its Environment Agency (EA), and its inclusion in the list of protected persons under the PIDA. In case of environmental violations, an employee can submit a disclosure to the EA, following which the Agency investigates the disclosure and performs necessary actions. The disclosure can either be qualified, or anonymous. After the conduct of its investigation, the EA shall then create a report of the same and publish it in the public domain. Thus, under U.K. law, environmental whistleblowing relates to the submission of disclosures (anonymous or otherwise) to either the employer or the Environmental Agency, by an employee. However, unlike the EPA where any member of the public can disclose environmental violations, environmental whistleblowing in the U.K. can only be done by an employee.
C. India’s legal framework
The Indian framework for whistleblowing is in a relatively nascent stage. When compared to the above two countries, India’s cognisance for whistleblower laws had only begun in the early 2000’s with the widely-publicised murder of the Golden-Quadrilateral whistleblower Satyendra Dubey. In India, whistleblowing frameworks only extend to corporate malpractices and governmental corruption, with no specific provisions for environmental whistleblowing. The closest provisions in India for environmental whistleblowing relate to the various "citizen suit” provisions in environmental legislations.
General Provisions Related to Whistleblowing
On a general level, Indian whistleblowing has crystallised in two ways: in terms of governmental whistleblowing, and in terms of corporate whistleblowing.
Firstly, the Whistle Blowers Protection Act, 2014 (WPA) governs whistleblowing by public servants. As stated in the statement of objects and reasons for the act, the act seeks to provide a mechanism for the resolution of public interest disclosures, with the intention to combat corruption. However, since the act seeks to combat governmental corruption and abuse of power, the act only covers disclosures made in relation to the functioning of governmental bodies and boards. The act provides for retention of anonymity for the whistleblower, however, it is necessary that all disclosures carry the identity of the whistleblower in order for the disclosure to be acted on. Additionally, once a disclosure or complaint has been made, the identity of the whistleblower is to remain protected throughout the process, unless the competent authority decides so.
Secondly, in terms of private organisations, the whistleblowing framework is provided by the Companies Act, 2013 and the Securities and Exchange Board of India’s listing agreement. Under the Companies Act, 2013, §177(9) simply provides that every listed company (or any other company as prescribed) should establish a “vigil mechanism” for the reporting of genuine concerns and grievances. The framework for the establishment of such vigil mechanisms is clarified further in the Companies (Meetings of Board and its Powers) Rules, 2014, which provides that the mechanism should protect the whistleblower against victimisation by the company, and should also allow for direct communication to the chairperson of the audit committee. However, this provision still does not accurately provide for a whistleblowing framework, as the larger procedure of registering complaints, as well as determining what constituted as “victimisation”, is left to the discretion of the company itself. This is in contrast to both the U.K. and the U.S. model, which concretely define what constitutes as retaliatory behaviour. The provisions of the Companies Act are also echoed under cl. 49 of the SEBI listing agreement, which provides by-and-large the same requirements as the aforementioned rules.
Provisions Related to Environmental Whistleblowing
Thus, India does not have any dedicated method of environmental whistleblowing. Both the government and the corporate framework do not specifically deal with environmental whistleblowing but can be applied in cases of environmental violations. In that regard, the WPA offers significantly higher protection to whistleblowers, if a governmental body engages in environmental violations. Yet, the closest provision relating to environmental whistleblowing in Indian statutes relates to citizen suit provisions.
Citizen suits are those lawsuits that are filed by private citizens in order to enforce public law statutes onto other private bodies. In India, the Environment Protection Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974, and the Wild Life (Protection) Act, 1972, provide for ‘citizen suits’: wherein a private individual may file a complaint with Courts in case of an environmental offence as specified under either of the acts. These provisions allow people who are directly affected by environmental violations by organisations to move environmental courts to force compliance. These provisions are also found in the U.S. Clean Air Act, with the addition of whistleblower awards up to $10,000.
However, citizen suits can be considered as a rudimentary form of whistleblowing, for much of what whistleblowing seeks to achieve is untouched by citizen suits. Firstly and most importantly, a citizen suit is a formal institution of a suit, thereby bringing in motion the judicial machinery to remedy the environmental wrong. In contrast, environmental whistleblowing seeks to report potential and actual environmental crimes to an executive body for investigation. The key difference herein arises from the fact that a complaint directly to a specialised environmental agency allows the agency to take swift action and investigate the same. As previously stated, environmental courts in India suffer from a 33 year backlog, and a citizen suit necessarily has to become subject to such backlog, with an investigation being launched as and when a court directs (since the Water, Air and Wild Life act do not provide for mandatory investigations under their citizen suit provisions), yet such delays allow for the continuance of non-compliance and the prolonging of environmental harm. Compared to the same, a dedicated environmental whistleblowing mechanism provides for faster cognisance of environmental crime.
Additionally and most egregiously, a citizen suit shifts the burden of persecuting environmental crime onto the citizen, instead of the State; it is the citizen who has to bear the costs of litigation (monetary, reputational and costs of time) to persecute the environmental crime, instead of the State investigating (based on information received from a whistleblower) and persecuting said crime. Therefore, from citizen suit provisions for private individuals to the WPA for governmental wrongs, environmental whistleblowing in India is unfavourable and legislative changes need to be incorporated to make the same viable.
Part IV: Potential Considerations For a Robust Indian Framework
It is an established fact that any person blowing the proverbial whistle exposes themselves to a number of adverse consequences, both professionally (in terms of discrimination, harassment and termination) and personally (in terms of bodily harm and death). India is in dire need of a proper framework that protects environmental whistleblowers; in 2017, 207 environmental activists were murdered for their efforts, of which 53 were directly killed by the State. Indian whistleblowers are at best maligned and harassed throughout life (like Sanjiv Chaturvedi), or at worst murdered (like Amit Jethwa).
Therefore, in a country where employment-based retaliation is secondary to the fear of death, the ability of environmental whistleblowers to anonymously report environmental violations is paramount, and should be the first and foremost consideration in designing a framework. Yet, the existing provisions of citizen suits in India do not accord the required anonymity to the whistleblower, instead requiring a 60 day notice prior to filing a complaint. A citizen suit gives away a whistleblower’s identity both at the primary stage of filing a notice, and the secondary stage of a long drawn court process. In comparison, both the U.S. and U.K. approaches provide a prima facie solution to India’s problem, by allowing for anonymous disclosures. In this regard, the application of U.K.’s model is preferred over the U.S. model as it: a) allows for anonymous disclosures, b) requires the preparation of an anonymised report regarding complaints (allowing for closure regarding the complaint filed and proof of investigation of the complaint) and c) works off a general statute that lists entities that can be reported to, instead of specific acts providing for specific modes of whistleblowing, leading to a consolidated framework. Therefore, India too would benefit from the U.K.’s model wherein anonymous complaints can be given to the appropriate authority, requiring said authority to duly investigate the complaint and, at all times, maintain secrecy regarding the whistleblower. Establishing a reporting mechanism for these appropriate authorities is consistent with their already existing duties under their parent statutes, as acting on a whistleblower’s complaint would involve the investigation and adjudication of environmental wrongdoings, functions which said bodies already perform when taking suo moto action. Additionally and most importantly, allowing anonymous complaints ensures that even in cases where complaints are not resolved satisfactorily, the identity of the whistleblower remains protected and a significant impediment against environmental activism, i.e. the threat to life, is removed. Such a model would also be in consonance with existing legislation: amendments can be introduced in the Water (Prevention and Control of Pollution) Act, the Air (Prevention and Control of Pollution) Act, the Environment Protection Act and the Wild Life (Protection) Act to allow for disclosures to the appropriate authority as referred to above. Additionally, if the State so chooses, it can establish a nodal agency to which complaints can be directed to, who shall then forward those disclosures to the relevant authorities as referred to above.
An additional consideration is that any law or amendment providing for environmental whistleblowing should have an expansive approach to whistleblowing. This includes expanding the scope of who can be a whistleblower from only workers or public servants to anyone who possesses information regarding environmental violations. Former employees, interns/trainees, contractors, consultants etc. all fall outside the traditional employer-employee definition, yet should be included as potential whistleblowers. Therefore, India’s whistleblowing framework should, in order to adequately protect against professional backlash, include the aforementioned in order to further remove barriers to whistleblowing.
Part V: Conclusion
As of now, to be an environmental whistleblower in India is not an appealing situation. Due to little to no provisions for environmental whistleblowing, engaging in such an act subjects Indians to a number of negative consequences. In order to ensure that the negative consequences of whistleblowing do not result in a fall in reporting of environmental violations, India needs to adopt a robust framework for the protection of its environmental workers. There is an established need for such a framework, in terms of the gravity of environmental crime, or the need for a prevention-based approach that seeks to prevent violations instead of cleaning up after them. There are also a number of options to choose from- this paper only examines the U.S. and the U.K. models, but countries like Australia, New Zealand and Japan all have various models of whistleblowing in place. Thus, it is paramount that India focuses on the protection of her environmental defenders, lest they all meet the same fate as Ajit Maneshwar Naik.
* Sarthak Yadav is a 4th year student enrolled in the B.A., LL.B. course at the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University.
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