A good Bill that disappoints


The Land Acquisition and Resettlement and Rehabilitation Bill 2011 seems to be driven by a desire to make acquisition for industrialisation and urbanisation easier.

One started reading the new Draft National Land Acquisition and Resettlement and Rehabilitation Bill 2011 with expectations of a great improvement over the 2007 Bills. There are indeed some very good features in the new Bill but, on the whole, one must regretfully report disappointment. Let us see how the Bill deals with some of the key issues involved.

(i) Acquisition of agricultural land: The Bill rules out the acquisition, not of all irrigated agricultural land, but of multi-cropped irrigated agricultural land. That limited exclusion seems rather half-hearted.

(ii) Avoiding or minimising displacement: A serious concern about the trauma of displacement does not seem to be the driving force behind the Bill. The principles of ‘no forced displacement’ and ‘free, informed prior consent’ are not mentioned. (Incidentally, the condition of consent by 80 per cent of the land-owners applies only to land-acquisition by the government for companies including PPP cases, and not to governmental acquisition for itself. It appears that there has been no dilution at all of ‘eminent domain’.) There are indeed a number of good provisions relating to displacement (SIA, review of SIA by an Expert Committee, consideration of ‘less displacing alternative’, public hearing, etc.), but the final decision is that of the bureaucracy. If a statutory clearance is needed for cutting a tree or for causing an environmental impact, should it not be required for displacing people? If the National Rehabilitation Commission mentioned in the 2007 Bill had been retained, a statutory displacement clearance by it could have been prescribed, but the present Bill envisages no such Commission.

(iii) Inadequacy of compensation: The present Bill increases the compensation amount significantly. This is welcome. Whether the earlier problems of delays and corruption in the payment process will disappear or diminish, remains to be seen.

(iv) The acquisition of land by the state for private companies: A view, held by many for a long time, is that there is no reason why the state should use its sovereign power to acquire land for private companies which are primarily in business for profit and not for conferring benefits on the public.

The 2007 Bills had sought to reduce the extent of land acquisition by the state for a company to 30 per cent , if the company purchases 70 per cent of the land needed by negotiation. The present Bill does away with the 70:30 formula, but provides for ‘partial’ acquisition by the state for a company if a company so requests. Presumably ‘partial’ acquisition could go up to near-full acquisition by the state. This seems a retrograde step.

(v) Private purchase: As for private negotiation, the Minister himself refers in his Foreword to the “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired”, but the Bill provides no mechanism to reduce that asymmetry. It doubtless extends the R&R provisions to private negotiated purchases of land but provides no safeguard against unfair negotiation. (Even the extension of the R&R provisions to negotiated purchases — the legality of which may be challenged — applies only where a company buys 100 acres or more, and that threshold can be easily side-stepped in ways that need not be spelt out here.) One wishes that the Minister had strengthened the hands of the weaker party in the negotiation by providing — this is merely an illustration — that the compensation that the land-owners would have got under this Bill if the land had been acquired by the government (to be determined by the collector) would be the floor below which the price negotiated by the company with the land-owners shall not fall.

(vi) Change of land use: That safeguard might ensure a fair price, but there is also the question of transfer of agricultural land to non-agricultural use and the implications for food security. One possibility might be to say that all acquisition of land, including acquisitions for companies, must be only by the state; but that does not seem desirable and, in any case, it is not really an answer to the problem of land-transfer away from agriculture. Another possibility is that private purchases of agricultural land should be subject to state regulation from the point of view of land-use. That might be open to the objection of undue interference with a landowner’s right to sell his land. On the whole, the answer to the question of minimising transfers of agricultural land to non-agricultural use might lie in policies supportive of agriculture rather than in control or regulation over land transactions.

(vii) Definition of ‘public purpose: An issue that has persistently figured in the debate during the last decade or two is the need to narrow the definition of ‘public purpose’ and limit it to a few strictly governmental purposes (schools, dispensaries, etc). The present Bill moves in exactly the opposite direction. It defines ‘public purpose’ very broadly and leaves it to the bureaucracy to decide each case. Is it right to assume that any industry ipso facto serves a public purpose warranting the alienation of agricultural land? For instance, in the Singur episode land acquisition was for ‘industry’, i.e., Tatas‘ small car factory; was that ‘public purpose’? It can be so declared under the present Bill. Again, ‘infrastructure’ includes ‘tourism’, which would permit the acquisition of land for building hotels. It seems desirable to define ‘public purpose’ somewhat more stringently.

(viii) Coverage of ‘project-affected persons’: The Bill refers to loss of primary livelihoods but links it to the acquisition of land. The term ‘livelihoods’ is illustrated by a reference to the gathering of forest produce, hunting, fishing, etc; there is no reference to sellers of goods and services to the people in the project area, who will lose their livelihoods when the people whom they serve move away to resettlement areas. It is not clear whether they will be regarded as project-affected persons.

(ix) Social Impact Assessment: On Social Impact Assessment the present Bill is an improvement on the 2007 Bill, but the idea of SIA still falls short: it does not cover the disappearance of a whole way of life; the dispersal of close-knit communities; the loss of a centuries-old relationship with nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an independent multi-disciplinary expert body, but it should first be prepared by a similar body. The Bill leaves the SIA to be prepared by the “appropriate government.”

(x) Rehabilitation package: The rehabilitation package is distinctly inferior to the packages already established in certain projects. The principle of ‘land for land’ has been abandoned. It figures only in the case of irrigation projects, and there the Bill envisages one acre per family instead of two acres as in the Sardar Sarovar Project. There are two points here. First, it is not clear why the Bill specifies irrigation projects; hydroelectric projects and flood control also have the same impacts as irrigation projects, and in any case many projects are ‘multi-purpose’ projects. Secondly, compensation and rehabilitation should have reference not to the nature of the project but to the nature of the impact. Whatever be the project, if an agricultural community is uprooted from its land and homestead, it has to be enabled to practise agriculture elsewhere, and not expected to become carpenters or weavers or traders.

(xi) Other matters: A number of officials and institutions are specified in the Bill, such as the Collector, Administrator of R&R, Commissioner of R&R, etc., but it is only in the R&R Committee that there is a significant non-official presence. The National Monitoring Committee is not ‘participatory’; apart from officials, it includes only a few experts. As indicated earlier, the idea of a National Rehabilitation Commission has been abandoned.

Incidentally, it is not clear why displacement by natural calamities should be brought within the purview of this Bill. There is a vital difference between unavoidable displacement caused by nature and deliberate displacement caused by human decisions.

Summing up, the Bill seems to be essentially driven by a desire to make land acquisition for industrialisation and urbanisation easier. It is clear that the Bill, which does contain many good features, nevertheless requires substantial improvement.


Draft National Land Acquisition and Resettlement and Rehabilitation Bill 2011


Should water be moved to Concurrent List?

Ramaswamy R. Iyer IN THE HINDU

Putting water on the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided.

The Union Ministry of Water Resources has for long been arguing for a shift of water to the Concurrent List without any serious expectation of its happening, but has now begun to pursue the idea more actively. The Ashok Chawla committee, which was primarily concerned with the question of rationalising the allocation of natural resources with a view to reducing the scope for corruption, was reported by the media to have recommended inter alia the shifting of water to the Concurrent List. There seems to be no such specific recommendation in the draft of the Committee’s report that one has seen, but the possibility is referred to in the text and there is an Annexe on the subject. These developments have revived the old debate.

Let us first be clear about the present constitutional position in relation to water. The general impression is that in India water is a State subject, but the position is not quite so simple. The primary entry in the Constitution relating to water is indeed Entry 17 in the State List, but it is explicitly made subject to the provisions of Entry 56 in the Union List which enables the Union to deal with inter-State rivers if Parliament legislates for the purpose. This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river. That enabling provision has not been used by Parliament. No law has been passed bringing any river under the control of the Union. Under Entry 56, Parliament did enact the River Boards Act 1956 providing for the establishment of River Boards for inter-State rivers, but no such board has been established under the Act. That Act is virtually a dead letter. The reasons are political, i.e., strong resistance by State governments to any enhancement of the role of the Central government.

Is the present constitutional division of legislative power relating to water between the Union and the States satisfactory? The Centre does not think so. None of the Commissions that has gone into the subject so far has recommended a change, largely because it seemed unrealistic. (The Sarkaria Commission thought that a change was unnecessary.)

The present writer had earlier argued against a move to shift water to the Concurrent List on two grounds. First, a move to put water into the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the States. Secondly, an entry in the Concurrent List will mean that both the Centre and the States can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power. It seemed sensible to use that enabling provision, and also re-activate the River Boards Act, rather than pursue the difficult idea of a constitutional amendment to bring water on to the Concurrent List.

It will be seen that the above arguments against pursuing the idea of moving water to the Concurrent List are practical ones: the political difficulty of doing so, and the fact that the Centre can do certain things even without such a shift. That does not amount to a statement that there is no case for the shift. Let us ignore political and practical considerations, and ask: if the Constitution were being drafted for the first time now, where would one put water? The obvious and incontrovertible answer is: in the Concurrent List. There are several reasons for saying so.

First, it appears that to the Constitution-makers ‘water’ meant essentially river waters and irrigation. This is quite evident from the wording of the entries. In that context, it might have appeared appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. However, even from that limited perspective, a primary rather than a secondary or exceptional role for the Centre might well have been warranted: most of our important rivers are in fact inter-State, and inter-State (or inter-provincial) river water disputes were an old and vexed problem even at the time of drafting the Constitution.

Secondly, that limited perspective is in fact inadequate. Water as a subject is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, wetlands, and so on, are all forms of water and constitute a hydrological unity; and there is more to water than irrigation. If the environmental, ecological, social/human, and rights concerns relating to water had been as sharply present to the makers of the Constitution as they are to us, it seems very probable that the entries in the Constitution would have been different. (Incidentally, there are serious concerns now relating to groundwater — rapid depletion of aquifers in many parts of the country, the emergence of arsenic and fluoride in many States, etc. — and it is interesting that there is no explicit reference to groundwater or aquifers in the Constitution.)

Thirdly, the Constitution-makers could not have anticipated the sense of water scarcity and crisis that now looms large. It is clear that while action will be called for at the State and local levels, the perception of a crisis casts a great responsibility on the Centre: national initiatives will definitely be called for.

Fourthly, a new factor not foreseen even a few decades ago is climate change and its impact on water resources. This is a subject which is still under study and research, but it is clear that coordinated action will be called for not only at the national level but also at the regional and international levels. The Central government has necessarily to play a lead role in this regard.

The theoretical case for water being in the Concurrent List is thus unassailable. Of all the subjects that are or ought to be in the Concurrent List, water ranks higher than any other. The practical and political difficulties of shifting it there remain, but these would need to be overcome.

However, if those difficulties prove insuperable, then we have to settle for the second best course (a modest one) of greater use by the Centre of the legislative powers relating to inter-State rivers provided for in Entry 56 in the Union List, and re-activation of the dormant River Boards Act 1956. It would further have to be supplemented by recourse to the wide-ranging provisions of the Environment (Protection) Act 1986 (EPA). It is of course possible for Parliament to legislate on a State subject if a certain number of State assemblies pass resolutions to that effect: that was the route followed in the case of the Water (Control and Prevention of Pollution) Act 1974.

At present, the EPA is being extensively used by the Centre for water-related action. For instance, the Central Groundwater Authority was set up in 1998 by a notification under the EPA. More recently, when it was considered necessary to set up a National Ganga River Basin Authority this was done under the EPA, instead of following the right but difficult course of enacting legislation under Entry 56.

Finally, putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case. The subsidiarity principle, i.e., the principle that decisions must be taken at the lowest appropriate level, will continue to be valid.


What is a forest? India yet to define

New Delhi, June 4 (IANS) Most people have read the definition of a “forest” at some point or another, but in India its legal definition is still evolving within the four walls of the environment ministry.

According to the ministry, work is on to come up with an “ecologically sound and socially desirable definition of forests and forestry”.

“We are still working on the definition of forest and will let you know once we finalise it,” Brij Mohan Singh Rathore, joint secretary on the Green India Mission in the environment ministry, told IANS.

Rathore, however, denied commenting on what is delaying the definition. According to the ministry’s official document, the Indian Forest Act, 1927, does not define the forest, and the legal extent of forests depends upon the process of notifications.As of now what is followed is based on the Supreme Court order which defines forest as given in the dictionary, say experts.

“The term forest doesn’t have any definition in India. It is defined on the basis of the 1996 Supreme Court order which says anything should be forest if it meets one of the two definitions – either the dictionary definition or land recorded as forest on any government record,” Shankar Gopalakrishnan from the Campaign for Survival and Dignity, an NGO working for forest dwellers, told IANS.

According to Gopalakrishnan, it is a vague definition and provides huge scope for misuse of power by the authorities. “The interesting part is that it gives space to the government to use draconian powers at its convenience and mark an area as forest or non-forest,” he added.

The ministry’s documents further said recent concerns about climate change also require greater clarity regarding definition of forests for the purpose of understanding opportunities and obligations under the global carbon sequestration regime.

“In this context, the ecologically sound and socially desirable definitions of forests and forestry require to be examined in the Indian context keeping international commitments and different orders of the apex court of the country into consideration,” it added.

The ministry some years ago had asked the NGOs to suggest some definition of forests but has rejected all the suggestions. “It’s in fact a funny situation and entangled between a couple of things. I think it is better to have satellite imagery and fix a bar on the dimension of a forest and then calculate land under forest and non-forest area in the country,” said Yogesh Gokhale, a fellow with the forestry and biodiversity division, the Energy Research Institute (TERI).

Even without a definition, the Prime Minister’s Council on Climate Change in February approved the country’s forestry mission – Green India Mission – to fight climate change.

The mission, one of the eight under the National Action Plan on Climate Change (NAPCC), projects an ambitious target of 10 million hectares of forest cover by 2020 at a cost of Rs.460 billion ($10 billion).

For the first time, this year India is also the global host of United Nations World Environment Day June 5 and the theme is ‘Forests: Nature at Your Service’, which celebrates the multitude of services – providing clean air, housing rich biodiversity, supplying water – performed by the world’s forests.


Reframing of Welfare Rights under the Indian Constitution

The Indian Constitution preamble

Image via Wikipedia

Inaugural speech by Hon’ble Shri S.H. Kapadia, Chief Justice of India at the First Lecture of the Justice Krishna Iyer Lecture Series  at The Gateway Hotel, Ernakulam, Kerala on 1st November, 2010

From Theory to Reality


(i)      Introduction

Constitutional Courts are forums of principles.  Development of constitutional law takes place when jurisprudential expansion of the contours of the rights enumerated in Part III of the Constitution and Part IV of the Constitution is undertaken.  Jurisprudential development embodies evolving concepts like inter-generational equity in environmental laws, modern ultra-vires doctrine based on rule of law, the precautionary principle in environmental laws, the polluter pays principle in environmental laws and the bare minimum provision principle in resource allocation disputes (socio-economic rights).  Since such jurisprudential expansion of law is an on-going process from time to time, we need to revisit constitutional values like welfare rights.  That is the reason why we have selected the theme of this lecture to be “Reframing of Welfare Rights under the Indian Constitution.

(ii)     Sustainable Development

Environment is a national asset.  It cannot be treated as an asset to be exploited by the Govt(s) for revenue purposes.  It incorporates the principles – “Polluters Pay” and “Precautionary” principles.  Its object is inter-generational.  These come under the doctrine of “sustainable development” which ensures inter-generational equity (better quality of life for present and future generations).  Between 1927 (when the Indian Forest Act came into force) and 1980 (when the Forest Conservation Act came into force), “forests” were treated as assets to be exploited for revenue.  However, with the enactment of the Forest Conservation Act, 1980, “forests” are to be preserved.  The object is to protect “nature” on whom our survival depends.  Natural resources are brought into Article 21 by invoking the doctrine of Public Trust.  Thus, “precautionary principle”, as an aspect of doctrine of sustainable development, is no more a political principle but a constitutional principle in our jurisprudence.  This is what I call as “development of law”.  The consequence of such an interpretation is that absence of legislation is no hurdle.  It is important to note that when a right in the form of basic human value or where the concept is given recognition of a constitutional value, constitutional adjudication principles steps in which is much wider in its ambit as compared to norms under administrative laws.  Lastly, I believe that “laws” constitute response to life.  The doctrine of “sustainable development” is all about balancing of rights.  Conflict arises – when principles intersect.  Substitution of “environmental capital” by “man-made capital” is impermissible once environment is read into Article 21.

(iii)         Problems in implementation of the above principles

(a)      Multiple definitions of the words “sustainable development”.  Difficulties in ascertaining the substantial meaning of the words “polluters pay principle”.  When have they to be applied?  In some cases, economic considerations may outweigh environment consideration and vice-versa.  The Supreme Court of India may have the authority to give weightage to these considerations.  However, the question is – should it?  How to balance these principles which intersect?

(b)      Are these “legal” or “political principles”?  The Supreme Court has given legal recognition but problem is due to multiple definitions of “sustainable development”.

(c)      In most countries (except India), they are not recognized as legal principles; though approach is present.  According to WTO Appellate Tribunal, Courts should look at the above principles in the specific context.  The reason seems to be that although enactments like the Forest Conservation Act, 1980, the Environment (Protection) Act, 1986 regulate human activities, these Acts give wide discretionary powers to the Authorities under the Act(s).

(d)     The Threshold Test – when to apply the Precautionary Principle.  Neither the Environment (Protection) Act, 1986 nor the Forest Conservation Act, 1980 provides for it.  If so, whether a successful judicial review could be brought? The view in some of the countries is that these principles are to be kept in mind by the executive decision makers as the principles relating to environment should be the responsibility of the Executive and not the Courts and that judicial review should be left to extreme cases because the provisions of the Forest Conservation Act, 1980 and the Environment Protection Act, 1986 are symbolic or that these provisions be monitored through procedural requirement.  In this connection, we must keep in mind the difference between judicial enforcement where the Court is the primary tool and the court’s supervisory role of administrative programmes.

(e)      None of the Acts create criminal or administrative offences in relation to sustainable development.  The duties in the two Acts are directory.


(i) Introduction

Ideas which pretend to be universal are historical delusions.  As times change our premises and assumptions about the context of the Fundamental Rights will change.  What is made of currently accepted rights in each country and each generation by its courts is itself a function of time and place.  Even the so called certainties of law change constantly.  That is why it is said that debates bring about clarity.

In recent times, courts are called upon repeatedly to adjudicate in complaints over the failure of the State Governments and local authorities to meet the welfare needs of citizens.  In such cases, the defendant tolls the bell of tight resources.  Time has, therefore, come to examine the role of the courts in resolving fundamental tensions between the welfarist principles embodied in the Constitution and the legislations for the delivery of public services, on the one hand, and the policy of financial cost-cutting, on the other hand.  Cases which come in PIL often question the relevance and appropriateness of rights-based adjudication in welfare needs context and the reluctance of Courts to intervene in the resolution of resource allocation disputes even where Fundamental Rights are engaged.

(ii) International Views

With economic and financial meltdown, a debate has ignited in US and UK in recent years over the extent to which the doctrinal fairy tale of the ultra vires and the judicial interpretation of statutes “in accordance with the intention of the Parliament” could provide a credible theoretical basis for the legitimacy of the jurisdiction of courts on an application for judicial review.  Instead an alternate view is posited that the basis of the jurisdiction in administrative review lies in the need to vindicate the rule of law, by giving effect to Fundamental Rights embodied in the Constitution.  The problem is that courts with ultra vires paradigm of review have set limits around their own powers to review in cases where issues of resource allocation are raised.  In the process, courts have devised doctrine of non-justiciability of resource allocation.

(iii) Problem of enforceability

Therefore, the question is – to what extent courts should be prepared to apply a rights-based approach to the welfare needs disputes, even where the recognition and enforcement of the right in question would necessitate financial expenditure on the part of authorities?  Are appeals for a broader rights approach of any relevance to claims where rights to medical services and educational services are at issue? In India, the personal income tax as % of GDP is only 2.2%.  Should this aspect be taken into account by the Courts when resource allocation issues are raised as a defence before them and, if so, in which cases they should not be factored in?

Making of normative laws or judicial decisions without their capability of being enforced amounts to a futile exercise and this is the paramount reason for reframing of welfare rights as rights to “minimum provision” rather than right to equal access to public goods.

To what extent will courts be required to alter their approach to the resolution of Welfare Needs Disputes?  The approach adopted by Courts so far to resource allocation disputes reflects their affinity with statutory – based paradigm of review.  The two principal conceptions of judicial review are ultra vires and rights.  These conceptions shape the response to welfare needs disputes.  Broadly stated, the purpose of judicial review is the control of discretion in accordance with the rule of law.  It is argued that since Courts have neither the competence nor the authority of an expert, they must exercise restraint, which is self-imposed.  This is the doctrine of non-justiciability of resource allocation.  The question is – how to enforce values embodied in Article 21 (example: every citizen is entitled to clean environment which is culled out by the Supreme Court of India) in the absence of statutory enactment?  Ultimately, we must remember that judicial review is founded not only on a need to control abuse of power and protect individuals but also that its purpose is to promote individual rights.  Ultimately, the Higher Courts in India are forums in which principles are formulated.  While formulating principles, the “doctrine of reasonableness” has to be kept in mind.  One must also evaluate the consequences of such formulations (including enforceability).

(iv) Discrimination in terms of Material Deprivation

Under Article 21 the State must not only refrain from taking life but also it must take steps to safeguard life.  Lack of  finance  as  a defence cannot be relied upon to preclude any statutory duty.  To permit a local authority to avoid performing statutory duty on the ground that it prefers to spend in other ways is to downgrade a statutory duty to a discretionary power.  Therefore, the doctrine of non-justiciability of resource allocation cannot apply to challenges founded on breach of statutory duty.  This is one way of reframing of welfare rights.  The other way is to understand the claims of wealth discrimination as claims of material deprivation, that is, as claims of inadequate rather than unequal provision of basic goods. This is because equality is not a free standing principle. It has to be seen in the context of the facts of each case which comes before the courts. Therefore, application of welfare rights in resource allocation disputes needs to be revisited. A welfare right is an affirmative constitutional right to particular social goods such as “education, healthcare, food security and the like”.

“The basic human needs must be taken not as window dressing but as a window into the decisions themselves.”

-Laurence Tribe

(v)      Rights-based approach

The question is – how far should the courts be prepared to go, directly or indirectly, to adopt a principled “rights – based approach” in order to force authorities to meet the welfare needs of the claimants?

The answer lies in Protecting the Poor. Poverty is the violation of human rights. The basic touchstone of the jurisprudence of the Supreme Court should be that “all persons are entitled to a minimum, not necessarily equal, level of provision with respect to certain public goods”.  The “judicial equality” be reawakened by sensitivity not to equal access but to a quite different sort of value or claim which might be called “minimum welfare”.  The paradigm shift should be from “discrimination” to “deprivation”, that is, in non-satisfaction of basic needs as and when they occur without which right to life of dignity in Article 21 can never be achieved.  Although discrimination and deprivation often go together, the two concepts differ as follows:

(i)           The remedy for deprivation does not lie in “equalization” of circumstances which remedy is sought in the case of discrimination.

(ii)          On “the minimum welfare” view a State’s duty to the poor is not to avoid unequal treatment but to provide basic human needs.  These basic needs “must be taken not as a window dressing but as a window into the decisions themselves”.

(iii)  The minimum welfare view if laced with wealth discrimination then it will cloud our understanding because a doctrine against wealth discrimination would be too broad.  In that doctrine, there would be difficulty in distinguishing the needs of the poor from the claims of non-poor who may suffer wealth discrimination when compared to the rich.  Further, discrimination against poor may generate false hopes.  Thus, justiciable welfare rights should respond to claims of deprivation rather than discrimination.  Welfare rights would be justiciable relatively when conceived as claims of minimum provision rather than as claims of wealth discrimination.  This is what I mean by “reframing of welfare rights”.

In September 2000, the member States including India in the UNO unanimously adopted Millennium Declaration.  We have eight enumerated goals including minimum level of medical assistance, potable drinking water, reduction of poverty through minimum wages and reduction in unemployment as well as through implementation of employment guarantee schemes, universal primary education, gender equality, empowerment of women, combating HIV/ AIDS and environment sustainability.  The basis of these goals, if carefully analyzed, is based on the doctrine of discrimination in terms of material deprivation.  This is where Reframing of Welfare Rights as a concept comes in.

(vi)    Conclusion

Thus, by emphasizing “deprivation”, Courts do not issue normative declarations of welfare rights or injunctions to create new welfare programmes.  Instead, the Court plays an interstitial role within an existing legislative scheme, invalidating those eligibility criteria which are unrelated to basic needs of the complainant.  In attacking the ills of poverty, claims of wealth discrimination are better understood as claims of material deprivation – that is, claims of inadequate rather than unequal provision of certain basic goods.  Thus, we need to articulate “welfare rights” in material deprivation, not unjust discrimination.  This will provide an enduring insight and objective criterion on Protecting the Poor.  This is what I mean by saying “reframing of welfare rights”.

“Go from village to village, do good to humanity and to the world at large. Go to hell yourself to buy salvation for others. ‘When death is so certain, it is better to die for a good cause.’”

-Swami Vivekananda

’60 yrs on, people don’t have clean drinking water’

Dhananjay Mahapatra, TNN, Sep 21, 2010, 03.02am IST

NEW DELHI: Why is there no provision for clean drinking water for citizens in public places like bus stands even though the government has allowed kiosks to come up and sell bottled water? Is right to clean drinking water not part of right to life guaranteed under Article 21 of the Constitution? These questions were raised in a PIL filed by NGO ‘Voice of India‘ which was on Monday entertained by a Supreme Court bench headed by Chief Justice S H Kapadia despite his known aversion to PILs. For the NGO, Dhanesh Iesdhan argued before the bench, which also comprised Justices K S Radhakrishnan and Swatanter Kumar, that if right to clean drinking water was a fundamental right then the governments and municipal bodies must take responsibility and supply it free to the citizens.

He said in those public places where there was provision for free drinking water, the quality of water and condition of storage tanks was so bad that it could be hardly termed safe for drinking purposes. The petitioner requested the SC to issue a direction to all authorities to supply water to every citizen in this country free of cost. The bench agreed with the demand of the petitioner and said: “We are fully conscious of the fact that even after 60 years a citizen of this country is not getting clean potable water.” But, it realised that it would be a gigantic task for the SC to monitor this PIL for implementation of free drinking water in all states and Union territories. “It is, however, not possible for this court to monitor and grant relief to the petitioner on all India basis,” it said.

The petitioner seeks relief essentially against municipal corporations in each state because supply of clean potable water is the function of municipal corporations and other local bodies. Even instances given in the annexures relate to different sectors/localities within the municipalities in different states,” it noted. “In the circumstances, we are of the view that the petitioner may move the concerned high court with regard to its grievances, particularly when such grievances are confined to municipal areas and to specific areas where citizens do not get clean potable water for drinking. We cannot monitor such local institutions under Article 32 of the Constitution,” the bench said.

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.


Pro-active judiciary can ensure justice to victims: Ex-CJI


The June 7 verdict on Bhopal has led to widespread shock. But instead of thrashing about one’s hands in anguish, there is need to light up the path of resolution. Former Chief Justice of India J S Verma gives his concrete suggestions on the way ahead.

The Bhopal gas tragedy was the worst preventable industrial disaster, and also an egregious violation of human rights of thousands. A settled principle of human rights jurisprudence requires “reparation” as the appropriate response to victims of gross violation of human rights.

The main forms of “reparation” are: restitution, compensation, rehabilitation, and guarantee of non-repetition. Duty to prosecute perpetrators is included in reparation; impunity is in conflict with this principle. A pro-active approach by the judiciary can ensure justice to the victims. Article 32 is the “soul” of the Constitution and article 142 is the additional plenary power given to the Supreme Court “for doing complete justice in any cause or matter”.

A more appropriate cause for discharge of the constitutional obligation is difficult to visualize. The established remedy of a “curative” petition under article 32 in the SC to set aside its own erroneous judgment is derived from it.

So, how best to do complete justice to the victims?

Criminal Liability: The trial court could not award a larger punishment under Section 304A, IPC (death caused by rash or negligent act). The charge under Section 304 Pt II, IPC (culpable homicide) was reduced to Section 304A by the Ahmadi Bench in Keshub Mahindra, (1996) 6 SCC 129. Some relevant extracts of findings and reasons (paras 20 and 22), are:

“Assuming that it was a defective plant and it was dealing with a very toxic and dangerous substance, the mere act of storing such a material by the accused in tank no. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings it could not be even prima facie suggested…that by operating the plant on that fateful night, they had the knowledge that by this very act itself they were likely to cause death of a human being.”

The want of ingredient of knowledge that the act was likely to cause death was the reason for reducing the charge from Section 304 Pt II to Section 304A, IPC. Brief reference to the then existing law is relevant.

The SC in Oleum Gas Leak case, (1987) 1 SCC 395, held: “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Ryland v Fletcher.”

The India law is, thus, stricter on the point. The criminal liability determined even under the less stringent English law in these circumstances amounts to manslaughter (culpable homicide).

In [1943]1 All ER 365(HL) the House of Lords held: “Where the act which a person is engaged in performing is unlawful, and if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that person by that act, then he is guilty of manslaughter. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that, the act inadvertently caused death, and (b) that it is unnecessary to prove that the accused knew that the acts were unlawful or dangerous. Cases of manslaughter may amount to little more than pure inadvertence and sometimes to less than murder.”

The underlying principle, that killing by gross negligence is constructive manslaughter under English law was reiterated by the House of Lords in [1976]2 All ER 365 (HL), to hold that a defendant can properly be convicted of manslaughter even if he did not foresee that his act might cause harm to another. Further in [2003]4 All ER 295 (CA) it was held that a person will be criminally liable for involuntary manslaughter, if the act results in death, even if the victim has consented to take such a risk engaged in some joint unlawful activity.

Thus, it is difficult to support the view taken in the above 1996 judgment, by the Ahmadi Bench; that too at the preliminary stage of framing charge when interference is rare. Conviction for a lesser offence than the charge framed is anyway permissible.