INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Puneet Dhanoa and Utkarsh Routh, AZB & Partners
In addition, corporate governance rules introduced by the Securities Exchange Board of India (SEBI) require listed companies to introduce a whistle-blower policy that is workable and effective, and which also pro - vides adequate safeguards to whistle-blowers. One notable change brought in by the legislature is Section 398 of the BNSS, which provides for witness protection schemes to be notified by a state govern - ment. A whistle-blower can avail of such protection under the BNSS. Further, given the introduction of the electronic first information report (e-FIR) under the BNSS – which permits even a police officer to regis - ter an FIR as the complainant – this can come to the aid of whistle-blowers in reporting bribery/corruption- related offences under the PCA. A complaint from a whistle-blower may now be in two forms: • a physical complaint resulting in an FIR; or • an e-FIR filed by a whistle-blower where, even without waiting for a physical complaint, an inves - tigating officer finds the need for immediate action and registers an FIR without a physical complaint from the whistle-blower. At this point, withdrawal of prosecution under the BNSS can only happen with prior permission of the complainant, which might now include whistle-blow - ers. 6.5 Incentives Provided to Whistle-Blowers Indian law does not provide any incentive to whistle- blowers. However, it provides adequate mechanisms for presenting victimisation of whistle-blowers under the Companies Act. As stated previously, the Whistle- Blowers Protection Act, 2014 has not been put into operation.
into any allegation of corruption. The CVC has super - intendence over the vigilance administration of: • the various ministries of the Central Government; • corporations established by or under any Central Act; and • government companies, as well as societies and local authorities owned or controlled by the gov - ernment. The CVC can direct initiation of disciplinary proceed - ings or any other appropriate action against a public servant of the Central Government by the competent authority. However, any prosecution, either by the CVC itself or by the CBI under the supervision of the CVC, has criminal enforcement by launching prosecu - tion under the PCA. Criminal prosecutions under the PCA are conducted by: • the police authorities; • the Enforcement Directorate (ED) in cases where the offence under the PCA is a predicate offence; • the tax authorities under the Black Money Act for wilful evasion of taxes; and • the Lokpals/Lokayuktas. 7.2 Enforcement Bodies Multiple bodies are mandated to enforce anti-corrup - tion laws in India, as detailed in the following. CVC/CBI The CVC is the primary statutory body that supervises the investigation and prosecution of cases by the CBI under the PCA. The CVC can itself enquire or cause the CBI to enquire into any allegations of corruption by public officials. However, this is caveated by the fact that the CVC or the CBI (as the case may be) must seek permission of the competent authority to initi - ate an inquiry or an investigation, as mandated under Section 17A of the PCA. The CVC can also direct the CBI for the purpose of discharging the responsibil - ity entrusted to it. Additionally, the CVC can review the progress of investigations conducted by the CBI. The CVC can also review the progress of applications pending with the competent authorities for sanction - ing of prosecution under the PCA. On issues of pre -
7. Enforcement Trends 7.1 Enforcement
The CVC is the main body for enforcing anti-bribery and anti-corruption laws in public offices. The CVC has the power to itself enquire, or cause an inquiry,
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