Interpreting risk

Posted on January 25, 2015 by Bharat Karnad

Have barely survived hours of being before Times Now television cameras (at home) and for an hour at their studio where the relentless drive to be upbeat about PM Modi’s supposed success in persuading Obama to accept an ambiguous interpretation of the full liability provisions — sections 17(b) and 46 — in the 2010 Civilian Nuclear Damage Liability Act with promise of the GIC insurance pool, succeeded in pushing credible doubts about this solution into the background. Among the main points made in my last blog and NIE op/ed “Bending over backwards” published Jan 23 of the Indian taxpayer thereby bearing the full risk was repeated by Chellaney, a co-panelist, in the channel’s 7PM show. Hopefully, more analysts will pick up on this aspect subversive of the 2010 Act, and it will gain political traction, enough to convince the US companies who are suspicious of this as Delhi’s way out of a dilemma, to keep out. Besides, won’t this issue become justiciable? And can US companies risk Indian courts ruling against them and derailing bilateral relations in the process?

About Bharat Karnad

Senior Fellow in National Security Studies at the Centre for Policy Research, New Delhi, he was Member of the (1st) National Security Advisory Board and the Nuclear Doctrine-drafting Group, and author, among other books of, 'Nuclear Weapons and Indian Security: The Realist Foundations of Strategy', 'India's Nuclear Policy' and most recently, 'Why India is Not a Great Power (Yet)'. Educated at the University of California (undergrad and grad), he was Visiting Scholar at Princeton University, University of Pennsylvania, the Shanghai Institutes of International Studies, and Henry L. Stimson Center, Washington, DC.

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2 Responses to Interpreting risk

~!@#$%^&*()_+ says:

January 27, 2015 at 12:11 pm

Re. “Besides, won’t this issue become justiciable?”

Off course it will. That is the whole sleight. And I wish you also please re-read CLNDA, without the help of experts.

1) Notice eg. the definition of “nuclear incident” that looks like an English/history/journalism/NAC graduate wrote the law. WT_ is a ‘series of occurrences’. How does ‘origin’ that too ‘same origin’ gets established. Moreover for words like “with respect to preventive measures, creates a grave and imminent threat of causing such damage”, I could not find anything that can be notified by the GoI as being a necessary item for ensuring safety of operations. All the GoI can do is notify the costs to be incurred in these preventive measures. Not the technology itself. Socho kyun?
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“nuclear incident” means any occurrence or series of occurrences having the same origin which causes nuclear damage or, but only with respect to preventive measures, creates a grave and imminent threat of causing such damage;
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2) CLNDA is a law that governs the acts of the Central Government and its agencies [Section 1(4)]. And even in this respect the CG and it agencies have their own liabilities capped [S. 6] with immunity against prosecution, to these agencies [S. 47]
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S. 1(4) – It applies only to the nuclear installation owned or controlled by the Central Government either by itself or through any authority or corporation established by it or a Government company.
&
S. 47. No suit, prosecution or other legal proceedings shall lie against the Central Government or the person, officer or authority in respect of anything done by it or him in good faith in pursuance of this Act or of any rule or order made, or direction issued, thereunder
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3) CLNDA has hardly anything to do with the foreigners and any tack to get them to take responsibility will backfire. On the vaunted “Operator’s right of recourse”, just go and search how many times and in what context the word “supplier” is used in the whole CLNDA. See if the word ‘supplier’ is even defined. Besides who takes the rap within the ambits of the word ‘supplier’. Has the GoI notified any rules that mandate taking in charge of Indian entities any of the chain of evidence that will establish the status of being a ‘supplier’? S.17(a) eg. is another piece that is hilarious. If something is to be read from the contract that is yet to be entered into then what point saying it in S.17(a). How does it change anything? S. 17(c) needs an ‘intent’ to be established. So that means only S. 17(b) is real operative part and it is as lame as :

S. 17 – “(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;”

How can consequence be established ever. In the Bhopal Gas Kaand have any of the westerners accepted that they had any responsibility in the maintenance of safety? How is this one lame subsection different.

CLNDA was to hoodwink India and a hawk like yourself should not allow himself to get distracted by it so easily. The reason our sold out media is hyping all this is because the hype serves the purposes of their masters. Essence of what Dr A. Gopalakrishnan, former Chairman of the Atomic Energy Regulatory Commission says, is right even though he is voicing his wishes only. But at least we should have the technology transfer to identify the likely problems in operating these reactors and have the technology independence and right of recourse for such technology as would help us in taking preventive technology solutions while operating the reactors. To my mind these are the real issues that I would weigh Modi govt. on.

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~!@#$%^&*()_+ says:

January 27, 2015 at 12:13 pm

Re. “And can US companies risk Indian courts ruling against them and derailing bilateral relations in the process?”

Bhopal Gas Traasadi, Sukhoi auto ejections, Mig maintenance, Rafale being too complex for HAL are all situations that show how the foreign companies and foreign governments will react. Even Pakis aanken dikhate hain when it comes to dams on west flowing rivers. How can anybody expect the more powerful foreigner countries to even give a damn.

How does GoI deal with it is the only real issue here. Until now the GoI (UPA and NDA lead both) have only made themselves the sole arbiter and hence responsible for the safety of Indians:
S. 4 (4) – “The liability of the operator of the nuclear installation shall be strict and shall be based on the principle of no-fault liability.”
Operator is essentially the GoI.

With the foreigners being given a go bye, even when it is their IPR. It is reasonable to say that if the trust factor is so small then India can leave the technology. And I am quite tempted to do wish for it too esp. considering the fact that we can scale our own reactor technology too. But we must avoid becoming the guinea pigs for untried and unused western technology.

GoI is our agent. Our implies the people of India. GoI is not the agent of foreign entities or govts. which is what nuclear business in India reduces it to. More often than not it is the Indian Babus and coconuts who bat for these foreigners. Early in 90s people used to wonder if GoI would be willing to give sovereign guarantees for FDI & ECBs and it became settled state of affairs the GoI would not. But today it seems GoI is more than willing to give sovereign guarantees for the interests of the foreigners. WTH kind of arrangement is this.

The resistance to CLNDA is a fig leaf. The foreigners want an ever increasing control over India. Last it was mentioned in media the US companies were unwilling to trust Indian insurers (as if!).

The need of the hour is to organize the negotiators. Be it Rafale or the Nuke deals, the Indian negotiators are always on the backfoot and in our wish for getting the most on technology we are end up without even the basic safing mechanisms.

We cannot afford to simply wish as is indicated by the following reportage:
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But India and the US are still nowhere close to stitching together a deal because private firms like Westinghouse and GE are skeptical about trusting an Indian government insurance firm, the external affairs ministry officials said. “We only hope that once Russia and France ink agreements, the pressure of the market will force the US to ease up its demands a bit,” an official said.
Ref : Report date – Apr 03, 2014
http://freepressjournal.in/russiaconcedesindiasnukeliabilitylawterms/
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