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ICT and the perception of a city

The advent of Information and Communication Technology has changed the perception of cities along with urban designing.

In the last two decades Information and Communication Technology (ICT) has modified all the three aspects of a city- economic, social and political. The evolution has been such that ICT has even changed how cities are perceived.

In a chapter in his book “Urban Theory and the Urban Experience”, Simon Parker explains how the perception of cities is getting closer to the idea conceived by sci-fi writers like H G Wells than the urban sociologists like Bruges. Parker expands on how the movement from the machine age to the information age has affected the organisation of capital, labour and space altogether. The most recent examples being the increase in the amount invested by the venture capital funds on startups completely based on internet. The growth of ICT has altered the idea of an industry from being a machine centric unit to a human centric unit. Hence the cities which were defined by the large industries in the neighbourhood have shifted to IT oriented spaces.

This evolution of the organisation and the economical structure has had a major impact on the cities. Parker has broken down the impact of ICT on  three broad areas- first, based on the impact on the physical cities, second, on the urban designing, and finally, how ‘urban’ is perceived in the cyber space.

The impact on physical city, the first broad area, is visible clearly from the present condition of the shopping malls. With the rise in the electronic retail options, the decline in the social relevance of malls as both the shopping and a public space is lost. The easy delivery services and low storage cost has worked in favour of both the buyer and the sellers. The impact doesn’t stop at economic factors though. The virtual world has also affected the relevance of city spaces. For instance, the once thriving fan clubs keeping the cafes in the city alive have all shifted to online forums. It is an outcome of these changes that has eventually penetrated into the current urban designing and planning.

Urban designing is an outcome of the city spaces and resources within the city. The nature of the key economic sector plays a vital role in designing how the public infrastructure is designed. For instance, in the case of Bangalore, the IT capital of India, there are various Tech Parks across the city serving to the needs of the booming IT sector. In other major cities like Mumbai, the financial capital, the expansion is based on the commercial complexes that house various head offices. 

Moreover, the increase in the ICT has modified the way traditional cities were perceived. For instance, with the increase in electronically mediated meeting places, the cost spent on the actual office infrastructure is reducing. The phenomenas like work from home or startups originating in the rented houses are becoming a phenomenon. Hence, the city now are designed to attract highly skilled labour into low cost city spaces that are highly connected both physically and virtually.

This interaction between city spaces and the virtual world is not one sided. As much as the virtual world has modified the perception of cities, the current urban theories and imagination also tend to seep into the virtual world. A common claim with the rise in ICT was of a decline in traditional dense cities. However, as also mentioned by Simon Parker, the rise in ICT is concentrated within the dense metropolis more than the rural ends. Hence, the proliferation of ICT is still reliant on the tradition features of a city like agglomeration economies, and highly integrated networks.

It is therefore evident that the rise in ICT might change the idea of a city from being a cluttered space covered with smoke from the nearby industrial belt to a set of residential and corporate structures relying on ICT to make the city work.

Devika Kher is the Program Manager for Graduate Certificate in Public Policy and a policy analyst at Takshashila Institution. Her twitter handle is @DevikaKher.

Image source: Telectroscope aperture at London City Hall showing Tower Bridge and Canary Wharf, Wikipedia 

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China’s Central Asia Engagements

America’s entanglement in Middle East has given China the perfect ploy to increase its footprint in Asia. The much-hyped Asia Pivot is in doldrums, with no policy framework or strategy to manage China’s rise. China clearly senses that its power projection in the Pacific is limited by the vast US presence and its network of allies, but in Central Asia, a viable power vacuum gives it the opportunity to expand its presence and influence. Central Asia is critical for China in three sectors, mainly trade, energy supplies and the fight against terrorism emancipating from Xinjiang.

 Energy Heaven and Russia’s Backyard-

After the collapse of the Soviet Union, Chinese companies ran into Central Asia to chart out energy deals to secure China’s growing energy demands. Most of Oil and Gas Pipelines run through Caspian Sea, Central Asia and Xinjiang, deep into China. Russia continues to be the main geopolitical player in the region, with negligible US presence. But off late, it has been facing subtle yet stiff competition from China. With economic sanctions in place, it is becoming increasingly difficult for Russia to ward off China’s economic power play. China-Central Asia trade was valued at 50 billion dollars in 2014, a figure exceeding Russia’s for the first time. The China-Central Asia network of pipelines could supply up to 55 billion cubic meters of natural gas to China every year, or more than half of China’s total gas imports.

Xinjiang Factor-

Increasing terrorist activities in Xinjiang has put China on a high alert. Influx of the majority Han Chinese in the region termed as ‘Hanification’, and failure of developmental projects has angered the ethnic Muslim population to rise against Xi’s ‘Strike Hard’ campaign. Since most of the oil and natural gas pipelines pass through this region, China is concerned about the security of its investments, and has in recent years, tried to subvert the religious practices of the people in Xinjiang. Uyghur separatists used to move around the porous borders with other Central Asian states to reach Afghanistan, though in recent years their movements have been highly regulated due to increased Chinese clampdown. China’s domestic law enforcement agencies are coordinating with their counterparts in the region to capture the terrorists and bring them to justice. Stability and security is the buzzword in this region. China maintains a premium on stability, and will go at lengths to protect its trade interest in the region. After the killing of a Chinese hostage by ISIS, China has stepped up its counterterrorism efforts. Pakistan has also played a critical role in assisting China. Andrew Small’s ‘The China Pakistan Axis-Asia’s New Geopolitics’ provides a detailed description of their coordination on selective counterterrorism.


Trade is a very important factor in China’s geoeconomic calculus in the region. President Xi Jinping unveiled the ‘One Belt, One Road’ initiative in 2013 to maximize trade and commerce between Europe and China, with Central Asia acting as a critical transit point. EU-China trade is worth around 580 billion dollars, with much of the trade traversing through Central Asia, a replica of the old Silk Road. During ancient times, China had become the most prosperous nation entirely out of trade with Europe and Middle East, and is using the old route to reemphasize its benefits to other nations. Furthermore, China wants to decrease its dependence on the lengthier sea route for trade with Europe, and hence has increased investment in infrastructure projects in the region. For this purpose, China has setup three institutions to fund the vast developmental projects in the region. AIIB, Silk Road Infrastructure Fund and New Development Bank will pool in a total of around 100 billion dollars, with the Silk Road Fund alone providing 40 billion dollars. They will mostly concentrate on connecting China to Europe through railway lines, roads and energy infrastructure. With slowing economic growth and output, OBOR is highly essential for China to succeed and provide the necessary impetus to bolster growth in coming years.


India is slowly engaging itself in Central Asia with oil deals and gas pipelines, the most notable being TAPI. But it continues to lag behind China in terms of investment and influence. India-Central Asia trade pegs at 800 million dollars, which would have been higher, if not for Pakistan. Lack of direct access to Central Asian region continues to be a hindrance in terms of trade, energy security etc for India. And as the Chinese say, India is still 2 decades behind them, more so in this region. Let’s see if India will be able to better engage itself in Central Asia, with its growing economic clout and energy demands. Prime Minister Modi visited all 5 Central Asian states in order to increase security cooperation and trade. As the TAPI pipeline finally materializes for India, another option for India is to let the pipelines pass from Xinjiang region through the disputed territory of Aksai Chin, though it is very less likely to get traction among policy makers on both sides. In choosing lesser of the two devils, China is a better option than Pakistan for energy trade.

Piyush Singh is Junior Research Associate at Takshashila Institution and a student of law at Hidayatullah National Law University, Raipur.He tweets at @Piyushs7

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To be or not to be

The civilian nuclear cooperation between India and the US is expected to be a key item on the US President’s agenda when he visits India later this month. It may be recalled that a contact group was established during Prime Minister Modi’s visit to the US last September to breathe fresh life into the dawdling deal. The group met for the first time in December last year and was slated to meet earlier this month. Among the proposals that appear to have emerged from their discussions on the subject of liability, one pertains to clarification of Section 46 of the Civil Liability for Nuclear Damage Act, 2010 (the Act) (http://www.thehindu.com/news/national/obamas-visit-may-see-breakthrough-in-nuclear-deal-kerry/article6781050.ece).  The section states that the provisions of the Act “shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt the operator from any proceeding which might, apart from this Act, be instituted against such operator.” The genesis of a request for clarification would be the considerable confusion around operator and supplier liability for nuclear damage.

The Act is a curious piece of legislation, unclear about its objectives and nowhere is this more evident than in the manner in which the civil liability for nuclear damage is sought to be dealt with. Consider the following. As against the higher standard of the tortious principle of “absolute liability” which the Supreme Court enunciated in the case of M C Mehta Vs. Union of India (AIR 1987 SC 1086) (which principle holds the defendant absolutely liable without any exceptions), the Act envisages in its preamble, and codifies in its provisions, a strict and no fault liability regime through channelling liability to the operator viz.,

–  the operator is strictly liable on a no fault liability basis i.e., without requiring to prove fault on the part of the operator in order to claim damages from him. However, the liability is limited in time as well as maximum compensation that can be claimed and subject to exemptions viz. the operator is not liable for the nuclear damage where the incident is caused due to a grave natural disaster of an exceptional character, armed conflict, civil war, hostility, terrorism or insurrection.

–  The Central Government assumes liability for amounts over and above that assumed by operator as well as with regard to the exemptions mentioned above. This is also capped in terms of time and amount.

On the other hand however, the Act derogates from the principle of channelling it purports to enshrine, and allows the operator a right of recourse to the supplier under Section 17 (read with Rule 24 of the Civil Liability for Nuclear Damage Rules, 2011.) Further, while the objective of the Act appears to have been to provide a special and exclusive mechanism to deal with civil liability for nuclear disasters, several provisions cast a doubt on this:

–  Section 9 states that whoever suffers nuclear damage shall be entitled to (as opposed to shall only) claim compensation under the Act. This could suggest the Act is not a sole and exclusive avenue for claimants.

–  Proviso to Section 5 (2)) states that any compensation payable by an operator for nuclear damage will not reduce its liability under any other claim for damages under other laws. In other words, it envisages claims under other applicable laws although this proviso, incidentally, is incongruous with the main provision in terms of its placement as the main provisions deal with exemptions to liability of operator. Unless of course the idea was that despite ring fencing the operator’s liabiliy under the Act, he would be open to claims under other laws in any event if they provide for liability regardless of such exemptions.

–  Section 46 adds to the confusion as it purports to save the operation of other laws. Thus, even if one were to argue that all liability is to be channeled through the operator with a limited right of the operator to seek recourse against supplier under the Act, the above provisions leave the door open for questions regarding suppliers’ liability, and the possibility and scope of operators’ liability, under other laws.

By most accounts, there seems to be little political will to amend the Act at this juncture and it remains to be seen if and how a clarification may be sought to be provided. Also, the constitutional validity of the Act has been challenged before the Supreme Court. Be that as it may, this may be an opportunity to revisit the liability regime and attempt a clarification albeit with caution, bearing in mind our experience of similar disasters and a clearer understanding of our own jurisprudence and our policy objectives in case of a nuclear disaster.


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Do nothing about the nuclear liability law

Arguably, there are several options available to policymakers when it comes to the Civil Liability for Nuclear Damage Act, 2010 (“Liability Act”). One of them, is to continue with status quo or the do-nothing option. There is no doubt that a decision is necessary on this front, either way. For instance, as Prime Minister Narendra Modi begins his visit to the US, some commentators believe that lack of progress on this front will “haunt” him during the visit.

It is interesting to note, that in recent times, agreements involving nuclear fuel have been cited as indicators of movement towards the resolution of this problem. It is unclear why this is the case, considering the scope of the Liability Act. Arrangements for nuclear fuel, unless tied together with supply of nuclear plants, are largely disconnected from the issue of nuclear liability bothering foreign companies looking for an entry into India. From all accounts, the problems connected to the Liability Act remain a concern for foreign companies.

It is difficult to find an indication that Indian policymakers are considering a radical shift in stance. When faced with public protests in light of reports that India was willing to dilute the requirements under existing law, the previous government was quick to clarify that no such proposal was on the cards. While the current government has shown commitment towards making India a business-friendly destination, there have been no indications that it plans to radically change existing law either. Leading policymakers in the previous government made it clear that there were no plans to diluting the liability clause under the Liability Act.

It is in this context that we must consider status quo or the ‘do-nothing’ option. Considering the potential in the Indian market, it is possible that foreign companies might blink first. For instance, the Russians seem to have found a way out in the short term. First, as discussed elsewhere, it is possible that new units may be “grandfathered” under old contracts. Second, working with Indian insurance companies to offset the risk is also another option before the companies. Whether or not this option is better than the others available to policymakers is another question. Additionally, it can also be argued that keeping foreign players out in this way may help develop India’s indigenous nuclear programme. Given the Modi government’s push in favour of indigenization in the defence sector, it is not impossible that such a move may be packaged similarly in case of the nuclear power sector, especially considering the fact that the Indian programme is based on use of thorium (relatively, an abundant resource in India). While it may seem like this approach has not worked till now, this is, by no means, an option not worthy of your attention.

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Dynamics of Bangladeshi Migration into India

By Unmukta Sinha

Why we cannot disregard or oversimplify the Bangladeshi migrant issue into one of merely international border violation

In my previous post, we saw that migration from Bangladesh into India has been a continuous practice with the adjective “internal” before Partition in (1947) and “international” post Partition. For varied reasons, ranging from politically induced ones, to ecological issues such as the Farakka case, to loss of land and livelihood for the poor subsistence farmers; from religious persecution to the recent environmental degradation and climate change; and at times for quotidian reasons such as people visiting their relatives across the border, tending to their farmlands to simply getting tools from their warehouse situated in the borderlands, Bangladeshis have been consistently migrating into India.

Existing estimates suggest that Bangladeshi migration to India occurs mainly from eastern side of India particularly into three bordering states—West Bengal, Assam and Tripura. The author of the referred link further suggests that these states serve as major “conduits of the flow”, meaning migrants who come into West Bengal, Assam and Tripura through the porous border migrate further into Bihar, Delhi and Rajasthan and even to Maharashtra. Thus, apart from being the recipients of Bangladeshi migrants West Bengal, Assam and Tripura also serve as transit destinations. The trigger being highly economic in nature, poor Bangladeshi migrants are driven in search of better avenues for jobs and livelihood. This extends the length of the vector of migration and reinforces the fact that India’s border security measures have to be tightened, however in a humane manner. The other major trigger for Bangladeshi migrants is environmental. Bangladesh being a low lying nation, prone to ravaging floods and cyclones that lead to land loss and induce a general insecurity from a lack of sustainable livelihood.

Those who migrate for economic reasons could be termed as ‘ecomigrants’ and those for environmental issues as ‘environmental migrants’. While the geographic impact of ecomigrants stems from merely crossing over international borders, environmental problems rarely follow political lines. What is being crossed by environmental migrants is the “environmental border” where land degradation stops or disaster doesn’t reach. This kind of logic may be extended unto all out-migrants. Political refugees must cross political borders, usually of a nation. Those fleeing ethnic violence must cross ethnic borders, which may not follow political boundaries. Migrants leaving due to economic decline must cross the economic bounds of the decline, which again may not follow the political border. Thus in the environmental context, Bangladeshi migrants suffering from the discomfort of climate change are forced to migrate to a more secure zone even if it requires entering into neighbouring states, particularly India, by simply crossing the “environmental borders” regardless of whether these borders coincide with international political borders or not. For these migrants it is hard to peg the responsibilities of migration on any one geopolitical, economic or social entity.

For instance, floods do not occur only because of heavy rain in Bangladesh, but rather because such precipitation outstrips water management systems in the upriver areas—heavy monsoonal rains in China, Arunachal Pradesh and Assam swell the Brahmaputra’s banks in Bangladesh causing untold damage. Likewise, salinity intrusion in southern Bangladesh follows not only from climactic reasons of sea-level rise or severe cyclones, but also from economic reasons of large-scale shrimp farming which requires acres of saline water ponds.

Further the impact of the illegal Bangladeshi migrant on the economy of the receiving state is significant, for he is willing to work long hours for a low wage, and is thus an invaluable asset. Thus it may be argued that if indeed there are about 12 to 20 million Bangladeshi migrants in India, there must millions of Indians employing them. This indicates that certain regions in India have employers who would accept illegal labour migrants which pulled the Bangladeshi migrants to choose these places over others to integrate into the black/underground economic sector—for example Assam and West Bengal as tea plantation workers or Delhi and Mumbai as domestic help.

Thus even a simple cursory look at the issue of Bangladeshi migration into India throws up a multitude of challenges, ones that the Indian nation, awake to this deluge of illegal entries, cannot disregard or oversimplify the issue into one of merely international border violation. The dynamics of this movement of people is deeply intertwined with not just the economics of the two nations and overlapping regions, but also environmental and climactic reasons. Thus India needs to introspect into what it can do to alleviate some of the triggers: diverting the excess waters of the Brahmaputra could reduce chances of flooding in downriver areas in Bangladesh, or issuing work permits to labour migrants would stop their persecution at the hands of their Indian employers and make them more accountable.

Unmukta Sinha has previously interned with the Takshashila Institution.

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The Plight of People Living in between Spaces—the Migrant Perspective

By Unmukta Sinha

Bilateral policies regarding Bangladeshi migrants must not forget the vicissitudes of the migrants

The border dividing the nations India and Bangladesh is not a straightforward geometric line drawn from point A to B. In some areas it snakes across villages, agricultural farmlands, temples, and even households. Some of the families who live literally on the borderland, the in-between spaces also known as “contact zones” straddling two nations, often have members technically cross borders on a daily basis.

This brings forward a whole new dynamic of what “triggers” the migrant to move/migrate and what “destination” he chooses. While in the domain of geopolitical discourse this quotidian movement of people across the fence would constitute cross border migration, for those residing in the “contact zones” it might not be as simple or straightforward. In many cases, the “trigger” could be as basic as fetching water from the well and the choice of “destination” as simple as his own backyard.

Cultural affinities, common language, co-mingling and a long shared colonial history in the regions of today’s West Bengal, north-eastern India and Bangladesh (before the post-Independence political borders were formed) provide shared identities and thus a relatively strong bond between these rather poor and powerless border residents, especially when they have relatives living across the river, or their children attending school which stands in the political territory of the other nation. To these so-called “migrants” the notion of borders as international, national or local barriers is merely a symbol of power deeply entrenched in geopolitical disputes, and one that hinders the dynamic of their day to day lives.

Therefore, the people living at the borders, more than often people living hand to mouth, are found constantly toying with their lives (even to the extent of risking their lives) in an attempt to dismantle this barrier both physically and psychologically. In order to combat their dire poverty, adults as well as children are often drawn into rackets of bootlegging and human trafficking. The smuggling of goods – usually fish, oil, mobile handsets, soaps, fake currency metals and small arms from the Bangladeshi side and cattle, fruits, fertilizers, pesticide, salt, spices, sugar and “bidi” (hand rolled local cheap cigars) from the Indian side is rampant.

Along the porous borders of India and Bangladesh there are numerous shanties where prostitution is a roaring business. Minor Bangladeshi girls moreover are coerced into contractual marriages with the Indian farmers or sold as slaves by the poor Bangladeshi families. Driven by the need of survival, families at large and women and children specifically are subjected to rapes, murders, extortion, slavery and sexual abuse on a daily basis.

Furthermore, daily wage labourers are treated inhumanely and are subject to the whims and fancies of the border security personnel. For residents of these borderlands whose households, family ties, livelihoods, or even daily chores were disrupted all of a sudden by the Radcliffe Line, these are valid questions. These narratives hint/point towards the continuous plight of the residents, the volatility of their lives and violation of their basic human rights—those whose physical villages, communities or households straddle two nations while their basic needs as well as psychological needs transcend these artificially constructed geopolitical barriers.

Thus, while coming up with bilateral policies regarding the Bangladeshi migrants the Indian government as well as its Bangladeshi counterpart must factor in these sensitive issues. The region although divided by an international border has been historically, culturally, linguistically, quintessentially one; thus the people residing officially on either sides of the border are one—extremely close-knit and hard to break. In an attempt to escape poverty or sustain themselves borderland quotidian “migrants” will find a way to cut corners by resorting to illegal means supported by their vast migrant network—the local gangs, political parties, border security personnel and friends and kinship across the borders. If the States must break this vicious cycle and sincerely address this issue, it is imperative to factor in the migrant perspective.

Unmukta Sinha has previously interned with the Takshashila Institution

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The Nuclear cake, with Kerry on top?

John Kerry’s visit to India was important in many ways. What was also on his agenda was the operationalising the Indo-US Nuclear Agreement. When Kerry announced his approval of the idea behind sabka saath, sabka vikaas, it was rightly understood the civilian nuclear programme would be an important part of discussions in New Delhi. Before his visit, policymakers were looking for ways to indicate India’s commitment to the programme, and more importantly, to opening the doors for foreign players.

Recently, the Indian government’s decision to ratify the IAEA Additional Protocol was highlighted widely. While it is, undoubtedly, a step which shows that India’s civilian nuclear programme is on the government’s agenda, it is unclear why it is being touted as a landmark event. This decision is, at best, one which shows that India is willing to stand by existing promises, as opposed to progress in this regard. Indeed, if India were to not ratify the Protocol, it would not make any sense at all, since the protocol was introduced especially for India after series of negotiations and merely relate to IAEA inspections of civilian reactors, leaving military ones untouched.

The decision to ratify the Additional Protocol itself has been widely appreciated, nevertheless, and it is likely that some stakeholders will now push for removal or a substantial amendment of the nuclear liability laws (even referred to as the “nuclear fog”) as part of continuing legislative ‘reform’. Prime Minister Narendra Modi is expected to discuss these matters extensively during his interaction with head of states from Japan, Australia, China and the USA over the next two months, and many are arguing the only way to truly move forward with foreign participation in India’s civilian programme is by addressing existing concerns relating to the liability law.

Previously, I have argued that some of the enthusiasm calling for major changes to the liability law is misplaced, especially considering how some commentators suggest that the current government’s majority in the house can be used to expedite the process. As concerns keep emerging about the manner in which the government may circumvent or dilute the liability law substantially, policymakers must ensure that while India must stand by promises which have been made before the international community and its people, the momentum is not exploited by some stakeholders to bring in legislative changes which may prove to be detrimental to India’s interests. Leading the charge, undoubtedly, will be the USA. What remains to be seen is whether the government can stand its ground on the issue of supplier liability (perhaps not acceptable in its current form).

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The Civil Liability for Nuclear Damage Act’s most problematic provisions involve the right of recourse? Think again.

After the Indo-US nuclear agreement was signed in 2008, the Liability Act’s right of recourse provisions were highlighted as potential deal-breakers. In my previous post, I discussed how the right of recourse itself does not seem to be problematic, but is definitely problematic in its current form. In any case, the relevant provisions have not only played a role in hampering international participating in India’s nuclear power industry, but have also (arguably) shifted the focus away from some of the other provisions of the Liability Act (Civil Liability for Nuclear Damage Act, 2010).

The decision to provide a wide definition of “nuclear damage” under S. 2(g) was appreciated across the board. Considering the events which followed the Bhopal Gas Tragedy, the decision to expand the definition of damage to include loss of life or property, personal injury, economic loss, loss of income, costs of preventive measures and even costs of measures of reinstatement of impaired environment, was received well. This was also largely in line with the definition provided under Article I (k) of the Vienna Convention on Civil Liability for Nuclear Damage (1997). Taken together with the wide definition of “nuclear incident” under S. 2(f), which included cases wherein there was a threat of damage as well, the framework in this regard seemed comprehensive.

So far, so good. What was added to the Liability Act, however, seemed to substantially affect the impact the Act would have on the public. S. 3 of the Act deals with the duty of the Atomic Energy Regulatory Board (AERB) to notify a nuclear accident. The use of the term “shall” indicates that the AERB is under an obligation to notify such an incident within 15 days. However, the proviso to this provision gives the AERB the power to avoid such notification if the “gravity of threat and risk involved” is found to be “insignificant”. S. 3(2) of the Act further allows the AERB to publicize such a notified incident “in such manner as it may deem fit”.

It is obvious, that while considering legislation such as this one, some room discretion has to be provided in light of specialized and technical nature of the activities involved. However, any possible concerns with provisions such as S. 3(2) can be laid to rest by providing an illustration laying down some of the means by which such an incident may be publicized.

S. 3(1), however, seems to be more problematic. First, because of the time period of 15 days provided for under the provision. The Committee on Subordinate Legislation had considered this question and came to the conclusion that such a time-frame may be required in view of complex nature of operations. While this in itself should not be problematic, the manner in which the government has dealt with public disasters in the past does not instill confidence. Second, the provision does not seem to have in-built safeguards or provisions to challenge decisions of the AERB, in case it arrives at the conclusion that a particular incident does not qualify as a nuclear incident under the Act. What does a resident from Kudankulam do when he is convinced that a radiation leak has affected him, his family or his property? The Rules under the Act (Civil Liability for Nuclear Damage Rules, 2011) also fail to remedy the situation. Rule 4 in fact further provides that the AERB itself will act on the operator’s report relating to the “occurrence of a nuclear incident” – such a report, under the Rule, has to be submitted “immediately” after any such incident.

Even if the notification itself could be glossed over as a formality by arguing that emergency and medical services would be supplied in any case, this issue can pose problems when it comes to the crucial issue of compensation. S. 13 of the Act deals with “Inviting application for claims by Claims Commissioner”. Any such application can be invited only “after the notification of nuclear incident under” S.3(1) of the Act. In short, if an incident has not been notified, you cannot put forth a claim for compensation even with clear signs of something as serious as radiation poisoning, under the Act. Considering how the object of the Act itself seems to include provision of “prompt compensation to the victims of a nuclear incident”, the manner in which this provision may impact citizens raises concerns.

Together with other provisions which I will highlight subsequently, these provisions make a strong case for a comprehensive review of the Act not restricted to the right of recourse provisions alone. Unfortunately, the right of recourse seems to be on the top of everyone’s agenda, relegating these equally (if not more) important issues to the background.

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Nuclear Liability Law: Right of Recourse

The right of recourse itself is not against India’s long-term interests

The crucial waiver from the Nuclear Suppliers Group (necessary to remove a crucial roadblock blocking supply of nuclear fuel) was secured on September 6, 2008. By February 2, 2009, India had signed an India-specific IAEA safeguards agreement as well. Why then, was there no rush of new nuclear power projects, as many predicted? If one had to cull out one reason why the Nuclear Liability Act has received flak internationally, it would be for the controversial right of recourse provision. S. 17 of the Civil Liability for Nuclear Damage Act, 2010 provides that the “operator” of a nuclear installation shall have such a right, where:

(a) such right is expressly provided for in a contract in writing;
(b) the nuclear incident has resulted as a consequence of an act of supplier or his
employee, which includes supply of equipment or material with patent or latent defects
or sub-standard services;
(c) the nuclear incident has resulted from the act of commission or omission of
an individual done with the intent to cause nuclear damage.

The fact that the presence of patent or latent defects can form the basis for extending liability to suppliers has several international stakeholders worried. Suppliers’ objections to this provision can be broken down into two aspects. The first is based on convention. Suppliers argue that as per settled international practice, liability must be borne by the operator alone. Indeed, this is backed by the international legal instruments like the Convention on Supplementary Compensation for Nuclear Damage. The second aspect is about problems which are more practical in nature, which may come along with such a provision. Consider a situation where a foreign firm supplies insignificant small engineering equipment (or even a pump) for a reactor. After handing it over to the operator (NPCIL, presumably) for commencing generation, what happens if there is an accident? Will the machinery manufacturer be forced to be a party to the dreaded Indian legal proceedings relating to claims of compensation? What kind or class of suppliers is covered by this provision?

Unfortunately, the Liability Act does not help us answer this question. While the term “operator” is defined under S. 2 of the Act, there is no such definition of a “supplier”. It is important for us to consider if it is wrong to include supplier liability within a domestic law, just because it may not be in line with international practice. At the time when such practices were introduced, there may have been several considerations before policy-makers. One among those was the understanding that support that had to be provided to an industry in its nascent stage, which highlighted the need to find a way to shield suppliers.

It is important (and indeed, possible) for India to re-consider if previous practices have to be followed in this regard. With a huge projected market size, there is no dearth of parties willing to be become a part of the Indian nuclear power success story. While that has translated into interest and pressure from firms, lobby groups and other countries, it can also give India an opportunity to define its nuclear policy on its terms (to some extent). While such a policy should not be vague or impose unnecessary burdens on the industry, what is equally true is that India should not shy away from using this opportunity to incorporate terms which are more in line with the times – focusing on today’s requirements and capabilities. It is also important to note, that while it can be argued that the current version of the Liability Act is not “in line” with international practice, it cannot be said to be “illegal” under international law.

Supplier liability in itself may not be problematic, if we can find a way to implement the idea in a proper manner. In fact, it is possible that the provisions may receive a better response from the industry with greater clarity in terms of policy.

However, the manner in which such a change has to be introduced is also important. The Vodafone experience is still fresh in the minds of investors, who will also be vary of any changes introduced via an executive action, as opposed to a legislative one. This is especially true because the introduction of the Civil Liability for Nuclear Damage Rules (2011) has not helped bring in any more clarity.

As the new government focuses on energy security, it would do well to use all bargaining chips at its disposal in order to ensure that India’s long-term interests are not sacrificed in order to secure short-term gains.

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India’s civil nuclear liability law

The Civil Liability for Nuclear Damage Act (hereafter “Liability Act”) was a controversial legislation introduced in 2010. While the surrounding controversy seems to have died down in light of other issues (Telangana/ upcoming Lok Sabha elections), it continues to remain a sore point for the government. Notwithstanding the fact that the Liability Act was intended to act as a tool to operationalise the Indo-US nuclear agreement, it seems to have had quite the opposite effect.

Recently, Prime Minister Manmohan Singh rated the conclusion of the Indo-US Nuclear Agreement as the best moment of his term[1]. Critics’ opinions have labelled the point as the worst moment for the country[2]. In order to analyse the Liability Act, it would also be important to consider the Indo-US Nuclear Agreement as a whole. The idea’s first form can be sourced from a joint statement issued on July 18, 2005 by the Indian Prime Minister and the President of the USA. Subsequent posts will provide an outline of the process which led to the Agreement and passing of the Liability Act in Parliament.

Today, critics point towards the negative impact of the Liability Act on two broad grounds. First, it is contended that it has failed to generate a tangible, positive impact on India’s domestic civilian nuclear power programme. This aspect is especially highlighted in light of the possible presence of equally efficacious alternatives which can help India achieve energy security. Second, it is also contended that these measures have de facto aligned India with the USA, and have led to a scenario wherein Indian foreign policy has been dovetailed to the USA’s policies.

With regard to the first issue, it has been argued that India possesses sufficient potential to harness energy from other sources, such as hydropower, solar power and wind energy. Additionally, it has also been pointed out that removing existing inefficiencies and redundancies from the system would raise output. For instance, it has been argued that India can add a significant chunk to its current power output by simply reducing transmission and distribution (T&D) losses – attributed to old, defective or faulty equipment. Some estimates suggest a loss of about 27%, while the adoption of international best practices can reduce this to about 7% – resulting in savings of about 40,000 MW.[3] For reference, the operational Kudankulam reactor generates about 1000MW.

With regard to the second ground, the concerns are more strategic in nature. Especially in light of the first ground, this issue assumes greater significance. Was this Agreement (and the Act) worth the costs that India will have to bear at the domestic and international front (especially considering the fact that these measures did not in any way guarantee participation of foreign fuel or reactor suppliers)?

Traditionally, India has shared a close relationship with countries such as Russia and Iran – countries which have helped India especially in fields such as defense and energy. For instance, before the US or Israel entered the picture, Russia was (by far) the biggest supplier of weapons and weapons systems to India. While ties continue to remain strong, the entry of other players has significantly altered the extent of India’s reliance. This can be seen in two ways – a diversified pool of suppliers reduces dependency on a single supplier. However, it may also change the way India is viewed internationally. Once a staunch Russian ally, will things change now? The Russians have always maintained (even before the NSG waiver) that they had complete faith in India’s non-proliferation record, which also translated into increased activity over the past decade[4]. Interestingly, the Liability Act has now given rise to some concerns in the Russian camp as well, in addition to those raised by almost every other supplier in the world[5].

Proximity with the USA also complicates matters for India’s long-standing and mutually beneficial relations with countries like Iran, with India’s increasing sensitivity to international pressure becoming apparent over the past few years. There are several other concerns as well – the impact on India’s indigenous research (thorium based/fast breeder reactors[6]), military nuclear programme and policy towards controversial instruments such as the NPT. The fact that the Agreement itself was seen as a strategic tool by the USA has been clear for quite some time now, and is underlined every now and then (with US officials expressing their intentions and assessing the impact on bilateral strategic ties)[7].

The Liability Act itself is problematic not just because of the manner in which it was introduced, but also (expectedly) because of its content. The provisions remain unsatisfactory for both the public, and the foreign supplier organisations. The Act places a cap on operator liability (which is, arguably, low considering the expected extent of costs involved with a nuclear accident), while also opening the possibility of extending liability to suppliers in case of patent/latent defects. International firms are especially concerned over the manner in which a supplier has been defined, potentially including a firm which manufactured a single pump, motor or assisted in design work. The Attorney General of India’s opinion – that the govt. may contract out of the liability provision, created quite a controversy before it was clarified that the government did not intend to do[8] (clearly, still not addressing the legal issue).

Several other problem areas have been identified – treatment of the parliamentary standing committee’s recommendations, provisions allowing the govt to grant exemptions from liability, standard of proof, jurisdiction of civil courts (except writ jurisdiction), role and powers of the Claims Commissioner, requirement for notification of nuclear accidents, among others. In this post, I have provided a background for the research project. In subsequent posts, I will discuss several important issues which are part of the project. As part of my research, I plan to assess:

  1. The terms of the Indo-US Nuclear Agreement and the manner in which it was negotiated
  2. The strategic impact of the Agreement and associated legislative changes (USA and India)
  3. Relevant provisions under the international civil nuclear liability framework
  4. Developments at the international front involving the IAEA/NSG
  5. Provisions of the Liability Act, extent of Parliamentary scrutiny and strategic implications
  6. Policy decisions/processes connected to the Agreement/Liability Act

[1] PM’s N-Deal that changed landscape of Indo-US ties stalled over Nuclear Liability Act, http://articles.economictimes.indiatimes.com/2014-01-06/news/45918562_1_india-us-ties-nuclear-liability-act-west-asia

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