With the rare exception of the Right to Information Act, 2005 and the NREGA Act, both of which were drafted by the National Advisory Council (NAC), most legislation emanates from the hallowed chambers of our civil service bureaucracy. The process usually gets kicked off by the Ministry in charge outsourcing the entire drafting process to a law firm or a special interest group, after which the draft is circulated to all Ministries for their comments, after which it is introduced into Parliament. This first stage in itself is marked by a ‘conflict of interest’ i.e. bureaucrats whom the legislation is aiming to regulate are the ones drafting the legislation in the first place. The most blatant example of this have been the cases where the Indian Legal Service (ILS), the cadre which controls the Legislative Department of the Ministry of Law & Justice, have drafted legislations in such a manner that they appoint themselves, post-retirement, as judicial members of tribunals taking over the functions of the High Courts. This was partly facilitated by the fact that the Legislative Department of the Ministry of Law and Justice is the Department responsible for introducing all government legislation into Parliament. The second stage of sabotage by the Central Government bureaucracy is the insertion of this innocuous sounding clause right in the beginning of a Bill, which states that the power to notify the various provisions of the Bill is vested with the Central Government. There have thus been several legislations, including Constitutional Amendments, which though passed by Parliament have not yet been notified by our actual rulers – the babudom. In that sense, the RTI Act was path-breaking, since it automatically implemented the provisions of the Bill within 120 days of it being passed by Parliament.

The main problem with the Central Government is that it has absolutely no uniform process of legislative drafting or consultation before the legislation is introduced into Parliament. Some bills like the Copyright (Amendment) Bill, 2010 & the Public Funded Research and Development (Protection, Utilization and Regulation of Intellectual Property) (PFRDA) Bill, 2007 were shrouded in absolutely secrecy until they were introduced in Parliament. However the same government has invited comments on other bills like the National Identification Authority of India Bill, 2010 even before they were introduced in Parliament. Till date I have not heard a single justifiable reason as to why proposed legislation, the very essence of our democracy, are considered confidential. Why doesn’t the Central Government have any rules to regulate this process?

Now after a Bill is introduced into Parliament, in the normal course of events it is referred to one of the 24 Department Related- Parliamentary Standing Committees, each consisting of atleast 31 MPs from both houses. This system was introduced in the year 1993 because Parliament was starting to feel the pressures of time and the need to scrutinize legislation more minutely. Although the initial reports of these Parliamentary Standing Committees have been rather disappointing, they have really picked up pace in the last few years. Some of these reports have been excellent, even by academic standards. In some instances like the PFRDA Bill, 2007 the Standing Committee forced the government to make a record 52 amendments to its original draft. However in other cases like the bill proposing the National Tax Tribunal, the Government proceeded to completely ignore the recommendations of the Standing Committee and pushed for the Bill to be passed through Parliament. Soon as the Bill was passed it was challenged before the judiciary and has since been languishing over there. The pertinent issue over here is whether or not these Standing Committees are an effective interface with members of the public seeking to put forth their views.

From the little experience that I’ve had before these Committees, as a member of small group of young academics/lawyers, there does not seem to be any fixed system to guarantee an effective consultation process. While anybody can send in a written memorandum, an invitation is necessary from the Committee for an oral hearing. This invitation is completely discretionary. The Committees examining the Civil Nuclear Liability Bill, 2010 and the Prevention of Torture Bill had invited our small group as expert witnesses because one of the MPs Mr. S.S. Ahluwalia, had actually gone through our written memorandums and was impressed with the quality of research and the recommendations being submitted by us. The advantage of being invited as an expert witness is the fact that you tend to get more time to present your views before the Committee. Contrast this with the hearing we received for the Judicial Standards and Accountability Bill, 2010. This Committee went overboard and invited everybody who sent in written memorandums and conducted the entire hearing on one day. The problem with this was the fact that despite our group preparing a solid 84 pages report, the lead author of which, was a PhD student at Oxford, specializing in the subject of judicial independence, we were given the same 10 minutes of oral hearing as the other elderly gentlemen who had come to rail against the system without providing any constructive criticism.

Therefore although Standing Committees do provide a platform for broad public consultations there is still much that needs to be done in ensuring that it is an effective consultative process..

Messers Hazare and Co. would have done well to agitate for a cure to the disease and not merely a cure for the symptom as they have done.

In our latest report, at the Pre-Legislative Briefing Service (PLBS), titled ‘A Briefing Document on The National Identification Authority of India (NIAI) Bill, 2010: Questions of Constitutionality & Legislative Options Open to Parliament’ (available over here) we have concentrated on examining the legality and constitutionality of only certain provisions in the Bill from the perspective of ‘separation of powers’, ‘privacy safeguards’ & a possible conflict with other legislations such as the Information Technology Act, 2001.

(i)‘Privacy Safeguards’: One of the most controversial aspects of the proposed UID project is that it will severely compromise the privacy of individual citizens since the State will now have the means to track every transaction made using the UID card.

In our opinion the terms of the privacy debate need to be framed in the context of which arm of the state should be vested with the responsibility of authorizing access to stored information. The predominant approach in Indian Parliamentary legislation is to vest such powers in the hands of the Executive. This is the case with the surveillance of telephones, the internet and even search and seizure by officials of the Income Tax department. The People’s Union of Civil Liberties (PUCL) attempted to challenge this position before the Supreme Court, in the context of Section 5 of the Telegraph Act, 1885. PUCL had argued for the reading down of Section 5 which authorized officers of the Central Government to authorize phone-taps. PUCL wanted Section 5 to be read in a manner which required prior authorization from the judiciary since privacy was a fundamental right. The Supreme Court however disagreed and did not read down Section 5.

In this context, Clause 33 of the proposed Bill actually envisages stronger safeguards, in that it allows for certain ‘authentication records’ to be accessed only on the authorization of the judiciary. The only problems with the provision is that firstly it fails to specify the grounds on which a court may order such surveillance and secondly it fails to specify the hierarchy of courts which can order the same. It simply uses the word ‘competent court’. We believe that such vague drafting may lead the provision to be held unconstitutional on the grounds of excessive delegation and arbitrariness. An additional problem with this provision is that ‘identity information’ however can still be accessed by officers of the Executive after prior authorization of the Minister-in-Charge. The only recommendation in this regard is that Parliament transfer even this power to only the judiciary in order to have a robust system of checks and balances.

(ii) ‘Excessive delegation’: A disturbing trend in contemporary Indian Parliamentary legislative practices is the delegation of vast powers to the Executive. The reason for this is the members of the Executive are the ones drafting the legislations that are aimed at regulating themselves. The present Bill is a case in point. Clause 53 of the proposed Bill delegates at least 25 functions to the proposed Authority. While several of the delegations are routine in nature, the Bill does delegate some crucial legislative functions. For example the definitions of ‘demographic information’ & ‘biometric information’, which determine the nature of information to be collected by the proposed authority for issuing the aadhar number, are left onto the Authority itself. Both these definitions are bound to have a profound impact on the ‘identity’ & ‘privacy’ of a person and have to be defined by Parliament itself. Delegating such a function to the Executive could result it in being struck down as unconstitutional because the legislation does not provide any guidance whatsoever on the legislative policy that is required to be followed by the Executive while defining the boundaries of the definitions. Crucially the Bill also delegates to the Authority the power to decide the time frame for which ‘authentication records’ can be stored by the Authority. Once again the Bill fails to provide any legislative guidance on the factors that are required to influence the determination of the time period and thus the same runs the risk of being deemed unconstitutional.

(iii) The conflict with the Information Technology Act, 2001: Several of the offences detailed under the proposed Bill deal with primarily offences pertaining to the misuse of information on the computer networks managed by the Authority. Given the over-lap with the subject matter of the Information Technology Act, 2001 there are a few issues which need to be ironed out because under the present scheme it is possible for a person to be prosecuted under two different mechanisms proposed under the two different legislations. We therefore propose that the Bill be amended to ensure a consistency in both proceedings so as to ensure that resources are not wasted by prosecuting a person under two different mechanisms.

(iv) A dispute resolution mechanism: The Bill delegates the process of creating a dispute resolution mechanism to the Authority itself. Given the importance of the UID to the future of welfare subsidies it is absolutely necessary that Parliament ensures a mechanism that ensures that citizens are delivered their UIDs in a fast and efficient manner and most importantly provide for a dispute redressal mechanism that will efficiently take care of any grievances that a citizen may have with the issuance of his UID. It is a known fact that Executive institutions are loathe to create institutions which increase accountability and in this backdrop we think it is crucial that the Bill itself provide for a grievance redressal mechanism.  

While the international media and the desi intellectuals pontificated on how Indian democracy had suffered a huge blow because of the mere threat of Roy being charged with sedition, the ladies from the ultra-right decided to trespass onto the premises of her house in a manner which adequately clarified their deeply hostile intent. Roy, through subsequent press-releases tried to emerge from the matter as the intellectual martyr in distress.

What is however interesting to note is the public reaction, or rather lack of it, against a similar statement, although much more nuanced, made by the Chief Minister of Jammu and Kashmir Mr. Omar Abdullah. In a statement on the floor of the House the young Chief Minister had apparently clarified that Kashmir had acceded to India and had not merged with it and therefore could not be compared to other Indian states such as Junagadh and Hyderabad, both of which were renegade princely states, who were ultimately forcefully co-opted into the Indian Union. The instrument of accession signed by the heads of J&K and India, which is available here, (atleast the first page) when read along with Article 370 of the Indian Constitution and the tragic U.N. resolutions of 1948, adequately clarifies the political status of Kashmir within the Indian Union.

While the BJP, predictably, trained its guns at Abdullah, for making such a statement, the Chief Minister found support, surprisingly, from 2 Union Cabinet Ministers – the Home Minister – Mr. Chidambaram and the External Affairs Minister Mr. S.M. Krishna, both South Indians, both Harvard educated. Both made public statements in the press, available here and here, argue that Abdullah’s statement had to be viewed in the correct context and that there was nothing quite inappropriate with it.

Now, the import of both statements i.e. by Roy and Abdullah is pretty much the same i.e. they both intended to state that Kashmir never became a part of the Indian Union, except for the fact that Abdullah nuanced his statement in the language of the law and in the process lent it a degree of credibility. Roy on the other hand appeared to be playing to the gallery, by making a nakedly bald statement, filled with rhetoric and with little or no qualification. We therefore have a deliciously paradoxical situation over here where the politician spoke like the intellectual and the intellectual spoke like the politician.

It is also interesting to note that both statements were made within a short time-span of only a few weeks. However, the reactions to both statements are poles apart. Conventional political philosophy would have predicted that the politician would have been lynched while the intellectual, would have at best, been ignored. But clearly the outrage against Roy does beg several questions as to the importance of her role in national debates. Is she over-exposed to multiple causes ranging from big-dams, to Naxalism to Afzal Guru to anti-imperialism and is this over-exposure screwing her credibility to new lows? Has she become larger than the cause itself? Why is it that the debate is always on her and not the cause she claims to represent? Most importantly, has she become a liability to the causes she speaks out in favour of?  I lack answers to most of these questions but I believe the rise and fall of Roy holds important lessons for all future wannabe intellectuals in India. Somebody should learn from Ms. Roy’s mistakes and it’s clearly not going to be her.

What then of the only other completely unaccountable institution in this country – the fourth estate – the media?

The print media is regulated by the Press Council of India, a statutory, quasi-judicial body which is all bark but no bite because the statute has not provided the PCI with powers to pass binding orders. The PCI’s authority is therefore limited to only moral judgments. The recent ‘paid news’ controversy led the PCI to request Parliament to provide it with binding powers to regulate the print media. The question however that we need to ask is whether self-regulation by peer-led bodies such as the Press Council of India are the best models of regulation today. All the above example of the Medical Council of India, the Bar Council of India, the Higher Judiciary all indicate that regulation by peer-led bodies is usually suspect. The need of the hour is therefore an independent regulator who is free from any kind of peer pressure but who is at the same time also free from governmental interference.

Regulation of the broadcast media however is a completely different animal.  The recent ‘Niira Radia Tapes’ controversy have exposed a startling conversation between Niira Radia and Jehangir Pocha, the owner of NewsX, wherein the owner is negotiating with her to release money in time to the channel so as to ensure the channel employees are paid on time. The conversation is available over here on the website of Outlook. NewsX is owned by the media company INX News Pvt. Ltd. whose website lists Mr. Vir Sanghvi as the CEO and Jehangir Pocha as one of the co-owners of the company. The tapped conversation establishes beyond doubt that NewsX is in effect controlled by Niira Radia, either directly or through a front company. The problem over here is not with Ms. Radia owning a media company but the fact that as a citizen I find it extremely difficult to identify the actual owners of most media companies and be appraised of the conflict of interest that they face in reporting certain events. Of course it may be possible to approach the Registrar of Companies to inspect documents and identify the share-holders for myself but given the way most Indian companies are held through a number of shell companies it is virtually impossible for a lay-man to identify the actual ownership of any company. As a citizen I believe it is important that media companies be subject to much higher disclosure norms so as to allow citizens to make fully informed decisions while viewing information being broadcasted by such companies.

As of now the only so-called regulator of the broadcasting sector is the Information and Broadcasting Ministry, which till date has rarely gone beyond moral policing and even that is limited to banning Fashion TV or AXN or pushing the timing for Big Brother. A government which does not interfere with the media is a government which respects core fundamental rights. However things are going out of hand with the Indian media especially at the regional level where several broadcast media companies cross the lines of legal and ethical journalism with increasing impunity.

In 2007 the Government sought to introduce the Broadcasting Services Regulation Bill which had been languishing in the I&B Ministry since 1997. Apart from establishing an autonomous body to regulate the media sector the legislation also provided for limits on cross-holdings between various mediums i.e. a company with a stake in a television broadcast company could not hold a controlling stake in a radio company. This was proposed in order to limit the growth of media monopolies which would end up having a disproportionate impact on shaping and forming public opinion in India.

As can be expected the Indian media lashed out at the bill as an attempt at censorship and in the process left the government with virtually no room to negotiate. The I&B Minister of that time was equated to V. C. Shukla, the infamous Minister from the Emergency era who was responsible for censorship of the media in those days.

The developments of the recent past i.e. ‘paid news’ and the Niira Radia tapes may have strengthened the government’s hands to re-introduce the bill, albeit with some major modifications.

The focus of this post however is on what I would like to characterize as the ‘Original Deal’. The ‘two-nation’ theory espoused by Jinnah, to support his claim for an independent Pakistan, was based on the threat perception of Hindus ruling over Muslims through majoritarian rule thereby eroding the Muslim identity on a gradual basis. At that time the Indian National Congress led by Gandhi and Nehru sought to placate the Muslim fears assuring them that the yet to be drafted Constitution would ensure that, new Indian state would not only be secular but also that Muslims in matters of faith and personal laws could still be ruled by the Muslim law. The Congress’s suggestion was nothing radical, they were merely proposing the extension of the status quo which had existed under British. In regards criminal and contract law Muslims would continue to be governed by secular laws.  This in my opinion was the ‘Original Deal’ and the basis of the ‘social contract’ between the Muslim community and the Indian state. When the new Indian Constitution was passed by the Constituent Assembly on the 26th of November, 1949, the INC stuck to its promise of a secular document.

While Parliament got down to the task of reforming Hindu personal law in the 50s against strong opposition from sections of the Hindu community, Muslim personal law was left untouched. Even in the 80s when the Supreme Court sought to intervene and protect the rights of Shah Bano, a Muslim divorcee under the secular Code of Criminal Procedure, the Congress party under Rajiv Gandhi reversed the verdict through a Parliamentary legislation. The ‘Original Deal’ was thus maintained as the status quo by the Indian Parliament. The recent judgment of the Allahabad High Court is however, what I would like to term, as the ‘deal breaker’. The dangerously simplistic reasoning that I would use to support this argument is the fact that the Allahabad High Court in effect decided, what it has termed as, a ‘title suit’ on the basis of Hindu law. The very concept that a deity can be a juristic person or the place of worship or birth of a deity can be viewed as a juristic person is a well recognized concept under Hindu law not secular law. The judgment of Justice Agarwal cites several cases where Indian courts have recognized the concept of the deity being a juristic person but failed to point out that almost all these suits were disputes either between the State and a Hindu institution or between a religious follower and the Hindu institution itself. None of these cases were a dispute between two parties of different religions. The role of personal law in disputes between parties of different religious denominations is quite clear from the following paragraph in Justice Agarwals’s judgment where he explains the concept as it existed during the times of the British: Para 1767: For example where both the parties are Hindu, by the principles of Hindu Law and where both the parties are Muslim according to the principles of Muslim Law. No clear cut or uniform law was existing in a matter where both the parties belong to different religions and there the matter was left to be decided according to equity and good conscience by the concerned Courts. To the extent the matter was governed by statutory laws there was no problem as the same was followed over and above the personal laws.

Since a title suit between two parties of different religions can be governed by the Transfer of Property Act it is not entirely clear as to why the Allahabad High Court chose Hindu law as the governing law for the dispute. In any case it is amply clear from the judgment of the Allahabad High Court that the ‘original deal’ now stands under a cloud of doubt and the social contract between the Muslim community and the Indian state stand precariously poised until the Supreme Court decides the appeal. It is upto the Supreme Court to now sort out the contradictions of this Country’s existence for the last 60 years and if possible to restore the ‘Original Deal’.

Most people would agree that the recent debate surrounding the nuclear liability bill was exceptional by normal Indian standards of debate. However an aspect which is often over-looked the lack of any relevant debate on the actual costs and expenses that would have been involved in fixing the liability for operators initially at Rs. 500 crores and later at Rs. 1500 crores. Ideally one would have expected the liability of the operator to be fixed at an optimum rate which balanced the cost per unit of electricity generated by the operator with the insurance premium that would have been required to be paid by the operator. It however appears that the initial liability cap was fixed at Rs. 500 crores because Indian insurance companies had the capacity to insure only upto that amount and no more! There does not seem to be any reasonable nexus between the liability cap and the cost per unit of electricity generated through the nuclear plants. The lack of any such nexus is highly troubling since the Government’s sales pitch suggested that nuclear power would be unaffordable in the case of an unlimited liability. In such a case it is expected that the Central Government would have done its homework to create some kind of economic model  linking the quantum of the liability cap to the affordability of the power generated by it. However given any lack of national debate on this aspect it is reasonable to presume that the Government never did have any such economic model which could conclusively establish the liability cap at such a limit which would still ensure the affordability of nuclear power generated by the operator in question.

Other national debates on reservations for backward classes and SC/STs suffer from the very same fallacy. The actual percentage of the OBC population in India has been a subject of intense discussion with numbers varying from 27% to 52%. Once again the political class fails to focus the national debate on the numbers game. The best way for politicial parties to ensure success in both vote-bank politics and implementation of the reservation scheme is to commissioning the collection of such appropriate data either through  the national census or alternate means.

The lack of hard numbers is also partially responsible for the slow-pace of judicial reforms. A few years ago noted lawyer Fali Nariman who was a member of the Rajya Sabha had introduced in the house a Judicial Statistics Bill which would create an appropriate bureaucratic machinery to collect judicial statistics from Courts around the country. Frontline carried an excellent article in this regard a few years ago. Such data would help policy makers in pin-pointing the actual reasons for the delays in the Indian legal system. It is possible that simple amendments to problematic provisions in penal laws such as S. 118 of the Negotiable Instruments Act which deals with cheque bouncing cases can considerably ease the burden amongst criminal courts. The same stands true for several other penal and civil laws. However until we have hard data in our hands it is impossible to suggest any concrete reforms in this regard.

All of the above scenarios raise a very pertinent question: If we don’t base our policy on hard numbers, what are we basing it on? Gut Instinct?

The recent uproar over the Bhopal Gas Tragedy and the subsequent introspection has focussed exclusively on the short-comings of our politicians and judiciary. While the opposition has been baying for the blood of the ruling government and the Gandhi family, the ruling government has been keen to lay the blame on the judiciary. To add fuel to the fire the NGO and the media are running around from pillar to post like headless chickens accusing the entire world of a tragic conspiracy. At the end of the day it is difficult to deny that there has been a complete lack of focus in this witchunt of a debate on exactly what went wrong and more importantly on exactly how we are going to avoid another such tragedy.

Was it only those 7 convicted employees of Union Carbide India Limited (UCIL) who can be held accountable for the miserable deaths of thousands of Bhopalis? Why weren’t any babus of the bureaucracy held accountable for that disaster?

After all, under the Insecticides Act, 1968, the bureaucracy had a key role to play in ensuring the implementation of safety standards in the UCIL plant.

The Insecticide Act, 1968 is a legislation which regulates the manufacture, import, transport and storage of all insecticides in India. This legislation provides for an elaborate mechanism to regulate the insecticide industry, right from carrying out safety and efficacy studies on each and every insecticide to giving approvals for the manufacture and import of the same. The Act provides for a Central Insecticide Board, a Central Insecticide Laboratory, Insecticide Analysts, Insecticide Inspectors, all of whom are required to regulate the insecticide industry across the country. An important component of their task is to inspect and regulate storage facilities and ensure that the industry is storing insecticides as per the guidelines formulated by the Central Insecticide Board. The Insecticide Inspectors have been given relatively sweeping powers to enter and inspect even private industry. The reason for this was most probably the concerns over safety.

Given that UCIL’s plant was manufacturing an insecticide it would have fallen within the purview of the Insecticide Act, 1968 meaning that the Central Government had a role in regulating the plant. The question therefore is why has the national debate not focussed on the gross negligence and incompetence of the Insecticide Inspectors who were in charge of regulating UCIL’s plant and responsible for protecting us from such a disaster. The failure in Bhopal was not only of UCIL’s but also the Government of India. If the Central Government and the NGOs are keen on stretching the concept of vicarious criminal liability to entrap Warren Anderson the CEO pf UCIL’s parent company, then in that case they should definitely hold the bureaucracy under the Insecticide Act, 1968 liable for criminal negligence.

The bigger question however is whether we have taken the steps to ensure that the Bhopal Gas Tragedy does not repeat itself. We have one of the biggest agro-chemical industries in the world and instead of the debate focusing, on how better to hold the bureaucracy accountable for the regulation of such a dangerous industry, the squawking anchors on our national television channels are more interested in extraditing Warren Anderson who at last count was 93 years old.

First, as per the Atomic Energy Act, 1962 only the government is allowed to operate nuclear establishments. Though a 1987 amendment allowed private participation, it was only to the extent of a 49% stake in a government company which would operate the nuclear plant. Given the predominantly governmental ownership of nuclear plants, it is anomalous that the Bill envisages a two-tier liability regime, with the operator bearing the primary liability (capped at Rs. 500 crores) and the central government, the secondary liability beyond the said amount. If the Atomic Energy Act is not amended, the only effect of such a two-tier liability regime will be to limit the proportionate liability to be borne by the private minority stakeholder in the nuclear establishment, should such an establishment have any private participation in the first place. The passage of this Bill and the depositions made before the Standing Committee on Science and Technology, Environment and Forests, which has been entrusted with recommending suitable amendments to the act, however suggest that the rationale behind a two-tier liability are far from being this modest. Recent news reports have indicated that representatives of the Central Government have already deposed before the Standing Committee, that the liability limits proposed in the Bill are necessary “for the operating company to take insurance cover.” Further, subsequent to the signing of the 123 Nuclear Agreement with the United States of America, it has been long expected that the central government will move a legislation before Parliament to amend the Atomic Energy Act, 1962 in order to facilitate wholly owned private companies to operate in India. The Bill’s silence in this regard is thus a disingenuous effort by the government to divorce the bill from one of the key rationales behind its formulation— incentivising private operators to enter the nuclear industry in India by capping their liability in the event of a nuclear accident.

Incentivising private nuclear operators is not per se reprehensible, despite the government’s lack of candour in this regard. However the key question is the extent to which such incentives are provided and whether this implies a trade-off on other necessary attributes such as safety or victim compensation. It is in this context that the capping of operator liability becomes a significant question. Though capping of operator liability in respect of nuclear accidents is internationally accepted, being incorporated in the Paris Convention, Vienna Convention, the Protocol to the Vienna Convention and the Convention for Supplementary Compensation for Nuclear Damage, the Bill is startling for capping the entire liability in respect of a nuclear incident and also the relatively minuscule liability it foists on private operators. Clause 6(1) of the Bill categorically limits the maximum liability in respect of a nuclear incident at 300 million SDR which is approximately Rs. 2045 crores. To be sure, this is not the maximum liability to be borne by the operator: On the contrary, this is the entire pool of liability pursuant to a nuclear incident, of which a maximum of Rs. 500 crores will be borne by the operator [Clause 6(2)] and the remaining by the central government [Clause 7]. Such a provision is unprecedented in international treaties and comparative foreign legislations. Besides, it is squarely antithetical to the jurisprudence of the Supreme Court which has read in full compensation as a public law remedy under Article 21. The Supreme Court has also incorporated the doctrine of ‘polluter pays’ from international environmental law and has held that the polluter, i.e. the entity responsible for causing the environmental damage, must bear the entire cost of restitution. By limiting compensation, which includes damages for victim injury and environmental harm to Rs. 2045 crores, the Bill rides roughshod over Supreme Court precedent, departs from international best practices and deals a body blow to victim compensation pursuant to a nuclear accident. As the Bhopal Gas tragedy demonstrates, compensation payable pursuant to nuclear accidents may be much greater than the limits set by the Bill. Despite this experience, setting a surprisingly low maximum limit for compensation symbolically diminishes the value, the government accords to human life in India.

The low amount of total compensation pursuant to a nuclear accident also allows the Bill to set an even lower liability cap for operators. At Rs. 500 crores, the maximum amount borne by the operator is less than 1/4^th of the entire amount which is payable. This is an insignificant proportion of liability and much lesser than international conventions which contain like provisions. According to the Vienna Convention, as amended by the 1997 Protocol, liability of an operator can be set at any amount not below 300 million SDR. It can be reduced, provided the government compensates for the balance, to 150 million SDR. This is equivalent to Rs. 1023 crores, more than double the liability cap on an operator in India. Other treaties such as the Convention on Supplementary Compensation for Nuclear Damage and most comparable national legislations too have equal or higher caps. Hence by capping the entire liability in respect of a nuclear incident and setting a startlingly low cap on operator liability, the bill goes too far in incentivising nuclear operators at the cost of victims and their fundamental right to receive full compensation for losses suffered.

A red herring insofar as liability caps are concerned is Clause 46 of the Bill. By far the most ambiguously worded clause, it presents a curious compromise of interests regarding concurrent liability for nuclear damage under other legislations. Ordinarily, if a special legislation has been created to determine damages with respect to nuclear incidents, common sense would dictate that the special legislation be comprehensive and oust other remedies. Only such specialisation would justify the infrastructure and resources in creating a distinct administrative machinery. Though Clause 46 suggests this interpretation, it can equally be read as permitting concurrent actions against operators under other legislations in force. If this latter conclusion if correct, then the Bill loses its raison d’être. Not only does it fail to oust other remedies against operators, which would be a fundamental rationale for a special legislation that offers itself as an incentive to private operators, equally it creates a procedural nightmare for victims as it sets up multiple forums to sue. This ambiguity, embodied by an unhappily worded provision, is indicative of poor drafting at best, and confused governmental policy at worst. Either way, it leaves a lot to be desired.

Finally, in terms of the institutions the Bill creates, it does little to avoid fundamental conflicts of interest. It vests the Atomic Energy Regulatory Board, the regulator under the Atomic Energy Act, 1962 with the power to notify a nuclear incident which will trigger the operation of the bill. In other words, for the bill to become operational the regulator must admit to its own regulatory failure! Besides, the independence of Claims Commissioners and the members of the Nuclear Damage Claims Commission who adjudicate claims arising out of nuclear incidents are not adequately safeguarded. They are appointed by the government, may themselves be current or retired government servants and can also be removed by the government. Their terms, and the salary of the Claims Commissioners too are contingent on the government. Given the fact that irrespective of the future possibility of private operators, all nuclear plants are currently owned and operated by the government, there is a fundamental conflict of interest between the adjudicating institutions set up by the bill and the government which will be a defendant should claims out of a nuclear incident arise. The failure to adequately safeguard the independence of these adjudicatory institutions taints them with an institutional bias and thereby casts doubts regarding their legitimacy.

Prime Minister Manmohan Singh at the Nuclear Security Summit in Washington in April spoke about “the need to restore public faith in nuclear power”. The Bill understandably would be a key medium to enable such restoration. However as it currently stands and as the debates surrounding the Bill demonstrate, it is skewed in favour of nuclear operators, pays inadequate heed to interests of victims, sets up institutions which are systemically flawed and represents governmental ambivalence on key issues. Addressing these concerns and setting up a balanced civil liability regime for nuclear accidents, consonant with international practice and Supreme Court precedent would go a long way in restoring public faith and assuring citizens that the Bill has been drafted with their interests uppermost in the government’s mind.