Condemn the use of Capital Punishment against 3 Kashmiris

COMMITTEE FOR THE RELEASE OF POLITICAL PRISONERS
185/3, Fourth Floor, Zakir Nagar, New Delhi—25

Giving Death Sentence to 3 Kashmiris and rigorous life imprisonment to another in the Lajpat Nagar Blast Case vindicates the observation that “being a Kashmiri itself is a crime to be punished in India!

Strongly Condemn the use of Capital Punishment by the Government of India!

Abolish Capital Punishment!

After 14 long years, a Delhi Court has finally given death sentence to three Kashmiris—Mohd Naushad, Mohd Ali Bhatt and Mirza Nissar Hussain—in the 1996 Lajpat Nagar blast case while putting Javed Ahmed Khan under rigorous life imprisonment. While two others—Farooq Ahmed Khan and Farida Dar—were released as the court observed that the 14 years that they had spent in the prison would be considered as their punishment. Here there is a catch. A week before the court had acquitted 4 others as it had found them innocent, that too after 14 long years! So the question that arises to any discerning mind is that if two have been released as their 14 year incarceration is being taken as punishment by the Hon’ble Court for them, then why is it that the court silent on the same quantum of years spent by the acquitted four. Can the court give back their 14 long years? Can it compensate for the physical and mental injury along with the social stigma that these four and their kith and kin have gone through? Who should be held accountable for such travesty of justice?

It should be noted that the Court has rapped the police for shoddy evidence and irresponsible conduct which it has termed as lack of seriousness. How can such criminal lapse on the side of the investigating agencies make life miserable for people who can only get justice that too to be declared innocent after almost spending a life sentence! So when one of the persons who have been on trial was on record saying that “being a Kashmiri itself is a crime to be punished in India” the court sentence proved to be a grim reminder, a tragic replay of the gross injustice meted out to the people of Kashmir by the Indian judiciary.

We at the CRPP reiterate that every democratic mind should raise this question about the authorities who have falsely implicated them and fed all kinds of insinuating and incriminating stories in the media on their so-called involvement. Will they ever stand for trial? Or raising a question against them would affect the morale of the investigating agencies? Once again what comes to sharp focus is a continuing story of calculated assault on the lives of particular people who have been targeted for their political convictions. More than a case of showing how fair the system is—as it has acquitted the genuinely innocent and tried the ones for their “various roles”—this once again brings forth the ugly face of blatant violation of procedures and rights of the accused, let alone their right to represent themselves without being prejudiced against.

Despite shoddy evidence and irresponsible conduct from the side of the police, it did not stop the court to give death sentence to 3 Kashmiris which is a punishment that has been long given up by many civilised countries. India is yet to sign this International treaty to which many of the democracies in the world are signatory against a worst form of barbaric punishment that can only further criminalise the people and the system. We demand unequivocally to abolish Capital Punishment and demand the Indian Government to immediately sign the International Treaty abandoning death penalty as a form of punishment.

Given the way things are unfolding for the people of Kashmir all claims of the Government of India about a bill against torture or allegedly safeguards against that sounds like a cruel joke as many of such detention centres in Kashmir are illegal and secret.

Ever since the news of the sentencing of six people along with the acquittal of four of the 1996 Lajpat Nagar blast case the valley of Kashmir has witnessed series of protest demonstrations, and complete shutdown. This reflects the general apathy of a people who have been subjected to the worst kinds of human rights violations.

Illegal detentions, trumped up cases and imprisonment being a common way of life for the average Kashmiri, the question of the political prisoner and his/her status and safeguards against all forms of torture and intimidation becomes paramount. While this is being written there are several people who have been kept behind bars including leaders for protesting against the gross violations of the civil and political rights of the people of Kashmir. In fact this anger is evident in the complete shutdown of the valley and when the people and their leaders say that they are being targeted for their demand for the Right to Self-Determination.

In Solidarity,

Gurusharan Singh (President), Amit Bhattacharyya (Secretary General), SAR Geelani (Working President), Rona Wilson (Secretary Public Relations)

A Generalised State of Exception and the Maoists in India

Pothik Ghosh
A shorter version of the article appeared in The Hindustan Times (April 8 2010)

Appearances, as the cliché goes, are often deceptive. The annihilation of 73 Central Reserve Police Force (CRPF) personnel in Dantewada, Chhattisgarh, by combatants of the Maoist People’s Liberation Guerrilla Army has, however, given a new twist to that cliché. The incident, thanks to the phenomenology constructed for it by an ever-increasing number of breathlessly sensationalist television news channels, has become as overwhelming as its visual effect. But before ‘liberal’ middle India allows itself to be overwhelmed by the appearance of the incident and gives in to a sense of outrage served to it by its bad conscience – the tragedy-hungry, bloodthirsty and shrill mass media – it would do well to take a step back from the popular representations of the “massacre” and ponder hard on what lies beyond the vanishing point of those ‘galling images’.

Before the more vocal, patriotic and humane sections of this liberal citizenry begin shouting at the top of their voices that the law of the land, the sovereignty of its state and, therefore, the very idea of democratic India is facing its gravest adversary ever, they would do well to remember how the rule of the law (nomos) is envisaged in modern jurisprudence. Constitutive of a modern and democratic legal regime is its undemocratic exception, something that it bares when the socio-political order it is meant to maintain and enable runs into an existential crisis. This appearance of the undemocratic exception, from the depths of the democratic law where it lies carefully concealed, onto the surface of legal legitimacy entails the suspension of the democratic aspects of the ‘normal’ law. That the Indian Constitution has provisions for the declaration of internal emergency – something the nation actually experienced once as a matter of political and legal fact in the ’70s – under certain conditions shows how the democratic law of a democratic state can suspend itself to legitimately institute its undemocratic exception.

The first and most important thing we must, therefore, grasp is the conditions that lead to the institution of the exception as the norm imply a situation in which usual (‘normal’) forms of mass democratic politics, including electoral politics, cannot be allowed to have an unbridled run without imperiling the system of representative democracy that purportedly make such forms of politics possible and necessary in the first place. The emergence of the exception as the law ensures precisely that by either entirely precluding or significantly eliding rights that allow and/or enable such forms of democratic politics. In such circumstances, electoral politics ceases to be an effective vehicle in carrying forth the voice of the toiling masses and the underclass that are embodied in various identities of either religious/ linguistic/ regional/ gender minorities or socio-occupational marginals.

That, needless to say, compels such social groups, which encounter the law of the Indian state not as an embodiment of democracy but in the form of its undemocratic exception, to look to other not-so legitimate means of politics to express their disaffection and disenfranchisement. That has precisely been the case in large swathes of eastern and central India leading to the emergence of the Maoist path of armed struggle as the only possible form of politics for the agrarian-tribal working masses to articulate their utter lack of agency and their progressive immiseration. It would not, as a matter of fact, be an exaggeration to say the state has enforced an undeclared internal emergency in those areas. It is this that the liberal India must bear in mind before spewing, as is its wont, venom on the Maoists and their social base for not adopting the constitutionally-ordained way of elections and non-violent mass politics to articulate their discontent and having unleashed, instead, an armed campaign that seeks to jeopardise the sovereignty of the democratic Indian state. Our legalist democrats must understand that the state the Maoists challenge is not the state of democratic law but, to borrow Italian legal theorist Giorgio Agamben’s concept, the “generalised state of exception”.

Clearly, the Maoist-dominated areas of eastern and central India, of which Dantewada is a key nerve centre, are in a state of war that, in both the apparent military sense and the structural political-economic one, has been thrust upon the underclass and working strata of the local tribal population on behalf of global capital – of which Indian capital is a significant and powerful part – by the Indian state. This modern capitalist state consists not merely of multiple levels of governmental agency but devolves into the local elite, many of whom belong to the same tribal population from which the Maoists also derive their social base. That, one believes, should take care of the claim that the Maoists comprise an external force that has sowed the seeds of fratricidal conflicts within idyllic tribal communities. The capitalist Indian state, as the example above shows, is as much internal to such stratified tribal communities as the Maoists.

In that context, it might be useful to wonder how such conditions, which necessitate the suspension of democratic law and the institution of its undemocratic exception as an ethico-legal norm, get created in the life of a democratic state. For, only by seeking to answer that question would we arrive at a better understanding of how the political economy of capital, especially in areas under Maoist control, determines the military aspect of the conflict.

The undemocratic exception of the law is the established norm at the moment of the founding of the law of the liberal-democratic state and the capitalist socio-economic formation that such law is meant to facilitate, conserve and reinforce. It is this historical moment of founding of capitalism, when existing instruments of pre-capitalist feudal coercion were deployed to alienate a section of pre-capitalist producers such as peasants and artisans from their means of production, that Marx termed primitive accumulation of capital. This process was meant to be a double-whammy: resources in the form of capital were accumulated even as the dispossessed sections became the workforce that would labour in accordance with the demands, determinations and caprices of capital. The law of the liberal-democratic capitalist state, which allows competition and contention, could not have been the norm in the founding of capitalism and its state as such competition would have meant a direct challenge to the emergence and existence of capitalism as a system. That was precisely the reason why the undemocratic exception was the norm in the founding of capital. And it is this undemocratic exception that returns as the law, even as the ‘normal’ democratic law is suspended, to enable capital to indulge in primitive accumulation as and when that is required of it.

That has precisely been the case in those areas of Maoist influence. Primitive accumulation of capital, as Marx explicated it, is not a one-time historical affair. It recurs with cyclical constancy in and through various moments of stabilised and established capitalism, when those moments run into a crisis of overaccumulation, enabling capital to reconstitute and refound itself to tide over such crises. In such situations, primitive accumulation of capital kicks in, as does the undemocratic exception, to enable the crisis-ridden system to reconstitute itself. Overaccumulation is a moment in the development of capitalism when the value of accumulated capital falls. This spells a considerable weakening of the hegemony of the hierarchised configuration of capitalist class power.

The only way in which capitalism can beat this crisis is by investing in and expanding into relatively less capitalised zones. In a sense, this expansion is akin to the historical founding of capitalism. Thus primitive accumulation of capital must be seen not as the conception of a historical event but as a logico-historical conceptualisation, as indeed it is in Marx’s own theorisation That is precisely what has been happening in ‘Maoist country’ where the executive arms of capital have, through coercive means, been trying to enable capital to beat its current crisis of overaccumulation – of which the international financial crisis is the most visible symptom – by expanding into those areas and occupying them by dispossessing the populations of those less commodified areas of their community-held commons (such as mineral resources, forest produce and land), and even their autonomous means of expression and life, in order to be able to invest.

It is this attempt by capital to reconstitute itself into a stable system once again that has led to the suspension of the democratic laws and invocation of and amendments to constitutional-legal clauses that institute the coercive exception as the legal norm in those areas. The ongoing Maoist insurgency is no more than a response to this generalised state of exception and the political economy it is seeking to rescue and reconstitute.

The Civil Liability for Nuclear Damage Bill 2010: Some Preliminary Observations

Sukla Sen

The Run Up

The draft Bill which had been approved by the Union Cabinet on November 20 2009 (1) was eventually listed for tabling in the Lok Sabha on March 15 2010 (2), the penultimate day of the first half of the Budget Session of the Parliament, after a lapse of almost 4 months.

In fact, the Bill was in the offing for quite some time by then, since the successful clinching of the Indo-US Nuclear Deal, on October 10 2008 (3).

The Deal has, it may be pertinent to recall, opened up for India the doors to the global nuclear market, thereby making the tag ‘Indo-US’ somewhat of a misnomer in so far as the tag conveys the impression of strict bilaterality (4). The market had remained out of bounds since the first (“peaceful”) nuclear explosion carried out by India way back on May 18 1974 with the plutonium obtained from the spent fuel rods of the nuclear reactor CIRUS supplied by Canada (5) to mentor India onto the path of developing capabilities to generate nuclear power (only) for “peaceful” purposes. The nuclear explosion, despite the disingenuous tag, “peaceful”, was looked upon by the rest of the world as a clear breach of faith, if not worse. The reactions were strong and almost instantaneous. India was, as a consequence, practically shooed out of the global nuclear market. With passage of time the barriers went further up and up. And, more so, after the second round of five blasts, on May 11 and 13 1998, declaring itself openly as a nuclear weapon power and attracting strong condemnations from the rest of the world (5a). Things became even tougher.

But if the US had earlier taken the lead to impose sanctions in response to Indian blasts, under George Bush, it took a unilateral initiative to radically reverse the situation in 2005. The contours of that move were duly captured in a joint statement issued on July 18 by George Bush and Manmohan Singh from Washington DC. After traversing a long and tortuous path marked by cajolements, mainly by India, and muscle flexing by the US, the international community was sort of coerced into accepting India back as a legitimate partner in (civilian) nuclear trade. The 45-member Nuclear Supplier Group (NSG) on September 6 2008 at the end of two rounds of stormy sessions granted a unique waiver to India, completely disregarding Pakistan’s shrill cry for a similar, and even-handed, treatment. The grand reward for the grossly aberrant India stood out in sharp contrast also with the harsh treatment being meted out to Iran, a signatory to the NPT, on the ground of its presumed intention to develop nuclear weapons under the guise of working towards nuclear power despite repeated denials and access granted to IAEA inspections of its facilities. (6)

This Bill is generally being looked upon as a continuum of that process, allegedly, in order to ensure a “level playing field” for the American enterprises – to let them have a significant share of the cake (7), the Indian nuclear market – a part payback for the American generosity bestowed upon India, for its very own reasons though. The move had, however, been first conceived by the then NDA government way back in 1999 (8).

When the US Secretary Of State, Hillary Clinton, visited India in July 2009 (9), there were talks of the Bill getting passed by the Indian Parliament. But nothing of that sort happened. Again in late November 2009, when Singh was to meet Obama in Washington DC (10), there was talk of getting the Bill enacted. Even then, it did not happen. The Union Cabinet had dutifully approved the Bill just on the eve of the visit though. With Manmohan Singh to visit the US to attend the Nuclear Security Summit, called by President Barack Obama, slated to be held on April 12-131 (11), the government was again trying to push it through. Never mind the considerable cooling off of Indo-US relations in the meanwhile as compared to the George Bush days (12).

It is of course quite another matter altogether that the Bill could not eventually be tabled on account of the shift in relationship of forces within the Parliament caused by the introduction, and its passage in the Upper House, of the much lauded and controversial Women’s reservation Bill (13). And now, given the realignment of forces, whatever be the intentions of the government, no easy or early passage is on the cards. But that does in no way mitigate the salience of the Bill and its serious implications. In any case, Barack Obama is scheduled to visit India later this year (14). So the pressure will persist.

The Bill

Since the Bill was approved by the Union Cabinet on November 20 2009, at least three significant changes have been made. One, the name has been changed from ‘The Civil Liability for Nuclear Damage Bill 2009’ to ‘The Civil Liability for Nuclear Damage Bill 2010’ (15). Two, in clause 6.(2), the quantum of “liability of an operator for each nuclear incident” has been revised upwards from “rupees three hundred crores” to “rupees five hundred crores”. Three, a new “Chapter”, ‘Offences and Penalties’ with 4 clauses, has been added. Also, the Chapter IV, ‘Claims and Awards’, has been somewhat restructured and expanded.

The Bill, in the present form, is contained in 28 (26 + ii) pages. It has 7 Chapters constituted of 49 clauses and also ‘Statement of Objects and Reasons’ with ‘Notes on clauses’ following plus two memoranda.

The objective of the Bill as laid down in the extended subject line is:

To provide for civil liability for nuclear damage, appointment of claims Commissioner, establishment of Nuclear Damage Claims Commission and for matters connected therewith or incidental there of.

Para 7 of the ‘Statement of Objects and Reasons’ further lays down that the purpose of the Bill is:

to enact a legislation which provides for nuclear liability that might arise due to a nuclear incident and also the necessity of joining an appropriate international liability regime.

The “appropriate international liability regime” clearly refers to ‘Convention on Supplementary Compensation for Nuclear Damage’ (CSC) – 1997 (16), which is purportedly based on the earlier Paris and Vienna Conventions. India is as yet signatory to none of these Conventions.(17) And the CSC is yet to come into force (18). And, that being the case, India has got to get a national law enacted so as to be able to declare that its national law complies with the provisions of the Annex to the subject Convention, before it is considered for membership of this Convention (i.e. CSC).

This Bill appears to be very much a move in that direction. It is, however, interesting to note while the CSC provides that “liability” of the “operator” is absolute, i.e. the operator is held “liable” irrespective of fault; the corresponding provision in the subject Bill, as contained in Clause 5 (Chapter II), is pretty much contrary to that. This Clause lists out the circumstances under which the “operator” will not be “liable” in case of an accident.

Regardless of justifiability or otherwise, the motivation for such a clear departure deserves to be properly explored.

The range of implications of joining this Convention, the main purpose of which appears to make Supplementary Compensation available jointly by the member countries in case of a (catastrophic) accident over and above the “liability” limit of the “operator” and the concerned state (19), also need be thoroughly examined.

The author of the Bill is Prithviraj Chavan (Minister of State for Science and Technology and Earth Sciences).

The Bill, in pursuance of the objective as spelt out above, in the Clause 9 (Chapter III) provides:

The Central Government shall, by notification, appoint one or more Claims Commissioners for such area, as may be specified in that notification, for the purpose of adjudicating upon claims for compensation in respect of nuclear damage.

The Chapter IV provides the details as regards ‘Claims and Awards’.

The heart of the Bill is however, arguably, constituted of clause 5, 6 and 7 (Chapter II). The clause 6 gives out the limits of “liabilities”, clause 7 spells out the “liability” of the Central Government and the clause 5 lists out the circumstances under which the “operator” shall not be “liable”.

The Major Problems

The major problems are as under:

I. The Bill paves the path for private participation as “operator” of nuclear power plants in India.

One of the central elements of the Bill is to define the “liability”, arising out of any nuclear accident, of an individual “operator” – independent of (and unaffiliated with) the Government of India.

Till now all nuclear establishments/ventures, including power plants, without any exception, are run by the state through affiliated bodies – the Uranium Corporation of India Limited (UCIL) for uranium mines and the Nuclear Power Corporation of India Limited (NPCIL) for the power plants.

Given that fact, this provision makes sense only in the context of an impending programme for participation of private players as “operators” of nuclear power plants.

In fact, the Clause 6. (2), inter alia, provides:

The liability of an operator for each nuclear incident shall be rupees five hundred crores.

And, the Clause 7(1), inter alia, provides:

The Central Government shall be liable for nuclear damage in respect of a nuclear incident.

(a) where liability exceeds the amount of liability of an operator specified under sub-section of section 6;

(b) occurring in a nuclear installation owned by it

Furthermore, the Clause 6(1) provides:

The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights.

Therefore in case of the power plants operated by the NPCIL, as is the case with all the plants as of now, the quantum of “liability” is “three hundred million Special Drawing Rights” or equal to the “maximum” (i.e. total) “liability”.

The much lower quantum of “rupees five hundred crores” will apply only in case of nuclear power plants not owned/operated by the NPCIL. As of now, there is neither any such plant nor has any such plan been announced.

But these provisions taken together are a clear pointer to that direction.

The nuclear industry is unique in character in terms of safety hazards. And a nuclear power plant is potentially catastrophic, as so chillingly demonstrated by the Chernobyl disaster on April 26 1986 (20), in particular. Given the fact that profit maximisation drive is the very raison detre of any private enterprise giving rise to the intrinsic and inevitable tendency to cut corners in the field of “safety”, the envisaged ushering in of private players as “operators” of nuclear power plants is an open armed invitation to disaster.

A regulatory body overseeing safety measures can at best mitigate this trend, not eliminate it by any stretch. And given the tremendous clout of the private operators in this field given the scale of investments required, the efficacy of any regulatory body, in any case, would be highly suspect.

Hence, this move calls for all out resistance.

And, the CSC does in no way obligate its members to open up their wombs to private “operators”.

II. A. The Bill proposes to limit the total “liability” (of the (private) “operator” plus the “state”) regardless of the scale of the disaster.

This is just unacceptable.

II. B. On top of that, the total or “maximum” “liability” has been “capped” at “three hundred million Special Drawing Rights [SDR]”. This works out to just around Rs. 2,100 crore and 450 million US$.(21)

In case of Bhopal Gas Disaster, the Supreme Court had approved a deal between the contending parties providing compensation to the victims amounting to US$ 470 million (22). That was way back in 1989, more than two decades ago. Even at that time this was considered grossly inadequate.

So, while whatever cap on “liability” is unacceptable; this cap on total “liability” or the “maximum amount of liability”, as the draft Bill has put it, is woefully paltry. More so, given the fact that a catastrophic nuclear accident may very well dwarf the Bhopal Gas Disaster in terms of devastations.

In case of Chernobyl Disaster, while no precise estimate of total economic impact is available, as per one report, the total “spending [only] by [neighbouring] Belarus on Chernobyl between 1991 and 2003 was more than US $ 13 billion.(23)

That’s incomparably larger as compared to the “maximum liability” pegged in the Bill – 450 million US $!

However, once India joins the CSC, and it comes into force, the cap on total “liability” would undergo significant change as additional compensation over and above 300 million SDR would become available. In fact the CSC also permits the concerned states to provide for further (“third tier”) (24) compensation over and above the CSC limits. As long as the nuclear power plants in India obtain, joining the Convention may in fact turn out to be beneficial for the potential victims. But then the government must come clean on its plans, make specific commitment and explain the implications. The onus clearly lies with it.

III. The liability of an individual non-state (i.e. private) “operator” has been “capped” at a mere Rs. 500 crore. Less than one-fourth of the total or “maximum” liability.

And, the difference between the actual compensation to be paid and the “liability” of a private “operator” would be borne by the Indian government i.e. the Indian taxpayers/people.

So, while the very concept of cap is unacceptable and the total cap could very much turn out to be woefully inadequate; the cap on individual private “operator is abysmally low – less than one-fourth of the total cap.

It is evidently an attempt to brazenly favour a private “operator” at the cost of Indian masses.

The eminent jurist, and former Attorney General, Soli Sorabjee has argued in details (25)25:

Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability is likely to be struck down as it would be in blatant defiance of the Supreme Court judgments. Moreover, it would be against the interests and the cherished fundamental right to life of the people of India whose protection should be the primary concern of any civilised democratic government.

Not only that, there is a further provision that this cap for an individual “operator” may be fixed lower or higher than the normative cap of Rs. 500 crore, but in no case lower than Rs. 100 crore. Quite significantly, while the cap of Rs. 300 crore, as had been understandably approved by the Union Cabinet, now stands revised upward to Rs. 500 crore; there is no corresponding revision of the floor level of Rs. 100 crore. So this “revision” in actual practice may turn out to be just a ploy, an act of deception.

It is not clear what stops the Indian government, or its designated agency, to peg such caps, while actually operating this provision “having regard to the extent of risk involved in a nuclear installation” – and no objective parameters whatever having been laid down, at the minimum of Rs. 100 crore, or thereabout?

In that case, the “cap” for the private “operator” becomes even less than one-twentieth of the total or “maximum” “cap. That’s just ridiculous.

It is also equally significant that while “the Central Government may, having regard to the extent of risk involved in a nuclear installation by notification, either increase or decrease the amount of liability of the operator”, there is no such corresponding provision for the “maximum [i.e. total] liability”. If the risk assessment of any particular “installation” makes it liable for adjusting the “liability” for the private “operator” it would be quite logical to adjust the “maximum [i.e. total] liability” for that “installation” in alignment with that. That nothing of that sort has been provided in the Bill clearly gives away the real intention behind. To lower down the “liability” of a private “operator” even much below the otherwise abysmally low amount of Rs. 500 crore – not even one-fourth of the “maximum liability”. That’s evidently just a stratagem to deceive.

Furthermore, with passage of time, the Indian Rupee is expected to depreciate against the SDR.
With the total or “maximum” cap having been defined in terms of SDR and the cap of individual private “operator” in terms of Indian Rupees, the proportion of the financial burden to be borne by a private “operator”, in case of a catastrophic accident, would further go down! Here again, there is no apparent reason, other than to favour the private “operator”, why in one case it is SDR and in the other case it is Indian Rupees.

Here it is pertinent to keep in mind that the CSC does not establish either a floor or a ceiling on the liability of the operator or require the concerned state to limit the liability of the “operator”. It in no way makes it incumbent upon any member country to either bring in private “operator” or limit/cap its “liability” at a level lower than the “total liability” (of minimum 300 million SDR).24

The Situation in the US

In case of the US, in the event of an accident, the first $375 million is paid by the insurer(s) of the plant. It is mandatory to insure the plant.

Beyond that, up to US$ 10 billion is paid out of a fund jointly contributed by the “operators” as mandated by the Price-Anderson Nuclear Industries Indemnity Act.

Beyond that, the Federal Government pays.(26)

The contrast is too stark.

Other Issues

The argument by some commentators that without this Bill being enacted, the American companies would be at a disadvantage appears to be somewhat confused and only partly true. The American vendors will conceivably be at no disadvantage as compared to their competitors as the vendors are routinely “indemnified for consequential damages”. Even otherwise, the Bill does not prohibit the “operator” from making the equipment vendor “liable” on account of an “accident”. That is between the “operator” and the “vendor”. But as far as the victim is concerned, the “operator” will be “liable” subject to the applicable cap. From the (potential) victim’s point of view, such single point responsibility should actually be welcome. That would conceivably cut down much of legal complications which may arise otherwise.

The US-based enterprises will, however, be at a distinct disadvantage as prospective “operators” in absence of a cap on their “liability”.

The mainstream, and also radical, critics, known to be otherwise knowledgeable, have rather pitiably missed the central point that the essential thrust of the Bill is to enact a law in compliance of the CSC and usher in private players as “operators” and peg their “liability” at ridiculously low levels, going well beyond the framework of the CSC.(27)

The other point that has been raised is that the Bill “lets nuclear equipment suppliers and designers off the hook”(28). This, however, appears to be fairly misconceived – at two distinct levels. One, the vendor, the designer or even the turn-key contractor is customarily indemnified (i.e. given immunity) from consequential damages (which include third party damages). That is the standard norm. Two, the Bill itself does not do anything to prohibit the plant owner/operator from incorporating suitable clause(s) in the contract with the vendor/designer/turn-key contractor to hold them liable for any damage caused to any third party arising out of their faults.

Much to the contrary, the Clause 17, inter alia, provides as under:

The operator of a nuclear installation shall have a right of resource where –

(a) such right is expressly provided for in a contract in writing;

(b) the nuclear incident has resulted from the wilful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee;

That evidently knocks the bottom out of the argument that the Bill “lets nuclear equipment suppliers and designers off the hook”.

It, however, holds the “operator” responsible vis-à-vis the victims of any accident. That is both logical as the accident would take place while the “operator” is “operating” the plant; and highly welcome from the potential victim’s point of view as this would eliminate likely complications in determining and pinpointing “responsibility” resulting in interminable delays in obtaining any succour.

The objections raised as regards the 10-year limit to “liability” (29), as provided in Clause 18 (Chapter IV), are quite valid. In case of exposure to low dose radiations, the injuries caused thereby – mostly in various forms of cancer, may take much longer time to manifest. But then it would be that much difficult to establish the causal link.

Conclusion

All in all, the Bill has got to be opposed on the following grounds:

I. The Bill paves the path for private participation as “operator” of nuclear power plants in India. That’s an open invitation to disaster.

II. A. The Bill proposes to limit the total “liability” (of the (private) “operator” plus the “state”) regardless of the scale of the disaster. That’s just unacceptable.

II. B. On top of that, the total or “maximum” “liability” has been “capped” at “three hundred million Special Drawing Rights [SDR]”. This is too paltry.

III. The liability of an individual non-state (i.e. private) “operator” has been “capped” at a mere Rs. 500 crore. Less than one-fourth of the total or “maximum” liability. And it has provisions to further lower this amount, and pretty steeply at that. This is a blatant negation of the Polluter Pays and Precautionary Principle clearly and assiduously laid down by the Indian Supreme Court.

The Bill, if not withdrawn outright, must be referred to the concerned Standing Committee after tabling in the Parliament and widespread, open and transparent public consultations must follow thereafter to consider all the pros and cons, including the implications of joining the CSC, before taking any further step forward.

Notes:

1. See: <Daily India> or <kseboa>, for example.

2. See: <Rediff> and <Business Standard>, for example. A significant point to note is that as late as on March 14, and 13, both these news items, from otherwise credible sources, are quoting the concerned Minister to the effect that the Bill would be tabled in the Rajya Sabha on March 15. While, in reality, it was to be tabled in the Lok Sabha. That shows the degree of non-transparency prevailing.

3. See the Editorial, and other articles under the section, Indo-US Nuclear Deal, in the Peace Now, March 2009 at <CNDP> for an account of how the deal crossed its last hurdles. The news item at <http://www.kseboa.org/news/us-pressure-civil-nuclear-liability-bill-likely-in-parliament-session.html> explicitly links the Bill with the Deal thus: “The passage of a civil nuclear liability Bill is one of key steps in implementation of the India-US civil nuclear agreement.” And, it is no unique. Here is another example: “The US has linked the completion of the Indo-US nuclear agreement to India’s capping of nuclear liability and that is why the hasty move to introduce this in parliament.” at <http://indiacurrentaffairs.org/civil-nuclear-liability-bill-prefering-interests-of-us-companies-over-indian-people/>. There is no specific provision in the Deal to this effect though. A rather well-informed article at <http://www.american.com/archive/2010/march/india-the-united-states-and-high-tech-trade> lists out 3 hurdles in full implementation of the “landmark U.S.-India Civil Nuclear Agreement—the crown jewel of the U.S.-India strategic partnership”.

4. See the Editorial in the Peace Now, February 2010 at <http://www.cndpindia.org/download.php?list.13>.

5. India’s first reactor, the 1 Megawatt (MWt) Aspara Research Reactor, was built with British assistance in 1955. The following year, India acquired a CIRUS 40 MWt heavy-water-moderated research reactor from Canada. The United States agreed to supply heavy water for the project. … India commissioned a reprocessing facility at Trombay, which was used to separate out the plutonium produced by the CIRUS research reactor. This plutonium was used in India’s first nuclear test on May 18, 1974, described by the Indian government as a “peaceful nuclear explosion.” Excerpted from India’s Nuclear Program by Volha Charnysh at <http://www.nuclearfiles.org/menu/key-issues/nuclear-weapons/issues/proliferation/india/charnysh_india_analysis.pdf>. Also see Nuclear Power in India: Failed Past, Dubious Future by M. V. Ramana at <www.npec-web.org/Essays/Ramana-NuclearPowerInIndia.pdf>. This talks of India being largely cut off from the international nuclear market as a consequence.

5A. For world reactions to May 98 blasts, see <http://www.fas.org/news/india/1998/05/wwwhma14.html>.

6. For a brief evaluation and the trajectory of the Deal (till early 2008), see <http://www.europe-solidaire.org/spip.php?article10224>. For a timeline, see p 7/8, Peace Now, Feb, 2010 at <http://www.cndpindia.org/download.php?list.13>.

7. See <http://indiacurrentaffairs.org/civil-nuclear-liability-bill-prefering-interests-of-us-companies-over-indian-people/>, for example. The pleadings of Omer F Brown, a key spokesperson for the US nuclear industry, that India enacts a nuclear liability law, as referred to above, has further validated this position.

8. See: <http://www.business-standard.com/india/news//govt-open-to-raising-nuclear-liability-cap//388512/>, for a very concise history of the move towards enacting a nuclear liability cap bill, locating the first move way back in 1999, and an explication of the government’s point of view.

9. See <http://www.america.gov/st/texttrans-english/2009/July/20090720161943xjsnommis0.2136499.html>.

10. See: <http://news.bbc.co.uk/2/hi/business/8374050.stm>.

11. See: <http://www.deccanchronicle.com/national/pm-may-visit-us-april-n-summit-158>.

12. See the Abstract at <http://acdis.illinois.edu/newsarchive/newsitem-indiausrelationsfrombushtoobamanewchallenges.html>, for example. Also <http://pragmatic.nationalinterest.in/2010/03/24/understanding-indo-us-relationship/>.

13. See: <http://www.hindustantimes.com/india/Nuclear-liability-bill-not-to-be-tabled-in-Lok-Sabha-today/519134/H1-Article1-519210.aspx>, for example. The news item also reported that: “Government sources say that Prime Minister Manmohan Singh is keen to get the bill passed in parliament ahead of his US visit in April.” Also see <http://www.dailyindia.com/show/363428.php>.

14. See; <http://www.hindustantimes.com/News-Feed/americas/Obama-to-visit-India-later-this-year/Article1-518487.aspx>.

15. See the revised Bill at <http://www.cndpindia.org/download.php?view.36> and compare with the description of the earlier version given in Nuclear Liability Law in Developing Countries – Indian Case by B. B. Singh at <http://www.cndpindia.org/e107_plugins/content/content.php?content.65>.

16. See: <http://www.iaea.org/Publications/Documents/Conventions/supcomp.htmll>.

17. See B B Singh, op cit.

18. See A flawed Bill by Praful Bidwai at <http://www.flonnet.com/stories/20100409270709500.htm>. It provides: since it was opened for signature in 1977[read 1997], the CSC has only been signed by 13 states and ratified by only four countries (Argentina, Morocco, Romania and the U.S.) – in place of the minimum of five countries needed for its entry-into-force.

The relevant provision, Article XX. 1, reads: This Convention shall come into force on the ninetieth day following the date on which at least 5 States with a minimum of 400,000 units of installed nuclear capacity have deposited an instrument referred to in Article XVIII.

19. See The Convention on Supplementary Compensation for Nuclear Damage: Catalyst for a Global Nuclear Liability Regime by Ben McRae at <http://www.nea.fr/law/nlb/nlb-79/017-035%20-%20Article%20Ben%20McRae.pdf> for detailed explanations.

20. For a quite conservative, but exhaustive, estimates of the impacts of the disaster, see Chernobyl’s Legacy: Health, Environmental and Socio-economic Impacts and Recommendations to the Governments of Belarus, the Russian Federation and Ukraine by The Chernobyl Forum at <http://www.iaea.org/Publications/Booklets/Chernobyl/chernobyl.pdf>. For an alternative assessment by the Greenpeace, look up
<http://archive.greenpeace.org/comms/nukes/chernob/read25.html>

21. The exchange rate on March 25 2010 stands at 0.6603090000 SDR per US$, at <http://www.imf.org/external/np/fin/data/rms_five.aspx>. And, SDR 0.0144709000 per Indian Rupee.

22. A news item at <http://beta.thehindu.com/news/national/article53103.ece> provides: According to an agreement on February 15, 1989 facilitated by the Supreme Court, the Union Carbide Corporation, U.S. provided a compensation of $ 470 million (Rs. 715 crore) …

23. See: <http://www.greenfacts.org/en/chernobyl/l-3/5-social-economic-impacts.htm#1p0>. The comparable estimate reported by the Greenpeace, at <http://archive.greenpeace.org/comms/nukes/chernob/read25.html>, is:
The Belarus Government estimate the total economic damage caused between 1986-2015 would be (1992 June prices) $235 billion. In Ukraine, in 1995 the Ministry for Chernobyl needed 286.4 thousand billions of karbovanets ($2.3 billion), but received only one third of this. It is therefore possible to estimate that the total bill for those countries most effected will exceed $300 billion by 2015.

24. Ben McRae, op cit.

25. See: <http://beta.thehindu.com/opinion/lead/article64688.ece?homepage=true>.

26. See: <http://en.wikipedia.org/wiki/Price%E2%80%93Anderson_Nuclear_Industries_Indemnity_Act>.

27. India-US Nuclear Deal Redux: Another Showdown by Radha Surya at <http://www.zcommunications.org/india-us-nuclear-deal-redux-by-radha-surya>, which refers also to various other eminent critics including Brahma Chellaney, a known nuclear hawk, and Gopal Krishna, of the Toxics Watch Alliance (TWA), is an excellent illustrative case.

28. The bill lets nuclear equipment suppliers and designers off the hook. Excerpted from The great nuclear folly by Praful Bidwai at <http://www.thedailystar.net/newDesign/news-details.php?nid=130882>. The oft repeated references made to the Bhopal Gas Disaster and the “liability” of the Union Carbide therein is plainly misleading. The Union Carbide was the owner/operator of the plant. Apparently, no one at any stage even as much talked of holding the (yet unheard of) vendors of equipment(s) or designer of the plant responsible or “liable”. Siddharth Varadarajan, even while noting the provisions of the Right to Recourse has rather curiously refused to acknowledge the implications in a forthright manner. Ref. <http://svaradarajan.blogspot.com/2010/03/nuclear-liability-law-has-sting-in-tail.html>.

29. Equally obnoxious is the 10-year limit to liability: many forms of radiation injury, including cancer and genetic damage, reveal themselves only 20 years after exposure. See Bidwai, ibid.

“Jhuggi dwellers are not to be treated as secondary citizens”: Delhi High Court

Delhi Shramik Sangathan

After several years, a land mark judgment has come in favor of slum dwellers. We can say that a pro poor judgment has been delivered by the judiciary on the basis of existing legislation & policies, which were denied to them earlier in several cases.

A division bench of Delhi High court comprising justice A P Shah & justice S Murlidhar has delivered the order yesterday. The case was filed by members of Delhi Shramik Sangathan of New Sanjay camp, Okhla Industrial area, New Delhi. The part of Sanjay camp was demolished on 5th Feb’09 by PWD in the name of Right of Way and the evictees were not resettled under the relocation policy. The part of Nehru camp of Patparganj was also demolished in 2007 in the name of Right of way by PWD and the evictees were not resettled.

The case was represented in the court by eminent Supreme Court lawyer Sh Prashant Bhushan & his committed team. The DSS members of New Sanjay camp put a lot of effort in collecting information & evidences in support of the case. The central team of DSS provided all secondary information & other inputs. The DSS local team worked with assistance of lawyer Mr. Somesh & Mr. Rohit of Mr. Prashant Bhushan team.

Below is the report on the judgement from a mainstream newspaper, The Hindu:

NEW DELHI: Observing that “jhuggi dwellers are not to be treated as secondary citizens and are entitled to no less an access to basic survival needs as any other citizen”, the Delhi High Court on Thursday ruled that every eligible slum dweller has to be relocated to a place with proper civic amenities before being evicted from a piece of public land.

A Division Bench of the Court comprising Justice A. P. Shah and Justice S. Muralidhar delivered the judgment on a bunch of petitions seeking proper relocation of jhuggi dwellers whose slums set up at various places across the Capital were demolished without relocating them at alternative sites.

Dismissing the argument of the Delhi Government and the Municipal Corporation of Delhi that these jhuggi dwellers did not deserve to be relocated as they had set up their jhuggis on public roads and thus violated the “right of way”, the Bench said: “This Court would like to emphasise that in the context of the Master Plan for Delhi-2021, jhuggi dwellers are not to be treated as secondary citizens. They are entitled to no less an access to basic survival needs as any other citizen”.

“It must be remembered that the Master Plan for Delhi-2021 clearly identifies the relocation of slum dwellers as one of the priorities for the government.

Spaces have been earmarked for housing of the economically weaker sections. The government will be failing in its statutory and Constitutional obligation if it fails to identify spaces equipped infra-structurally with civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction,” the Bench ruled.

“The decision of the respondents holding that the petitioners are on the ‘right of way’ and are, therefore, not entitled to relocation is hereby declared illegal and unconstitutional. In terms of the extant policy for relocation of jhuggi dwellers, which is operational in view of the orders of the Supreme Court, the cases of the petitioners will be considered for relocation,” the Bench said.

The Bench said that within four months from today each of those eligible among the petitioners in terms of the relocation policy be granted an alternative site as per the Master Plan subject to proof of residence prior to the cut-off date.

This will happen in consultation with each of them in a meaningful manner as indicated in this judgment.

The State agencies will ensure that basic civic amenities consistent with the right to life and dignity of each of the citizens in the jhuggis are available at the site of relocation.

The Bench ordered that a copy of this order be sent to the Member-Secretary, Delhi Legal Services Authority, with the request that wide publicity be given to the operative portion and directions of this judgment in the local language among the residents of jhuggi clusters in the city as well as in the relocated sites.

It said the Legal Services Authority would also hold periodic camps in jhuggi clusters and in relocated sites to make the residents aware of their rights. “A copy of this order be also sent to the Delhi Chief Secretary for compliance,” the Bench added.

On the issue of contempt

Rahul Choudhary

In a recent judgement of the Supreme Court, the three Judges bench agreed to the summary procedure for imposition of punishment in the contempt case. In the case, Leila David vs. State of Maharashtra, filed before the Supreme Court, the petitioner among other reliefs, had also asked for direction to initiate criminal proceedings and strongest punishment against some twelve judges of the Bombay High Court. When the matter was being heard in March in the Court of Justice Arijit Pasayat and Justice A.K. Ganguly, one of the petitioners threw chappal at the Judges ((2009)4SCC578 Leila David vs. State of Maharashtra & Ors ). The case of contempt was taken up the same day in the Supreme Court. Justice Pasayat passed the following order:

“Today when these matters were taken up suddenly the contemnors started shouting and used very offensive, intemperate and abusive language and one had even gone to the extent of saying that the Judges should be jailed for having initiated proceedings against them and not interfering with orders by various judges of the Bombay High Court. They said that Judges are to be punished for not taking care of their so –called fundamental rights. One of them even threw chappal at the Judges. This happened in the presence of learned Solicitor General of India, two learned Additional Solicitor General and large number of learned counsel including the President of the Supreme Court Advocates –on – Record Association. This conduct is contemptuous. There is no need for issuing any notice, as the contemnors stated in open court that they stand by what they have said and did in the Court.”

The contemnors were sentenced a three months simple imprisonment by Justice Pasayat. However Justice A.K. Ganguly disagreeing with Justice Pasayat, passed a dissenting judgment. He held that, as per section 14 (1) of Contempt of Courts Act, 1971, in initiating a contempt proceeding and when contempt is allegedly committed in the face of the Court, the Court has to inform the alleged contemnors in writing the charge of contempt and then afford them opportunity to make their defence to the charge. Thereafter on taking such evidence as may be necessary or as may be offered by the persons and after hearing them, the Court may proceed either forthwith or after adjournment to determine the matter of the charge and may make such order for the punishment or discharge of such persons as may be just. Justice Ganguly held that:

“The safeguards statutorily engrafted under Section 14 of the Act are basically reiterating the fundamental guarantee given under Article 21 of the Constitution. This guarantee which possibly protects the most precious fundamental right is against deprivation of one’s personal liberty “except according to procedure established by law”. This Court, being the guardian of this right, cannot do anything by which that right is taken away or even abridged and especially when the court is acting suo moto.”

He further concluded in his order that:

“Therefore, in this view of the matter, I cannot agree with the view expressed in the order of His Lordship Justice Passayat, for sending the alleged contemnors to prison for allegedly committing the contempt in the face of the Court without following the mandate of the statute under section 14. I, therefore, cannot at all agree with His Lordship’s order by which sentence has been imposed. I am of the view that the liberty of a person cannot be affected in this manner without proceeding against them under Section 14 of the Act. In my opinion Section 14 is in consonance with person’s fundamental right under Article 21.”

The matter was then directed to be placed before the Chief Justice, who on the very day of the incident, constituted three judges bench to hear the matter. When the contempt proceedings came up for consideration before the Supreme Court, Attorney General supported the view taken by Justice Pasayat. The Solicitor General and the President of the Supreme Court Bar Association also agreed with the submission of the Attorney General. The three judges bench of the Supreme Court concluded

“As far as the suo motu proceedings for contempt are concerned, we are of the view that Arijit Pasayat, J. was well within his jurisdiction in passing a summary order, having regard to the provisions of Articles 129 and 142 of Constitution of India [see the note below]….While, as pointed out by Ganguly, J., it is a statutory requirement and a salutary principle that a person should not be condemned unheard, particularly in a case relating to contempt of court involving a summary procedure, and should be given an opportunity of showing cause against the action proposed to be taken against him/her, there are exceptional circumstances in which such a procedure may be discarded as being redundant.” (Para 28 and 29, (2009)10 SCC 337)

Further coming to the conclusion that the procedure adopted by Justice Pasayat was right, the Supreme Court said:

“In the instant case, after being given an opportunity to explain their conduct, not only have the contemnors shown no remorse for their unseemly behavior, but they have gone even further by filing fresh writ petition in which apart from repeating the scandalous remarks made earlier…this is one of such cases where no leniency can be shown as the contemnors have taken the liberal attitude shown to them by the Court as a license for indulging in decorous behavior and making scandalous allegations not only against the judiciary, but those holding the highest positions in the country…” (emphasis mine)

Just for a comparison and to show the changing tenor of the judiciary today, we might quote from a recent book penned by one of the most revered Indian judges of all time, Justice O Chinnappa Reddy, who narrated the following story, while suggesting “that the expression ‘contempt of court’ should be replaced by the expression ‘obstructing justice'” and that the definition of criminal contempt should be drastically modified to exclude most kinds of criticism of judiciary and judgements:

“There is a well-known story of a judge of the American Supreme Court who when asked by the Court as to why he did not take action against a litigant who shouted ‘Nine old fools’ when the Court pronounced judgement against him said ‘There is no question that all the nine of us are old men and whether we are fools or not is a matter of opinion’.”

————–
Note: Article 129 provides “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Article 142 (the part relevant here) provides that Supreme Court shall have every power to make any order for the purpose of punishment of any contempt of itself.

Why does India Inc want changes in labour laws?

India Inc is still worried about labour laws in the country. Even OECD recommends a rationalisation of these laws if a 9% growth rate is to be attained. Such views usually make people think that there is some kind of favouritism going on towards labour. They are unable to understand that labour laws that exist today were also according to the needs of India Inc, but these needs themselves are dynamic, they change with the changes in the regime of accumulation – the way the capitalists accumulate and profit. Thus they often demand laws to be rationalised according to their dynamic needs.

Let’s see how they fare under the existing labour law administration.

India’s Minister of State for Labour and Employment, Harish Rawat informed on December 7, 2009 in a written reply in the parliament that in the year 2007-08, 39115 inspections took place in the “central sphere” (which does not include action taken by the State Governments) under various labour laws on receipt of complaints regarding their violation. These inspections led to prosecution in 65 per cent of the inspected cases (i.e. 25801 cases in absolute figures). In comparison to the previous two years, this definitely shows an increased efficiency of the labour administration, as in 2005-06 it was just 38 per cent, while in 2006-07 it was 42 per cent.

However, the revelation comes when we try to find out how many cases were resolved in favour of the workers. While in 2005-06, in 92 per cent of prosecutions the employers were found to be guilty of violation of labour laws, the figure was drastically reduced to just 42 per cent in 2006-07, and in 2007-08 it further came down to 36 per cent. This statistics gives us more – in 2005-06, only in 35 per cent of inspected cases, convictions took place, in 2006-07 it was 17 per cent and in 2007-08 it was 23 per cent.

So, what does all this imply? The capitalists are already getting what they want. But the point is that they want more. In fact, they are being quite rational and honest when they want labour laws to be rationalised – after all these laws are obviously meaningless, when they can easily flout them and remain unconvicted.

The High Court orders meaningful public hearings

Rahul Choudhary

Whenever any project is envisaged and approved, the local affected persons’ consent is the least concern for the authorities. The formal process of public participation in the decision making process comes only at the time of public hearing as provided in the Environment Impact Assessment (EIA) Notification 2006. As per the notification, thirty days notice should be given prior to the public hearing, so that the local affected person and others can submit their comments and objections. Thereafter the Expert Appraisal Committee of the Ministry of Environment and Forest has to do the detailed scrutiny of the project including the proceedings of public hearing and the objections raised at the time of public hearing. However the Notification does not empower the affected persons to say no to project. At best they can raise objection. And the Expert Appraisal Committee in most of the cases just see whether public hearing was held or not and not into the objections of the public during the hearing.

M/s Pandurang Timblo Industries, Margao, Goa is the lessee of Borga Dongrachem Fall Mine and Sociedade Timblo Irmaos Ltd. is lessee of Oiteiro Borga Do Bairro Queri Mine. Both mines were in operation till 1994. When there was again an increase in demand of iron ore from countries like China, South Korea and Japan, the owners in 2006 proposed for restarting the mines. There was a total opposition to the project at the time of public hearing. There was not a single participant who was in support of the project. The detail of the project, and the Executive Summary was made available to the gram panchayat and local affected person only nine days prior to the Public hearing. In the proceedings of public hearing it was clearly recorded that “not a single application nor a single member of the public was in favour of restarting of mine due to grave environmental and social damage”. The opposition of the restarting of mine was on the grounds of damages to agricultural fields and depleting ground water level that the mining will result into.

Without considering the objections and opposition of the affected persons in the public hearing, the Expert Appraisal Committee granted Environmental Clearance to the project on July 26, 2007. The local affected person challenged the order of the Ministry of Environment and Forest before the National Environment Appellate Authority (Utkarsh Mandal Vs. Ministry of Environment & Forest, Appeal No. 12 of 2007). As expected, the NEAA dismissed the appeal against the order of the Ministry of Environment and Forest. The NEAA categorically noted that the Executive Summary of the project was made available only 9 days prior to the Public Hearing, but then it argued that the EIA notification does not specify any time period for giving Executive Summary to the affected people. The NEAA also gave the finding that the Expert Appraisal Committee (EAC) has not considered the opposition at the public hearing, but concluded that this will not vitiate the environmental clearance granted to the project.

The order of the NEAA was challenged by the local affected persons before the Delhi High Court. The Delhi High Court headed by Chief Justice and Justice S. Muralidhar allowed the petition (Writ Petition (Civil) No. 9340 of 2009, Delhi High Court) and also questioned the functioning of the Expert Appraisal Committee. During the course of hearing, it was also brought to the notice of the Court that the EAC (Mines) was chaired by a person who happened to be the director of four mining companies and as many as 410 mining approval has been granted in the first six months of 2009. In this context, the court concluded that appointing a person who has a direct interest in the promotion of the mining industry as Chairperson of the EAC (Mines) is an unhealthy practice that will rob the EAC of its credibility since there is an obvious and direct conflict of interest. The High Court by order dated November 26, 2009 gave findings on issues related to public hearing and functioning of EAC. This order of the High Court interpreted the provisions of public hearing provided in the EIA Notification 2006. The High Court gave the finding that the purport of the clause (2.4 and 3 of Appendix IV of EIA Notification 2006) of the notification is to “make the public hearing a meaningful one with participation of all interested persons who may have a point of view to state. The above clauses operationalise the de-centralised decision making in a democratic set up where the views of those who are likely to be affected by decision are given a say and an opportunity to voice their concerns. This procedure is intended to render the decision fair and participative and not thrust from above on a people who may be unaware of the implications of the decision… If their participation has to be meaningful, informed and meaningful, then they must have full information of the pros and cons of the proposed project and the impact it is likely to have on the environment in the area.” The High Court concluded that the Executive Summary should be made available 30 days in advance.

On the requirement of the EAC to give reason, the Court held that “in context of EIA Notification dated 14th September 2006 and the mandatory requirement of holding public hearings to invite objections it is the duty of the EAC, to whom the task of evaluating such objections has been delegated, to indicate in its decision the fact that such objections, and the response thereto of the project proponent, were considered and the reasons why any or all of such objections were accepted or negatived. The failure to give such reasons would render the decision vulnerable to attack on the ground of being vitiated due to non-application of mind to relevant materials and therefore arbitrary.”

This judgment delivered by the Delhi High Court, for the first time, discusses the issues of public hearing, the functioning of EAC and the manner in which the environmental clearances are being granted by the Ministry of Environment and Forest. The Ministry has virtually become a clearing house, accepting almost every project that it receives. Anyone who fulfills the required paper work will get the approval, irrespective of the socio-economic and environment impact.

Singhitarai Project: NEAA creates history

Rahul Choudhary

When the National Environment Appellate Authority (NEAA) has dismissed all the cases (except one in the Polavaram dam case in 2007) filed before it in past 13 years, one cannot expect anything when you approach it but another dismissal. The NEAA is the sole statutory body to challenge the environmental clearances granted to the projects like mining, thermal power plant, hydroelectric projects etc. The authority is composed of a retired Chief Justice of a High Court or a retired judge of the Supreme Court as the chairperson, one vice chairperson and three technical members. Interestingly for last eight years, there is no chairperson in the Authority and no vice chairperson for last six years, and the so-called technical members are all retired bureaucrats. Now there is only one member in the Authority who is deciding the Appeals against the grant of environmental clearances.

The Ministry of Environment and Forest (MoEF) granted environmental clearance on August 17 2009 to the 1200MW Thermal Power Plant near village Singhitarai, District Janjgir-Champa, Chhattisgarh by M/s Athena Chhattisgarh Power Pvt. Ltd. The project was approved by the MoEF even after the process of public hearing was incomplete. At the time of public hearing, the presiding officer came to declare that the hearing is cancelled. Interesting part is that the Presiding officer said that the project proponent has not informed the public about the project in proper manner, and hence the public hearing is cancelled. But when minutes was prepared, it was recorded that the public hearing is cancelled due to the law and order problem because 400-500 people entered the public hearing place and started shouting slogan for cancelling the public hearing. As per the Environment Impact Assessment Notification, the expert committee recommending environment clearance has to do detailed scrutiny of outcome of public hearing. But in this case the Athena Power Ltd. manipulated the public hearing proceedings and must have influenced the expert committee as the owner of company is late Y.S. Rajasekhara Reddy’s family.

The granting of environmental clearance was challenged by Villagers of Singhitarai before the NEAA. The main issue of challenge was incomplete process of public hearing. Now the NEAA has only one member and is hearing all the cases. Taking the precedent of the NEAA, when case came up for hearing there was no expectation of relief even after such a blatant violation of the EIA Notification. After watching video recording of the public hearing, the member of the NEAA was convinced that the minutes of the public hearing is different from what has happened during the public hearing and the process of public hearing was incomplete.

In a surprise move, first time in the history of the NEAA, the member stayed the Thermal Power project. This sudden spur of prudence has left many bewildered and guessing, but this stay of the project on the reason of incomplete public participation process will have impact on conducting future public hearings. In the whole process of Environmental Clearances, the Public Hearing is the only stage where the affected person can participate in the decision making process.

Environmental Clearance, a farce played by MoEF-The Vedanta Case

Rahul Choudhary

Whether it is the Samata ((1997)8SCC19) case, Kudramukh case or more recently the Vedanta Mining case in Orissa, mining is always in disputes and creates a tremendous conflict of interest. For government and the mining company it is always a lucrative enterprise, but for environmentalist, tribal and other affected by mining, it is a disaster. While the mining company flaunts the benefits, concealing the real impact of its project in order to get the environmental clearance from the Ministry of Environment and Forest (MoEF), the Ministry itself never seeks to assess the real impact through its so-called expert committees. There are numerous examples where a mining company has tried (rather successfully) to evict members of some indigenous community, projecting the dense forest as rocky and barren land. Even when there are hundreds of indigenous people affected, they are projected as few, and most of them are not even included in the list of Project Affected Persons (PAP).

Vedanta Alumina Limited, a subsidiary of M/s Strerlite Industries (India) Ltd proposed a one million tonne per annum capacity alumina refinery project together with a 75 MW coal based captive power plant. The bauxite for the refinery was to be sourced from the Niyamgiri Hills. Interestingly, the Alumina refinery was granted environmental clearance without linking the project with the Mining.

M/s Sterlite (the parent company of M/s Vedanta) applied for environmental clearance on 19.03. 2003 to the MoEF. In the application, Vedanta stated that no forestland is involved and that within the radius of 10 kms there is no reserve forest. M/s Vedanta thereafter on 16.08.2004 applied for use of 58.943 ha forestland consisting of 28.943 ha village forest and 30 ha reserve forest. However, the application for environmental clearance was not modified and the same was processed on the premise that no forestland is involved.

Further, though Mining at Lanjigarh was integral part of the Alumina refinery project, Vedanta could not have started the work on the Alumina refinery without getting the clearance for mining also. As per the guidelines of the MoEF – “for projects requiring clearance from forest as well as environment angles, separate communications of sanction will be issued, and the project would be deemed to be cleared only after clearance from both angles…”

M/s Vedanta requested the MoEF to grant environmental clearance for the Alumina Refinery Plant stating that it would take three years to construct the refinery plant whereas mines can be opened up in one year. In its application for seeking environmental clearance for the project dated 19.3.2003 it is stated that “nil” forestland is required for the alumina refinery and that within a radius of 10 km of the project site there is no reserve forest, which is contrary to the facts on record. Subsequently, on 16.8.2004 a proposal for allowing the use of 58.943 ha forestland, consisting of 28.943 acre of “Gramya Jungle Jogya” land and 30 ha of reserve forest, was moved under the FC Act through the State Government to the MoEF. Out of the above, 26.123 ha forestland was required for the refinery, 25.82 ha for the mine access road and the balance 7.0 ha was required for the construction of the conveyor belt for the transportation of the mineral from the mine site to the plant.
The MoEF gives environmental clearance for Alumina Refinery Project by delinking it with mining project. In the environmental clearance it is stated that no forestland is involved, even though the application under the Forest Conservation Act was still pending.

As per para 4.4 of the guidelines laid down by the MoEF “Some projects involve use of forest land as well as non-forest land. State Governments / Project Authorities some times start work on non-forest lands in anticipation of the approval of the Central Government for release of the forest lands required for the projects. Though the provisions of the Act may not have technically been violated by starting of work on non-forest lands, expenditure incurred on works on non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given

But Vedanta started the work on Alumina Refinery in blatant violation of this provision.

Three applications were filed before the Central Empowered Committee (CEC), constituted by the Supreme Court of India against establishment of project and the environmental clearance granted by the MoEF without considering the forest area on 22 Sept 2004 to M/S Vedanta Alumina Ltd. The CEC heard the matter and also conducted a site visit of the proposed refinery plant and mining area. The CEC filed their report on 21 Sept 2005 before the Supreme Court with the recommendation that the apex court may consider revoking the environment clearance dated 22/09/2004 granted by the MoEF for setting up of an Alumina refinery plant by M/S Vedanta and directing them to stop all further work on the project.

The Supreme Court in its order dated 03/02/2006 in I.A.NO 1474 with I.A.No.1324 in writ petition (civil) No.202 of 1995 directed the MoEF, GOI, New Delhi that various studies to assess the impact of the project may be carried out within three months. Accordingly the MoEF placed the application for forest diversion of Lanjigarh Bauxite Mine before the Forest Advisory Committee (FAC), constituted under section 3 of the Forest (Conservation) Act, 1980. The FAC after examining the proposal also suggested for carrying out in depth studies to assess the impact of the project. The MoEF, GOI, New Delhi directed the Central Planning and Designing Institute (CMPDI), Ranchi to carry out the above-mentioned studies.

The Wildlife Institute of India (WII) submitted their report dated 14 June 2006 to Forest Advisory Committee and it was examined by them in its meeting held on 30 Aug 2006.The WII was asked to reexamine the report in the light of facts and figures put forward by the State of Orissa. The WII prepared a supplementary report dated 25th Oct 2006. In this report WII put their point of view on wild life, likely adverse impact of mining and identification of alternate source of bauxite among others. The studies related to soil erosion, impact on ground vibration and the studies related to soil erosion, impact on ground vibration on hydrological characteristics, flow of natural water resources/ streams etc were carried out by the Central Planning and Designing Institute (CMPDI), Ranchi as per the request made by the Orissa Mining Corporation (OMC) and after their proposal was accepted by the OMC.

The approach of the Supreme Court is perplexing, as the Central Empowered Committee clearly pointed out the illegality in the clearance granted and once the clearance is granted then post facto impact study is not provided in law.

The Niyamgiri hill is spread over in 250sq.km. of area. This hill is also known as Dongaria Kondha country. Dongaria Kondh is one of the primitive and schedule tribes of the state and fully dependent on the Niyamgiri Hill. If one claims to be Dongaria Kondh then he must reside in the Niyam Giri Hill. Niyamgiri Hill is also a source for Vamsadhra River, along with for various other perennial streams. Mining in the Niyamgiri Hill involves a blatant violation of various laws which are there for the protection of Scheduled tribes, like the Orissa Schedule Areas Transfer of Immovable Property (Regulation) 1956, the Scheduled Caste and Schedule Tribes (prevention of Atrocities) Act 1989. .

The mining company put up the point that by mining there will be a development of the area, the villagers will get employment etc. But the reality is the villagers who are self-dependent, having land of their own will become marginalized workers in the mines. As most of the villagers are unskilled for industrial or mining work, they will only get job of informal and unskilled labourers dependent on the whims of the company and the contractor. They lose everything to pass over to the next generation except the misery of working in the mine. We all know also who benefited from the mining at Dhanbad and various parts of Rajasthan for several decades.

The Supreme Court is hearing the matter in detail but has not stayed the work on this 4000-Crore-Rupees-project on the ground of large investment involved. Tendentially, the company’s argument before the Court is that, as they have spent a large amount of money, so the project should not be scrapped.

While at the same time, the Courts are quick in granting the removal of jhuggi jhopris (urban poor settlements) in Delhi and other metro cities in the country on the ground of  being unauthorised. However, if the investment of the jhuggi jhopris is considered, then that is in fact an absolute investment by the poor people living there. Moreover, the same courts have allowed construction of big shopping malls and even 5-star religious temples like the Akshardham Temple in East Delhi on the same land from where the authorities removed the Jhuggi jhopries.

With all regards to Indian judiciary, we must admit that in recent years, unlike in the 1960s-70s, it is unwilling to check the reckless pace of corporate industrialisation, which is taking its toll on the environment, tribals and people in the pursuit of profit. On the other hand, the downtrodden majority has no recourse left within the coordinates of the status quo (as fixed in the constitution, interpreted by the judiciary and amended by the legislature), except queuing up for electoral rituals now and then.