Saturday, March 20, 2010

Suffering Nuclear Accidents

Suffering Nuclear Accidents
Rajeev Dhavan

What a way to go! For a country that suffered the Oleum Gas escape (1986), the Bhopal gas tragedy, was flooded with ‘Chernobyl’ butter and suffers escapes and mishaps from factories everyday, the Civil Liability for Nuclear Damage Bill 2010 (Nuclear Bill) disappoints. In the Bhopal Constitutional case (1989), the Union government claimed to be parens patriae to its people. The Bill shows the Union government as an irresponsible parent protecting the liability of multinational investors and using the taxpayers’ money to make the difference. Who is the Bill for? It should be to provide a comprehensive relief for victims and to effect immediate relief, rehabilitation and compensation. Whom will it help? Those who should be visibly and invisibly responsible and liable for nuclear mishaps. This is certainly the wrong way to pick up the pieces of possible nuclear disaster. In 1991, India’s Public Liability Insurance Act 1991 was supposed to reflect post Bhopal concerns. Despite amendments providing for minimal insurance and interim relief, it proved to be a damp squib. Insurance does not reflect claims. The Act is barely used – a disastrous recipe to deal with the aftermath of disaster.

The Nuclear Bill has a lot of “ifs” and “buts”. In the first place, the Board under the Atomic Act 1962 is required to notify a ‘nuclear incident’ in 15 days (!). If the Board feels the risk or injury is not grave, not notify it. Then what happens. A bureaucratic signal is necessary to accept that a disaster has occurred. But what happens, if a nuclear incident is not declared by the Board, which classifies it as not grave or serious. Is that the end of story? Second, the operator (on whom the liability falls) is someone who is designated by the Central government and, presumably following factories legislation, would be an individual. Enter designated Manager for the facility, exit Union Carbide or Warren Anderson! Third the liability clause is interesting. The upper limit of Rs.500 crores per incident is illusory. The Union government may increase it or decrease it to Rs.100 crores. Fourth, under the Nuclear Bill, damage is essentially awarded for damage outside the installation. This is important. In the Oleum Gas Case (1986), the Supreme Court made it clear that any ‘escape’ from an inherently hazardous activity would give rise to an absolute liability as soon as escape is shown. This was affirmed in the Bichhri (Indian Enviro) case (1995). This is not reflected in the Bill. Nor really taken into account. In fact the Bill actually reverses the principle by saying that the operator can hide behind the fact that his employees did something willfully wrong. Such an approach used to exist before 1911! Why should the Central government be liable for any liability over the limit? Or for damage due to natural disaster, insurrection, terrorism and the like? Why should the ‘operator’ not take out insurance for all damage as well. Fifth, the present insurance requirement is only to a certain sum for external damage under ‘normal circumstances’. Let it be more comprehensive. This will make the premium higher. But inviting the worst of possible hazards is an expensive business which cannot be dealt with by a blind eye to justice. Sixth, according to Minister Jairam Ramesh, Indian nuclear power generation is to reach 6000 MW by 2011. Russia wants to build 12 nuclear reactors in India. There will be 60,000 MW by 2032 as against 4,120 MW now (an increase of 1456%). Seventh, the normal adjudicatory system is through a Claims Commissioner. This is an ambitious plan locked up in procedure. The remedy is reposed in a Claims Commissioner who could be a person with 10 years practice or Joint Secretary with 5 years special knowledge of nuclear liability. I assume such a person exists; and is right for the job! Eighth, the limitation period is 3 years from discovery of knowledge of harm. Or a maximum of ten years – presumably, even if cases of latent damage are discovered years later. Ninth, there is little scope for relief to alleviate and rectify the damage immediately. Relief and rehabilitation are given the go by. The relief is just money. In the words of the song: “Money, money, money. It’s a poor man’s world”. Tenth, a Claims Commission headed by a person qualified to be High Court judge or is an Additional Secretary (both over 55 years) to hear difficult cases and those where damage is greater than 500 crores even though that is a mandatory cap. When the Central government feels the Commission has too little work it will be dissolved. Recourse to civil courts is ousted. This ensemble of authorities which is to determine issues of such grave portents will not necessarily have the ability or experience to do so. There are no provisions for legal aid. None to help those affected. We have forgotten Bhopal! Eleventh, there is the usual hateful provision that the Act shall come into effect on such dates he Central government decides – with possibly different dates for different parts of the Act. Acts should come into effect at once. This political largesse to government is arbitrary.

An argument has been made that India’s cap on liability is Rs.500 crores as opposed to China (205 crores) and Canada (335 crores); and is similar to France (575 crores). But the Nuclear Bill leaves it to government to reduce the amount to Rs.100 crores in each case. Why? To say that America’s private operators have pooled together a fund of $10 billion is a fact. This is just the corpus. Why should the Indians tax payer bear the burden of the excess?

This bill purports to be comprehensive, but is comprehensively problematic. It is said India breached history when it signed the ill-fated 123 agreement and ventured out from ‘nuclear isolation’. But the price of that is being exacted in this Bill. The operator in India is liable, the foreign investor goes scot-free. India is not party to the related Vienna Convention 1963, the Paris Convention of 1960, the 1997 Vienna Protocol or the Supplementary Convention for Compensation of 1997. To argue the China example ignores that there is no upper limit in the Vienna Convention and the Paris Convention’s limit is €700 million (Euros).

The problem is that Parliament is not permitted to discuss matters in two ways. Firstly, the Opposition brings Parliament to a halt. This was done in the Women’s Reservation Bill. But this usual tactic of the BJP in opposition is not the case with the Nuclear Bill. Second, the Government is often too much in a hurry to rush Bills through Parliament (sometimes under devious or foreign pressure) without discussion in Parliament or with political parties or people. Foreign governments want to protect their investors. This is precisely the Bhopal situation. Union Carbide was sought to be protected. Warren Anderson was de facto absolved. Multinational investors in hazardous activity (even less so in the field of nuclear liability) do not deserve protection from consequent liability.

Today, the Bill is precariously poised because the opposition is keen to bring the government down. As with the Women’s Bill, the government wants to be cautious. Tactic is an alternative to discourse. Let us wait and see.

Saturday, March 13, 2010

Women and the Armed Forces

Women and the Armed Forces

Rajeev Dhavan and Bipin Aspatwar

The “Mad Woman in the Attic”, the “Slave in the Kitchen”, the “Mother of many Sons (and daughters)”, the well behaved and much abused house wife have joined the market of opportunities and want ‘access’ to jobs, politics and power. The huge catalyst was ‘women’s entry into the work force of factories and offices was in the First World War, whilst the men were at war. A century later women in the armed forces want parity with men. Equally, arguments rest on a legal proposition that classification denying certain jobs, roles, tasks and opportunities is rational on the basis that unequals cannot be treated equally. This raises the question: are men and women unequal? But are they?

Apply this to the army; 20% (i.e. 200,00) of the US army consist of women. Before 1975, the American women had the choice to terminate their pregnancy or their jobs. President Clinton enabled women to go on combat duty (if they volunteer) except direct combat with the enemy. That they can prove as exactingly cruel as shown by Lynndie Rana England – humiliating Iraqi soldiers. Britain has 17,800 women in the services (including 3670 officers). But they are excluded from 96% of Air force, 67% of Army and 71% of Navy jobs. By contrast, there are only 13% women in Canada’s armed forces – being encouraged more for nursing, communication and logistic support, which is also true of Russia’s 95,600 women in armed forces. Australia does not permit its limited army women battle field duty. Women are conscripted in Israel but not given active battle field days.

Comparable to India, Pakistan generally has no woman in the armed forces, but it is said has 7 women fighter pilots. Malaysia, Sri Lanka and Bangladesh employ (but not deploy) women in the armed forces. India has a small number of women in the armed forces. In all countries the area of controversy is whether women should be on direct combat duty.

Puerile excuses are the logistics of not being able make available separate toilets, sleep and rest spaces. More exacting is the argument is that the question for equal rights for women should not defeat the efficacy and purpose for which the army is created: warfare.

The Delhi High Court judgment by Sanjay Kishan Kaul and Garg JJ has nudged the cause of ‘Women’ out of yet another area of policy reluctance. At present, women in the Indian army are denied a Permanent Commission (PC). On Short Term Commission women can stay in service for 14 years as opposed to men who retire at the age of the 60. This is what the Delhi High Court finds discriminatory of the equality provision and women’s rights to an occupation of their choice.

Since, the Delhi High Court was concerned with permanent commissions for men and women, it did not go into other issues concerning the role assigned to women. It may well be a long time before we see a Rani Jhansi or Queen Boadicea heading our armies into battle. Needless, modern wars are not designed for hand-to-hand combat. But some strenuous, low intensity operations can be deadly. Should they be in combat duty, if they want to? Perhaps, at this stage, voluntary opting for both combat and combat training may be permissible. But is there a cap on this? Is it to keep the fairer sex out of warfare itself? Is it to protect ‘them’ (i.e. women) or that ‘front line’ women would make the army weaker. The latter is the only public interest reason. But is such a supposition valid? Or should this only be subject to a training and fitness test? That, too, for all.

Dulce est decorum est pro patria mori (it is sweet and fitting to die for one’s country). Is it? No one should be placed in this position. The killing fields of war do no one credit.

Friday, March 12, 2010

Bringing Nero to Justice: Investigating Modi


Modi is a modern day Nero. Gujarat burnt before his watchful eyes. Death stalked Muslim victims in a needless but fanatical genocidal attack. Politically Modi was responsible to all the people from whom he excluded the minorities. Legally he escaped investigation and criminal accountability. Now he has been summoned to appear before the Supreme Court appointed Special Investigation Team (SIT) for questioning on March 21 in connection with the brutal murder of former Congress MP Ehsan Jafrrey during the 2002 Gujarat riots. Ehsaan Jaffrey was burnt alive, along with 70 other people, in Ahemadabad’s Gulbarg society.

The Gulbarg society massacre is just one of the many horror stories to come out of the Gujarat riots 2002. Ehsaan Jaffrey gave shelter to many residents from the savage mob. He tried in vain to contact politicians, police officers, and bureaucrats – but nobody responded. He was killed along with 60 odd people. A complaint was filed by Ehsaan Jaffrey’s wife, Zakiya, who had alleged that Modi and his colleagues were a part of conspiracy and instructed the policemen and bureaucrats to not respond to Muslim pleas for help during the Gujarat riots. A sole eye witness has alleged that Ehsaan Jaffrey also called Narendra Modi for help when the mob started gathering near Gulbarg society. In April 2009, the Supreme Court, based on her complaint, directed the SIT to probe the role of the people named in the complaint in the riots.

The credibility of SIT itself is under a cloud as a complaint was filed against SIT that one of the officers (Shivanand Jha) in SIT is named as an accused by Zakiya in her complaint. SIT had also been slow in summoning Modi. The SIT chief, Raghavan, did not spend enough time in Ahemadabad so as to expedite the investigation. Strangely, SIT has not submitted a very crucial piece of evidence – the CD that has telephone records of government leaders and officials during the first few days of the Gujarat riots. SIT’s actions (and inactions) cast serious doubts on its integrity and its commitment towards a sincere, unbiased investigation into the Gujarat riots. The application for reconstitution of the SIT will be heard by the Supreme Court on 15th March.

In another development, the Nanavati Commission, which is probing the Gujarat riots cases, is expected to submit its report by June 30. The Nanavati Commission has been criticized for not summoning and examining Modi in its investigation. An application demanding that Modi be summoned was turned down by the Commission in September 2009; this decision of the Commission is pending before the Gujarat High Court. All the hopes rest on the SIT investigation. If investigative justice fails in Modi’s Gujarat, the faltering steps of the relief law must also fail. Prosecutorial justice has already been called into question in Best Bakery and other cases shunted out of Gujarat. Custodial interrogation is required. The SIT must not flinch. The likelihood of Modi interfering with investigation is high. If Modi is arrested, he must resign.

Rajeev Dhavan and Bipin Aspatwar

Citizen of the World


“You can take Husain out of India, but not India out of Husain” commented Owais, Husain’s son, on Husain’s decision to accept Qatar citizenship. Under the existing citizenship laws, by implication, this means that Husain will no longer be an Indian citizen – as dual citizenship is not permitted. The law is clear [Article 9 of the Indian Constitution]

Who drove Husain to this point? The campaign by right-wing outfits of India. These self-appointed moral guardians have managed to drive into exile India’s most gifted artist of this century. His paintings were destroyed in an exhibition in 1996, around the same time Bajrang Dal activists forcibly entered his Mumbai home. Husain went into exile in 2006 after a hate campaign started by the right-wing outfits over his controversial paintings. Numerous criminal cases were filed against him in different parts of the country – using litigation to harass the artist. In a much-lauded judgment, Justice Kaul of the Delhi High Court quashed these cases. Even the Supreme Court stayed the proceedings of other criminal proceedings against M.F. Husain. This judicial intervention was not enough to ensure Husain’s safety.

Husain issue has become a political playground – in 2009 the Congress government assured Z security to Husain, assuring safety for his return. In contrast the same government issued an advisory against Husain in 2006 to the Mumbai and Delhi police stating “there are grounds to believe that certain paintings of painter M.F. Husain which hurt the religious sentiments of the majority community, and, therefore might be a provocation for communal disturbance”.

M.F. Husain said that it was impossible for him to work in India. To deny an artist his artistic freedom is equal to killing the artist. In his largesse Husain remarked on his decision to accept Qatar citizenship “I am beyond physicality… please know I remain an Indian painter whether I am painting in Paris, London, New York or Qatar… Tu kahe to main unwan badal dun, lekin ek umr darkaar hai afsaana badalne ke liye (only titles of paintings are told, the real story takes a lifetime)”. In this detailed interview Husain reiterates that his decision to accept Qatari citizenship is primarily commercial and one of convenience.

Husain loves his country. But, his art cannot suffer the torment and frenzy of persecution. There is a danger not just to his art, but also to the safety of his person. The threat of the Hindutva-right is as much, if not greater than the Ayatollah’s fatwa. In a sense it is worse, there are spoken and unspoken Hindu fatwas which are no less cruel in their intent and purpose. The Indian state refuses to guard Husain’s person. Contrast the protection to Rushdie by his passport state – Britain. If Qatar gives him personal security and artistic freedom, so be it. If Husain chooses a dictatorial Qatar tolerant of his art, instead of a persecutory democratic India, we Indians must answer for it. Unfortunately, Husain’s persecutors think of him as a Muslim first, and an artist later. India has a lot to learn about building tolerance in a multicultural society.

Rajeev Dhavan and Bipin Aspatwar

Saturday, March 6, 2010



Adam and Eve were both equal. Both were thrown out of Eden into the garden of politics and power. Expelled, Adam seized the reigns of power and opportunity, marginalizing women. Success stories apart, it needs constitutional change to restore parity. Witness America’s Nineteenth Amendment to the United States Constitution in 1920 and electoral changes in English electoral law in 1928 and now India’s discontents on this issue.

India’s experiments with providing reservation have been male dominated, half hearted and lacking political will. The first experiment of providing one-third reservation through the 72nd and 73rd amendments in Panchayats has been a success. Elected women have often been harassed, humiliated and undermined, yet the panchayat reservations have mobilized women. The lack of political opposition to the panchayat reservations happened only because the option to bring in OBC reservations was conceded for reservations in panchayats.

Reservations in the State Assemblies and Parliament have suffered a different fate. This story covered the period (1996-2009) through the proposed 81st (1996), 84th (1998), 85th (1999) and now the 108th Amendment of 2008. I know from personal conversations with many in power that front bench support was never out of conviction. One politician (now in the cabinet) said to me: “We will never permit this”. Fearful of being totally constitutionally barred from 33% seats in the legislatures, the men, with notable exceptions, were strongly hostile to these changes. But they could not oppose openly because women still constituted 50% of the electorate. Thus, for most male politicians, support for women’s reservation has come from a fear of electoral backlash – and, perhaps of Durga and Kali!

A core point of resistance has been the creation of a reservation-within-a-reservation – not just for SC/STs in their quota, but also for OBCs. The OBCs had not been given mandatory (but only permissible) reservations in the panchayat amendments of 1992. In the 77th Amendment (1995), OBCs were denied promotional and consequential seniority avenues in their service and civil service careers through reservation. In the case of women’s reservations, the OBC based parties, headed by Mulayam Singh Yadav, Lalu Yadav, Sharad Yadav, Nitish Kumar and others, demanded that one-third reservation should also be compulsorily included for OBCs. Now that Nitish Kumar of Bihar has abandoned the case for reservations for OBCs, the OBC cause is lost. SC and ST are a super-classification amongst the disadvantaged; further reservations for OBCs will bring in an undesirable caste factor.

A fundamental objection to the blanket quotas for women has been class usurpation by the well off “creamy layer” women. Never was this more picturesquely illuminated than by Sharad Yadav when he spoke about the middle class baal katiya women (with short hair) hogging the quota. The left parties have been resistant to the creamy layer, even in employment matters. So, the baal katiya argument (true and impressive as it was) disappeared from the parliamentary radar.

Alternatives to quotas
The European and other nations have discarded the quota option and opted for political parties redressing the dis-balance between men and women in their legislatures. To this extent, England and other countries have achieved considerable success through political parties adopting voluntary method quotas. An in-between alternative suggested by the Manushi group (2000) and former CEC, M.S. Gill (also in 2000) was for compulsory political party nominations of one-third women. Manushi added that it should be ensured that the weak constituencies are not allotted to women! This proposal had continued support from two MPs Shri Virendra Bhatia and Shri Shailendra Kumar in the Standing Committee 36th Report (17th December 2009) supporting a 20% target for political parties. This proposal is (to borrow Justice Krishna Iyer’s phrase) “neither fish nor fowl nor good red herring”. What will happen to a political party that does not meet its target? Will it be struck off the register of political parties? This proposal is interesting as a voluntary measure. As a compulsory measure, it is hopelessly misconceived. Nothing prevents a political party from adopting a voluntary target for themselves. At present the maximum representation of women in the last two parliaments has been 14%.

Problem areas
The rationale for women’s electoral quota may well have to be synthesized with the basis of the original Constitution of 1950, reversing the British policy of invidious quota policy along religious, caste and tribal lines. On 16th June 1949, India’s Constituent Assembly opted for universal suffrage for all. This was a historic decision. But quotas for SC/ST and Anglo-Indians in India’s legislatures were permitted on grounds of three D’s (discrimination, disadvantage and disempowerment). There is no dearth of people in India who would fit this bill. Why women? Some women are privileged. The privileged will dominate. But imposing “creamy layer” for electoral purposes is not workable either for SC & ST quotas (where the leadership of the best will be lost) or otherwise. Broadly, the original dispensation based on three D’s applies to women generally.

The provision for reviewing reservations for women after 15 years is consistent with the review provision of 10 years for SC/ST. At that stage, discussion can center on whether (i) the quotas for women should be continued; or (ii) increased to 50%; or (iii) reduced to 25%. After 15 years, in 2025, Parliament will not disturb vested interests. Indian men will seek to try and control and dominate women MPs as they try in the case of panchayats. But Indian women MPs and MLAs have shown their mettle.

There is an argument that there will be 100% reservation in at least one constituency in every state. Ironically, in two member states in the Lok Sabha there will be 0% reservation in the third election. In the 100% case, this is a logical effect of the quota. However in the 0% case, only SC/ST women will be eligible for two elections, with general merit candidates being eligible only 10 years later. In single member states, SC/ST turn will come in the first years; and thereafter after 10 years. Who can nurture a constituency under these circumstances? As between SC and ST inter se, it is not clear how the quota will be adjusted.

Finally there is the lack of what lawyers call a "non-obstante clause". This simply means that each clause of the amendment should read “Notwithstanding anything contained in the Constitution…”. This is necessary to obviate challenges on grounds of violation of the equality provisions of the Constitution (Articles 14 and 15). No doubt Article 15(3) declares that special provisions can be made for women and children. But the electoral quota for women is super-special and precaution is necessary. Already, the Rajasthan High Court has correctly invalidated additional reservation for women. The hands of wayward judges with paternal minds should be tied down.

Despite its faults, this proposal should be supported and also be extended to the upper house. At present, the future of the 108th Amendment hangs on a slender thread, depending on smaller parties for support. With a gestation period of 14 years, the proposed amendment to secure women’s reservation in legislatures is a new experiment in democracy.