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Perspective

Plugging the loopholes
While India welcomes the much-awaited legislation that protects whistleblowers, several obstacles still lie ahead

Jagvinder S Brar

In a nation where corruption seems to have systematically impeded social and economic progress over the past decades, a lot of expectations are riding on India’s Whistleblowers Protection Act 2011 (WBPA). Many consider this Act to be one of the most crucial legislation in a set of anti-graft laws in the recent past.

WBPA is intended to fight corruption by empowering those who dare to speak up against it. It is a welcome step but the Act has several shortcomings in its present form and raises many important questions. Will it really encourage people to come forward and report unethical practices? Or will it actually alienate potential whistleblowers, for lack of adequate protection from prosecution? Are the complaint-handling, investigating and enforcement procedures, likely to be independent, credible, trustworthy, sustainable, and effective?

 WBPA protects against victimisation but not against legal self-incrimination; in other words, it does not protect the complainant from prosecution if that individual was somehow associated with the illegal act. Our experience investigating corruption cases has shown that whistleblowers are often insiders who may have played some role in the corrupt acts. These individuals are more likely to make voluntary disclosures when offered legal immunity or leniency from prosecution, which the Act does not provide.

 Protection from ‘victimisation’ has been poorly defined, hence leaving it open to interpretation from case to case. WBPA defines victimisation as, “…initiation of any proceedings or otherwise merely on the ground that such person or a public servant had made a disclosure or rendered assistance in inquiry under this Act.” 

Certain other aspects of the Act also appear vague, raising questions about the confidence it will inspire in would-be whistleblowers to come forward and risk making public disclosures.

Anonymous complaints will not be investigated

The WBPA stipulates that, “…no action will be taken on public interest disclosures by the Competent Authority in case of anonymous complaints, or if the identity of the complainant is found incorrect or false.” This may be one of the biggest shortcomings of WBPA. In our experience analysing complaints, over 50% of whistleblowers prefer to remain anonymous. While the Act mandates that the “competent authority” will keep the complainant’s identity confidential, it is unlikely that all would-be whistleblowers will trust this provision.

 While the stated reason for disallowing anonymous complaints may be to prevent frivolous and vexatious complaints against public servants, it is the effective investigative and judicial system that should weed out such complaints, instead of placing the burden of proof on complainants.

 WBPA also states that whistleblowers may face fines and/or imprisonment if found to have knowingly made incorrect, false or misleading disclosures. Just the possibility that the complainant could be found guilty owing to legal technicalities, witnesses turning hostile, evidentiary burden, and other limitations of the justice system could deter some individuals from making disclosures.

 Also, whistleblowers often have incomplete information about an allegedly corrupt act and worry if an investigation would uncover adequate legal evidence to successfully prove corruption. Therefore, many would-be complainants would fret that their disclosures could be found incomplete or misleading, which could then make them liable for prosecution.

 Also, the sentence of two years for this offence, as stated in WBPA, is twice as high as the recently enacted Lokpal and Lokayuktas Act of 2013, where the penalty is one year for a similar offence. 

Evidentiary and procedural limitations 

An analysis of WBPA reveals some other limitations that are likely to dilute its effectiveness. For example, the secretary to the government of India and the secretary to the state may bindingly and conclusively decide, without any recourse to appeal to any court, that a document be excluded from evidence in a case if it contains proceedings of the Union or state cabinets (or their committees). This may be a crucial document in cases against a minister or senior official. The rationale for excluding such documents is still unclear, because the competent authority in such a case would be the prime minister or chief minister, who are privy to such information beforehand. The competent authority in case of certain complaints against the Union and state ministers are the prime minister and the chief ministers, respectively. Currently, many states in India have chief ministers who have relatives in the council of ministers. It is unlikely that any individual with potential disclosures will blow the whistle against a state minister who is related to the chief minister. There is no mechanism under the WBPA to deal with such cases.

WBPA has created various competent authorities who will receive complaints and then investigate and adjudicate them. In fact, there could be more than 60 competent authorities stationed
in various parts of the country. It is unclear why the government would not use the existing judicial and law enforcement institutions for receiving, investigating and prosecuting cases under the Prevention of Corruption Act, or the Lokpal, for instance. Maintaining a range of competent authorities also risks inconsistent application of laws and rules, differences in procedures, jurisdictional limitations and the duplication of cases.

 Private sector not immune

Because the Act allows anyone to blow the whistle, the private sector will also feel the effects of WBPA. Employees, consultants, clients, or representatives with the knowledge or information that any private entity indulged, directly or through third parties, in bribing public servants, may blow the whistle against the entity. The risk to the private sector will further increase when pending amendments to the Prevention of Corruption Act are made legal. These amendments are aimed at making the private entities liable for giving or offering bribes to public servants.

 According to WBPA, every person in charge of the entity is liable to punishment.  These provisions will make senior management, directors of companies, and partners of firms liable for offences under the WBPA.  However, a defence is provided to such persons, if they can prove that the corrupt act was committed without their knowledge or if they had exercised due diligence to prevent the commission of such offence.

While the WBPA definitely has the right intentions when it comes to curbing corruption and encouraging whistleblowers, the law currently suffers from inadequate execution. We hope that the rules to be prescribed — and future amendments to the WBPA — can check these loopholes and contribute to the difficult process of uprooting corruption as an impediment to India’s road to development. 

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