Your riot was worse than mine

When politics and double standards take charge, it is the victims of communal violence who suffer, be they the Sikhs of Delhi, the Muslims of Gujarat or the Pandits of Kashmir...





31 March 2010
The Hindu

Your riot was worse than mine

Siddharth Varadarajan

India's polity has an unerring taste for the irrelevant. That is why the controversy over a sitting Chief Minister being summoned to answer questions about mass murder has made way for an unseemly debate about the morality of an ageing actor.

After his embarrassing, nine-hour appearance before the Special Investigation Team, one would have thought Narendra Modi presented a large enough target. Instead, the Congress has launched a full-throated campaign against Amitabh Bachchan for choosing to become a brand ambassador for tourism in Mr. Modi's State. The party has accused the Bollywood superstar of being indifferent to allegations of State complicity in the massacre of Muslims which took place there in 2002. And it has started boycotting him in a manner that is as crude and mean-spirited as it is ineffective and pointless. Thanks to this, the mass media are today discussing Big B rather than the Little Men whose role the SIT is now investigating.

As can be expected, the Gujarat Chief Minister is thrilled. The spotlight which was earlier on him is now being trained elsewhere. Instead of being forced to rally others to his own defence, Mr. Modi has happily mounted the barricades on behalf of Mr. Bachchan. In keeping with his party's fondness for technology and Islamophobia, he has blogged that the actor's critics are ‘Talibans of untouchability'.

If Mr. Bachchan is guilty of overlooking mass violence today, it is because equally illustrious gentlemen, including some industrialists, did the same when they declared Mr. Modi prime ministerial material. For that matter, the actor himself has done this sort of thing before. In his movies, Mr. Bachchan was a crusader for the underdog. In real life, he is attracted to the kind of powerful men he once fought on the big screen. His fans have a right to feel cheated. Political parties, especially the Congress, do not have that right.

The party finds fault with him for representing Gujarat in the wake of 2002. But in 1984, barely weeks after the blood in the streets of Delhi had dried, the actor accepted a Congress ticket for Allahabad and got elected to Parliament. “As a brand ambassador does he endorse or condemn the mass murder in Gujarat?” Congress spokesperson Manish Tiwari asked the other day, adding: “It is high time Amitabh Bachchan came out and said what his position on [the] Gujarat riots is.” Despite the party having ‘apologised' for its role in the massacre of Sikhs following Indira Gandhi's assassination, I doubt Mr. Tiwari or any other Congress spokesman will ever ask Mr. Bachchan what his position on the Delhi riots was or is.

But if the Congress prefers to forget the history of 1984, the BJP and its leaders act as if history ended that year.

In their telling, 2002 either didn't happen or pales in comparison with what preceded it. And so begins the sordid exercise of weighing the suffering of victims and, worse, of playing the plight of one set against another. Mention the suffering of the Muslims of Gujarat and the BJP will start talking about the plight of the Pandits, driven by terrorism from their homes in the Kashmir Valley in 1989 and 1990. Try talking about the injustice done to the Sikhs of Delhi and the Congress will insist on speaking only of Gujarat. And the minute the microphones in the studio are switched off, the politicians are quite happy to forget about the shared travails of all victims.

The reality is that the Delhi and Gujarat massacres are part of the same excavated site, an integral part of the archaeology of the Indian state.

Eighteen years separate 2002 from 1984. Eighteen is normally the age a human being is considered to have become an adult. Inhumanity also seems to take 18 years to fully mature. In an act of conception which lasted four bloody days, something inhuman was spawned on the streets of Delhi in 1984; by 2002, it had fully matured. Paternity for the ‘riot system' belongs to both the Congress and the BJP, even if the sangh parivar managed to improve upon the technologies of mass violence. Both knew how to mobilise mobs. Both knew how to get the police to turn the other way. Both knew how to fix criminal cases. Both knew what language to speak, even if one set of leaders spoke of a ‘big tree falling' and the other paraphrased Newton. Both had the luxury of not being asked difficult questions by criminal investigators. Until now.

There is one school of thought that Mr. Modi's summons and interrogation have come eight years too late. There is a lot of merit in that point of view. But the reality is that the call for a leader to render account for mass crimes committed on his watch comes 25 years too late. The veteran journalist, Tavleen Singh, said recently that if Rajiv Gandhi had been interrogated in 1984 about what happened to the Sikhs, Gujarat would not have happened. She is right. Had the courts and the entire edifice of the Indian state not failed the victims of 1984, many, many politicians, police officers and officials would have gone behind bars. Had that happened then, every leader would have been forced to think a hundred times about the legal consequences of instigating mass violence or allowing mobs to go on the rampage.

The debates on Mr. Modi over the past two weeks have been so incredibly divisive because neither the Congress nor the BJP is interested in a discussion on systemic remedies. Justice is about punishing individuals, rehabilitating victims and dismantling the infrastructure of communal terrorism. But our biggest parties want nothing to do with any of that. Gujarat 2002 should go unpunished because Delhi 1984 never saw justice, says the BJP. ‘No SIT ever interrogated Rajiv Gandhi so why is Mr. Modi now being interrogated?' is the party's self-serving refrain. On its part, the Congress is unwilling to incorporate in the draft Communal Violence Bill clear-cut legal provisions that could deter politicians and policemen from again abusing their power as they did in 1984 and 2002.

One of the questions the SIT was expected to ask Mr. Modi during his interrogation on March 27 was what exactly he said when Ehsan Jaffrey called him up on February 28, 2002, asking for help. The question is important because soon after the former MP put down the telephone, he was killed by a mob along with 58 other innocent people. I have no idea whether that question was put to Mr. Modi, let alone what his answer was. But when the same question was put to Jai Narayan Vyas, official spokesman of Mr. Modi's government, in a televised debate a few days ago, the answer was atrocious. Ehsan Jaffrey had been a Congress MP, said Mr. Vyas. “So I demand to know what the Congress party did to help him.”

There was, of course, nothing the Congress could have done to save the doomed member then. The BJP was in power in both Gujarat and the Centre. But the party has a chance to do something now: Pass a law with real teeth. It's been more than a quarter-of-a-century since a big tree came crashing down upon us. It is time for the earth to stop shaking.

U.S. can suspend reprocessing if ‘national security' is threatened

But text rules out differences on nuclear activities as grounds for suspension, specifies consultation process to reduce risk ...






31 March 2010
The Hindu

U.S. can suspend reprocessing if ‘national security' is threatened

Siddharth Varadarajan

New Delhi: The ‘arrangements and procedures' (A&P) under which India can reprocess U.S.-obligated spent fuel allow Washington to suspend reprocessing permission if it apprehends either a “serious threat” to its national security or to the physical protection of the facility where the reprocessing is taking place that makes suspension unavoidable.

But the A&P also specify a detailed consultation process similar to that contained in the Indo-U.S. nuclear cooperation agreement (the 123 agreement) prior to suspension. In the event of any suspension of reprocessing stretching beyond six months, the A&P envisage the payment of compensation “for the adverse impact on the Indian economy due to disruption in electricity generation and loss on account of disruption of contractual obligations.”

More crucially, the text, released by the two sides on Tuesday, contains an Agreed Minute prohibiting the U.S. from invoking serious national security concerns and suspending reprocessing because of differences with India on the nature of its peaceful or non-safeguarded nuclear activities or fuel cycle choices. The Indian side was keen to write these clarifications in because it does not want the future size of its unsafeguarded breeder reactor programme or stock of unsafeguarded plutonium to become grounds for suspension of reprocessing. The U.S. has also agreed not to invoke national security concerns for the purpose of securing commercial advantage or hampering India's peaceful nuclear activities.

The U.S. granted India upfront reprocessing consent in the 123 agreement finalised in 2007 but said this consent would “come into effect” when India established a safeguarded reprocessing facility and negotiated the arrangements and procedures under which U.S.-obligated spent fuel would be reprocessed. ‘U.S.-obligated' means spent fuel resulting from the use of American reactors or U.S.-supplied nuclear fuel.

During the reprocessing negotiations which commenced last year, three sticking points emerged. The first was Article 7 dealing with suspension. In the original draft, the article had just two paragraphs, granting the U.S. side fairly open-ended rights. In the final version, this article, including its associated Agreed Minute mentioned above, has been elaborated upon and now accounts for a quarter of the length of the A&P. The Indian side is satisfied with the protection it has built in and is confident Washington will not be able to take any decision to suspend reprocessing lightly or for frivolous reasons.

The second obstacle was the number of facilities the A&P would apply to. The U.S. wanted to limit matters to just one facility while India spoke of multiple facilities. Finally, there were differences over the nature of the “consultation visits” that U.S. officials would be allowed to make to the reprocessing facilities, given Prime Minister Manmohan Singh's assurance that there would be no American inspectors “roaming around” Indian nuclear facilities.

If the suspension conditions have been narrowed, the compromise on scope is that the A&P will cover reprocessing at two new national facilities dedicated to reprocessing safeguarded nuclear material under International Atomic Energy Agency safeguards. Though this is less than the ‘multiple' facilities India wanted, the agreement covers “future expansion, modifications, renovations or additions” to the two facilities, meaning total reprocessing capacity at the two sites can be augmented. Secondly, Article 1(4) says the U.S. “understand[s] the need for sufficient indigenous Indian capacity to reprocess … under IAEA safeguards, U.S.-obligated nuclear material … Based on this understanding, the Parties agree to pursue the steps necessary, consistent with their national laws, to permit reprocessing … at one or more new additional national facilities in India.” Unless otherwise agreed, the same A&P would apply to the new facilities.

As for American officials visiting the reprocessing facilities, Article 4 allows for “consultation visits” but only in accordance with an Agreed Minute which tightly lays down what these visits will entail. After one visit within six months of the facility commencing operations, a U.S. team of up to 10 persons will be allowed in once every five years to exchange views and consult with the Indian side on the implementation of physical protection measures and storage as mandated by the IAEA. Unlike IAEA safeguards inspectors, the U.S. team will not be allowed to use equipment and access within the facility shall be restricted by India “in order to protect sensitive locations and equipment … as well as sensitive information.”

In the initial draft, this article used ambiguous language to the effect that the exchange of information “may include visits by a U.S. team.” India took the view that ambiguity worked against it and that it would be better to nail the specifics of the visits down to precise parameters. With a “serious threat” to the facility's physical protection one of the grounds under which the U.S. can suspend the A&P, the Indian side felt it was best to be transparent about the protection measures the facility was implementing. Since the agreement allows consultation visits, any allegation made by American think-tanks or legislators about the lack of proper physical protection at the reprocessing facility could be more easily refuted.

The A&P also provide for an additional safeguard measure that is not part of the IAEA's standard playbook. If the IAEA so requests, India undertakes to incorporate an on-site laboratory to perform destructive analysis of process samples required by the IAEA safeguards approach. Such a lab would be paid for and operated by the IAEA. None of this would be a burden on the Department of Atomic Energy, say Indian officials.

All told, Indian officials are satisfied with the reprocessing deal. “The agreement speaks for itself” said an official, adding that it did not change India's position on any issue.

Police officer to testify against Advani in Babri case

Anju Gupta, a police officer who was assigned to keep track of L.K Advani's movements and meetings, will stand as a witness against the BJP leader in court...





25 March 2010
The Hindu

Police officer to testify against Advani in Babri case

Siddharth Varadarajan

New Delhi: A police officer present at the scene of the Babri Masjid's demolition in 1992 will take the witness stand in a Rae Bareli court on Friday as a witness for the prosecution against L.K. Advani and other sangh parivar leaders accused of inciting violence 17 years ago.

Anju Gupta, who joined the elite Indian Police Service in 1990, was posted as Mr. Advani's personal security officer during the period when the Bharatiya Janata Party was bringing its supporters to Ayodhya for ‘kar seva' at the mosque, claimed by the sangh parivar to be the birthplace of Lord Rama. As PSO, her job was to stick close to the BJP leader and keep track of his movements and meetings. Shortly after the mosque was destroyed, she deposed before the Central Bureau of Investigation, which was tasked with investigating the crime and prosecuting those responsible.

There were more than a dozen senior officers from the IAS, IPS, Provincial Civil Service and Central paramilitaries present in and around the site but none was willing to make a statement to the CBI outlining what they saw on that fateful day. The one exception was the young Anju Gupta, who made a detailed statement describing what various BJP leaders, including Mr. Advani, were saying and doing while the frenzied mob assembled by them demolished the 16th century mosque.

Ms. Gupta's statement formed a crucial part of the criminal case the CBI eventually filed against Mr. Advani, Murli Manohar Joshi, Uma Bharti, Vinay Katiyar, Ashok Singhal, Giriraj Kishore, Vishnu Hari Dalmiya and Sadhvi Ritambhara in 1993.

The eight were initially charged with various sections of the IPC, including 120B (conspiracy), 147, 149, 153A, 153B and 505, mainly dealing with inflammatory speeches and incitement. “I did not see these leaders making any attempt to prevent the kar sevaks from demolishing the disputed structure,” the CBI chargesheet quoted Ms. Gupta as saying. “On the fall of the domes, all the said eight accused and Acharya Dharmendra etc were congratulating one another. All were expressing happiness.”

The conspiracy charge was dropped and in 2003 Mr. Advani was discharged entirely. In July 2005, however, the Lucknow bench of the Allahabad High Court reinstated the charges of intentionally provoking people into rioting, arson and indulging in rioting with intent to create disorder, as well as creating discord among communities.

Some five years later, the Rae Bareli court has made little progress in concluding the case. But with Ms. Gupta — who is now an officer with the Research & Analysis Wing — set to take the witness stand, the trial is likely to come alive again.

Postscript:
No BJP leader tried to stop Babri demolition: police officer (The Hindu, March 27, 2010)
Prosecution banking on tricky IPC section to get Advani (The Hindu, March 27, 2010)
IG Faizabad warned of demolition possibility: Anju Gupta (The Hindu, March 27, 2010)

The buck must stop at the very top

The SIT’s decision to question Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the doctrine of command responsibility ...






20 March 2010
The Hindu

REALITY CHECK
The buck must stop at the very top
The SIT's interest in questioning Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the command responsibility doctrine...

Siddharth Varadarajan

The Special Investigation Team's decision to summon Narendra Modi marks the first time any judicial or quasi-judicial body has seen fit to ask the Gujarat Chief Minister what exactly he was doing when murderous mobs took charge of his state in 2002.

From February 27 — when the Sabarmati Express was attacked by a mob at Godhra — to mid-March, by which time the worst of the targeted violence was over, more than 1,500 Muslims lost their lives across Gujarat. The Justice Nanavati Commission is probing the matter and criminal cases stemming from the violence are at various stages of completion. Despite these, there has, as yet, been no proper accounting for the mass killing and destruction of property. Disturbed by the lack of investigative and prosecutorial enthusiasm within Gujarat, as evidenced by speedy acquittals of the accused, the Supreme Court transferred two cases outside the State. It set up the SIT to help with the probe into a number of high profile incidents. It also put the State government on notice for its failure to punish the guilty, describing Mr. Modi and his colleagues as “modern day Neros” who chose to look the other way while Gujarat burned.

Any society built on the foundations of law would not require the widow of a victim to petition the highest court of the land in order to investigate the reasons behind the state's failure to protect the life of its citizens during those fateful days. The fact that the apex court's intervention was necessary is itself an indictment of the Chief Minister, under whose watch such large-scale death and destruction took place, and under whose leadership, eight years on, justice continues to be elusive.

The petition filed by Zakia Jaffrey and the Citizens for Justice and Peace asks questions that any honest investigator probing the violence would want to ask. At stake is not so much the individual guilt or innocence of Mr. Modi but the need to unearth and dismantle a system of rule which could allow so many innocent people to be massacred.

The petition, pursuant to which the SIT now wants to question Mr. Modi, began life in 2006 as a criminal complaint filed with the Director-General of Police in Ahmedabad by Ms Jaffrey and the CJP. They wanted a First Information Report to be registered against 62 individuals, including Mr. Modi, his ministers and senior police officials and bureaucrats for their role in the 2002 violence. With the police refusing to file an FIR — a requirement under Indian law — the petitioners approached the Gujarat High Court and then the Supreme Court, which last year asked the SIT to look into the matter.

Two categories

The questions posed in the petition fall into two categories. One focuses on the administration's sins of omission, the other on its alleged acts of commission. Why were the bodies of the victims of Godhra train carnage, all but one of whom were Hindu, brought to Ahmedabad, for example, and why were they paraded in the street? Prima facie, that decision, which was cleared at the highest level, seems to have been designed to inflame communal passions. The petition asks whether senior police officials told the Chief Minister or higher officers in writing about the likely repercussions of parading the bodies. Why was no preventive action taken when a bandh call had already been given by VHP? Why was the Army not called out immediately and why was there a delay in its deployment when it finally reached Ahmedabad? By themselves, none of these questions implies the commission of a crime. But the answers they elicit would obviously provide clues for further investigation.

The petitioners also asked for an investigation into reports that the Chief Minister had held a meeting in Gandhinagar on February 27 evening with senior officers to review the situation arising out of the Godhra incident. A former police officer, R.B. Sreekumar, has alleged in an affidavit that instructions were given to the police at that meeting to allow “Hindus” to “vent their anger” against the state's Muslims. The petitioners also charged collusion between the Modi government and the Vishwa Hindu Parishad -- whose leadership and cadre spearheaded much of the violence against the Muslims – and called for the telephone records of the Chief Minister and senior ministers and officials to be examined.

Some pointed questions

Besides asking the SIT to probe the existence of a conspiracy to unleash communal violence in Gujarat, the petitioners also sought answers to some pointed questions. Why, for example, was there was no response to the desperate calls for help made by Ehsan Jaffrey, the former Congress Member of Parliament and husband of Ms. Jaffrey, who was murdered at the Gulberg housing society in Ahmedabad by a mob along with 68 others on February 28, 2002?

Fearing attacks, many Muslims from the Chamanpura locality of the city had sought refuge in Ehsan Jaffrey's compound believing the police would adequately protect the former MP. As the mob outside grew more menacing, Jaffrey made phone calls to senior politicians and police officers asking for help. But to no avail. In the end, the mob broke in and slaughtered dozens of women, children and men, singling out the elderly Jaffrey for particularly brutal treatment.

One of those who went missing in the violence at the housing society that day was a 10-year-old Parsi boy named Azhar, later to become the subject of Parzania, a feature film on the riots. Last November, his mother, Rupa Mody, testified before a trial court in Ahmedabad that Jaffrey told her he had spoken to Narendra Modi too on the telephone about the threatening mobs outside his compound but the Chief Minister had refused to help.

The Indian Penal Code has powerful provisions dealing with conspiracy and the Prevention of Terrorism Act (which was in force at the time) also has sections which apply well to those responsible for the carnage. But at the heart of the ‘riot system' lies the vicarious responsibility of the political leadership. Both in Gujarat and in Delhi in 1984, when more than 3,000 Sikhs were massacred, the leadership knew mass crimes were happening under its jurisdiction. It could have stopped those crimes promptly but chose not to. Some leaders may even have directly facilitated the commission of those crimes by instructing the police not to act.

As an investigative arm of the Supreme Court, the SIT must be allowed to establish the broad facts about what Mr. Modi did or did not do during the violence. If its investigators find a smoking gun linking him directly or indirectly to the violence or the wider conspiracy to commit violence, one could expect an FIR to be lodged. In the absence of such evidence, the SIT may nevertheless establish the chief minister's vicarious responsibility. If the SIT concludes, for example, that the Chief Minister failed to take timely action to stop the violence and failed to discipline or punish police officers who refused to protect the life and property of those under attack – offences which arguably figure only as dereliction of duty in the IPC and which attract relatively light punishment -- the apex court would have the opportunity to pass judgment by bringing Indian legal practice in line with customary international norms.

Eight years after the Gujarat killings, it is surely time to ask how the Indian legal system could be strengthened so that future day Neros can be held strictly liable for their fiddling in the face of mass crimes. The proposed Communal Violence bill provides one such opportunity formally to embed the doctrine of command responsibility — holding superiors guilty, under certain circumstances, for the acts of those under their command. It also provides an opportunity to strip away the impunity provided to police officers and senior officials, whose acts of omission and commission allow terrible offences to be committed against vulnerable sections of the population. Unfortunately, the draft bill currently lacks such provisions, which means that had it been statute in 2002, it would not have deterred the perpetrators of the anti-Muslim violence in Gujarat. This is the basic test all justice-loving Indians must demand of the proposed new law.

To hesitate now will be fatal for Congress

What should have been a proud day for Indian women and men became instead a day of shame for the government and, by extension, the country...







9 March 2010
The Hindu

To hesitate now will be fatal for Congress

Siddharth Varadarajan

The disruption of parliamentary proceedings on Monday over the issue of women's reservation is an indictment of not just the misogynous legislators concerned but of the ruling Congress party as well, whose lack of political judgment, if not half-hearted commitment to the cause of women's empowerment, stood exposed.

In politics, there is a time for caution, hesitation and even cold feet but that time is before a particular course of action is chosen. Once a decision is taken, however, a wobble can prove fatal.

For better or worse, the Congress leadership decided earlier this year that it would do what no party or government had dared to do so far: pilot the constitutional amendment guaranteeing women one-third of all seats in the Lok Sabha and the State Legislative Assemblies through the thicket of male chauvinist opposition that has successfully blocked this historic initiative for more than a decade.

Notice of the government's general intent was served in President Pratibha Devisingh Patil's address to Parliament last month. And at some point during the past 10 days — perhaps as a strategy to deal with the flak generated by the oil price hike in the budget — the Congress decided the time to press ahead with this historic decision was now. A meeting of the Business Advisory Committee of Parliament was held and word was put out that a strategy for getting the bill passed in the face of any disruption had been worked out.

As a serious political party with more than 125 years of experience behind it, one can only presume the Congress took this decision knowing full well the associated risks and opportunities.

It knew, for example, that it would have the support of not just its partners in the United Progressive Alliance but also the Bharatiya Janata Party, the Left and a number of smaller parties like the AIADMK. Getting the required two-thirds majority in both houses of Parliament was, therefore, never an issue. It also knew that the Samajwadi Party and the Rashtriya Janata Dal would behave appallingly and violate every norm of parliamentary behaviour in their effort to postpone and derail the constitutional amendment. They had done it once earlier and would do it again. Finally, the Congress surely knew that the SP and the RJD — whose outside support to the UPA gives the coalition a comfortable buffer in the Lok Sabha — would withdraw their support should the government press ahead with the women's bill. Party managers presumably understood the consequences of this withdrawal as well: that the UPA would be reduced to a wafer-thin majority and would have to be on its toes during the debate on the Finance Bill, especially with the BJP and the Left threatening to move cut motions.

If despite these considerable risks, the Congress high command decided to go ahead with the Women's Bill, it did so for a very good reason. Unlike signature accomplishments like the Right to Information Act and the National Rural Employment Guarantee Act during UPA-I, the achievements of UPA-II so far are rather thin on the ground. Reservation for women could potentially do for the Congress today what the employment guarantee or loan waiver scheme for farmers did for it the last time. The party leadership, therefore, was ready to gamble on the Women's Bill, knowing that the strategic payoff from its passage would greatly outweigh the tactical headache its floor managers would have to suffer in order to get the budget approved by Parliament later in the session.

Thus on March 8, the 100th anniversary of International Women's Day, the stage was set for the Congress to strengthen its electoral hand and for India to make history. But what should have been a glorious day for the women and men of the country turned into a day of ignominy and shame for the nation. A handful of MPs were allowed repeatedly to disrupt the functioning of the Rajya Sabha, forcing frequent adjournments. And, in the end, the vote, which had been slated for 6 pm got postponed. There is now talk of an all-party meeting to be chaired by Prime Minister Manmohan Singh but all of this sounds depressingly familiar. Previous ‘all-party' confabulations on the subject, as during the prime ministership of Atal Bihari Vajpayee, always ended with a tiresome lament about the “lack of consensus” and the need for further consultations. If the Congress wobble continues, the March 9 meeting could well go the same way.

What is truly shocking about the Congress' failure to pilot the bill through as expected is the rationalisation that “forcing through a vote” or “not having a debate” would somehow have been undemocratic. It is one thing for the disruptors to make such a claim but when members of government give the same logic, one can only question their understanding of what democracy and deliberation actually mean. Parliament is the forum for debate and every piece of legislation, including the Women's Bill, must be thoroughly discussed. But discussion must follow rules.

The physical assault on the Rajya Sabha chairperson, Hamid Ansari, was intended to ensure that discussion never took place. If it was serious about democracy and women's empowerment, the government should have sought the use of the prescribed machinery for dealing with such disruption — eviction of the offending MPs by house marshals after due warning by the Chair — so that discussion could take place. At the time of voting, the evicted MPs could have been given another chance to come back to the house and vote, but with the clear understanding that marshals would be summoned again should they enter the well of the House or turn violent again. Sadly, none of this was done. There was no discussion and no vote. Instead of the Ayes having it, the ‘Hai-Hais' prevailed.

One wonders whether such disruptive tactics would be tolerated by a government or ruling party for any other issue. Will the Congress meekly submit if a handful of MPs behave the same way when, say, the proposed Nuclear Liability Bill is introduced? Or a constitutional amendment on some other issue? Unlikely. The fact is that the male-dominated political class as a whole has tolerated such disruptions for a decade because it concerns the empowerment of women and will lead to a direct reduction in its own power and privilege.

If it is serious about women's reservation in legislatures, there is a very, very narrow window for the Congress to make amends. That window will shut in a day or so. If the women's bill is not voted upon on Tuesday or Wednesday, its opponents will seize the initiative and matters will be postponed for another year or two at least. Already, the same sterile discussions have started on television about why there should be no reservation, about how ‘undemocratic' it will be that male MPs can no longer ‘nurse' their constituencies since seats would be allocated randomly into the women's pool.

If it is the fear of numbers in the Lok Sabha that stays the party's hands, Dr. Singh and Congress president Sonia Gandhi should steel themselves for four years of doing nothing. Having tasted easy blood, the SP-RJD, or some other combination of “allies”, will hold the government hostage to personal and sectional interests, paralysing decision-making. Instead of living in fear till the next elections, the party should have faith in its original gamble. For, in doing right by the women of India, it will also be doing right by itself.

Thought Policing or Fighting Terror: A Discussion

The Foundation for Media Professionals (www.fmp.org.in) is organising a debate on whether the Home Ministry, in the name of combating terror, is justified in arrogating the power to determine which scholars can be invited from abroad for conferences on 'sensitive' political and social subjects...

Thought Policing or Fighting Terror?
Home Ministry's curbs on foreign scholars

Auditorium, India International Centre, Lodi Estate, New Delhi

Speakers: Bharat Bhushan (Editor, Mail Today), Maja Daruwala (Director, Commonwealth Human Rights Initiative), Sanjoy K Roy (Director, Jaipur Literary Festival), Lydia Polgreen (Delhi Bureau Chief of New York Times), Kanwal Sibal(former Foreign Secretary), G K Pillai (Union Home Secretary) and Siddharth Varadarajan (Delhi Bureau Chief of The Hindu)

Tuesday, March 9, from 10.30 am to 1 pm, followed by lunch

The debate and lunch are open to everybody.

Nuclear liability law has sting in tail for the U.S. too

The draft Indian legislation opens a window for claims against U.S. companies but the cap on liability of Rs. 500 crore means any fight will be over relatively small sums of money. The Indian taxpayer will be left with the major burden for compensating victims in the event of a nuclear accident ....





8 March 2010
The Hindu
[In the print edition of The Hindu, this story was split into two, with the second part, 'Liability cap low but Washington still fears lawsuits', carried on an inside page]

Nuclear liability law has sting in tail for the U.S. too

Siddharth Varadarajan

New Delhi: The Manmohan Singh government may be courting trouble at home by pushing a controversial new law to limit the financial exposure of nuclear companies in the event of a nuclear accident. But the Civil Liability for Nuclear Damage Bill also has a sting in its tail for the United States, which has made the passage of a liability law immunising its suppliers from lawsuits a precondition for any American nuclear sales to India. For even as the legislation will free foreign companies from any responsibility towards the victims of a nuclear accident, it contains a loophole that could well see Westinghouse and G.E. being hauled up before an Indian court in the event of a disaster involving equipment made, supplied or serviced by them

Though the Department of Atomic Energy first mooted a liability law way back in 2000, well before the Indo-U.S. nuclear agreement of 2005, the current urgency surrounding the bill is related to the anxiety of American reactor suppliers which want legal protection from a Bhopal type situation — where the victims of India's worst industrial accident filed multi-million dollar claims against Union Carbide Corporation in India and the U.S.

The Liability Bill is designed to insulate suppliers from the risk of law suits by channeling legal liability for an accident entirely to the nuclear power plant operator and granting Indian courts sole jurisdiction over accident-related cases.

But section 17(b) of the bill also grants the operator of an Indian NPP the “right of recourse” against companies like GE and Westinghouse if an accident results “from the willful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee.” Such a right is not envisaged by the model law contained in the IAEA's Convention on Supplementary Compensation for Nuclear Damage (CSC)and is likely to irritate Washington because this means a nuclear operator can sue a supplier for recovery of any compensation paid in the event of an accident if it believes the accident resulted from gross negligence on the part of the latter.

Of course, with compensation for accidents capped by the bill at Rs. 500 crore, or $110 million, the right of recourse against suppliers offers only limited comfort, especially in a situation where the potential damage caused by any negligence on their part is likely to be of a much higher magnitude.

Liability cap low

All nuclear operators in India today are state-owned but the liability protection envisaged by the Manmohan Singh government's proposed law would apply equally to private operators as and when the law allows them to run nuclear plants. While the Prime Minister's Advisory Economic Council advocates the entry of the private sector and some Indian companies have expressed interest, American firms are not believed to be keen to enter the business of producing nuclear power in India. The liability protection they want, thus, is as suppliers, which is why the concept of channeling liability to the operator is so central to both the Indian legislation and the CSC, to which India will accede.

In return for bearing the burden of ‘channeled' responsibility for any accident, the operator's liability has been capped at Rs. 500 crore per incident, with damages in excess of that going up to 300 million SDRs (i.e. approximately Rs. 2,385 crore) to be made good by the government.

But though the draft Indian law mirrors the model law contained in the CSC's annex, there are two crucial differences from the standpoint of potential accident victims: (1) it broadens the right of recourse granted to the operator, allowing him to hold the supplier liable for negligence, and (2) it pegs operator liability per accident much lower. If the first difference opens a window for claims against U.S. companies, the second ensures that the ensuing fight will be over relatively small sums of money.

Under the CSC and the proposed Indian law, victims of a nuclear accident in India would not have the right to approach an American court or even an Indian court directly. Any claim against a U.S. supplier under the right of recourse would have to be pressed by the operator before an Indian judge. But jurisdiction is a double-edged sword: Article XIII.6 of the CSC, to which the U.S. is now a party, says the judgment of a court in the country where the accident occurs shall be legally enforceable by any other contracting party “as if it were a judgment of a court” of its own. Thus, if an Indian court were to accept that a particular nuclear accident were caused by gross negligence on the part of an American supplier, the U.S. authorities would be obligated to help the operator recover the money already paid out in compensation to the victims from the U.S. companies concerned.

Even though the Nuclear Liability Bill arbitrarily caps this figure at Rs. 500 crore — i.e. $110 million, a much smaller sum than the $470 million Union Carbide settled for in the Bhopal case — this is precisely the kind of exposure American companies sought to avoid when they lobbied the U.S. administration to get India to provide them legal cover in the event of an accident.

As early as 1999, Omer F. Brown II, Washington, DC-based counsel for the Contractors International Group on Nuclear Liability (CIGNL) — which represents the interests of U.S. nuclear exporters — sounded the warning on “Bhopal-type lawsuits” stemming from equipment sales abroad.

In March 2006, Mr. Brown wrote to Samuel Bodman, U.S. Secretary of Energy at the time, asking him to urge India to accede to the CSC and adopt a nuclear liability “containing the international law standards for such legislation.”

Ill-defined terms

Asked by The Hindu for his opinion on the ‘right of recourse' provided by the draft India law, Mr. Brown expressed the fear that this “could open the door to more lawsuits.” The problem, he said, “is that ‘willful act' and ‘gross negligence' are ill-defined terms, so inventive plaintiffs' lawyers probably could be expected to allege [that] after any accident. I recall one of my law professors saying the differences between negligence, gross negligence and willful act are as clear as the differences between a fool, a damn fool and a goddam fool!”

Asked about the significance of Section 17(b), a senior Indian official told The Hindu: “Our efforts in drafting the bill and taking it forward are to keep its provisions consistent with international standards.” But Mr. Brown is not impressed. “The terms invite protracted litigation,” he said.

In an email to The Hindu, Mr. Brown sought to dispel the notion that Indian accession to the CSC would be a “favour” to American companies since Russia and France were not insisting on such a condition for nuclear sales. “In fact, if India joined the CSC, India would benefit from U.S. contributions to the CSC international fund, while France and Russia, unless they also joined the CSC, would have to pay nothing to compensate victims of an accident in India,” he said. “In the event of an accident, Indian victims would be better protected by Indian adoption of the CSC and consistent implementing legislation than they would be without it” since they would be “eligible to get supplemental funds from the CSC international fund paid by the United States and other CSC Member States.”

In the event of damages from an accident exceeding 300 million SDRs (approximately $500 million) which India must provide for in its domestic law, the CSC allows victims to draw up to $100-120 million (approximately Rs. 500 crore) from an international fund to which all countries party to the CSC contribute according to a prescribed formula. Once the CSC has a large enough base of adherents — today only four countries have acceded to the convention — the victims could potentially draw up to $500 million from the international fund if the accident were deadly enough.

Although the benefits of the CSC funding cushion are not inconsiderable, the Indian law lets operators (and their suppliers) off the hook by not holding them liable to the extent envisaged by the CSC itself.

Model CSC law

The model CSC law says the liability of the operator may be limited “to not less than” either 300 million SDRs, or 150 million SDRs (provided that in excess of that amount and up to at least 300 million SDRs public funds shall be made available by that State to compensate nuclear damage). But the Indian law caps operator liability at a much lower figure: Rs 500 crore is only approximately 62 million SDRs. In other words, before India can get even one cent of the international funding the CSC provides for in the event of an accident, its taxpayers must first pay 240 million SDRs from their own pockets.

Nuclear Liability Bill ignores Environment, Finance Ministry objections

The Ministries of Finance and Environemnt raised serious objections to the Nuclear Liability Bill but their concerns were finally brushed aside by the Cabinet...


5 March 2010
The Hindu

[NOTE" In the print edition of the Hindu, this story was split in two, with the second part, 'Limiting nuclear liability may affect safety standards, Finance Ministry said', carried on an inside page.]

EXCLUSIVE
Nuclear Bill ignores Ministries' objections

Siddharth Varadarajan

New Delhi: The Union Cabinet overrode strong objections from both the Finance and Environment Ministries in approving the controversial Civil Liability for Nuclear Damage Bill November last, The Hindu has learned. These objections related to the impact of the law on safety standards and on providing adequate compensation in the event of a nuclear accident.

The Bill, which the government is to introduce in Parliament this session, channels all liability stemming from a nuclear accident to the operator of the plant. The maximum liability for an incident has been fixed at 300 million SDRs (approximately Rs. 2,385 crore), but the liability of the operator, whether public or private, is capped at Rs. 500 crore. The draft law will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage (CSC), without which the United States says its companies will not be able to sell nuclear equipment to India.

In its comments, the Ministry of Environment and Forests (MoEF) drew attention to the law's failure to specify the amount of compensation for death or damage due to an accident. It said nuclear damage to human and animal life and the environment were long-term and needed a thorough understanding of the subject, “especially as the Act is for final compensation and not for interim relief.”

The MoEF pointed out that the law did not specify which agency or entity was eligible to file a claim for compensation for damage to the environment. Finally, in the absence of the Health Ministry batting for its concerns, it said the 10-year limit for filing of claims was too low “since the nuclear damages involves changes in DNAs resulting in mutagenic and teratogenic changes, which take a long time to manifest.” It observed that more scientific guidelines were needed to ensure the competent claims authority was able to review these kinds of damage and award compensation “which is just.”

The Finance Ministry focussed its criticism on the central tenet of the law — the need to limit the liability of private companies involved in the nuclear business to Rs. 500 crore. Noting that the difference between that figure and the maximum liability of Rs. 2,385 crore would have to be made good by the government, the Ministry questioned the Department of Atomic Energy's rationale that the risk of accidents was low and that unlimited liability would hinder the growth of the nuclear industry in the country.

Limiting the liability in an arbitrary way could “expose the government to substantial liabilities for the failings of the private sector management in such installations,” it said in its submissions to the Cabinet.

In the end, however, the objections were rejected and the draft law approved as it stood.

May affect safety standards

Questioning the logic of limiting the liability of private companies in the nuclear field, the Finance Ministry suggested that a “formula-based limitation be considered which matches the liability regime for the operator to the types of accidents that may occur so as to incentivise adherence to the higher safety standards, limit negligence and encourage the practice of the highest international standards while providing reasonable and scientifically determined cover by the Central government.”

The Ministry requested the Department of Atomic Energy (DAE) to revise this aspect of the law so as to “limit the government's liability to a reasonable, justifiable, appropriate and methodically determined level and not to fix it to an arbitrary, predetermined figure.”

In its answers to the objections and suggestions of both the Ministry of Environment and Forests (MoEF) and the Ministry of Finance, the DAE cited the conformity of the draft nuclear liability law with the provisions of the Convention on Supplementary Compensation (CSC).

The DAE said it tried to strike a balance between promoting the nuclear industry, reducing the burden of the government and facilitating speedy compensation. It also pointed out that “presently, liability is, in effect, 100 per cent the responsibility of government. With this law, the burden will be shared by fixing responsibility on the operator to the extent of Rs. 500 crore.”

While the government is today fully liable for nuclear accidents since all atomic power plants are in the public sector, the DAE's explanation sidesteps the Finance Ministry's objection to subsiding private companies in the event of an accident.

The draft Bill was referred to the MoEF, the Ministry of External Affairs, the Ministry of Finance, the Ministry of Home Affairs and the Law Ministry. The Cabinet note, accessed by this newspaper, is silent about any consultation with the Ministry of Health, a curious omission given the effect of any nuclear accident on the health of people.

Though the law has acquired urgency for the government because of a commitment it made to Washington, the government has been working on the Bill for more than a decade.

Shortly after the Kudankulam project began in 2000, the DAE set up a two-man committee consisting of legal scholar V.B. Coutinho and nuclear scientist Rajaraman to study the legislative framework on nuclear liability of different countries. The committee produced a report soon thereafter, recommending India's accession to the CSC and drafting a broad nuclear liability law for the country.

India upset with Holbrooke view on Kabul attack

U.S. AfPak czar Richard Holbrooke has irritated India with his statement on Wednesday that the terrorist attack in Kabul which claimed seven Indian lives was not targeted on India or an Indian facility...

5 March 2010 update: Holbrooke says sorry.




4 March 2010
The Hindu

India upset with Holbrooke view on Kabul attack

Siddharth Varadarajan

Indian officials have described as “absolutely incorrect” the statement by Washington's AfPak envoy, Richard Holbrooke, that India was not the target of last week's terrorist attack in Kabul.

The officials expressed surprise and even consternation at this assertion, which, they said, ignored the fact that the terrorists' primary target was a building used by the Indian medical mission. The U.S. assessment, they said, also ran counter to what Afghanistan's intelligence agency, the National Directorate of Security, has established so far.

On Tuesday, NSD spokesman Saeed Ansari told AP in Kabul that there was evidence Urdu-speaking Pakistanis from the Lashkar-e-Taiba had been involved in the attack and not the Afghan Taliban.

According to Indian officials, the NSD has established that the terrorists were indeed looking for Indians and had specific information about who was present, including NGO women from SEWA and a senior diplomat on secondment to the Afghan Interior Ministry.

For now, officials here are guarded about which Pakistan-based terrorist outfit might be involved. “Groups like the Haqqani network, Tehreek-e-Taliban Pakistan, Lashkar-e-Jhangvi and LeT are all mixed up with one another,” an Indian official said on condition of anonymity. “What we know at present is only circumstantial but [things] should be clearer in a while,” said another official, adding, such are “the glorious uncertainties of barbarism.”

Speaking to reporters in Washington on Wednesday, Mr. Holbrooke said: “I don't accept the fact that this was an attack on an Indian facility… There were foreigners, non-Indian foreigners hurt. It was a soft target. Let's not jump to conclusions.” He added: “I understand why everyone in Pakistan and everyone in India always focuses on the other. But please, let's not draw a conclusion for which there's no proof.”

New Delhi, however, believes there is no room for doubt. “A huge bomb is detonated just outside the Indian medical mission. A terrorist walks in lobbying grenades and firing from room to room. He had prior knowledge about the occupants… If this is not an attack targeted on Indians, what can it be?” said a senior official.

Indian officials also said the Afghans would not make an allegation of Pakistani involvement loosely. “From their point of view, this is a risky statement to make since their government is making overtures to Pakistan,” said an official. “So for their intel people to say the LeT was involved and that it has close ties with the ISI — obviously they are taking a huge risk and must have very good information.”

Afghan investigators have noted that last week's terrorist attack was very different from the January 18 Taliban strike at the Faroshga mall in central Kabul. The gunmen had allowed Afghan shoppers to leave before training their fire on the security forces and destroying the building. In contrast, the Afghans guarding the Indian medical mission were the first to be shot dead by the terrorist who entered the compound following the huge explosion triggered outside. “The guards shouted ‘Don't kill us, we're Afghans' but they were shot all the same,” an Indian official said.

With Major Ritesh Roy of the Army Education Corps succumbing on Wednesday to injuries sustained during the February 26 attack, the total number of Indian fatalities has risen to 7.

Latest Tharoor controversy is storm in v-cup

The minister is being pilloried for using a word many hacks didn't understand ...

2 March 2010
The Hindu

Latest Tharoor controversy is storm in v-cup

Siddharth Varadarajan

New Delhi: A storm in a v-cup — v for vocabulary — is how the latest controversy over Shashi Tharoor’s remarks ought to be described. For only someone with a very modest collection of words at his disposal, or a very large hatchet, or both, could possibly interpret the junior minister’s reference to Saudi Arabia being a “valuable interlocutor for [India]” as assigning Riyadh a mediatory role between New Delhi and Islamabad.

‘Interlocutor’ means a person or entity or country involved in a conversation. And the Minister of State for External Affairs was clearly talking about the value of Saudi Arabia as a dialogue partner for India on the subject of Pakistan. He wasn’t even suggesting the Saudis use their good offices to counsel the Pakistani authorities to get serious about terrorism. Over the past decade, that is something every Indian leader has been asking of pretty much any country with clout over Islamabad. On Monday, Prime Minister Manmohan Singh told reporters he had made a similar request to King Abdullah during his just-concluded visit to the Kingdom.

According to the Cambridge dictionary, the word interlocutor could also be used for “someone who is involved in a conversation and who is representing someone else.” Thus, by way of illustration, R.S. Pandey is the Government of India’s interlocutor for talks with the National Socialist Council of Nagalim. But that makes him a designated representative of the Centre rather than a mediator between the Centre and the NSCN. Thus, even if someone were to claim they had this second dictionary meaning in mind in questioning Mr. Tharoor, the correct accusation would be not that the Minister was advocating Saudi mediation but that he wanted the dialogue with Pakistan to be outsourced to the Saudis, an even bigger absurdity.

A simple reading of Mr. Tharoor’s quote would make it obvious that both constructions are completely unwarranted. In response to a question about Saudi Arabia’s close relations with Pakistan, this is what the Minister actually said: “We feel that Saudi Arabia, of course, has a long and close relationship with Pakistan, but that makes Saudi Arabia all the more valuable an interlocutor for us. When we tell them about our experience, Saudi Arabia listens as somebody who is not in anyway an enemy of Pakistan but a friend of Pakistan and, therefore, I am sure will listen with sympathy and concern to a matter of this nature.”

There is no way these words can be taken as suggesting mediation. If, nevertheless, Mr. Tharoor felt compelled to issue a clarification, this was not for lack of clarity in what he said but for the media’s inability to understand.

That the roots of this controversy lie in poor vocabulary becomes obvious when one traces the development of the story as it unfolded on Sunday. The first media outlets to claim that Mr. Tharoor had asked for Saudi mediation were Urdu language news channels in Pakistan.

Indian channels, which monitor Pakistani channels like hawks, started flashing this claim as ‘breaking news’ by the afternoon. Opposition politicians were then trotted out to give Pavlovian responses and the whole story was padded with references to earlier controversies Mr. Tharoor had been caught up in.

Surprising

What is surprising is that well after the Minister clarified what he meant and reporters and editors had the chance of consulting their dictionaries, at least three national dailies unfairly accused Mr. Tharoor of seeking Saudi mediation.

Some TV channels also ran breaking news on Monday citing the supposed failure of the Congress party to defend the Minister as proof that the “high command” was indeed very angry with his “interlocutor” reference.

Of course, no actual evidence of such anger was produced.

Mr. Tharoor, who spent his entire working life in the United Nations, is learning the hard way just how vicious and irrational politics can be.

While he must share part of the blame for some earlier controversies, his only fault this time was to use a word many journalists and politicians simply didn’t understand.

Who fired on Qureshi, Hurriyat asked Pak Foreign Secretary

The meeting in Delhi between Hurriyat leaders and Pakistan's foreign secretary, Salman Bashir, was acrimonious ...

1 March 2010
The Hindu

Who fired on Qureshi, Hurriyat asked Pak Foreign Secretary

Siddharth Varadarajan

New Delhi: The near-fatal shooting of Fazal Haq Qureshi figured prominently in the meeting here between the Hurriyat and the visiting Pakistani Foreign Secretary Salman Bashir last week with the conglomerate blaming Pakistan-based terrorists for the attack on the moderate Kashmiri separatist leader.

Though no group claimed responsibility for the December 2009 shooting outside a mosque in Srinagar, the incident was seen in the valley as a warning to the Hurriyat not to engage in dialogue with the Centre or mainstream Kashmiri parties like the National Conference and People’s Democratic Party.

Mr. Bashir denied the involvement of the Pakistan government or its agencies in the assassination attempt but promised to convey Kashmiri perceptions about the incident back home, The Hindu has learned. The Hurriyat leaders also expressed their unhappiness with what they said were efforts by Islamabad to undermine them by promoting factionalism within the separatist movement.

This factionalism was very much on display at the Pakistan High Commission on February 24 when Mr. Bashir was forced to have three separate back-to-back meetings with the separatists — first with Syed Ali Shah Geelani; then the Hurriyat delegation led by Mirwaiz Omer Farooq, including Bilal Lone and Professor Abdul Ghani Bhat; and finally with Jammu Kashmir Liberation Front leader Yasin Malik.

The meetings provided a glimpse of the U-turn Islamabad has made in its Kashmir policy, with Mr. Bashir assuring Mr. Geelani that the ‘out-of-the-box’ ideas on a future settlement pursued by General Pervez Musharraf through back-channel talks with India had all been jettisoned in favour of Pakistan’s traditional stand.

Mr. Bashir invited the separatist leaders to travel to Islamabad for consultations with the Foreign Office in Islamabad in the next few weeks. Pakistan is understood to be keen to hold this interaction in the context of the ‘strategic review’ of foreign policy being conducted by the Ministry of Foreign Affairs in March.

Pakistan’s insistence on inviting ‘civil society’ separatists like the Jammu Kashmir Bar Association and Asiya Andrabi of Dukhtaran-e-Millat and marginal separatist politicians like Shabbir Shah to its Foreign Office consultation has also become a source of friction with the Hurriyat.

Though the Mirwaiz is believed to have agreed to visit Islamabad, he is under pressure from others within the group not to attend.