NSG ends India's 'clean' waiver

New guidelines bar ‘sensitive' nuclear exports to countries outside the NPT ...





25 June 2011
The Hindu

NSG ends India's 'clean' waiver

Siddharth Varadarajan

New Delhi: The Nuclear Suppliers Group (NSG) on Friday adopted new guidelines on the transfer of sensitive nuclear technology that will effectively nullify the “clean” waiver India received from the cartel in 2008 as far as the import of enrichment and reprocessing equipment and technology (ENR) is concerned.

The decision was announced from Noordwijk, the Netherlands, where the 46-nation grouping held its 2011 plenary meeting. The NSG “agreed to strengthen its guidelines on the transfer of sensitive enrichment and reprocessing technologies,” a formal statement blandly noted.

Though the guidelines have not been made public yet, the draft text makes it clear that the group will exclude countries which are not signatories to the Nuclear Non-proliferation Treaty and which do not have a full-scope safeguards agreement allowing international inspections of all their nuclear facilities.

Prior to this, the NSG had a catch-all requirement of full-scope safeguards — in paragraph 4 of its guidelines — for the supply of any nuclear equipment or material.

The only additional requirement for ENR exports — as contained in paragraphs 6 and 7 of the guidelines — was that the suppliers were asked to “exercise restraint” and to ensure that any supplied equipment or technology not be used to enrich uranium beyond 20 per cent.

The NSG's September 6, 2008 ‘Statement on Civil Nuclear Cooperation with India' waived the full-scope safeguards requirement of paragraph 4 and expressly allowed ENR exports, subject to paragraphs 6 and 7. In adopting its waiver, the NSG said it was acting “based on the commitments and actions” on non-proliferation undertaken by India.

But on Friday, the cartel tore up that bargain, adopting a new paragraph 6 specifying objective and subjective criteria a recipient country must meet before an NSG member can sell ENR to it. The very first of these is NPT membership.

Since all nuclear exports to the only other countries outside the NPT – Israel, Pakistan and North Korea – are already prohibited by paragraph 4, this provision in the guidelines was expressly designed to target India, to which the restrictions of that paragraph no longer apply.

When the U.S. first floated the guidelines in November 2008, Indian officials privately complained that the NPT provision would amount to a “rollback” of both the NSG waiver and the fundamental American commitment to ensure “full civil nuclear cooperation” with India.

Confidential U.S. embassy cables published by The Hindu last week quoted Shivshankar Menon, now National Security Adviser, and Foreign Secretary Nirupama Rao protesting the draft ENR rules.

Last week, a senior Indian official told journalists that the government “has deep reservations about any move by the NSG that prevents the transfer of these technologies ... that will dilute the ... exemption that was given in 2008.”

Ironically, the U.S. insists that its support for the ban on ENR sales to India “in no way detract(s) from the exception granted to India by NSG members in 2008.” The reality is that an entire category of nuclear items which NSG members were allowed to sell to India as a result of the 2008 exception can no longer be supplied.

“Before voluntarily placing our civilian facilities under IAEA safeguards,” Prime Minister Manmohan Singh assured Parliament on August 17, 2006, “we will ensure that all restrictions on India have been lifted.” What he didn't bargain for was that some restrictions, once lifted, might be imposed again.

Government cold to CAG's quest for new powers

For the past two years, the CAG has been pushing the Finance Ministry — its nodal ministry — for crucial changes in the 1971 Audit Act. To no avail ...

24 June 2011
The Hindu

Government cold to CAG's quest for new powers

Siddharth Varadarajan

New Delhi: The United Progressive Alliance government may have shown a willingness to draft a new Lokpal Bill, but it is dragging its feet on a proposal to strengthen the public institution that has done so much to expose wrongdoings in public life: the Comptroller and Auditor-General (CAG).

For the past two years, the CAG has been pushing the Finance Ministry — its nodal ministry — for crucial changes in the 1971 Audit Act. The accounting watchdog's concern is that its mandate to summon files and examine the way public monies are spent has not kept pace with new modes of governance that have emerged, especially since liberalisation.

Weekly reminders

In 2010, the CAG sent concrete proposals for amendments to three broad areas, but the government is still mulling over its response. This, despite getting formal reminders on an almost weekly basis.

The official silence is not surprising given that audit reports have become something of a political hot potato. The capital was rife with reports of corruption in the telecom sector, for example, but it was only when the CAG report on the 2G spectrum allocation confirmed the scam that the government was forced to act. The latest audit report to set off a political firestorm is on oil and gas production sharing contracts, with the CAG's leaked draft saying Reliance Industries was shown “undue favours” in its KG basin operations.

The KG report is still being finalised, but its long-gestation period — work began in 2006 — and tentative conclusions reflect the weakness of the audit mandate. The Petroleum Ministry dragged its feet in giving documents (despite having asked for the audit in the first place) and private companies refused to share relevant information. The CAG now wants this situation rectified.

The first amendment it is seeking relates to the speed with which government departments respond to audit requests. Crucial audits get delayed because ministries aren't obliged to respond within a specified time frame. Just as the Right to Information Act gives ordinary citizens the right to get an answer to their questions within 30 days, the CAG wants a similar deadline for official responses to its queries.

The second change pertains to the mandatory disclosure of finalised audit reports. Governments delay the tabling of reports which are politically inconvenient. The CAG's audit of the Delhi Metro Rail Corporation was not tabled in Parliament for a year. And the Maharashtra government held on to a report for 18 months because it contained adverse comments on Vilasrao Deshmukh, tabling it only when the CAG threatened to have it released through the Governor.

With these examples fresh in its mind, the CAG wants the law to specify that governments must immediately table reports submitted while the legislature is in session, or within the first week of the next session, if submitted in between.

Finally, the CAG wants the 1971 Act to clarify its powers to audit new forms of government economic activity such as public-private partnerships and joint ventures, and new conduits of expenditure not envisaged when the law was first framed — such as the routing of money for the Sarva Shiksha Abhiyan, the National Rural Health Mission and the MNREGA through panchayati raj institutions and non-governmental organisations.

By some estimates, more than Rs. 80,000 crore is spent this way every year, beyond the reach of the CAG's regular audits. Because the CAG doesn't audit this expenditure, Parliament too does not get to review how well this money is being utilised.

A bill to settle a terrible debt

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It's time to end this injustice...












22 June 2011
The Hindu

A bill to settle a terrible debt

Siddharth Varadarajan

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India's citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does. [PDF]

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority' group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority's role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn't, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India's religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill's definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill's language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

A weakness born of bad intent

The UPA government's unwillingness to act against the abuse of political and corporate power has created a vacuum which others are rushing to fill...






7 June 2011
The Hindu

A weakness born of bad intent

Siddharth Varadarajan

Like millions of others across India, I have spent the past week repelled by the spectacle of a weak government entering into improbable contortions over the naive and somewhat bizarre demands of Baba Ramdev. And when the “toughness” followed in the early hours of Sunday, it came in a typically cowardly fashion — with police action in the dead of the night against unarmed supporters who did not pose an immediate or even potential threat to law and order in Delhi. Kapil Sibal, the government's chief negotiator, said permission to assemble at the Ram Lila grounds had been granted for yoga exercises and not politics. But people in India have the right to assemble peacefully and to put forward political demands if they so wish. If tomorrow, the organisers of a classical music concert in Nehru Park put up a banner demanding a strong Lokpal Bill, will it be OK for the police to wade in?

The fact that the Manmohan Singh government swung from abject capitulation to unnecessary confrontation in less than 48 hours does not surprise me. Its credibility on the issue of corruption is at an all time low. The pressure it is under has blunted its political instincts. However, sending four senior ministers to the airport to welcome the yoga instructor-turned-upstart politician and then hundreds of policemen to extern him were both acts of gutlessness which the Congress party will find hard to live down. Particularly when the Baba was not even serious about the issue of black money.

Everybody with any sense agrees that corruption is a serious issue and that all efforts must be made to end the curse of black money. But it is meaningless and even nonsensical to demand the framing of a new law to confiscate black money when we do not know where this money is, how much it consists of and who it belongs to. If the authorities had this information, they would be legally empowered to seize the funds and place their owners behind bars. But the passage of a new law will not make the gathering of this information any easier. Either the Baba is not a very serious person or he has allowed emotion and his broader political ambitions to cloud his judgment. Which is surely not a good thing for someone well versed in yoga.

The problem of corruption is not simply one of law but of will. The hold of black money over the economic and political system of India cannot be ended so long as the government lacks the political will to actually crack down on the printing press which generates it: corruption. Defined broadly as the abuse of political and corporate power for personal gain, corruption is the glue which binds this country's political and economic elite at every level of governance from the block and district up to the Union. Corruption is not an abstraction. Every crore that a politician or bureaucrat may have secreted away as “black money” in Switzerland or elsewhere is organically linked to the tens of crores of rupees in both “black” and “white” money outside and inside India that businessmen generate by getting favourable treatment. Corruption was an integral part of the “license-permit raj” of Nehruvian socialism. But it has grown to frightening proportions in our liberalised free market economy. Politics and business have come so close together today that it is sometimes hard to tell the two apart.

Any serious campaign against corruption by civil society or politicians, Babas or babalog must zero in on the system which generates illegal gains for those with power, influence and money. Such a campaign must demand that action be taken against those individuals who have abused their authority or sought to subvert laws and procedures for personal gain. But Ramdev's campaign was not about this at all. Which was why the government was also quite happy to engage with him in what it knew would be a meaningless exercise.

While there is always room for legislative clarity in the definition of offences, the implementation of any new law will remain a prisoner to this lack of political will unless it allows for independent investigation and prosecution. A strong Lokpal Bill may help remedy the situation somewhat but only if the ability of the government to interfere with the investigation or punishment of well-connected individuals is ended. Here, it is instructive to see what happened in a recent case decided by the Lokayukta for the Delhi government, Justice Manmohan Sarin.

In the same week that the UPA government agreed to discuss the entire system of taxation, finance, administration and education in the country with Baba Ramdev, its stiffness of resolve in protecting a junior politician accused by the Lokayukta of abusing his authority seems to have passed almost unnoticed.

The case concerned a Delhi minister, Raj Kumar Chauhan, who sought to interfere with the tax inspectors even as they were conducting a raid at the premises of a private establishment. A complaint against the minister was filed by a senior IAS officer, Jalaj Shrivastava, who was a tax commissioner at the time. After conducting an inquiry, which included collecting testimony on oath from the officers concerned, Justice Sarin found that the minister had indeed abused his authority on behalf of a private party. But his recommendation that Mr. Chauhan be sacked and proceeded against was rejected by the President of India on the advice of the Union Ministry of Home Affairs. Evidently, the MHA found Mr. Chauhan's explanation — that the telephone call he placed during the raid was nothing other than the routine expression of concern for a constituent — to be more credible than the exertions of the Lokayukta or of the upright bureaucrats who put their future career prospects on the line by becoming whistle-blowers.

The protection afforded to the Delhi minister, who is fairly low down in the Congress party's food chain, shows the extent to which the “system” is programmed to circle its wagons at the first sign of trouble. Even if one dismisses this example because the Lokayukta is still a young institution, what explains the continuation of Vilasrao Deshmukh in the Union Cabinet despite the Supreme Court holding him guilty of abusing his authority when he was Chief Minister of Maharashtra? Mr. Deshmukh had intervened on behalf of a usurious moneylender against whom some peasants wished to file a police complaint. Instructions to go easy were phoned in to the police station concerned, which diligently made a record of the call in its daily log book. A system that is keen to stamp out the abuse of authority — which lies at the root of all corruption — would ask Mr. Deshmukh to leave the Cabinet now that his culpability has been confirmed by the highest court. But, alas, the UPA does not run such a system. Mr. Deshmukh got promoted to a more powerful ministry. And instructions have been sent out to all police stations in Maharashtra that they should no longer make a record of every phone call they receive from ministers.

If Baba Ramdev were really serious about fighting corruption, he would have hit the UPA hard at the places it was most vulnerable instead of trying to build his own political constituency through shadow boxing against imaginary foes like the Cayman Islands and the 1000 rupee note. As for the Bharatiya Janata Party and RSS, which have tried to fire from the Baba's shoulder, the less said the better. Why is it that L.K. Advani, who was the second most powerful man in India for six years from 1998 to 2004, woke up to the problem of black money only after his government was voted out of power? If there is a lesson from the farce that has been enacted in Delhi this past week, it is this: there is no room for abstraction. Instead of demanding the “return of black money,” let us ask the government why it has not signed an agreement with Switzerland of the kind the European Union has for the repatriation of taxes that the Swiss levy on interest earned by foreign account holders. Instead of the death penalty for the “corrupt,” let us ask why the Prime Minister is so slow to act against ministers who abuse their authority. Let us push for a strong and empowered Lokpal whose recommendations cannot be thrown into the dustbin.