Posted by Pothik Ghosh April 8, 2010 at 9:00 am in Economy, India, Law, Politics, State Repression
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.
Posted by Radical Notes March 31, 2010 at 11:42 pm in Energy, India, International Relations, Law, Nuclear
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 ttp://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.
Posted by Rahul Choudhary September 24, 2007 at 1:22 am in Displacement, Environment, Law
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.
