By Priyanka Sharma

It is often said that no culture is immune from corruption.  Unfortunately, there may be individuals in all societies who might improperly leverage their positions of authority, demanding financial or personal favors in order to do work they are supposed to do by virtue of their authority.  Irrespective of the degree of coercion involved, the fact remains that bribery fosters a culture of impunity and rampant corruption undermines the functioning of public institutions.  The ripple effect of this culture is then felt in many aspects of both public and private life.

Whistle-blowing or the act of exposing wrongdoing, fraud or corrupt practices in an organization or situation, has been seen as one of the few strong measures to combat corruption.  The social censure that such whistle-blowing entails for the wrongdoer seemingly operates as a check or deterrent for future improper conduct. A whistleblower can be a person who works for the government and reports misconduct within the government or it can be an employee of a private company reporting corrupt practices within the company.

India still does not yet have legislation to protect whistleblowers.  By exposing corruption among their superiors, whistleblowers face the possibility of direct or indirect punishment.  This could be retaliation, including termination, lack of advancement and promotion, and even a threat to the whistleblower’s safety or life.

Proposals & Past Efforts

Harassment and victimization of whistleblowers in India, especially by superiors in their own organizations, have led to calls for laws to protect whistleblowers.  At the request of the then Central Vigilance Commissioner, Mr. N. Vittal, in August 1999, the Law Commission of India prepared a report on “Public Interest Disclosure Bill” [179^th Report of the Law Commission of India].  A draft Public Interest Disclosure (Protection of Informers) Bill, 2002 was then circulated in January 2003.  There was no further progress on the matter until November 2003, when Mr. Satyendra Dubey was murdered after exposing corrupt practices prevalent in the National Highways Authority of India (“NHAI”).  The incident led to widespread media outrage and impetus for the enactment of a whistleblowers bill.

In May 2004, the Government of India passed a Resolution on Public Interest Disclosure & Protection of Informers and authorized the Central Vigilance Commission (“CVC”) as the ‘Designated Authority’ to receive written complaints for disclosure of any allegation of corruption or misuse of office and to recommend appropriate action.  The CVC then issued a Public Notice (through an Office Order) stating that its jurisdiction would be restricted to any employee of the Central Government or to any corporation established by or under a Central Act, government companies, and societies or local authorities owned or controlled by the Central Government.   Consequently, personnel employed by the State Governments and activities of the State Governments or its Corporations would not come under the purview of the CVC.  It also stated that the CVC would have the responsibility of keeping the identity of the complainant secret.

Current Proposal

The Office Order and the Public Notice are still in force.  In 2006, however, the draft Public Interest Disclosure Bill was updated and renamed The Whistleblowers (Protection in Public Interest Disclosures) Bill, 2006.  It was introduced in the Rajya Sabha (Upper House of the Parliament of India) on March 3, 2006.

The Bill has undergone several changes over the last few years based on public comment.  The latest version of the Bill, named The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 (“Bill”), was introduced in the Lok Sabha (House of the People), Parliament of India on August 26, 2010.  The Bill is yet to be notified as a statute.

A Brief Summary of the Bill

The purpose of the Bill is (a) to establish a mechanism to receive complaints alleging corruption or willful misuse of power or willful misuse of discretion against any public servant; (b) to inquire / cause an inquiry into such disclosure; (c) to provide adequate safeguards against victimization of the person making such complaint.

The Bill defines “Public Interest Disclosure” as a complaint made by any person relating to: (a) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988; (b) willful misuse of power or willful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable gain accrues to a public servant; and (c) an attempt to commit or commission of a criminal offences by a public servant.  The term “public servant” has been defined in the Bill as any employee of the Central or State Governments, or any corporations established by or under any Central/State Act, any government companies, societies or local authorities owned or controlled by the Central/State Governments, and such other categories of employees as may be notified by the Central/State Governments from time to time.

The Bill envisages that any public servant or any other person including any non-governmental organization may make a public interest disclosure before the Competent Authority.  The Competent Authority, in relation to any public servant employed with the Central Government or any Central Government Authority, is the Central Vigilance Commission or any such authority that the Central Government specifies by way of a Notification.  In the case of State Government employees, the Competent Authority is the State Vigilance Commissioner or any other authority as specified by the State Government by way of a Notification.

Further, the Bill also makes it necessary that any disclosure made under the Act is made in good faith and the person making the disclosure is required to make a personal declaration stating that he/she has reasonable belief that the information disclosed by him/her and the allegation contained therein is substantially true.  Furthermore, in order for action to be taken on a public interest disclosure, it is necessary that the identity of the complainant/public servant is included in the complaint.

After ascertaining from the complainant/public servant whether he/she was the person or public servant who made the complaint, the Competent Authority shall conceal the identity of the complainant unless the complainant has himself/herself revealed his/her identity to any other office or authority while making the disclosure in the complaint or otherwise.  Thereafter, an inquiry into the disclosure shall be made by the Competent Authority.

For the purposes of an inquiry under the Act, the Competent Authority has been granted the powers of a civil court (while trying a suit) in respect of the following matters:

• Summoning and enforcing the attendance of any person and examining him/her under oath;
• Requiring the discovery and production of any document;
• Receiving evidence by affidavits;
• Requisitioning any public record from any court/office;
• Issuing commissions for the examination of witnesses or documents;
• Such other matters as may be prescribed.

Proceedings before the Competent Authority shall be deemed to be judicial proceedings.  While exercising powers of a Civil Court, the Competent Authority must ensure that the identity of the complainant is not revealed or compromised.  Importantly, the Bill mandates that the Central Government shall ensure that no person/public servant who makes a disclosure under the Act is victimized by initiation of any proceeding or otherwise on the ground that such person/public servant has made a disclosure or rendered assistance in an inquiry under the Bill.  If any person is victimized or is likely to be victimized, he/she may file an application to the Competent Authority seeking redress in the matter.  The Competent Authority may then issue suitable directions for protection of such person.  Such directions can be issued to the concerned public servant, or public authority, and any other government authority, including the police.

If officials required to aid an inquiry into the public interest disclosure upon the request of the Competent Authority obstruct the inquiry by delaying the furnishing of a report on the matter which is requested for by the Competent Authority, such official(s) shall, as per the provisions of the Bill, be liable to pay a penalty up to Rupees Two Hundred and Fifty for each day of delay.  However, the total amount of the penalty shall not exceed Rupees Fifty Thousand.

Disclosing the identity of a complainant negligently or in bad faith is punishable with imprisonment for a term up to three years and a fine up to Rupees Fifty Thousand.  Making a negligent, incorrect, false, or misleading disclosure is punishable with imprisonment for a term which may extend up to three years and also to fine which may extend up to Rupees Fifty Thousand.

Conclusion

While the Bill is a big leap forward in relation to protection of whistleblowers in India, there are still some ambiguities.  For instance, while the Bill proposes to protect the identities of those who make a public interest disclosure, protection to such complainants is proposed to be provided only after a complaint or a query is filed under the Right to Information Act, 2005, in which the complainant/applicant must disclose his/her identity.  Such protection may not only be too late but also insufficient, since the risk of information leaks may be high.  While it is commendable that the Bill requires suitable action to be taken by the Competent Authority to prevent a complainant from being victimized, it does not expand on what this suitable action shall consist of or address the consequences of inaction.  There also aren’t many robust provisions to deal with the issue of accountability of the Competent Authority in the process of conducting an inquiry.  In most cases, the chosen Competent Authority of the CVC is the Central Bureau of Investigation, which may not be independent from the body under inquiry itself – the Government.  There is therefore the need to provide for more autonomy and objectivity in the process if meaningful protection to whistleblowers is the ultimate goal.  Hopefully, such loopholes will be plugged before the Bill is finally notified as a statute.

Priyanka Sharma is a partner with Dua Associates in Delhi, India.  She has been a member of the Bar Council of Delhi since August 2001 and can be contacted at priyanka@duaassociates.com.