Dignity is her birthright

Dignity is her birthright

Dignity is her birthright

JUSTICE PRABHA SRIDEVAN IN THE HINDU

The state should not forget the human rights perspective while dealing with a victim of sexual violence. It should not doubly, trebly victimise her.

Women do not walk in a state of perpetual consent. But women do seem to labour under a delusion that it is safe for them to walk in public spaces, to travel in buses and trains. It obviously is not. They can be raped. It is difficult to understand rape. Rape is not about chastity or virginity. Long before these concepts were constructed, long before the institution of marriage was founded, a man raped a woman whenever he broke her sexual autonomy without her saying “yes.” It is a violation of her right to equality and her right to live with dignity which “We” promised ourselves when we gave to ourselves the Constitution. Surely women are included in the “We” of the Preamble, aren’t they?

Rape is the destruction of dignity through invasion of another person’s body without her consent. I use the word “her”, though the victim of this violence can be a child, a woman or a man. The anatomy of rape is common to all. But I will continue to use the pronoun “her”, since the majority of victims of sexual violence are female. Rape is a deliberate negation of the right over one’s body.

This right is born with us. It does not require a development of maturity or the consciousness of one’s body to acquire the right. So a girl child who is raped when she is 11 months old does not suffer less, nor is the crime less dark and bloody because the child does not know that she has the right not to be invaded. The consent that is required to make the sexual act not a rape must be understood as an active assent to the act. The consent cannot be presumed merely because a woman does not say “no”. She might not have said “no” because she was paralysed by fear, manacled by coercion or pounded by force. She might not have said no, because she was mentally damaged, incapable of making a decision in this regard; she might have been an infant, or disabled from moving because of physical incapacity. Yet it is rape. Only it is blacker if there is such a colour. It is the invasion of a woman who cannot say no.

Act of subjugation

It strips the victim of her dignity, it is intended to. It is an exertion of power, an act of subjugation, a statement that divests the victim of her right of control over herself and renders her an object. It is meant to objectify her. The dilution of the horror, by using words like “he lost control” is unjustified and is an insult to a woman. The violator does not lose control, but exerts control through the act of unspeakable violence.

In the Prosecutor v. Jean Paul Akayesu, the International Tribunal held that rape is a form of aggression, the central elements of which cannot be captured in a mechanical description of objects and body parts. It noted “the cultural sensitivities involved in public discussion of intimate matters and recalled the painful reluctance and inability of witnesses to disclose graphic anatomical details of the sexual violence they endured.” It was intended to reconstitute the law’s perception of women’s experience of sexual violence.

In a sensitisation programme for judicial officers, an exercise was given which would give a clue to the rape complainant’s feelings in court. All judicial officers were asked to close their eyes and imagine the experience of their first union with their loved one. Then they were asked to narrate it to the colleague sitting on their right. They were horrified at this intrusion of their privacy. Then the trainers asked them: “If you cannot narrate a pleasant sexual experience to a friend without inhibition, how do you expect a frightened woman in a strange court hall to narrate fluently, in the presence of a battery of hostile lawyers, her devastating experience of sexual violence?” The officers had no answer.

But what is the reality? She is broken by having to repeat the incidence of rape again and again. “Madam, what was he wearing at the time of the occurrence? Did his tee shirt have a collar or no?” Oh yes, she can surely recall in vivid freeze-frames of “the occurrence.” And who will save her if she falters just once in the witness box? “See your Honour, the accused was wearing a blue striped chaddy, but she says red … totally unreliable, Your Honour.” The Supreme Court has given strict guidelines on how her evidence should be weighed, and how her complaint should be assessed.

But a poor child who does not know an Ambassador from a Fiat was disbelieved by the trial court, until the Supreme Court came down with all its majesty to the rescue of the child and noted that the prosecutrix was a village girl studying in class 10 and her ignorance of the car brand, was irrelevant (State of Punjab v Gurmit Singh 1996 (2) SCC 384.)

‘Distinct concepts’

In the Amnesty International publication, “Rape and sexual violence — human rights law and standards in international courts,” we read how the human rights perspective must never be forgotten while dealing with sexual violence.

Sexual autonomy cannot be understood outside the umbrella of human rights. Its violation must be criminalised. The report says, “Unfortunately, however, sexual autonomy is frequently conflated with narrow views of ‘consent’ under domestic criminal law which do not capture the reality of how acts of rape and sexual violence are committed … Sexual autonomy and consent are two distinct concepts. The concept of ‘consent’ as used in domestic criminal law imports a notion of individual choice, typically without a consideration of the reality of abuse of power (whether evidenced through physical force, or other forms of coercion) and other factual conditions that may prevail before, during and perhaps after the sexual acts in question. A consideration of whether an individual was able to exercise sexual autonomy, by contrast, takes into account the overall dynamic and environment surrounding those sexual acts and how these had an impact on the victim’s ability to make a genuine choice.”

A woman who is raped goes through a variety of feelings like denial, self-hate, grief, degradation, suicidal impulse and more. She falters in her narration, oh yes, she does, but not because she is a liar, but because the act of rape not only inflicts physical harm but also incalculable emotional and psychological harm. Chemical changes take place in her brain because of the trauma. She may go into a fantasy that someone will rescue her from this nightmare. Post-rape, she lives in a smoke world of truth and untruth, denial and depression, nothing is the same any more. She is screaming on the inside “please, please put the clock back.” This is just a short, incomplete statement of what is happening on the inside.

What is happening on the outside? The whole family is devastated, it even looks at her as if she somehow brought it on herself. “Why did you go there?,” “I told you not to wear that” and so on. So the woman wonders if the first enemy is the family. It is not in every case that the woman actually lodges a complaint, because she and her family know what will follow the complaint is worse. It is hell. It is not necessary to give the details of the experience on the way to the police station and inside the precincts thereof. The world looks at her as if she carries a stain on her all the time. She may never be allowed to forget the occurrence. So will a woman lie that she was raped?

The Amnesty International report reminds us that women and girls are not “likely to make false accusations of rape and sexual violence. This is a particularly irrational stereotype as women and girl complainants usually have very little to gain and everything to lose by making allegations of rape, there is rarely an incentive for them to lie; many complainants pursue their search for truth and justice at enormous cost to themselves, in terms of stigma and rejection by their families and communities.”

In this harsh reality, society and especially the state and courts must remember that they shall not doubly and trebly victimise her, nor raise a cacophony of distrust. It will only silence the voices against this horror.

(The writer is a former judge of the Madras High Court and Chairman of the Intellectual Property Appellate Board.)

SOURCE:Dignity is her birthright

Advertisements

When roads become killing fields, shouldn’t we act?

Road Accidents In India

Road Accidents In India

Dr. Justice A. R. Lakshmanan IN THE HINDU

India has one of the largest road networks in the world — 3,314 million km — consisting of national highways, expressways, State highways, major district roads, other district roads and village roads. About 65 per cent of freight and 86.7 per cent passenger traffic is carried by the roads. The motor vehicle population has recorded a significant growth over the years. Two-wheelers and cars (personalised mode of transport) constitute more than three-fourths of the motor vehicles.

According to a Maruti Suzuki weblog, more than 1,00,000 Indians are dying every year in road accidents. More than a million are injured or maimed. Many years ago, a study found that road accidents cost the country some Rs.550 billion every year.

A recent survey by the Central Road Research Institute shows that more than 90% pedestrians feel unsafe while crossing the roads, while they comprise more than 50% of road victims.

Is it due to a lack of apt provisions in our law that travel through Indian roads is a tryst with death?

All the more so, because despite the Supreme Court’s directions to the police and all other authorities entrusted with the administration and enforcement of the Motor Vehicles Act, 1988 and generally with the control of traffic in regard to traffic safety, reckless driving by government buses has not diminished.

In view of the above, I, as Chairman of the Law Commission of India, prepared a Consultation Paper on this important subject and suo motu made a recommendation to the Government of India through the Law Ministry and the Report No.234 is pending with the Ministry. In this article, I have dealt with the present Law of India IPC 1860, viz., Sec.279, 304A, 336, 337 and 338, the Motor Vehicles Act, 1988, the Road Traffic Act, 1988 and the Road Regulations 1989.

The then Law Commission also submitted its report (42nd Report) in June 1981 and examined the provisions of the IPC.

Any State government may, after previous publication, by notification make rules for the purpose of carrying into effect the provisions/rules, etc., in different areas of the State. Such rules may provide for

  • the removal and the safe custody of the vehicles including their loads which have broken down or which have been left standing or have been abandoned on a highway;
  • the determination, maintenance and management of parking places for the use of vehicles and animals and the fees, if any, which may be charged for their use;
  • prohibiting the use of footpaths or pavements by vehicles or animals;
  • prohibiting or restricting the use of audible signals at certain times or in certain places;
  • regulating the loading of vehicles and in particular, limiting the loads carried in relation to the size and nature of the tyres fitted;
  • a right of way for ambulances and fire brigade vehicles;
  • the control of animals likely to frighten other animals or pedestrians;
  • the control of children on highways;
  • prohibiting the riding by more than two persons at the same time on cycles other than cycles designed for the purpose;
  • prohibiting the riding of more than two cycles abreast;
  • limiting the age of drivers of vehicles;
  • regulating the driving of vehicles and animals at night; and
  • regulating the use of highways by pedestrians. The State government may, after previous publication, by notification make rules regulating the construction, equipment and maintenance of vehicles used on highways and public places. Different rules may be made for different areas of the State.

The rules may be made under this Section governing any of the following matters either generally or in respect of public vehicles of a particular class or description or in particular circumstances, namely:

  1. the width, height and length of vehicles;
  2. the size, nature and condition of wheels and tyres;
  3. brakes;
  4. lamps and reflectors;
  5. warning devices;
  6. the inspection of vehicles by prescribed authorities;
  7. regulating the particulars exhibited on vehicles and the manner in which such particulars shall be exhibited.

The State government may also make rules for regulation of the use of public vehicles, viz., the issue, renewal or cancellation of driving licences, issue of permits etc.

  • the documents, plates and marks to be carried by public vehicles, the manner in which they are to be carried and the language in which such documents is to be expressed;
  • the badges and uniforms to be worn by drivers;
  • the fees to be paid for permits, driving licences, duplicate copies of permits or driving licences, plates, badges, and appeals preferred before statutory authorities;
  • the limiting of the number of public vehicles or public vehicles of any specified class or description, for which permits may be granted in any specified area, or on any specified route or routes;
  • the fixing of maximum or minimum fares or freights;
  • the maximum number of passengers or the maximum quantity of goods that may be carried in a public vehicle;
  • the conditions subject to which passengers, luggage or goods may be carried in a public vehicle;
  • the construction and fittings of and the equipment to be carried by public vehicles, whether generally or in specified areas or on specified routes; and
  • the safe custody and disposal of property left behind in pubic vehicles;

Traffic personnel are not controlling traffic and discharging their duties effectively. People, whether educated or illiterate, have scant respect for traffic rules and regulations. The traffic personnel should give immediate attention to the following and take effective steps to enforce discipline in regard to:

  • Non-observance of traffic rules;
  • Jumping the red light;
  • Crossing the speed limit;
  • Driving without valid licence;
  • Driving under the influence of liquor/drugs;
  • Driving while talking on the mobile;
  • Driving without helmet;
  • Overloading of passengers in autos/share autos;
  • The driver’s seat is occupied by a minimum of three persons in share autos/other autorikshaws and vehicles are parked haphazardly. Over-speed of scooter/motorcycle, crossing the yellow line or violating traffic rules;
  • An entire family (minimum four persons) riding a scooter/motorcycle without realising that this is a traffic offence and such travel is at the risk of their lives;
  • Government buses, no rule or regulation. Parking them at any place;
  • One-way traffic signal/total violation;
  • Suffocating jam-packing of stage carriages;
  • Confiscation of vehicles fitted with LPG cylinders which are meant for home kitchen, arresting and prosecuting the owners/drivers of such vehicles;
  • Weigh bridges should be installed at all entry and exit points to and from a city as well as toll collection centres to keep in check overloading of vehicles;
  • Driving schools to impart training at a nominal fee by the government;
  • Excess collection of fares by omnibuses during festival seasons. Stringent measures to be taken forthwith to cancel the licence of such offenders;
  • There should be no exemption to Government vehicles from insurance against third party risk. Sec. 146 of the Motor Vehicles Act should be amended for the purpose;
  • Enormous increase and growth in the population of vehicles in big cities;
  • Easy availability of driving licence (reason is obvious);
  • Increasing tendency of consumption of liquor while driving;
  • There is pride/ego involved in fast driving of costly cars, with a sense of false status, by the children of rich people. (Refer BMW cases);
  • Checking/setting and enforcing blood alcohol concentration limit for drivers with random breath testing at sobriety checkpoints;
  • Speedbreakers affect traffic flow and are safety hazards, if not properly constructed;

Traffic-related measures:

  • Speed control
  • Entry restrictions
  • Separate lane for bus and cycle, etc.
  • The situation in respect of State roads is still worse. The private sector also needs to be involved in the maintenance of national highways/State highways.
  • Octroi and sales tax barriers are to be done away with now that the VAT system has come into force in many States.
  • Mobile court/mobile policing should be introduced round the clock and it should not be limited to peak hours.
  • Digging of roads by various agencies like telephones/electricity/corporation causing inconvenience to roadusers.
  • Driving in the wrong direction, breaching speed limits, jumping traffic lights are common violations.
  • Need for recognised driving training schools
  • Auto drivers/share auto drivers fleecing passengers at railway stations.
  • Misbehaviour by auto/share auto drivers with poor passengers. Periodical training must be given to them by the police.
  • Introduction of mini-buses.
  • Steps to prohibit the use of pathways on either side of the road for running tea stalls, petty shops, vending fruits and vegetables, etc., should be implemented.

Measures to prevent road accidents may be preventive, precautionary and punitive. There is no denying that there is a need for improved road-watch, surveillance and detection, effective and holistic regulation of all kinds of traffic on the roads and proper deterrence. Roads are used not only by motorised transport but also by non-motorised transport as well as pedestrians. There is no comprehensive Central legislation to effectively and holistically regulate all kinds of traffic. The Motor Vehicles Act, 1988 is relatable to Entry 35 of the Concurrent List and the National Highways Act, 1956 is relatable to Entry 23 of the Union List. The subject matter of roads, traffic thereon, and vehicles other than mechanically propelled vehicles falls under Entry 13 of the State List and therefore, outside the purview of Parliament. The Seventh Schedule of the Constitution will be required to be amended for such comprehensive Central legislation. The Law Commission feels that there is a need for a comprehensive Central road traffic law.

As an important part of the enforcement measures, there should be compulsorily installed CCTV cameras at all vulnerable points to be determined by an expert committee to curb traffic violations.

There should be a vigorous campaign on the electronic media, including Doordarshan, All India Radio and private TV channels through regular programmes and debates, so as to create awareness among the general public of the imperative necessity to strictly follow traffic rules as well as highlight the consequences of rash and negligent driving.

As an important part of the enforcement measures, there should be established, through public-private partnership, recognised driving training schools in different parts of the country, equipped with simulators and obliged to follow properly devised driving training modules and impart training at a nominal fee.

As an important part of the enforcement measure, Rule 118 of the Motor Vehicles Rules, 1989, making it mandatory for the notified transport vehicles to be fitted with an irremovable or tamper-proof speed governor sealed with an official seal of the Transport Authority, should be enforced more vigorously. Government vehicles should not be exempted from insurance against third-party risk and Section 146 of the Motor Vehicles Act should be amended for the purpose.

(The writer is a former Judge of the Supreme Court of India, and former Chairman of the Law Commission of India. His email is: jusarlakshmanan@ gmail.com)

 

LEGAL REFORMS TO COMBAT ROAD ACCIDENTS – LAW COMMISSION REPORT

http://www.thehindu.com/opinion/open-page/article2215902.ece

 

Mughal-era law still governs road accident relief: SC

NEW DELHI: Apart from the penal laws punishing drunk drivers running over people, can the offender be sued by the victim’s relatives for compensation?

Yes, under a law that was enacted when the last Mughal Emperor, Bahadur Shah Zafar, was the titular head of the throne at Delhi. Taking note of this, the Supreme Court has asked the Centre to immediately commence work to draft a new law to replace the archaic legislation. It expressed serious concern over the extreme inadequacies in the law governing suits for damage filed by relatives to claim compensation for death due to rash and negligent act, including drunken driving cases.

It rapped the government for not taking note of a 20-year-old apex court judgment recommending drastic change in the 1855 law or a new legislation to meet the present day challenges.  A bench of Justices Aftab Alam and R M Lodha said: “We are constrained to observe that a suit for damages for a murder of a person, like the present one, is filed under Fatal Accidents Act, 1855. As the year of enactment shows, the Act dates back to the period when the greater part of the country was under the control of East India Company with the last Mughal ‘Emperor’, Bahadur Shah Zafar, as the ineffective, though titular monarch on the throne at Delhi.”

The Act was enacted to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. “It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old,” said Justice Alam, who wrote the judgment for the bench.

With anguish it remembered that a constitution bench of the Supreme Court in a 1990 judgment had said: “The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should contain appropriate provisions” for various exigencies. Justice Alam said: “It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without further delay.”

‘Financial Assistance and Support Services to Victims of Rape: A Scheme for Restorative Justice’

A representation of the Lion Capital of Ashoka...

Image via Wikipedia

The Hon’ble Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union of India & Ors. in Writ Petition (Crl) No.362/93, while outlining the broad parameters for extending assistance to the victims of rape, indicated the necessity of setting up of a Criminal Injuries Compensation Board. The Government has formulated a scheme, ‘Financial Assistance and Support Services to Victims of Rape: A Scheme for Restorative Justice’ which envisages setting up of Criminal Injuries Relief and Rehabilitation Boards at National, State and District level. The scheme has not received the required approval as yet.

The District Boards will implement the scheme. The State Boards will be responsible for coordinating and monitoring the functions of the District Boards in the States and entertain appeals against their decisions. The National Board shall administer the scheme besides monitoring and coordinating the functions of State Boards.

This information was given by Smt. Krishna Tirath, Minister of State for Women and Child Development in a written reply to a question in the Lok Sabha today.

Crime, no punishment

BY JUSTICE V R KRISHNA IYER IN THE HINDU

There is still no bar on trying the corporate perpetrators of the Bhopal tragedy, including Warren Anderson.

The Bhopal mega-crime trial is over. The barbarity has ended in a light sentence, although the victims are countless. Eight officials of the erstwhile Union Carbide India Limited have been convicted and sentenced to two years’ rigorous imprisonment. The judge has given the maximum possible punishment for the crimes as charged. The Supreme Court had pared down the charge: from homicide not amounting to murder to culpable negligence not amounting to murder.

The corporate culprit that was based in the United States, or its successor-entity, or its then Chairman, Warren Anderson, are not in the picture now. The poignant omission was set out thus: “Under the settlement, Union Carbide agreed to pay $470 million to the Indian Government on behalf of all the Bhopal victims in full and final settlement of all past, present and future claims arising from [the] Bhopal disaster. The entire amount has to be paid before 31st May, 1989. In addition, to facilitate the settlement the Supreme Court exercised its extraordinary jurisdiction and terminated all the civil, criminal and contempt of court proceedings that had arisen out of the Bhopal disaster and were pending in subordinate Indian courts.”

The right to life is a fundamental right in India. So this macro-murder, the worst industrial carnage in history, is a huge blot. An untested facility was installed in India with no examination of the potential dangers, as if it were a mere soda factory. The act of installation in itself was a crime.

BHOPAL GAS TRAGEDY

BHOPAL GAS TRAGEDY

But India is just a brown colony for white Americans! When it comes to the U.S., international law is the vanishing point of punitive jurisprudence. The catastrophe occurred in December 1984. It was not too big for Indian courts to handle. But, shamefully a Chief Justice of India and a great lawyer gave the opinion that the Indian judicature would take several life-times to try such a mega-crime and that it had better be tried in U.S. courts.

A corporate Director usually does not personally commit crimes himself or herself. These are committed perhaps without their knowledge, but with their connivance and vicarious awareness. Nevertheless, culpability exists in a higher dimension of punitive jurisprudence. This is the basis of culpability in corporate crimes and offences. To plead that Union Carbide or Anderson did not physically switch on equipment or were not responsible for the acts of commission or omission that caused the leakage is no argument of innocence. But for the installation of such a facility, the deaths would not have happened. If a nuclear plant were set up that exploded and wiped out thousands of lives, those who set up and operated it are vicariously guilty, not by mens rea but morally and legally. In this larger sense, Carbide and Anderson have much to explain. But they were in India, a dollar colony, and so no prosecution was not pursued; it remains to be launched.

The question is: will the Government of India dare demand the repatriation of Anderson and prosecute Carbide or its corporate successor-entity? Is there a bar on the score that a trial against lesser officials for a lesser offence that has gone on for 25 years? And that the government has received money by way of an amoral settlement? No principle of jurisprudence permits a huge crime to be settled by the government without the knowledge of the victims under the pretense of parens partriae. If the state can corruptly take cash and make up for the murder of its citizens, our jurisprudence deserves to be disobeyed. Such an act will go against ancient dharma and modern principles and values, which consider life to be beyond negotiation. Indian life is not so cheap as to be bartered away in deals.

The mega-criminals, namely, Union Carbide and Anderson, have not stood trial, charged with Section 304 of the Indian Penal Code that pertains to the real crime involved. There is much agitation over the fact that fiat justitia failed. When disasters of such dimensions occur as a result of the vicarious action of corporate persons and other individuals in power who have not faced trial, a disaster liability law exists. There is no room for immunity here, and no previous trial can exculpate the guilt. When small criminals go to work, a big noise is made to prosecute them. But when monstrous crimes are committed by mighty individuals through lethal instruments, should they be let off? That will make the law immoral, inhuman and violative of justice.

No human principle of law can empower a state — except perhaps a Hitlerite dictatorship — to write off the lives of its citizens after receiving money from the killer. Such an atrocious rule will warrant invasion, occupation and elimination of lives of citizens of another country. Some such payment appears to have been made for Bhopal. No written text of the law exists in India or elsewhere under which if ‘A’ were murdered by ‘B,’ the state can compromise prosecution and claims by receiving a sum of money. In an overpopulated country such as India, whenever a murder takes place the state can make up for its deficit by receiving a sum to settle the claim? The Buddha and Gandhiji were born in vain if this were to be the law. Over countless cadavers, a wicked principle of jurisprudence is being presented: of crime without punishment, however grave the crime. Meanwhile, the government, without any sense of humanism, settles the crime, guided by barbarity. Sans a trace of humanity it received money in a bloody bargain and used it to build a luxury hospital where the poor have no access.

Ralph Nader, in a powerful introduction to America Inc., wrote of the insensitivity and incompetence of jurisprudence when challenged by the corporate juggernaut: “In no clearer fashion has the corporation held the law at bay than in the latter’s paralysis toward the corporate crime wave. Crime statistics almost wholly ignore corporate or business crime; there is no list of the ten most wanted corporations; the law affords no means of regularly collecting data on corporate crime; and much corporate criminal behaviour (such as pollution) has not been made a crime because of corporate opposition. For example, willful and knowing violations of auto, tire, radiation, and gas pipeline safety standards are not considered crimes under the relevant statutes even if lives are lost as a result.”

The best that has been said on this is by Winston Churchill: “The Dark Ages may return — the Stone Age may return on the gleaming wings of science; and what might now shower immeasurable material blessings upon mankind may even bring about its total destruction. Beware, I say! Time may be short.”This horror is becoming a reality in India. We must resist this new homicidal jurisprudence and try by a fresh prosecution Union Carbide and Anderson. The Union of India has much to answer for the slaughter. Fiat justitia ruat caelum. The law must have a conscience.

http://www.thehindu.com/opinion/op-ed/article484155.ece

Putting victims at the centre of liability law

Siddharth Varadarajan IN THE HINDU

The Nuclear Liability Bill needs to be amended to ensure adequate compensation in the event of an accident.


The bill must be amended to allow for a proper level of compensation, well beyond the Rs. 2,050 crore “maximum amount of liability”

It extinguishes claims for compensation for damage made more than 10 years after an incident. An unconscionable limit


The nuclear liability bill is currently being reviewed by the Parliamentary Standing Committee on Science & Technology, Environment & Forests. There are several clauses and concepts that need to be amended to ensure the legislation meets its intended purpose.

1. The “maximum amount of liability in respect of each nuclear incident” is fixed at 300 million Special Drawing Rights, approximately Rs 2,050 crore. This figure is too low and can’t possibly cover the kind of nuclear damage a major incident would cause to human life, property and the environment. Since the government wants to accede to the IAEA’s Convention on Supplementary Compensation (CSC), 300 million SDRs has been chosen as national cap so as to receive compensation from countries that are parties to the CSC beyond that. One assumes the government will have to provide compensation above whatever limited sums come from the CSC. Some explicit commitment to this effect, therefore, is essential.

It is worth noting that the CSC will only enter into force if a country with a major nuclear programme like Japan accedes. That is unlikely to happen soon. If every country in the world joins the CSC, a maximum of 300 million SDRs would be available. But since the CSC will never attract universal adherence, the best a member state can hope to receive is around 50 million SDR. Either way, these are not substantial sums. Thus, the Bill must be amended to allow for a proper level of compensation, well beyond the Rs. 2,050 crore “maximum amount of liability”. Since the CSC says the compensation amount a signatory specifies prohibits discrimination between national and cross-border victims of a nuclear accident, some national cap may be necessary. But legal language is needed to assure the people that the government will compensate them fully in the event of an accident.

2. Like the national cap, the liability of nuclear operators is also capped too low at Rs. 500 crore for each incident. The bill says the government shall be liable for nuclear damage exceeding that amount. Two amendments are needed to protect public interest. First, the law must clarify that the cap applies only to public sector operators. Second, the Rs. 500 crore cap is low even for a public sector operator. It creates a double social cost. The fact that the operator is not forced to internalise the cost of damages he may cause will lead to the under-provisioning of safety. And, to the extent to which the operator cap is a subsidy towards the true cost of nuclear power, this would lead to the over-optimal share of nuclear power in India’s energy mix. Depending on the extent to which society wishes to subsidise nuclear energy, the operator cap should be set at some point between Rs. 500 crore and Rs. 2,050 crore. The higher figure would be more in keeping with enlightened liability regimes in other countries.

Some argue that raising the operator limit will increase insurance costs. But nuclear plants around the world take out property insurance for sums several times higher than their accident liability and this does not affect the viability of nuclear power. Insurance premia, in any case, represent a very small fraction of the total cost of a nuclear plant worldwide.

3. The operator’s right of recourse against suppliers under 17(b) should be preserved and perhaps strengthened to include defective equipment and design flaws. India should leverage its mammoth imports to get the supplier to accept a measure of liability in the commercial contract itself. Moreover, the right of recourse must be for the total damage caused by the supplier’s negligence and not be limited to the operator’s liability cap.

Since 17(b) deviates from the right of recourse envisaged by the CSC, India may have to enter a reservation if it accedes to the convention. Alternatively, it can adopt the liability bill but stay outside the convention like South Korea, which faces no impediment in doing business with U.S. suppliers. Not signing the CSC will also preserve the right of Indian victims to approach the courts of the country to which a nuclear supplier belongs in the event of an accident involving their negligence.

4. The bill extinguishes claims for compensation for nuclear damage made more than ten years after an incident. This limit is unconscionable. There is no reason why Indian law should impose such a limit for injuries to humans, especially when the Vienna and Paris conventions on nuclear liability allow a 30 year claim period. In Bhopal, many illnesses are manifesting themselves years after the original incident, and affecting subsequent generations. Physical damage may also require more time to assess. Twenty-five years after the Bhopal disaster, there is still uncertainty about liability for plant remediation. Certainly no claim was brought against Carbide on the question of site clean up within 10 years.

5. It is unsettling that the bill leaves the assessment of damages and claims for a nuclear accident to an executive rather than judicial body. While there is no reason to assume judges will be more sympathetic to nuclear victims than bureaucrats, the prohibition of judicial oversight embodied in clauses 16 and 35 cannot be justified. These will have to be amended or deleted, especially in order to end the ambiguity about the victim’s right to file tort claims.

6. Ironically, nearly half the bill’s clauses deal with the service rules etc of the officers who will process compensation claims rather than victim rights. As far as the composition of Nuclear Damage Claims Commission, it is shocking that more attention is paid to the bureaucratic qualifications of commissioners rather than their knowledge or competence to assess damage claims. In line with the complete exclusion of the health ministry and health professionals from the drafting process, the bill envisages no role for health and environment experts. Amendments are needed to remedy this.

7. Clause 46 says the Act’s provisions “shall be in addition to, and not in derogation of, any other law for the time being in force” and that the operator will not be exempted “from any proceedings which might, apart from this act, be instituted against [him]”. According to officials, the stated intent of this clause is to preserve the victims’ right to file tort claims. It also raises the possibility of criminal liability in the event of negligence on the part of the operator or, presumably, the supplier. But Indian tort law is poorly developed. As for criminal prosecutions, nothing more needs to be said in the light of Bhopal. Thus, for this clause to have any meaning, it must be accompanied by clauses that would facilitate tort claims.

The law ministry should also be asked to clarify what the intent behind mentioning only the “operator” in this clause is. Is it to simplify the filing of victim claims by channelling fault-liability on to the operator leaving him to recover damages from suppliers via his right of recourse? If so, does this mean tort claims cannot be filed against anyone other than the operator? Given the unhappiness over the Bhopal settlement of $470 million – the Centre, in a sense, channelled the claims of victims through itself but sold them cheap — the Standing Committee must ensure the nuclear bill does not dilute the victims’ right to file tort claims against any party in the event of an accident.

http://www.hindu.com/2010/06/18/stories/2010061855241300.htm

Victims seek SC help on compensation package

INDIAN EXPRESS

A group of Bhopal gas tragedy victims has returned to the Supreme Court to seek a promise the country’s highest court made them 21 years ago.

Their petition quotes the Supreme Court’s assurance given in the Union Carbide v. Union of India verdict of  1989 that it “will leave no stone unturned in undoing any injustice”.

The victims have come to the apex court after the Madhya Pradesh High Court declined to interfere with the Welfare Commissioner’s disinclination to “declare that all gas victims, who are forced to seek medical treatment  for gas-related ailments even 25 years after the disaster, are permanently injured and that their compensation should be enhanced accordingly.”

The eight petitioners, led by Abdul Jabbar Khan of the Bhopal Gas Peedith Mahila Udyog Sanghathan, claim that “circumstances have changed” and, 26 years after the tragedy, it is time for the Supreme Court to review the compensation doled out to victims as per the Bhopal Settlement struck between the Union of India and Union Carbide Corporation (UCC), USA, under the aegis of the Supreme Court for a sum of $470 million on February 14/15, 1989.

They allege that the “fundamental assumptions” entertained by the apex court about the gas tragedy in the 1989 Bhopal settlement now lie “crucially impaired.”

A special three-judge bench led by former Chief Justice of India KG Balakrishnan on April 23, 2010 agreed to hear the victims once again and issued notice to the Union and the Welfare Commissioner’s office. The fate of the matter now lies in the hands of the present CJI S H Kapadia.

Advocate Aagney Sail, counsel for the petitioners, says that one of the “circumstances” which have changed over the years after the tragedy is the “unjustness of compensation in the event of aggravation of injury” where victims have died after several years.