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Whistleblower protection law in India is weak, remains unenforced

The Whistleblower Protection Act of 2011, India’s signature law aimed at rooting out corruption, could finally come into force this year if it clears some key procedural hurdles in India’s Parliament.

Unfortunately, the law will do little to protect whistleblowers in India, who have been notoriously mistreated, harassed and even killed for speaking out against wrongdoing.

The statute says that whistleblowers will have legal protection when they speak up against three specific types of wrongdoing: (1) acts, or attempted acts, in violation of the Prevention of Corruption Act; (2) willful misuse of power resulting in government loss or wrongful gain; and (3) attempts or commission of a criminal offense by a public official.

But for all the positive steps forward the law takes, it still has several “serious” issues, according to Anand Dayal, chairman of the Anti-Corruption Committee of the American Chamber of Commerce in India.

Most troubling is that the Whistleblower Protection Act doesn’t expressly protect whistleblowers. Whistleblowers must apply to be protected. Only then can the “competent authority” attempt to determine whether the whistleblower has been retaliated against and decide what to do about it, if anything. The law doesn’t specifically outlaw retaliating against a whistleblower, according to Dayal.

Further, the act requires whistleblowers disclose their identity to the government agency where the whistleblower complaint is filed . Though the agency is required to conceal the whistleblower’s identity, those with valuable information will likely be discouraged from coming forward if they are required identify themselves to the very institution they are accusing of violating the law.

“Potential whistleblowers will be affected not by the mere existence of a law, but by plausible assurance that they will actually be protected from consequences that may range from minor harassment to murder,” Dayal writes. “For the Whistleblower Act to be effective, it is therefore essential that it be actively enforced and administered, and that this is readily apparent.”

Some whistleblowers in India may have an alternative to this relatively weak law. If a whistleblower has information on a company that falls under US jurisdiction, the whistleblower can file a whistleblower claim with the US Securities and Exchange Commission. The SEC allows for anonymous filing and even offers a reward to whistleblowers who help uncover fraud totaling more than $1 million USD.

The SEC has received more than 150 whistleblower tips from India since 2011.
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