Christine Liu, an associate at Cravath, Swaine & Moore’s New York Office, contributes the following guest post:
As Raj noted in his last post, the recent election of Narendra Modi as prime minister of India demonstrates that the Indian population wants change and supports actions against corruption (as do recent polls, such as the Lowy Institute study, which found that 96 percent of Indians believe corruption is holding the country back, and 92 percent believe that reducing corruption should be one of the government’s top priorities). One of the most important obstacles to fighting corruption in India has been the lack of adequate whistleblower protections. Individuals reporting incidents of bribery or corruption faced numerous hurdles, including verbal threats, physical violence, and ostracism. Others encountered workplace retaliation. Confronted with these risks, many potential whistleblowers chose to remain silent.
But there are encouraging signs that this may change. On May 14, 2014, Indian President Pranab Mukherjee cleared the way for the Whistleblowers Protection Act. This action represents a much-needed change from the history of delay surrounding the original bill, which was first introduced in August 2010 and then took years to pass the two Houses of Parliament—it passed in Lok Sabha on December 11, 2011 and in Rajya Sabha on February 21, 2014. The new whistleblower law is a significant achievement. Nonetheless, the law has some important limitations, and there are outstanding concerns about whether the law will be enforced effectively and foster public confidence.
The new Whistleblower Protection Law gives the Central Vigilance Commission (CVC) the task of receiving complaints, assessing public disclosure requests, and safeguarding complainants. The law further strengthens protection for whistleblowers through stronger anti-retaliation provisions: The CVC has the power to order that whistleblowers who suffered employment retaliation be restored to their prior positions. Moreover, the new law puts the burden of proof on the public official to show that any adverse action taken against a whistleblower was not retaliatory. Another key feature of the new legislation is that it ensures confidentiality and penalizes any public official that reveals a complainant’s identity, without proper approval, with up to three years imprisonment and a fine of up to 50,000 rupees. Additional penalties apply to organizations and individuals that fail to comply with CVC requests for information, or that knowingly provide incomplete, incorrect, or misleading information.
On the other hand, the law also places various limitations on complainants. Most notably, there is penalty of up to two years imprisonment and a fine of up to 20,000 rupees for individuals that bring false or frivolous complaints. There is also a 7-year time limit to bring complaints, dating from the time the alleged corrupt practices occurred. In essence, the whistleblower law seeks to balance two conflicting interests—the need to protect the individuals raising complaints against the need to prevent unnecessary harassment of public officials and minimize frivolous claims.
While the new law is certainly an important step, a number of limitations and concerns remain. First, the law lacks specific criminal penalties for physical attacks on whistleblowers—and given the number of violent attacks on complainants in the past, this is not a minor concern. Second, the law does not provide civil penalties for workplace retaliation. Thus, protection for whistleblowers under the bill is still inadequate. Moreover, whereas other countries like the United States, the United Kingdom and Canada define “disclosure” and “victimization” broadly for purposes of their respective whistleblower protection laws, India’s law does not define “victimization” and has a relatively narrow definition for “disclosure.” This again limits the effectiveness of any complainant safeguards.
Beyond these specific deficiencies, there is a broader set of concerns about whether the law will actually be enforced effectively. Enforcement—and rebuilding public trust in the government—will be critical to the new law’s success. Given the history of scandals, the government needs to regain the people’s confidence and help them believe that the whistleblower law will really provide the type of protection it promises. Otherwise, individuals will continue to stay silent regarding abuses of power. Also, without proper enforcement, the protections described will be ineffective and may even exacerbate the problem of corruption altogether.