To those who attended last week's talk on the Babri debacle, thank you for your participation, I hope to see you here every week! To those who missed last week, we hope you will make it this week!
As agreed upon last week, we're taking the Babri Masjid talk ahead this week, and I am pleased to invite you once again, for a follow up discussion that will locate the Babri controvesy within the larger schema of Indian secularism and hopefully, weave in other areas of interest, notably, the Kashmir question, during the conversation.
I hope you will all come and be moved to participate actively, please feel free to bring along friends / colleagues / like minded people.
Tea and snacks are on us, as also the responsibility of steering the discussion!
Topic - Babri controversy within the scheme of Indian Secularism; flash points - Kashmir
Lead by - Dr. Rajeev Dhavan
Where - PILSARC Library, Basement, A-131 New Friends Colony, Delhi
When - 5.30 p.m.
I look forward to seeing you this Friday at the PILSARC Library at 5.30 p.m.,
Warm regards,
Rashmi Raman
Senior Researcher,
PILSARC
--
Public Interest Legal Support and Research Centre,
A - 131, New Friends Colony,
New Delhi - 110025
Telephone +91 11 2684 1079 / 2682 2525
Email - pilsarc@gmail.com
Wednesday, September 22, 2010
Wednesday, September 15, 2010
PILSARC Friday Talk Series - The Babri Masjid Debacle, 17 September 2010, 5.30 p.m.
For this week's session of the Friday Talk Series initiative launched by the Public Interest Legal Support and Research Centre, we focus on the Babri Masjid question, in the wake of the imminent judgement to be pronounced later this month, and identify the legal and socio-political context in which the dispute is grounded.
Topic - "The Babri Masjid Debacle"
Time - 5.30 p.m.
Place - Library (Basement), The Public Interest Legal Support and Research Centre, A-131, New Friends Colony
PILSARC's Friday Talk Series are designed as an informal gathering where all participants are encouraged to speak their minds and engage in robust debate. All are welcome.
Topic - "The Babri Masjid Debacle"
Time - 5.30 p.m.
Place - Library (Basement), The Public Interest Legal Support and Research Centre, A-131, New Friends Colony
PILSARC's Friday Talk Series are designed as an informal gathering where all participants are encouraged to speak their minds and engage in robust debate. All are welcome.
Wednesday, September 8, 2010
Position available - Litigation Junior
One position available for a Litigation junior to a renowned Senior Advocate of the Supreme Court of India.
What we offer - Excellent research environment and interesting work. Remuneration Rs. 20,000/- per month.
Qualifications - Law school graduate, prior work experience preferable, but not mandatory.
Should be willing to start work immediately and relocate to Delhi.
Send in updated CV and cover letter to pilsarc@gmail.com
Deadline for receiving applications - 20 September 2009
ATTENTION - The position has been filled
What we offer - Excellent research environment and interesting work. Remuneration Rs. 20,000/- per month.
Qualifications - Law school graduate, prior work experience preferable, but not mandatory.
Should be willing to start work immediately and relocate to Delhi.
Send in updated CV and cover letter to pilsarc@gmail.com
Deadline for receiving applications - 20 September 2009
ATTENTION - The position has been filled
The Politics of Belgaum: How malleable is Indian Federalism?
If the Belgaum agitation is taken seriously, India’s federated states will never acquire territorial integrity. The essence of Maharashtra’s claim is that all the border villages in neighboring Karnataka, where even a bare majority speak Marathi, should be handed over to become part of Maharashtra. Over sixty years these demands have been accompanied by violence, threats and the emergence of Pan-Marathi fundamentalist nationalism.
Belgaum is in the news again because Marathi politicians resent an affidavit by the Union of India of 2010 refusing to accept Maharashtra claims to Karnataka’s border villages. In 2004 Maharashtra filed a case against Karnataka in the Supreme Court effectively claiming 865 villages in Belgaum, Karwar, Bidar, Gulbarga in Karnataka on the basis of alleged linguistic majorities in these 865 villages. In Karwar, the claim for 301 villages is based on the claim that Konkani is a dialect of Marathi. Maharashtra’s claim rests on four principles: (i) the villages as a unit (ii) geographical contiguity (iii) linguistic majority and (iv) wishes of the people. Shorn of pretences, if Maharashtra’s claim to annex border villages in neighbouring states where there is a Marathi speaking majority were to be applied as a principle, inter-state border claims would never stop; and resurrected each time border villages show linguistic change. Movements of people across borders would be encouraged and villages colonized to create linguistic majorities to facilitate their annexation. Taking to its illogical conclusion, Indian federalism is invited to permit its States the indulgence of cross border conquest by linguistic head-count supported by noisy, even violent, politics.
It is really not necessary to go into historical controversies over recognizing linguistic federalism in India. Before independence the cause of linguistic federalism was espoused by the Congress’s sessions in 1920, and 1927, the Nehru Committee Report (1926), and the creation of Sindh and Orissa on a linguistic basis in 1936. After independence the Dar Commission and the JVP Committee of 1948 suggested status quo and caution unless “public sentiment was insistent”. This was not intended to be, but became, an invitation to agitation. In 1954-55 the States Reorganization Committee (SRC) recommended a basis for linguistic federalism including separate states also for Vidarba and Telengana – demands for which continue today. But the SRC did not elevate “linguistic (and cultural) homogeneity as an exclusive and binding principle overriding all other considerations, administrative, financial or political”. Even if the ‘wishes of the people’ were ascertainable, they were subject to the “larger national interest”. Linguistic federalism was not an absolute or exclusive basis for federalism.
Indian federalism permits new states to be created out of old ones with the scantiest of consultation with state legislations(Article 3). The absence of territorial integrity was never visualized as permanent. The territorial integrity of these new states was intended to be respected. These provisions were to creatively enable a multi-cultural nation to emerge from an alien empire and 550 odd Princely States. The basis of these revisional endeavours have been founded on language, culture, administrative convenience and peoples’ demands. The defining moment was 1956 when the States Reorganization Commission (1956) effectively responded to Potti Sreeramulu’s fast to death in 1954, overruled Nehru’s cautionary reserve and enabled Parliament to create Andhra, Kerala, Karnataka(then Mysore) on a linguistic basis. Later exercises were based both on language and culture to enable the creation of Gujarat and Maharashtra (1960), Punjab, Haryana (1966) and Himachal and the North Indian States (1971), Sikkim by accession (1975), Goa (1987) and the tribal states of Jharkhand and Chattisgarh (2000). Tribal areas have been designated within States to enable autonomy for these areas (Constitution’s 5th-6th Schedules). Union territories have been created for Delhi, Chandigarh, Pondicherry and various Islands. Questions loom large as to whether UP should be broken into several states, States of Vidarbha and Telengana be created and a mountain State be created out of Bengal.
Nobody visualized continuing border disputes. Maharashtra’s border claims are a way in which an uncompromising and fearful Marathi politics reinforces itself. Over 1955-6, the Maharashtra’s agitation led to 105 killings by police firing. Around that time, C.D. Deshmukh resigned as Finance Minister in support of Maharashtra’s claim. Many methods to resolve these disputes were tried: the use of the Western Zonal Councils (which failed), Committees from the warring states (which failed) and examination of Commissions headed by serving or retired judges (which succeeded).
The Justices Wanchoo (1952) and Mishra Commissions (1953) split Bellary to give three districts to Andhra and the rest to Karnataka. The case was decided on its facts and hardly authorizes compulsory splitting of districts by villages, a view rejected by the Union in 1966. This is equally true of Justice Shah’s efforts on Punjab and Haryana. The fact remains that the Belgaum dispute was referred to the formidable ex-Justice M.C. Mahajan who received 2240 memoranda and spoke to 7572 persons, visiting 17 places, rejected the village unit formula, relying on panchayat boundaries. Interestingly what the Commission presented was that between 1951 and 1961, the Marathi majority in Belgaum slipped into a minority, or bare majority in various areas, and increased in others – with Maharashtra adding and subtracting their claims based on the 1961 census. Demographic movements are inevitable. A right to movement and to settle in any part of India inheres in all persons and community. The Marathi speaking majority in 1951 in some areas had been reduced in 1961 (46%). Unhappy, with Mahajan’s report, Maharashtra resorted to agitational protest.
In determining these questions, do we go to the census of 1951, 1961, 1971, 2001 or 2011. Nothing could be more absurd than redrawing state boundaries after each census! The present agitation arises because of a Counter-Affidavit of 2010 by the Union of India reiterating its stand that “language (is) not the sole criteria” for determining boundaries and “the transfer of certain areas to Karnataka was neither arbitrary and wrong”.
Marathi politics tries to reinforce a false pernicious identity through uncompromising agitation. In 1996, 10 ladies from Belgaum started a hunger strike on the issue Chief Ministers of Maharashtra have kept the issue alive between 1997-2002. The Supreme Court case was filed in 2002. The Supreme Court cannot and should not determine these matters and strike down the 1956 and 1960 Reorganization Acts to unsettle settled demarcations, open Pandora’s box and create new border tensions.
The claim on Belgaum and other areas is part of a pan-Marathi nationalism. The obverse of this agitation is the campaign to threaten non-Marathis in Bombay so that even film stars have been coerced into submission.
The Shiva Sena and MNS claim to be trustees of the Maharatha cause to the hilt. Chief Minister Chavan was anxious not to miss the bus and made the absurd suggestion of making the disputed areas a Union Territory. The agitation will continue in the monsoon session of Parliament. If Chavan’s suggestion is talked through, is there a case for Mumbai becoming Union-territory to make it available for all?
India has a rich multi-lingual and multi-cultural federalism. Freedom of movement has enabled workers and business to travel to all corners of India. New states may and will be created to make Indian federalism more manageable. These border disputes which are fuelled by politically inspired jingoism must stop – now!
Belgaum is in the news again because Marathi politicians resent an affidavit by the Union of India of 2010 refusing to accept Maharashtra claims to Karnataka’s border villages. In 2004 Maharashtra filed a case against Karnataka in the Supreme Court effectively claiming 865 villages in Belgaum, Karwar, Bidar, Gulbarga in Karnataka on the basis of alleged linguistic majorities in these 865 villages. In Karwar, the claim for 301 villages is based on the claim that Konkani is a dialect of Marathi. Maharashtra’s claim rests on four principles: (i) the villages as a unit (ii) geographical contiguity (iii) linguistic majority and (iv) wishes of the people. Shorn of pretences, if Maharashtra’s claim to annex border villages in neighbouring states where there is a Marathi speaking majority were to be applied as a principle, inter-state border claims would never stop; and resurrected each time border villages show linguistic change. Movements of people across borders would be encouraged and villages colonized to create linguistic majorities to facilitate their annexation. Taking to its illogical conclusion, Indian federalism is invited to permit its States the indulgence of cross border conquest by linguistic head-count supported by noisy, even violent, politics.
It is really not necessary to go into historical controversies over recognizing linguistic federalism in India. Before independence the cause of linguistic federalism was espoused by the Congress’s sessions in 1920, and 1927, the Nehru Committee Report (1926), and the creation of Sindh and Orissa on a linguistic basis in 1936. After independence the Dar Commission and the JVP Committee of 1948 suggested status quo and caution unless “public sentiment was insistent”. This was not intended to be, but became, an invitation to agitation. In 1954-55 the States Reorganization Committee (SRC) recommended a basis for linguistic federalism including separate states also for Vidarba and Telengana – demands for which continue today. But the SRC did not elevate “linguistic (and cultural) homogeneity as an exclusive and binding principle overriding all other considerations, administrative, financial or political”. Even if the ‘wishes of the people’ were ascertainable, they were subject to the “larger national interest”. Linguistic federalism was not an absolute or exclusive basis for federalism.
Indian federalism permits new states to be created out of old ones with the scantiest of consultation with state legislations(Article 3). The absence of territorial integrity was never visualized as permanent. The territorial integrity of these new states was intended to be respected. These provisions were to creatively enable a multi-cultural nation to emerge from an alien empire and 550 odd Princely States. The basis of these revisional endeavours have been founded on language, culture, administrative convenience and peoples’ demands. The defining moment was 1956 when the States Reorganization Commission (1956) effectively responded to Potti Sreeramulu’s fast to death in 1954, overruled Nehru’s cautionary reserve and enabled Parliament to create Andhra, Kerala, Karnataka(then Mysore) on a linguistic basis. Later exercises were based both on language and culture to enable the creation of Gujarat and Maharashtra (1960), Punjab, Haryana (1966) and Himachal and the North Indian States (1971), Sikkim by accession (1975), Goa (1987) and the tribal states of Jharkhand and Chattisgarh (2000). Tribal areas have been designated within States to enable autonomy for these areas (Constitution’s 5th-6th Schedules). Union territories have been created for Delhi, Chandigarh, Pondicherry and various Islands. Questions loom large as to whether UP should be broken into several states, States of Vidarbha and Telengana be created and a mountain State be created out of Bengal.
Nobody visualized continuing border disputes. Maharashtra’s border claims are a way in which an uncompromising and fearful Marathi politics reinforces itself. Over 1955-6, the Maharashtra’s agitation led to 105 killings by police firing. Around that time, C.D. Deshmukh resigned as Finance Minister in support of Maharashtra’s claim. Many methods to resolve these disputes were tried: the use of the Western Zonal Councils (which failed), Committees from the warring states (which failed) and examination of Commissions headed by serving or retired judges (which succeeded).
The Justices Wanchoo (1952) and Mishra Commissions (1953) split Bellary to give three districts to Andhra and the rest to Karnataka. The case was decided on its facts and hardly authorizes compulsory splitting of districts by villages, a view rejected by the Union in 1966. This is equally true of Justice Shah’s efforts on Punjab and Haryana. The fact remains that the Belgaum dispute was referred to the formidable ex-Justice M.C. Mahajan who received 2240 memoranda and spoke to 7572 persons, visiting 17 places, rejected the village unit formula, relying on panchayat boundaries. Interestingly what the Commission presented was that between 1951 and 1961, the Marathi majority in Belgaum slipped into a minority, or bare majority in various areas, and increased in others – with Maharashtra adding and subtracting their claims based on the 1961 census. Demographic movements are inevitable. A right to movement and to settle in any part of India inheres in all persons and community. The Marathi speaking majority in 1951 in some areas had been reduced in 1961 (46%). Unhappy, with Mahajan’s report, Maharashtra resorted to agitational protest.
In determining these questions, do we go to the census of 1951, 1961, 1971, 2001 or 2011. Nothing could be more absurd than redrawing state boundaries after each census! The present agitation arises because of a Counter-Affidavit of 2010 by the Union of India reiterating its stand that “language (is) not the sole criteria” for determining boundaries and “the transfer of certain areas to Karnataka was neither arbitrary and wrong”.
Marathi politics tries to reinforce a false pernicious identity through uncompromising agitation. In 1996, 10 ladies from Belgaum started a hunger strike on the issue Chief Ministers of Maharashtra have kept the issue alive between 1997-2002. The Supreme Court case was filed in 2002. The Supreme Court cannot and should not determine these matters and strike down the 1956 and 1960 Reorganization Acts to unsettle settled demarcations, open Pandora’s box and create new border tensions.
The claim on Belgaum and other areas is part of a pan-Marathi nationalism. The obverse of this agitation is the campaign to threaten non-Marathis in Bombay so that even film stars have been coerced into submission.
The Shiva Sena and MNS claim to be trustees of the Maharatha cause to the hilt. Chief Minister Chavan was anxious not to miss the bus and made the absurd suggestion of making the disputed areas a Union Territory. The agitation will continue in the monsoon session of Parliament. If Chavan’s suggestion is talked through, is there a case for Mumbai becoming Union-territory to make it available for all?
India has a rich multi-lingual and multi-cultural federalism. Freedom of movement has enabled workers and business to travel to all corners of India. New states may and will be created to make Indian federalism more manageable. These border disputes which are fuelled by politically inspired jingoism must stop – now!
The Nuclear Bill - Confounding Confusion
The Nuclear Bill
Confounding Confusion
The Indian Parliament’s most popular method of passing legislation is with sparse, or no, discussion. Democratic voices have to be media shrill and strong to register. In the case of the Civil Nuclear Bill (CNL Bill) the voices were strong.
The basic objection of the protestors was that having surrendered sovereignty to America under the Nuclear Deal, the Nuclear Bill played to the interest of foreign suppliers and Indian operators and others to cheat the people of India from just recompense. Remember Hiroshima. Remember Chernobyl. Remember Bhopal. The hue and cry led to referring the Bill to the Dr. Subbarami Reddy Committee on 13 May 2010 whom Vice-President Hamid Ansari accused of interpolation. It reported on 18 August 2010 with a dissent from Dr. Barun Mukherjee who pointed out that “many countries are not members of any liability convention and only 4 out of 30 members having ratified the 1997 convention.” He found the suggested changes to the present provisions “absurdly low”. Salman Pathak’s other dissenting view was that the Committee had failed to “keep the interests of the Indian people … as its core concern” and “unduly favour(ed) foreign suppliers”. The Committee heard the government Departments, visited Nuclear plants, was satisfied with the safety measures and heard some NGOs, Trade Unions, Business Associations and the Insurance Industry.
Passing this Bill was critical to show India’s good faith to America and other supplier nations. Compromises were worked out with the BJP, when they could not be forced on the Left. The CNL Bill broadly contains (i) liability and (ii) machinery provisions. Some 18 amendments were tabled, seven were accepted mostly over the liability provisions.
After the amendment, the Bill fails to exude a complete and comprehensive responsibility for accidents, victims, loss and livelihood. In the Bichri case (1995), following Oleum Gas (1986), the Supreme Court has laid down absolute liability (whether negligent or intentional or otherwise) for any and all damage due to escape from a hazardous unit. This is still good law; and woe-betide a Parliament that destroys this umbrella protection.
Liability Provisions
The Bill continues to shortchange liability and therefore responsibility. Some provisions are unoriginally salutary; some inadequate. (i) By making the Bill applicable to government owned or controlled by government (new Section 3A), private operators are excluded from the operation of the Act. It is an improvement only because present operators are government controlled and owned. But, with this and also the changed meaning of “operator”, the Bill vitally excludes future private operators from the Act. One problem is solved; another imbedded. (ii) Changes were made by the Committee in the definition clauses. The Health Secretary had wisely recommended that nuclear damage should include loss of life, injury and “immediate and long term health impact (Clause 2(f)(i)). Likewise ‘environment’ was to do be given a wider meaning (iii) The big change is in Clause 6 of the Bill is to empower the government to increase the liability from 300 SDR (Special Drawing Rights (SDR) equal to about Rs.2100 crores) if it wants. Then a graded and lesser responsibility is now introduced for different kinds of reactors and plants. Why this mambo-jambo? The Committee had suggested tripling the liability. Why not an absolute liability clause which simply says that the maximum liability shall be the actual damage caused. Why should the tax payer pay the amount in excess beyond the maximum? Further, the new change requires that, if necessary, the government will assume the liability of private operator, if in the public interest. Clearly, issues have been fudged. (iv) Suppliers liability was, and remains guarded. The Committee wanted the Indian operator (mind you, not the victim) to have the “right to recourse” against the supplier for any connected damage, but left the operator with the defence that if the damage was not intentional the supplier would not be liable. The BJP wanted this ‘intent’ defence dropped. However, the Lok Sabha passed the Bill with the ‘intent’ clause intact! What is not clear is what a “right to recourse” means? 10 years of litigation? Arbitration? In other words, the liability amendments short change peoples’ concerns, make a farce of the operators’ liability, deny absolute liability and let off the supplier for connected but not intentional loss.
Machinery Provisions
Some changes were also made in the machinery provisions (i) Most cases would go to a Claims Commissioner unless the government wants to send it to a Claim Commission. Good grief! Why? (ii) As for the composition of the Claims Commission is concerned, only the composition of the selection committee to appoint Commissioners is now stated (clause 20). But we are still left with the possibility of either a sitting judge being appointed or an advocate of 10 years standing (including a party hack!) as chairperson. For the other members, with the minimum age at 55 years, the posts are ripe for retired bureaucrats. These are cosmetic changes. (iii) The Lok Sabha rightly accepted a possible extension in the limitation (time to claim) to 20 years. But, it should have been left to the Commission or Commissioners to go beyond the twenty years if necessary (clause 18). (iv) There is nothing grand in the changes allowing compensation cases going to the writ or special jurisdiction of the High Court or Supreme Court (clause 35). The reason is simple. These jurisdictions cannot be ousted by Parliament even through a constitutional amendment! (L. Chandra’s case (1999)). These provisions are part of the unalterable basic structure of the Constitution. So, no big deal!
The parliamentary process is besieged with compromise. That is understandable. But to what extent? The government’s major concerns are those of the suppliers and insurers to the extent they impact on the supply of technology – fuel and so on. It fears that stringent provisions will dry out supply; and it must conform to international conventions even though these have been written by supplier nations, without attracting requisite signatures. We do live in a global world. Even with India advancing economically, it needs technology. To some extent, principles will be compromised. But that is not the issue. A sovereign parliament has sovereign responsibilities to its own peoples. The question is whether this Bill meets the measure of responsibility due to Indian victims? Or have these responsibilities been short changed. In this, Parliament has failed in achieving the right balance and sold its sovereignty for a song.
The liability provisions have been increased overall, but do not encompass recompense for the total effect. The graded changes for some nuclear operations mean that the limit has gone down in some cases rather than up. The residuary responsibility (which can be huge) is left to the government and the tax payer. The machinery provisions are unchanged. Dual optional machinery is created. The adjudicating incumbents could be anybody. The provisions are tailored for favoured lawyers and administrators. The judicial review to the High Court and Supreme Court already exists. The hype is meaningless.
The Nuclear Liability Bill is a bad compromise. All of the Committee’s suggestions have not been accepted. Parliament has been mesmerized by cosmetic changes. Even though, the supplier, operators and insurers have won, the American suppliers are not happy with this statutory mess. God forbid catastrophe; but should it come, we are as legally unprepared as we were for Bhopal.
Confounding Confusion
The Indian Parliament’s most popular method of passing legislation is with sparse, or no, discussion. Democratic voices have to be media shrill and strong to register. In the case of the Civil Nuclear Bill (CNL Bill) the voices were strong.
The basic objection of the protestors was that having surrendered sovereignty to America under the Nuclear Deal, the Nuclear Bill played to the interest of foreign suppliers and Indian operators and others to cheat the people of India from just recompense. Remember Hiroshima. Remember Chernobyl. Remember Bhopal. The hue and cry led to referring the Bill to the Dr. Subbarami Reddy Committee on 13 May 2010 whom Vice-President Hamid Ansari accused of interpolation. It reported on 18 August 2010 with a dissent from Dr. Barun Mukherjee who pointed out that “many countries are not members of any liability convention and only 4 out of 30 members having ratified the 1997 convention.” He found the suggested changes to the present provisions “absurdly low”. Salman Pathak’s other dissenting view was that the Committee had failed to “keep the interests of the Indian people … as its core concern” and “unduly favour(ed) foreign suppliers”. The Committee heard the government Departments, visited Nuclear plants, was satisfied with the safety measures and heard some NGOs, Trade Unions, Business Associations and the Insurance Industry.
Passing this Bill was critical to show India’s good faith to America and other supplier nations. Compromises were worked out with the BJP, when they could not be forced on the Left. The CNL Bill broadly contains (i) liability and (ii) machinery provisions. Some 18 amendments were tabled, seven were accepted mostly over the liability provisions.
After the amendment, the Bill fails to exude a complete and comprehensive responsibility for accidents, victims, loss and livelihood. In the Bichri case (1995), following Oleum Gas (1986), the Supreme Court has laid down absolute liability (whether negligent or intentional or otherwise) for any and all damage due to escape from a hazardous unit. This is still good law; and woe-betide a Parliament that destroys this umbrella protection.
Liability Provisions
The Bill continues to shortchange liability and therefore responsibility. Some provisions are unoriginally salutary; some inadequate. (i) By making the Bill applicable to government owned or controlled by government (new Section 3A), private operators are excluded from the operation of the Act. It is an improvement only because present operators are government controlled and owned. But, with this and also the changed meaning of “operator”, the Bill vitally excludes future private operators from the Act. One problem is solved; another imbedded. (ii) Changes were made by the Committee in the definition clauses. The Health Secretary had wisely recommended that nuclear damage should include loss of life, injury and “immediate and long term health impact (Clause 2(f)(i)). Likewise ‘environment’ was to do be given a wider meaning (iii) The big change is in Clause 6 of the Bill is to empower the government to increase the liability from 300 SDR (Special Drawing Rights (SDR) equal to about Rs.2100 crores) if it wants. Then a graded and lesser responsibility is now introduced for different kinds of reactors and plants. Why this mambo-jambo? The Committee had suggested tripling the liability. Why not an absolute liability clause which simply says that the maximum liability shall be the actual damage caused. Why should the tax payer pay the amount in excess beyond the maximum? Further, the new change requires that, if necessary, the government will assume the liability of private operator, if in the public interest. Clearly, issues have been fudged. (iv) Suppliers liability was, and remains guarded. The Committee wanted the Indian operator (mind you, not the victim) to have the “right to recourse” against the supplier for any connected damage, but left the operator with the defence that if the damage was not intentional the supplier would not be liable. The BJP wanted this ‘intent’ defence dropped. However, the Lok Sabha passed the Bill with the ‘intent’ clause intact! What is not clear is what a “right to recourse” means? 10 years of litigation? Arbitration? In other words, the liability amendments short change peoples’ concerns, make a farce of the operators’ liability, deny absolute liability and let off the supplier for connected but not intentional loss.
Machinery Provisions
Some changes were also made in the machinery provisions (i) Most cases would go to a Claims Commissioner unless the government wants to send it to a Claim Commission. Good grief! Why? (ii) As for the composition of the Claims Commission is concerned, only the composition of the selection committee to appoint Commissioners is now stated (clause 20). But we are still left with the possibility of either a sitting judge being appointed or an advocate of 10 years standing (including a party hack!) as chairperson. For the other members, with the minimum age at 55 years, the posts are ripe for retired bureaucrats. These are cosmetic changes. (iii) The Lok Sabha rightly accepted a possible extension in the limitation (time to claim) to 20 years. But, it should have been left to the Commission or Commissioners to go beyond the twenty years if necessary (clause 18). (iv) There is nothing grand in the changes allowing compensation cases going to the writ or special jurisdiction of the High Court or Supreme Court (clause 35). The reason is simple. These jurisdictions cannot be ousted by Parliament even through a constitutional amendment! (L. Chandra’s case (1999)). These provisions are part of the unalterable basic structure of the Constitution. So, no big deal!
The parliamentary process is besieged with compromise. That is understandable. But to what extent? The government’s major concerns are those of the suppliers and insurers to the extent they impact on the supply of technology – fuel and so on. It fears that stringent provisions will dry out supply; and it must conform to international conventions even though these have been written by supplier nations, without attracting requisite signatures. We do live in a global world. Even with India advancing economically, it needs technology. To some extent, principles will be compromised. But that is not the issue. A sovereign parliament has sovereign responsibilities to its own peoples. The question is whether this Bill meets the measure of responsibility due to Indian victims? Or have these responsibilities been short changed. In this, Parliament has failed in achieving the right balance and sold its sovereignty for a song.
The liability provisions have been increased overall, but do not encompass recompense for the total effect. The graded changes for some nuclear operations mean that the limit has gone down in some cases rather than up. The residuary responsibility (which can be huge) is left to the government and the tax payer. The machinery provisions are unchanged. Dual optional machinery is created. The adjudicating incumbents could be anybody. The provisions are tailored for favoured lawyers and administrators. The judicial review to the High Court and Supreme Court already exists. The hype is meaningless.
The Nuclear Liability Bill is a bad compromise. All of the Committee’s suggestions have not been accepted. Parliament has been mesmerized by cosmetic changes. Even though, the supplier, operators and insurers have won, the American suppliers are not happy with this statutory mess. God forbid catastrophe; but should it come, we are as legally unprepared as we were for Bhopal.
Friday, August 20, 2010
CONFERENCE ON REFUGEES IN THE NORTH EASTERN STATES OF INDIA – A REVIEW
The Public Interest Legal Support and Research Centre is organizing its biannual conference on Refugee Law and Policy. The conference focuses on the North Eastern States of India and seeks to explore the issues facing refugees in the North Eastern states of India in the context of Indian State Policy on refugees and the various state legislations on immigrants, discussed within the parabola of the need to devise an effective refugee protection regime in India that is consistent with the international practice in humanitarian law.
Date: Saturday, 4th September, 2010
Venue: Casuarina, India Habitat Centre, Lodhi Road, New Delhi
Time: 10 a.m. to 4 p.m.
Materials relevant to the conference will be made available on this space shortly.
We would like the conference to be a forum for international participation and for voicing the concerns that members of the international community may have on India's refugee policy.
Research scholars, academics, students and policy analysts interested in the issues typical to the North East refugee crisis may find attendance and participation at this conference insightful.
Contact: Rashmi Raman, PILSARC - ramanrashmi@gmail.com / pilsarc@gmail.com
The Public Interest Legal Support and Research Centre is organizing its biannual conference on Refugee Law and Policy. The conference focuses on the North Eastern States of India and seeks to explore the issues facing refugees in the North Eastern states of India in the context of Indian State Policy on refugees and the various state legislations on immigrants, discussed within the parabola of the need to devise an effective refugee protection regime in India that is consistent with the international practice in humanitarian law.
Date: Saturday, 4th September, 2010
Venue: Casuarina, India Habitat Centre, Lodhi Road, New Delhi
Time: 10 a.m. to 4 p.m.
Materials relevant to the conference will be made available on this space shortly.
We would like the conference to be a forum for international participation and for voicing the concerns that members of the international community may have on India's refugee policy.
Research scholars, academics, students and policy analysts interested in the issues typical to the North East refugee crisis may find attendance and participation at this conference insightful.
Contact: Rashmi Raman, PILSARC - ramanrashmi@gmail.com / pilsarc@gmail.com
Thursday, August 19, 2010
Reservations Forever: Is there no limit?
Reservations Forever:
Is there no limit?
Rajeev Dhavan
Far from being inspired by social justice, reservations have become a political toy to support vote banking. Over the last fifteen years, politicians have enacted five constitutional amendments to reverse Supreme Court judgments. In turn, the Supreme Court has lost its way – seemingly backing off, backing down, giving up.
The latest Supreme Court endeavour is Chief Justice Kapadia’s order (also for Justices Radhakrishnan and Swatantra Kumar) permitting Tamil Nadu (TN) to continue 69% reservation for Scheduled Castes and Tribes (SC/ST) and Other Backward Classes (OBC) under its 1993 legislation, but asking TN to review its decision on the basis of quantifiable data. This seems surprising because it was Justice Kapadia’s own judgment in Nagaraj’s case (2006) which jettisoned reservations within a strict discipline before reservations were made and not as a statistical afterthought.
The judicial effort to discipline reservations goes back to 1951, but in our context began its rigorous journey from Justice Gajendragadkar’s judgment in Balaji (1963) establishing the 50% norm and striking down Mysore’s 68% reservation. Apart from SC/ST, the reservation provisions for OBCs were designed by the Constituent Assembly for the ‘south’ states which had practiced reservation for decades to cover traditionally recognized OBCs in their states. But to the ‘old’ OBCs were added ‘new’ OBCs. The new OBCs were discovered in the ‘north’, especially in the states of Bihar and UP resulting in the triumph of the Yadavs – Laloo in Bihar, Mulayam in UP and others elsewhere. Now everyone is busy discovering new OBCs. While the Karlekar Commission (1955) did not want to open the OBC cauldron, the Mandal Commission (1980) was only too glad to do so. The Mandal report was a hot potato which the Congress avoided and V.P Singh embraced in 1990 with disastrous results. The hitherto docile ‘merit students’ exploded into riots. Enough was enough. Peace was restored. The Supreme Court contributed to devising the peace process by a balanced formula in the Mandal case (1992) reiterating the old Balaji 50% limit for reservations. No doubt the 50% limit can only be crossed for compelling reasons. But this going beyond 50% was really for tribal states and not as a general political excuse to garner votes, which it has become.
Meanwhile, Congress realized that it had been upstaged by other political parties in using and manipulating reservations for votes. From 1995 – 2005, it was party to the 77th, 81st, 82nd, 85th and 23rd constitutional amendments for SC/ST and OBC reservation – realizing that the SC/ST constituency was also slipping from its hands. This is self evident from the parliamentary debates – a fact fully analysed in R. Dhavan’s: Reserved (2008).
What is significant is that these amendments were challenged in Nagraj (2006) concerning reservations in the civil services, where the lead and only judgment was by Justice (now Chief Justice) Kapadia. Earlier in the 11 judge bench decision in TMA Pai relating to education, the court fixed 50% as the upper limit which could be crossed only if there were justifiable, compelling circumstances. In fact, it would be fair to say that every percent reservation over 50% needs total comprehensive justification.
As it happens Nagraj (2006) was a written by Justice Kapadia. It concerned examining whether the constitutional amendments of 1995 – 2000 violated the ‘basic structure’ of “equality”. Read between the lines, it was a brilliantly statesmanlike decision. It told Parliament that its amendments were valid since they did not guarantee reservations but simply enabled them. It told merit candidates that equality was part of the basic structure of the constitution and, therefore, any exercise of the power of reservation would be subject to the 50% rule, the creamy layer, extent of backwardness and demands of the efficiency, in accordance with the criteria of reasonableness and compelling necessity.
Why did Justice Kapadia not follow his own judgment in the case of the Tamil Nadu’s 69% reservation? It is true that the Tami Nadu statute had been given extra constitutional protection. But after Justice Sabharwal’s judgment in Coelho’s case (2007), this extra protection had been ripped down. The Tamil Nadu statute was of 1993. It was 17 years old. A mandatory exercise of re-examination was necessary. This was not done. Under Justice Kapadia’s own test, Tamil Nadu’s 69% was beyond 50%. No compelling necessity had been shown. The creamy layer test is that those SC/ST or OBC is that who are no longer backward are disentitled to reservation. This has not been applied to SC and ST in Tamil Nadu. No considerations of efficiency have been considered.
One way of looking at Justice Kapadia’s decision on Tamil Nadu reservations is that, Tamil Nadu’s law enables 69% reservation. Before implementation, the ‘Nagraj’ restrictions of 50%, creamy layer, efficiency etc. would apply with full rigour as a prelude to implementation. But this turns Justice Kapadia’s own Nagraj decision upside down. The Tamil Nadu statute was all ready for implementation. The 69% had been, and was, being implemented. None of the Nagraj tests were being applied. This, it seems that Tamil Nadu had a free run subject to judicial advice that it must examine the extent of backwardness. But if the 69% statute was declared valid by the Supreme Court, no High Court could ignore it and all governments would implement it. The cart was before the horse and reservations at 69% would remain where they were.
While all that I have said sounds full of technicalities, in fact it is not so. Few are against reservations in toto. I am not against reservations. They are necessary for social justice and to share the power of the state with SC/ST and OBCs. But we have to find a balance. Spurred on by vote bank considerations, politicians do not want to find a balance. It has been upto courts to do so. The 50% marker came in 1963. The excursion of the creamy layer came for OBCs in 1992 and 2006 for SC/STs. Efficiency was emphasized in 1992 and against 2006. Reservations in super-specialties, technical areas or the army are not permissible. Both, the imposing of reservations and the breach of the 50% requirements are subject to compelling necessity and reasonableness. The creamy layer test was absolute. Efficiency had to be considered. Developed for 5 decades, these tests provide a balance so that the competing claims of reservations and merit are satisfied. Politicians abhor this balance because it interferes with their political vote-gathering largesse.
The 69% quota means that merit candidates have only a 31% chance; and SC/ST and OBC candidates can also compete for these 31% seats. This violates equality of opportunity. It also gives efficiency a go-by by disproportionately discounting merit.
India’s Constitution has both political as well as justice texts. If the justice texts were not there, majorities in legislatures would do whatever they want in the name of a crude numerical majoritarianism without reserve. The reservation debate has exhausted itself. Tamil Nadu’s 69% statute has been wrongly declared valid. But all is not over. The Supreme Court and Madras High Court can still insist that the amendment should not be implemented without looking at backwardness, the creamy layer and efficiency in terms of reasonableness and compelling necessity. But will they?
Is there no limit?
Rajeev Dhavan
Far from being inspired by social justice, reservations have become a political toy to support vote banking. Over the last fifteen years, politicians have enacted five constitutional amendments to reverse Supreme Court judgments. In turn, the Supreme Court has lost its way – seemingly backing off, backing down, giving up.
The latest Supreme Court endeavour is Chief Justice Kapadia’s order (also for Justices Radhakrishnan and Swatantra Kumar) permitting Tamil Nadu (TN) to continue 69% reservation for Scheduled Castes and Tribes (SC/ST) and Other Backward Classes (OBC) under its 1993 legislation, but asking TN to review its decision on the basis of quantifiable data. This seems surprising because it was Justice Kapadia’s own judgment in Nagaraj’s case (2006) which jettisoned reservations within a strict discipline before reservations were made and not as a statistical afterthought.
The judicial effort to discipline reservations goes back to 1951, but in our context began its rigorous journey from Justice Gajendragadkar’s judgment in Balaji (1963) establishing the 50% norm and striking down Mysore’s 68% reservation. Apart from SC/ST, the reservation provisions for OBCs were designed by the Constituent Assembly for the ‘south’ states which had practiced reservation for decades to cover traditionally recognized OBCs in their states. But to the ‘old’ OBCs were added ‘new’ OBCs. The new OBCs were discovered in the ‘north’, especially in the states of Bihar and UP resulting in the triumph of the Yadavs – Laloo in Bihar, Mulayam in UP and others elsewhere. Now everyone is busy discovering new OBCs. While the Karlekar Commission (1955) did not want to open the OBC cauldron, the Mandal Commission (1980) was only too glad to do so. The Mandal report was a hot potato which the Congress avoided and V.P Singh embraced in 1990 with disastrous results. The hitherto docile ‘merit students’ exploded into riots. Enough was enough. Peace was restored. The Supreme Court contributed to devising the peace process by a balanced formula in the Mandal case (1992) reiterating the old Balaji 50% limit for reservations. No doubt the 50% limit can only be crossed for compelling reasons. But this going beyond 50% was really for tribal states and not as a general political excuse to garner votes, which it has become.
Meanwhile, Congress realized that it had been upstaged by other political parties in using and manipulating reservations for votes. From 1995 – 2005, it was party to the 77th, 81st, 82nd, 85th and 23rd constitutional amendments for SC/ST and OBC reservation – realizing that the SC/ST constituency was also slipping from its hands. This is self evident from the parliamentary debates – a fact fully analysed in R. Dhavan’s: Reserved (2008).
What is significant is that these amendments were challenged in Nagraj (2006) concerning reservations in the civil services, where the lead and only judgment was by Justice (now Chief Justice) Kapadia. Earlier in the 11 judge bench decision in TMA Pai relating to education, the court fixed 50% as the upper limit which could be crossed only if there were justifiable, compelling circumstances. In fact, it would be fair to say that every percent reservation over 50% needs total comprehensive justification.
As it happens Nagraj (2006) was a written by Justice Kapadia. It concerned examining whether the constitutional amendments of 1995 – 2000 violated the ‘basic structure’ of “equality”. Read between the lines, it was a brilliantly statesmanlike decision. It told Parliament that its amendments were valid since they did not guarantee reservations but simply enabled them. It told merit candidates that equality was part of the basic structure of the constitution and, therefore, any exercise of the power of reservation would be subject to the 50% rule, the creamy layer, extent of backwardness and demands of the efficiency, in accordance with the criteria of reasonableness and compelling necessity.
Why did Justice Kapadia not follow his own judgment in the case of the Tamil Nadu’s 69% reservation? It is true that the Tami Nadu statute had been given extra constitutional protection. But after Justice Sabharwal’s judgment in Coelho’s case (2007), this extra protection had been ripped down. The Tamil Nadu statute was of 1993. It was 17 years old. A mandatory exercise of re-examination was necessary. This was not done. Under Justice Kapadia’s own test, Tamil Nadu’s 69% was beyond 50%. No compelling necessity had been shown. The creamy layer test is that those SC/ST or OBC is that who are no longer backward are disentitled to reservation. This has not been applied to SC and ST in Tamil Nadu. No considerations of efficiency have been considered.
One way of looking at Justice Kapadia’s decision on Tamil Nadu reservations is that, Tamil Nadu’s law enables 69% reservation. Before implementation, the ‘Nagraj’ restrictions of 50%, creamy layer, efficiency etc. would apply with full rigour as a prelude to implementation. But this turns Justice Kapadia’s own Nagraj decision upside down. The Tamil Nadu statute was all ready for implementation. The 69% had been, and was, being implemented. None of the Nagraj tests were being applied. This, it seems that Tamil Nadu had a free run subject to judicial advice that it must examine the extent of backwardness. But if the 69% statute was declared valid by the Supreme Court, no High Court could ignore it and all governments would implement it. The cart was before the horse and reservations at 69% would remain where they were.
While all that I have said sounds full of technicalities, in fact it is not so. Few are against reservations in toto. I am not against reservations. They are necessary for social justice and to share the power of the state with SC/ST and OBCs. But we have to find a balance. Spurred on by vote bank considerations, politicians do not want to find a balance. It has been upto courts to do so. The 50% marker came in 1963. The excursion of the creamy layer came for OBCs in 1992 and 2006 for SC/STs. Efficiency was emphasized in 1992 and against 2006. Reservations in super-specialties, technical areas or the army are not permissible. Both, the imposing of reservations and the breach of the 50% requirements are subject to compelling necessity and reasonableness. The creamy layer test was absolute. Efficiency had to be considered. Developed for 5 decades, these tests provide a balance so that the competing claims of reservations and merit are satisfied. Politicians abhor this balance because it interferes with their political vote-gathering largesse.
The 69% quota means that merit candidates have only a 31% chance; and SC/ST and OBC candidates can also compete for these 31% seats. This violates equality of opportunity. It also gives efficiency a go-by by disproportionately discounting merit.
India’s Constitution has both political as well as justice texts. If the justice texts were not there, majorities in legislatures would do whatever they want in the name of a crude numerical majoritarianism without reserve. The reservation debate has exhausted itself. Tamil Nadu’s 69% statute has been wrongly declared valid. But all is not over. The Supreme Court and Madras High Court can still insist that the amendment should not be implemented without looking at backwardness, the creamy layer and efficiency in terms of reasonableness and compelling necessity. But will they?
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