Understanding Reforms in Environment, Land and Labour Laws in India

A talk by Dr. Usha Ramanathan, at the Madras Institute of Developmental Studies on 12 January 2015. (Transcript. 1 hour 40 mins)

Karen Coelho – We are very happy to welcome you all to today’s seminar on understanding reforms in environmental, land and labour laws. Dr. Usha Ramanathan… is actually a very well known familiar figure here at MIDS. We have had her over several times. Every time she’s visiting, she very graciously agrees to come and give us a glimpse in to the inner workings, sort of lesser known aspects of what we all know is going on at the Center, in terms of various developments on the policy and legal front and various struggles that civil societies engaged in with these developments. For those who don’t know her Dr. Ramanathan works in Delhi. She’s a legal scholar, very well known legal scholar who works on the jurisprudence of law, poverty and rights. She is a research fellow at the Centre for Studies in Developing Societies. She teaches Environmental Law, Labour Law and Consumer Law at The Indian Law Institute. She’s a regular guest professor at various universities around the world. She has published very widely in Economic and Political Weekly and various other fora. She is very much a sort of public intellectual. She has very broad portfolio of topics on which she writes, researches and publishes on struggles including mass displacement, eminent Domain, civil liberties, surveillance, degree, criminal law, custodial institutions, judicial process and all of these things. One could go on, but I will stop. You’re ready, Usha? Thank you. usharamanathan

Usha Ramanathan – If I can just change that introduction a little bit, because like many things on the internet this too is severely outdated. I don’t teach Consumer Law and Labour Law anymore, but I do work in Labour Law quite a lot.

In recent times, the reason I have some access to what’s happening in the corridors of State power started with the privacy committee that was set up by the Planning Commission because I have been working on the UID (Unique Identification) for a long time. That is one of the things I have spoken about here before. The Privacy Committee then led to another committee, which was set up on DNA, because there is a proposal to have a Human DNA Profiling Bill. The Government at that time decided not to go ahead with the Bill until it had been considered by a committee of experts. Of course, these experts don’t exist. So each of us represents or gets represented as an expert, and you have to become an expert after that…

More recently, and more relevant to what we’ll be discussing today, I was part of a team that was set up to look at the socio-economic status of tribal communities, and there’s a lot that we learned in that process. There were some things that we went with, because all six of us who were on the committee had…already been working on those issues. But I think we learned an enormous amount, because things are changing very fast on the ground. One of things we did realize was that in the media you don’t hear anything about what’s happening in places that you can’t see from the city. We just have no idea what’s happening outside of this. So tracking some of those changes was very helpful.

Actually we submitted the report in May last year, and the printed copy was finally sent to the government in July. The Government has not yet done anything with it. I hear that they are considering it, but in the meantime somebody got a copy of it and sent it back to us saying is this the correct report that you submitted. It was the report we had submitted. So we okay-ed it and it is now available in the public domain. I think, Sainath recently launched his PARI (People’s Archive of Rural India) and it is on that website. So you can access it there.

That is the background from which I come. I was thinking of today’s session more in terms of understanding what is happening, because I am not coming here to impart understanding. I too have been struggling to understand what on earth is happening around us because the changes are quick and everyday and they follow a certain kind of pattern.

For instance, having the Ministry of Environment and Forests renamed as the Ministry of Environment, Forests and Climate Change has not been explained. We have no idea why they have added climate change and what in the portfolio of the MoEF tells us the logic of this. There are multiple things like this where we hear the slogan, but we don’t really know what is behind the slogan, because we don’t know what the policy is, or why the decision was made.

So when Nityanand suggested that we could have a meeting here on this, I must confess that selfishly it is a fabulous thing for me because some of us are trying in our little pockets to find out what this is about. I’ll set out some of the things that I know and I am hoping it will stoke some conversation around it. I don’t think it necessarily needs to be question-answer, because I may not have all the answers, but there are a number of questions and a number of confusions in relation to this.

There are some things to begin with. One of the primary things we have had to deal with is this contest over land. It’s not new. See, one of things we found when we started looking at what the present government is doing is that this government is not really doing anything different from the earlier government. They are just doing it differently. And the reason they are able to do it differently is because they see themselves as having the legislative power to be able to make changes in the law. The Manmohan Singh dispensation did a number of things which are being done now, but without the support of law and therefore it was done through, not even through executive fiat; it was done by internal arrangements within the government.

Just to give a couple of illustrations of that; one was what was called the Cabinet Committee on Investment. Now, under the law you can’t just take over land and you can’t make decisions which override the law of the land. But what they did was to say that when there is a project that is worth 1000 crores or more, then there is no need to worry about any laws whether they have to do with pollution, or land acquisition. You can just take it over and it doesn’t matter. You can make decisions. That group which is sitting there as the Cabinet Committee on Investment can override laws. That’s a very serious kind of thing to do, but they were doing it.

The second illustration is where in relation to forests, in Fifth Schedule Areas especially, which is the area populated by scheduled tribes, there are all kind of restrictions about land transfer, land alienation; and the State has the role of protecting the interests of the tribal in their relationship with the land. Now, they needed that changed because there were a number of projects that were a priority for that government. So they said that there would be an exception that was made to the Forest Rights’ Act, to questions of public hearing, to PESA (The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996), that those could be bypassed in cases which dealt with linear projects.

What are linear projects? Linear projects are projects like roads, canals, highways, broadband, electricity, and so on. All these would be exempted. So, if you need to take over land for that, there is no need for public hearing. There is no need to go through a Gram Sabha hearing. You don’t need any of it. You don’t need consultation, consent, recommendation. The logic of excluding linear projects is not located in law. The Forest Rights Act and PESA does not give room for this exemption, but they just did it via an executive circular, which exempted all these projects from all the processes that have been set in place in law. And that was worrying a lot of us because you have the Parliament doing something; as it is, all of us know how difficult it has been to engage with law making when it is done through Parliament, which is the most open process that we have now. And then when you convert that in to executive decision-making that changes things in ways which ought not to be acceptable in a democracy.

In March 2014, the Secretary to the Ministry of Tribal Affairs had sent in a note to the Government…I should step back a bit and say this. The Ministry of Environment and Forests has stopped being a ministry that protects the environment. It’s been like that for some time now and that’s the other thing that causes anxiety. In fact, like some friends say, it should be renamed the Ministry of Development because environmental concerns are seen as an obstacle to development. Therefore, the minister is expected now to deliver development, to deal with environment in a way where it will not come in the way of development. It’s still the Ministry of Environment and Forests, but it is the Minister who has the power over the environment. It has been re-interpreted like this. It was the MoEF that issued this circular saying that for linear projects we don’t need to deal with all of this. We can just take over that land and we can have our projects. The Ministry of Tribal Affairs has become the one ministry that is concerning itself with what is happening in these parts. The Secretary to the Ministry of Tribal Affairs had sent in a letter to the MoEF asking them on what basis they had made this exception. How could you take linear projects out of the Forest Rights Act and PESAA? Where did they get that power from? Of course, there was no answer to that. But it is the Ministry of Tribal Affairs that has been saying that you cannot make these exceptions because there is no room in the law.

You know, there are laws which might have a clause right at the end which says that in the event of difficulties the Central Government can do certain kinds of things. Forest Rights Act doesn’t have that. So you can make no exception. It has therefore been happening illegally. And that’s the other concern that we have had over this period of time because the State has in fact been acting like it doesn’t have to follow the law. That’s something that happened before. That’s something that continues to happen now. It’s in this background that we started looking at the kind of changes that are coming in now.

I will just run through some of the legislation, which have come in. The first thing we have of course is the Land Acquisition Act. If you want the full title, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. Now you have an amendment ordinance that has come in. I am sorely tempted to stop here and say a few words on this idea of the ordinance. When a government that has a pretty rocking majority in one of the houses of Parliament feels that it has to go down the ordinance route there is something seriously wrong. And some of the reasons we are being given for why ordinances are being made. The reason, for instance, for the Citizenship Act being amended by ordinance was because the Prime Minister had gone and made a commitment that he would be changing the status of people PIOs (People of Indian Orgin) and OCIs (Overseas Citizens of India). Therefore, to fulfill that commitment it had to be done through an ordinance before this Pravasi thing going on. It makes no sense. It makes no constitutional sense. And it is unethical for them to bring in practices like this.

So there are two things that are of serious concern and I think maybe all of us need to get involved in it. One is the idea that you can have changes that are brought in by ordinances. We also realize that there is another statement that is doing the rounds, which says that it is alright to have an ordinance, because once you have an ordinance, the next time Parliament meets within six weeks of that Parliament meeting then they either have to pass it into a law or it ceases to be effective. Then you have to re-promulgate the ordinance. There is already a 1980s decision where they have slammed the idea of re-promulgation of ordinances saying that you can’t keep doing this. You can have it as an emergency provision, but if the Parliament after that doesn’t adopt it then you cannot continue that law through ordinance. This idea of re-promulgation of ordinances – it’s a firm statement that has come from the court saying that it constitutionally unacceptable.

At this stage, we are dealing with only the first round of ordinances. Not yet with re-promulgation. But it becomes important because you have a minister, for instance, saying that whatever happens between now and the time that this ordinance lapses will any case be valid and legal; and therefore we can push through some of the changes that we want now, we’ll worry about whether the law gets passed later or not. This is another aspect of unethical constitutional behaviour. It is unconstitutional behaviour. That’s something, I think we really need to worry a little bit about.

The second thing we need to concern ourselves with, in an emergent kind of way, is the idea that if Lok Sabha passes it and Rajya Sabha is going to give us some trouble, we’ll just have a joint sitting of Parliament. There is logic to why we have a bicameral legislature. We have a Parliament which is going to debate between two houses of Parliament and that’s one of the checks that we have in law-making. That a sweeping majority is not going to do whatever it wants. And you have to have two sets of deliberations on this and two sets of decision-making and they have to agree. There is logic to why you have a Rajya Sabha and a Lok Sabha. To say we can collapse these into one, well legally we can do it, constitution permits us to have joint-sittings of Parliament and therefore we will do it, is introducing a convention, I mean it will become a convention if they keep practicing this, which is constitutionally objectionable. While technically they might be able to get away with it in part, it is not something that is in keeping with the parliamentary system as we practice it here. Therefore, it should not be permitted. It’s only to be used in the event of an emergency and there is no emergency for giving OCIs and PIOs a better status or a converged status. There is absolutely no emergency in that. There is no emergency either in changing the law without having debate in public about many of these laws.

See, the Land Acquisition Act when it was passed, it was not a well-drafted legislation. It was done when Mr. Jairam Ramesh was the Environment Minister. If we read it a little carefully, we find that there are problems in that law. It is far from perfect. But one thing that they tried to do, which is also part of the reason why it doesn’t work, is that they tried to keep the interests of multiple groups of people and say that we will take all of that on board so that nobody can complain. Now, these are conflicting interests. They are not interests that can just converge and you can’t say, ‘Let’s be friends.’ It’s not that kind of a law. So to say that industry says it wants land and it wants the State to help them get land and therefore we will do what is necessary for industry to get the land..!

See, what is it that prompted the changes in the law? It’s not like the State did not have the power to take land, when it wanted to under the Land Acquisition Act. Unfortunately, one of the things that as academics and as activists, to an extent, we have failed in doing was to tell the State, to remind the State and to question the State about this idea that the State is sovereign over all land in its territory and it can do what it wants in all that land in its territory. The idea of Eminent Domain has never been that the State has control and sovereignty over all land in its territory. That’s a misconception. Eminent domain is a limited doctrine. That doctrine says that the State can take ‘private’ land for a ‘public’ purpose on payment of compensation. It has nothing to do with land which is not private land and it has nothing to do with just taking land away regardless of whether there is a public purpose or not. While courts may be unwilling to take on the challenge of deciding what is in the public interest and what is not, for the public in a democratic space that is still up for debate. So this power that they had for taking private land for a public purpose has slowly become, you know, has acquired a certain proportion where the State says, ‘Well if I can take private land, I can use any land in any way that I think it is good, any way that I think constitutes a public purpose.’ It’s like the State ultimately holds control over all the land and the people are subjects of the State.

It was 2004 by the time the Supreme Court had started using the language of subject. In a 2004 decision, the Supreme Court says that there is no question of the State having to buy land, there is no question of the State having to acquire land, which is already in its possession from its subjects. Now I think it’s time that we started asserting that this country doesn’t have subjects anymore. We’ve moved way beyond the idea of subject-hood. There are citizens in this country and the State is bound by the law. It needs reassertion. And the Eminent Domain doctrine and our allowing it, in one sense, we didn’t challenge it. We only said don’t use the Eminent Domain power like this. We haven’t sufficiently challenged the power itself and the kind of interpretation of the power that exists. So that’s been one of our failures that’s we urgently need to set right. We find that problem re-emerging when we see what is happening now.

The reason the 2013 version of the Land Acquisition Act was brought in, was not because the State was thinking well this is a hundred year old law and we need to change it. It is because they were pitched battles around the country. The major one that we knew in the early years was Narmada, but Narmada was neither the first nor was it anywhere near the last. I think there are some maps that have been drawn of the kind of battles that there are all around the country and its difficult now to even put a dot because it is everywhere around the country. Why is it that there is such a problem? The reason that we have this degree of problem is because of the experience that people have with displacement.

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The significant difference between the earlier 1894 law and the 2013 law is that in the 1894 law they essentially talked only about land owners and those who have interest in that land; now that interest had over time come to mean only ownership, title, and related interests, not other interests. But by the 1980s, it was very clear that the project of development in this country was producing mass displacement and mass displacement is not dealt with, in fact, displacement itself is not dealt with under the Land Acquisition Act of 1894. Because 1894 Act basically said that it is an Eminent Domain principle where they say, ‘Okay if we have a public purpose and we need to take that land from a private person and hand it over for that public purpose, the State intervenes, buys that land and hands it over for that public purpose.’ By 2013, we certainly knew that the effects of the development project were far vaster than anything that the Land Acquisition Act of 1894 could deal with. That change is what resulted in the 2013 law and that is reflected there too because the government of the day recognised that we have to reduce conflict. There are people who are upset. The understanding was limited.

At that time, just outside Delhi, those who owned land in Noida, their land was being bought over for the urban development project. They had earlier been told that when they land was bought there would be factories, and other things coming up which would provide them with a certain amount of employment. So they would get their compensation, they would also have jobs which would keep them in a certain degree of dignity. When they found that that land was actually being converted into housing, it basically meant that the jobs that exist are domestic help, chowkidars, and so on. They said this is not what we gave our land for and this is not what we saw as our future. Since you are changing all of this, you’ve got to change the amount of compensation that you give us.

So when the 2013 law was being discussed and debated they found that what these Noida people are saying is that they want more money for the land that they are giving up and that got extrapolated to the rest of the country, which is a completely fallacious understanding of why people are saying no to many projects. The whole uprooting of lives that happens, the urban periphery responds very differently to change of this kind from how you have people in places more far-flung ,where they do not want the project because they see the project as destroying their lives, which has a very different consequence.

Therefore, the 2013 law is a kind of politically correct law. As a lawyer, I can tell you that it is not a very workable law in certain provisions but not with the provisions that are sought to being changed now. What is being sought to be changed now is to make it more pragmatic for the State to be able to go ahead with its development project. And that’s reflected, for instance, in the terms of reference of TSR Subramanian Committee when it was set up. The Committee was told that it should re-look at five laws, it later became six, to help meet the ‘objectives’ that the State had set up. So the objective of environmental law was no longer the environment. The objective of forests or wildlife law was no longer forests or wildlife. It had to be re-tutored to fit the objectives of the State as it exists today. And obviously, we are going to get garbled laws.

So the 2013 law, with all the problems that it had still tried to put in a few politically correct positions in and when it is politically correct it doesn’t become just politically correct. Some of them were extremely important. The idea of consent, for instance, did not come only in 2013. The idea of consent has been there, for some time now, especially since 1996.

So just to pause for a bit there and move to this, see many of the places where this development project is being taken are places in the Fifth Schedule. The Fifth Schedule are areas that are constitutionally recognised and where it’s not that the majority of the people there are tribals, but a large number of tribals live in those areas. The idea of the Fifth Schedule was the need to protect the life, the custom and the relationship with nature of these communities. Therefore, the State steps into the fifth schedule areas not just as the State, but as a protector of those interests. It’s a different role. If there were to be a Parens Patriae principle, which is not a very comfortable principle, but which is what the State very often speaks about when it speaks to people, it would have been to ensure that the rights and interests of the tribal communities are not impacted. What’s the fundamental thing in the relationship between the State and the tribal in any scheduled area? The fundamental thing is for the State to ensure that land is not transferred away from tribal communities. It should not be given to non-tribals. So for a long time, the only person who could take land, the only entity that could take land from a tribal for a public purpose was the State. Now we see that the State has been diluting, over the years, it’s not just happened now, but now it is acquiring a new kind of momentum where the state is now stepping in saying, ‘We have our own vision of what we want this country to be and what we need to do for it we have the power to do. If we have the law with us, we will work with the law. If we don’t have the law, we will create executive ordinances.’ If we don’t have either, I presume, it will be brute force. Because it comes to that where people are seen as obstacles to development, and that’s what we are seeing happening in this.

So when we look at the new land ordinance, what are the kind of changes that they are asking for? It’s an interesting explanation that Mr. Jaitley had. He said that they wanted this ordinance to come in a hurry because by December 31st of last year, if they did not do something urgently, then fourteen legislations that are scheduled to the 2013 Act would cease. In those places there would be no rehabilitation, none of the procedures that are there under this law would apply to those kind of acquisitions. They include legislation within that like the Railways Act, the Electricity Act, Acts relating to mines, highways, the Metro, atomic energy, and petroleum. All these would then get exempt from the Land Acquisition Act. So he says that the reason that we needed to bring in an ordinance is because we wanted to save those laws and those who get impacted by action under those laws. We didn’t want them to get excluded from the Land Acquisition Act. That’s why we brought this in. But, I think, anyone here would be able to advise Mr. Jaitley that if you wanted to make an exception to that 105 and bring that into force, all you need to do was have an ordinance which related to Section 105. You don’t need to have all kinds of changes made to the law through an ordinance because you feel that you want to save people who are going to be affected by that schedule. So now the explanation that is offered for us is by bringing in this ordinance we have made sure that people who are going to be impacted by projects that might have got excluded from this law, they too are going to be included, so we are pro-farmer, pro-people who are going to be displaced. That really didn’t need this kind of an ordinance.

There was a debate that went on when the 2013 law was brought in. The Supreme Court has played all kinds of roles in this and their understanding is also skewed. I can’t tell you by what, but it’s often skewed. We find that under the Land Acquisition Act, the earlier one, once land is acquired by the State – there is a Section 04 notification, then a Section 06 notification – they pay the compensation, and then the State takes it over without any encumbrances and then it belongs to the State. Now what happens if the State does not go ahead with the project that they said they wanted to go ahead with? What happens then? The land just lies fallow. What happens to it? The idea of this land being returned to the person from whom it was taken is not there in the Land Acquisition Act, in the earlier Act. So they never returned it. It became then State property.

Since 1950s, the question has remained – who is the State in relation to land? Is the State a landlord? Is it a trustee? Is it a super-landlord? Is it an owner, a super-owner? Is it above the law? What is the State in relation to land which is with them? And that is an un-answered question. And I think it is time we start finding answers because it is becoming urgent now.

Now when they did not return that land and there were people who challenged it, they went to the court. The court came up with this, not once but twice over, they said that this land not only cannot be returned under this law, but ought not to be returned to the orginal owner. And why? Because if you were to auction this land, then it would fetch much more and by not auctioning it and putting out in the open market you were depriving the treasury of what should duly be sent to the treasury. Land by then had become a marketable commodity and it had ceased. The moment the acquisition is complete the person who originally owned the land has no longer any interest in that land. They are like anybody else. Therefore, it cannot be returned to them because by now they are like anybody else.

So when the 2013 law was being negotiated one of the things was, we will give you a reasonable amount of time. If you have been able to justify public purpose, you are able to say that this is something that you need to do, okay. Take it. But within a certain period, if you have not utilized the land for the public purpose for which you took it, return it to the person from whom you took it. When the 2013 Act came in and they were debating it, initially they said it will be returned. Give a period of five years. If in five years it is not done, we will return the land. But by the time the law actually came in, they changed that and said – if in five years it’s not done, it maybe returned or it may be put in to a land bank, which the State will keep. So now the State becomes owner of land through creation of land banks, with land that was, in one sense, illegally acquired because it is not used for the public purpose for which it was taken. So it’s actually not even legal that they should have taken it. That use of the law to do whatever they wanted; they use it take more land and have control over the land. Now what have they said? In the present ordinance, they say that if land that has been acquired under this and is not put to use within five years or any other period that may be specified, whichever comes later; if I say for the next 25 years I have this grand plan of whatever, creating Twin Towers maybe, I don’t know because there are all kinds of ambitions afloat; and it’s not done. This is treated as public purpose. It’s not done in five years time. It has not even begun in five years time. They can just say we plan to do it over a 25 year period. There are no limits on this kind of time. So the idea of returning that land or of relinquishing that land even to a land bank doesn’t exist now.

Laws are not made in vacuum. There must be some logic to why the law was made this way. This is about taking control over land and we need to understand what that means. If the time limits that are offered; five years is not a short time. What we found when we were reading this was that on the one hand we say we need to shrink all procedures. In sixty days, let’s do everything electronically. Nobody needs to survey the land. We’ll do it through GPS. You don’t need to go find out if people are there or not. Make electronic applications. The turn around time will be really quick. We’ll give you all of these permissions. You start your projects. Then you say, but we may give you longer than five years to even begin the project. So there is something fundamentally a problem there.

One of the things that we found in the earlier dispensation, which is continuing in this, which this dispensation has not bothered to change, and which this law does not address at all, is this emerging scenario, it has actually emerged now, of the State becoming a contracting party with corporations. When we did the tribal committee report, we went to the different state governments, but we did a little bit of survey of what we could find. And we found that in Orissa and Chhattisgarh, for instance, there are large numbers, I am sure it is across, these are two that we found because they are Fifth Scheduled states, large numbers of MOUs between companies and the State. If one state the size of Chhattisgarh is going to have 168 MOUs for various kinds of projects, and sometimes multiple MOUs given to the same company. Like SR might have four places where they are asking for land or the Tatas might have four places where they are asking for land. So the big guys having large amounts of land being allotted to them. There are many other players. Many of them totally unknown. Who, for instance, if you say coal mining, they perhaps have never mined coal in their lives, but they take it anyway. They get the license and they can transact on that license. So we saw the whole coal scam emerge in this period. All of this part of this MOU culture that has come in. This MOU culture asks very little. If you read the MOUs, you’ll find that they ask very little in terms of what the company is supposed to deliver. It talks much more about what the State has to deliver to the company.

So to give you two, three things that should worry us, it has been worrying some of us over this period. One of them says that there are environmental laws, but the State makes the law, and then it finds that this law is actually a bother. So the State gets in to an MOU with a company saying that we will help you get expedited environmental clearance. So too with the forest clearance, they say we will help you get expedited forest clearance. Increasingly we are finding the MOUs have started saying we will help in the maintenance of law and order around your project, which is basically about conflict between local populations and corporations that want to go and settle there. The State, you need to think of it either as an neutral entity or as an entity which is going to support the weak, because that’s what the Constitution talks about as the role of the State. You find that they are getting into relationships with the more powerful.

Expect, of course, if you were to go to some of these meetings and hear the corporations, you will feel that they are really weak! They need human rights and they need all the protection that they can get. Sometimes it’s like meetings are parodies. They are not meeting at all. When they say, ‘What do we do? We are happy to bring all these projects and pump our money into it, but we are helpless. All these people on the ground are preventing us from doing anything. So the State has to make sure that we get the land, and protect us at our operation.’

I think Madras had one instance, which Justice Chandru’s court had given a decision. This was a case where Dow Chemicals had asked for an injunction. They said that if people come and do dharna which blocks the ingress and egress, then it was going to affect their business. Therefore, they wanted an injunction. They said nobody should be allowed to come within 500 metres of their office and everyone should stay further away so that they can carry on with their business as usual. I think, Justice Chandru had given a decision where he said that anybody wanting to come in and do their business in India has to confirm to the rules, laws and the Constitution of India. The Constitution of India gives people the right to protest. So it maybe inconvenient. It might even result in some losses for you, but that is the constitutional position here. You come if you are prepared to respect the constitution as it is here. Now, that gets often forgotten in many of these things. So what we have in the law therefore today is we are back in a place where we (State) are saying that we’ll keep this land with us, we can keep it as long as we want, we can use it we want to and we may not use it, and we give ourselves a long leeway.

There is another thing that has happened which has also not got stopped, which this government has continued. We have had fiscal deficit in this country for some time. So the earlier government had put together a committee, Vijay Kelkar Committee, on fiscal deficit. Now normally those of us who work on land and issues such as this may not have read that too carefully. It just happened that it came within the notice of some of us that we need to read it. And we find a little clause there that says that there are many agencies of the government, which have excess land with them. Now that excess land, for instance ports, railways, public sector corporations, they all have excess land with them. Now if you were to sell that excess land, then you can use that money to start dealing with the fiscal deficit. These lands which are now being asked to be sold off were originally purchased under Land Acquisition proceedings. Most of them. There is a history to each of these lands. The purpose of the Land Acquisition Act can never be to deal with fiscal deficit. You can’t say I will buy from my own people and then I will sell it to somebody else at higher rate and I’ll make some money and I’ll use it for fiscal deficit. That doesn’t even deal with fiscal deficit. Presume they are saying that we take it from our people but we sell it to somebody else outside. This way of dealing with fiscal deficit is unethical. Between unethical and illegal, it is actually quite a thin divide. But in this case, the Land Acquisition Act certainly doesn’t permit this to happen. You find that kind of prescription that was given tells us a couple of things. One that in many cases there has been over acquisition of land and that’s important when we think of what the government is trying to do today.

In the present land ordinance, they have said that they don’t want to have social impact assessments, right? It’s one of the big things that they have said. They said that social impact assessment is time consuming and it is disruptive. So we don’t want to go through this process. I just want to say two things. One is that under the Land Acquisition Act as it existed, the 1894 law, there was a role for the Collector. The role for the Collector was to listen to all objectors, to collect their objections, and to report to the State on whether the project should go on there. He had a pretty big role. That role had shrunk in to non existence through non-performance in many of these cases. It had become like a symbolic role. Second, in the 2013 Act they started saying alright let’s have professional social impact assessments. Now I must confess that it needs more debate. I don’t know if it’s just social impact assessments by private agencies, which is a good idea. We know McKinsey, Price Waterhouse, whoever, the kind of reports that get produced and the kind of accusations in many places, kind of things they are facing today because they did something their client wanted. They knew what was expected of them and you are not going to continue being a consultant if you are not going to give at least something of what the person who is appointing you is going to ask you for. So I am not sure this is the best route anywhere, but I don’t think that there is denial that if we do not know what the situation is on the ground – how many people are getting affected? Is this the best place to locate a project? How do we make sure this is the least displacing alternative? Is there anything else we can do with it? And what will be the long term consequences so we can establish foreseeability? Can we anticipate what kind of problems will exist after this? If there is going to be there a denial saying that no, nothing is going to happen and something actually goes wrong with people’s lives, it might be impoverishment. It might be in Kalinga Nagar, the local tribals dying because they were drinking poisoned water. It might be a number of things that happen. But if we are not to have any awareness of that, how can any State do any planning? So why would a State want to dispense the social impact assessment without putting anything else in its place? There is actually no role. There is nobody who has got a role, which will help the State understand what will happen to local populations. And that was what the social impact assessement was about. Now they say that it is cumbersome and obstructive. It is a hurdle. Throw it out of the window. And that’s hugely problematic.

We find that when we look at something like Vijay Kelkar Committee Report and the VKC Report did not remain a report. There are many parts of the report that didn’t get followed up, but this has got followed up where they have started selling and auctioning the lands from these various projects. What does that mean? It means that there was over acquisition at that time. Over decades, they have not used that land at all. Then land becomes real estate and they convert it into real estate which they can use for making profit for themselves, when you have actually displaced people in that process. There is no answer-ability in this system at all. Social impact assessment, in whatever form it might be, we may need to engage a little bit on that to figure out what form will work, but as a concept it is something that will tell us what the problem is on the ground. What this idea of wiping social impact assessment completely off the slate does for us is what the problem is on the ground so that you don’t have to be prepared for anything. You just take the project on and then, I presume, something will trickle. That’s the expectation. I am not sure, what that something is.

The other very interesting change that they have made in this is that the 2013 law deals with private companies and that was problem enough because using the coercive element they said that 70% consent or 80% consent from people. It’s a quibble in a sense. Initially they said the 80% of affected people… have to give their consent. First you need to know who the affected people are, right? Now that becomes a problem. The quibbling still goes on whether it is going to be 80 or 70 or 60.

But they have shifted from the idea of private company to private entity. Any private entity can become part of this law. What the corporations are constantly talking about is that you (State) have to make rehabilitation happen, it is too expensive, we can’t pay so much. If the actual cost on the people in the community is going to be so much, then who is to bear the cost? Externalizing the cost means it falls somewhere. If it is going to fall on the local population, obviously it is not going to reduce conflict. It is not going to reduce the social cost it generates. So it’s got economic costs, transaction costs, social costs. It’s got multiple costs, which will all be unaccounted for in all of this. And that’s now going to be extended to private entities also. Because the fact is, if you look at the 2013 law what they do not change in the present dispensation is where the earlier law says that the project proponent does not have to do the rehabilitation, they don’t have to worry about it. They just have to pay for that rehabilitation. So they give the money to the State and the State is supposed to rehabilitate. I really want to know where they get this confidence from, that a State that has never delivered on this is suddenly going to start delivering on rehabilitation. It never has. It’s been one of the biggest problems in our situation. They simply don’t have either the mechanism or the political, I won’t just say will, the kind of alignments that are needed within an establishment for them to be able to deliver. So it is an impossibility that is being placed there.

Interestingly, they have one clause there which they do not dispense with here. But I am wondering what are they ways in which this will come. They say there in the 2013 law that if rehabilitation is not complete, then you can’t have change of land use. See, we have a system here. There is private land and thenthere  are other lands. All these have a certain land use. There is a land use pattern. You can’t just shift, for instance, from agricultural land to industrial use unless you go through that process. They say for the completion of that process where you can actually have your project there, rehabilitation should be complete. So the company will pay or any private entity will pa,y after this ordinance becomes whatever it becomes. And then the State will have to rehabilitate, but somebody has to certify that is done. That’s all it’s going to require, a certification. Now who is going to do the certification? Because till that certification is done they can’t carry on with that project because you can’t change land use pattern. So you can’t make a habitation into a mine or into a plantation or anything that you may want it to be. What we then have, in relation to land, is the exceptions that they want.

The other grand exception that they want here, I am sure those of you who followed the debates at that time, the idea of mutli-cropping agricultural land being shifted to some other purpose, to industrial or any other purpose, was much debated. And finally they brought in, kind of, half-hearted protection of multi-crop rich agricultural land, that you don’t divert it to purposes which are non-agricultural. The country also needs food security. Therefore, you need to protect it. The idea of food security has, therefore, been brought into the earlier law. Now they are saying that they want to exempt it in a variety of projects. What are these kinds of projects? For projects of national security and defense of India, now those are broad enough. Of course, after the Subramanian Committee Report there is one more kind of idea that has come in, projects of strategic importance. What they mean, I will leave it to your imagination. Then you have rural infrastructure where you are including electrification and all of that. Portable housing. Industrial corridors! So you can have all of this, you don’t have to worry about agriculture, food security and all of that. You had no social impact assessment where it has to do with industrial corridors, then infrastructure and social infrastructure projects. As of now, I think, hotels too fall within this social infrastructure projects. And they want exemption from all of this for the process that is there in law. Most of us by now we know that if there is no process, there is no protection and there is no answer-ability of the State either. You can’t talk about transparency in the title and then have no transparency at all in the way in which you function.

The kind of ordinance that they have brought in now threatens to bring it down to a point where there will be changes that are brought on the ground through executive fiat. And that is something I don’t think any of us can sit back and take. Now the last thing, which I found completely bizarre. I don’t know why they have done this. See, many legislations have what is called a good faith clause. Where administration has to act, towards the end of the legislation they will have something called a good faith clause – anything done by any official acting under this law will be presumed to be done in good faith. So if you want to challenge what they have done, you want someone to be prosecuted under that, you have to be able to establish that it was not done in good faith. T

his is the first time that I have seen the law, I mean, lawyers here will perhaps be able to tell us if there are other examples in legislations of this kind, where you have the introduction of Section 197 of the CRPC. What is Section 197 of the CRPC? It is actually being contested everywhere else. In cases, like, where there is torture, you can’t have prosecution of the person who has committed torture unless the State gives you permission to prosecute them. Since so often they themselves are agents of the State, they are officials of the State, it is very difficult to get that sanction. And the sanction power has been contested. It has been contested for a long time now. And it seemed very clearly as an over protection of State agents, especially, where you can clearly see that there has been a violation of the law. You at least have to turn it around. See, the reason that this is given is because administrators will find it impossible to function if any disgruntled person can go and file a case against them. So we have been saying for some time now we understand that. I mean as many persons who work on the ground we’ll be able to see how easy it is to paralyze a person by foisting cases on them. That’s the technique the State often uses when it comes to non-governmentals, for instance. So when you use it on a State official it might paralyze their function. The way you can turn it around is by saying that alright, if there is anybody who is making a request for prosecution, if there is an application for filing a case against a person, the State can consider it within a set time. Maybe three months and give their response on whether they are giving sanction or not. If they decide not to give sanction, then they will have to give it with reasons for why they are not giving sanction. Then those reasons will be justifiable. You can go to a court and challenge those reasons. At least it will mean that the State first of all has to apply its mind. Second, it will mean that there is some kind of answer-ability of the State. So they have to give reasons and then they will have to answer in a court. For a person who is outside of the state apparatus and is feeling victimized by it, it happens quite often, they too get an opportunity to fight their own battle. There is at least an arena where you can fight a battle and a law that supports you asking these questions. Section 197 is a much maligned with reason provision. While we are trying to remove it from torture, they have introduced it in to Land Acquisition, which is basically saying now they will have a free hand. They should be allowed to function under this law, however they want to function and nobody can ask any questions. You come and tell the State. The State will decide whether they need to be prosecuted or not. So they are introducing a 197 into the Land Acquisition legislation. That’s a bit extreme. Since many of these things are not explained it’s difficult to understand why they did it.

You know, there are two other legislations in relation to land. I won’t say too much about them because I don’t know if Madras will be enthused by it or Tamil Nadu will be enthused by it. But I have a suspicion that in this group there might be people who will be interested. So please pick it up if you find it is of interest to you. This is the Panchayat’s Extension to Scheduled Areas Act and the Forests Rights Act. Forest Rights Act, I find particularly fascinating. In 1980, they brought in the Forest Conservation Act. When they brought that in there was already the Indian Forest Act of 1927. The 1927 Act was consolidating what had been there before. If we read these laws carefully, we find that the 1927 Indian Forest Act was about the State saying that timber of commercial interest should be within the control of the State, because we have multiple projects whether it’s the railways or anything we may think of; we need to have access to that timber and nobody should be allowed to cut it without our permission. Anybody that does something that the State says you should not do under the law or under the executive guidelines that come under the law, we’ll take it away from them and they will be penalized. So this is how you had the idea of the reserved forests. They were reserved for the purposes of the State. Purposes of the state, especially after 1950, became purposes for which the State allowed certain sets of people to use it. So it might be whole forest areas of land being given to certain companies because it was part of the project of development. The 1927 law, therefore, if you read it carefully, is really about saying that they are reserved, they are protected, they are village forests, it’s revenue forests, which if they are not handled properly which if they are not handled properly can taken over by the State. So the State was asserting its control over these forests and it is right to do what it wants within that control.

By 1980, the agenda had, at least the rhetoric had changed. We were by then talking about environment, about having to half the silent valley, Mrs. Gandhi was also talking about saving the environment, saving our forests, wildlife. In the Forests Conservation Act, it’s a very small legislation, even for non-lawyers it is an easy law to read because it just has some four provisions in that. All it says, essentially, it says we are shifting control from the states to the Center. It was not about relinquishing control. It was about shifting control about decision about diversion. So it did not say that we will not divert land or we will have certain norms which will be put into the law about non-diversion. It said that the power to divert will shift from the states to the Center, because the Center can then coordinate for the whole country and 33% of the land mass has to be under forests.

By now, I think, all of us also know that there are large parts, about 23% of the land mass of India has been with the Forest Department because of the Indian Forests Act. Of these reserved forests, large areas under that don’t have any trees because they were made for commercial use. They were not meant to be forests. It’s all actually depleted. So when we think of the Forest Act, we think of Forest Department, and Forest Conservation Act, we tend to imagine that we are talking about conservation of forests, that we are talking about generation of forests and of preserving any kind of forest heritage that we have. The fact is that that’s not what it is about. We read the law carefully. We find that it’s about the State having control over forests and control over the decision about diversion from forests to non-forest purposes. So the 1980 Act did not really, therefore, I mean, it put a little bit of friction on diversion, but it did not stop it.

So if you read the TSR Subramanian Committee Report, they say that in all these cases when people ask for permission, when project authorities ask for permission, it takes a long time. 99% of them get the permission anyway. It’s just that it gets delayed. So we need to hasten that process. That tell us what this Forest Conservation Act does. It gives the Center the power to decide diversion and that’s something which is becoming important for us to recognize now.

The Forest Rights Act is fascinating for many reasons. One of them is this, I personally think we need to have a wider discussion on this, that 23% of the land mass which was just under the Forest Department, in these places anybody who was there whether they were forest dwelling communities, whether they were forest tribes, whether they were people in forest villages that are recognised as forest villages, whatever, all of them were perpetually vulnerable to being treated as criminals within that system, as offenders within the system. If you were to go, when the Forest Rights Act was being implemented, it’s being implemented even now in various ways and various shapes, you’ll find that many of them show their long vintage in that area, long residence in that area, they’ll have these pink slips which are evidence of forest offenses of which they have been charged from many many years ago. That establishes that they have been there for a long time.

What’s interesting about the Forests Act is that it does not give people rights. It does not say, ‘Oh, you are all forest dwelling communities. Oh you poor people, we are giving you rights.’ It says, ‘We recognize the rights that you have and we are setting right a historical injustice done to you. You were actually right to be where you were all along. We criminalized you. We are now withdrawing from that. We are recognizing a right that you already had.’ So in this whole area where you have the 23% of forests, the Forest Department has had to start relinquishing control. They have to start giving up some of their control because it is not about the control by the State. It is about recognizing the rights of people in that area. So this in that sense a historic moment. It’s a very important moment which many of us are missing. Maybe we need to pay some attention to that, especially now, with all these forests and tribal communities being asked to be decimated in the project of development.

One of the things we heard very often in many places from among the bureaucracy when we went on the tribal committee work, was that they said ‘What Madam, you are saying tribal, tribal. What tribal? They also want education. They also want health. They also want employment. They want something that everybody else wants. What is tribal about that?’ The two things that they refused to acknowledge was because you want health, should you not want health and retain your interest in your land and your community. So the idea that if you want what is mainstream you have got to be mainstreamed and integrated and therefore you have to lose what you have your tribal identity, has become part of this development language, which you hear everywhere. You want to be part of development, you stop being this tribal who is under-developed. There’s a deep contempt or a disdain. There’s no acknowledgement of what tribal life and tribal communities are about. They may be good, bad, indifferent. I am sure they are different in different places. There’s no understanding at all when we say this. And this is what is informing policy today. I think, that’s going to be another huge problem that we will have to look into.

The second thing is when the Land Acquisition Act came in, they introduced into that, they said that if you are going to have tribals in the forest, then you need to go through the PESA. You need to go through the process. You need to consult with them. And you need to get their consent from 2010 on. You need to get their consent for any project that you are going to locate where they are. This is obviously a problem for many of these people. That’s why when they talked about linear projects they said let’s exclude that because if we have it there then many of these communities maybe saying why do you want to put the road through my village you take it a little away, we will use that road when we want it, but we don’t want it going through our village. So you don’t want to give that kind of option. So they want to destroy the idea of consent. But what I found deeply disturbing was that they had even put the land that comes under the Forest Rights Act, in whatever form, within land acquisition. Because if you place it within the Land Acquisition Act.

You know to draw an analogy which may not be accurate but which also has the same kind of resonance; you know sometimes we think if it comes from the UN it has to be good, and sometimes it’s not quite true because sometimes they don’t get it. So to my mind, the convention against the worst kinds of child labour is really not a great piece of work at all, because what it says is that in the worst forms of child labour you include things like using children in pornography. It is not child labour at all. It’s a crime. By using this language of child labour, we are actually giving a kind of, it’s only an offence, it’s something you shouldn’t be doing, it’s not good, it’s immoral, but it doesn’t have the weight of it being a criminal act. That kind of dilution that happens in many legislations and it happens in this kind of a scenario too.

What they have done is by putting in the Land Acquisition Act they have made it appear like those who have land recognised through the Forest Rights Act, their land too can be taken away under the processes of the Land Acquisition Act. The Land Acquistion Act, the 2013 Act says that you have to go through the PESA hearing and whatever, but it does still say that it is amenable to the 20% of whatever forcible acquisition. The idea of using a statute to take land from one person and hand it over to another, has an element of force inherent in it. We don’t need to look beyond it. The dilution of various norms within the law will mean that… today, I think all of us must have seen in the paper that somebody from Greenpeace was stopped and not allowed to travel out. In our report, the Tribal Committee Report, we’ve used the work that they did on Mahan, because we got it confirmed from other sources too, including from within Government that what they were saying was not wrong. The consent in the Mahan project had in fact been acquired through fraud. People were bullied and threatened. They went from house to house and they got the consent. People did they say that it did happen, but yet it is in the power of the State to decide what is okay and what’s not. What can be investigated and what cannot? Who can investigate and who cannot? When this kind of power exists, then to place somebody within a law by itself makes them vulnerable to the power of that law. So there is a problem with having the Forest Rights Act.

The second thing is, when you go to those territories you will find that people will say we are happy to have this recognised and to get a patta because now we can mortgage this land so that we can send our children for their education. Now mortgaging the land will have to be done with some private entity whether it’s a bank or whoever or with the State. If you are not able to pay back, what happens? You lose the land. Now the protection that is offered that tribal land should not be alienated to a non-tribal gets broken down through this process. So if a State can see where this recognition of this rights is happening people are needing or thinking even in terms of mortgaging that land, the requirement of that local community has to be seen to protect their relationship with the land. That doesn’t happen at all. Instead it seen as one of those points through which we can make an entry to get the land from them. This is the kind of dangerous trend that we see.

See, there is one thing that we were taught during this process which I think maybe we need to think a little about when you look at the PESA it is actually called Provisions to the Panchayat’s Extension to Scheduled Areas Act. Initially, I didn’t understand the significance of this panchayat and none of us in the committee did. We had somebody coming in from Jharkhand who is himself a tribal who said, ‘Just sit down, I’ll give you a constitutional lesson.’ I must confess, it was hugely humbling to have him tell us because we were all a little impatient. We had only six months in which he had to finish all our work. What he told us was supremely significant. He was saying that you have the 73rd and 74th amendment that came. You have the panchayats that are described under that. But when you look at the provisions in the constitution you will find that this does not automatically apply in Scheduled Areas. For it to apply Parliament has to make a law. It has to make law which will make provisions of this panchayat law from the constitution apply in scheduled areas.

And that is because, to give some of the things that are in PESA which explains it; any legislation under PESA says has to be in tune with customary law, social and religious practices, and traditional management practices of community resources. So the general panchayat law may not account for all of this. So when you look at the general panchayat law and you look at PESA, which is the law that has been made to extend some of the provisions of the panchayat law to the scheduled areas, you find that it is a completely different thing that you see. Because there we are talking about autonomy of local populations. You are talking about relationships between the tribal population and the resources. You are talking about their own recommendations to the State, of what they think should be development in their area. You are talking about consulting with those populations before you proceed to do anything else. And for the past year, there has been a proposal which is floating, which says it should not be consultation, it should be consent of that population before you can do anything in their area. This is totally different from what you have in general panchayats. And that’s because you are thinking in terms of protection of the rights of these communities and of their lives, and their lifestyles. Now that is somewhere getting lost, but at least in scheduled areas you still have it where there are panchayats.

We noticed that there was one thing happening, which is that municipalities, in 73rd and 74th you have panchayats and municipalities, the same rules apply to municipalities; in municipalities too, you need to have a law that is made by the Parliament which will extend some provisions from the constitution to those municipalities. No law has been made so far on municipalities. So what we are finding in the scheduled areas is that there is an attempt to make more and more parts of panchayats to integrate them into the municipalities and bring them in under the regular municipality law, which will not give the tribal protection, the protection the tribals get under the law. It will be shorn of that. And that’s unconstitutional. As a lawyer, it’s a word that keeps coming back, because many of these things are totally unconstitutional. You cannot have creation of municipalities.

Now when they talk of having smart cities in fifth scheduled areas, they cannot do that till they have a law that is passed by Parliament which deals with what municipalities will be in scheduled areas. So this is some parts of it.

I think I’ll just quickly, honestly there are many more things; but I’ll just quickly run to the labour legislations, because that’s the area where we see some of this happening. It’s going to have a huge impact. We are talking about displacing populations, which will then have to re-equip themselves to become part of mainstream work and that work is getting reconstituted. So in many places we find like there are at least three sets of law that are being brought in now. One is revamping of the Factories Act. Actually there is one thing in that Factories Act revamping, which is not altogether bad, but it is not good enough. And that again has to do with Bhopal. After the Bhopal Gas Disaster, when the government was in the court, and they were battling the Union Carbide in (19)87; at that time the Government was saying that with the Union Carbide there had been a design defect in the plant and it is that design defect that had resulted in, that was at least partly the causative agent of the, which caused the Bhopal Gas Disaster. And Union Carbide was saying that that’s not true, it’s a great design, it’s just you people who operated on the ground in India you’re not good enough, and if you were to deal with it properly then disaster would not have happened. Of course, I think by now that’s a myth that has been broken many times over. At the time that this was being debated in the court, in 1987 you have an amendment that is made to the Factories Act. And many things that are there in the Factories Act in relation to hazardous processes was introduced then. Along with that, they slipped in one provision, which gave any company that was going to come in, they said anybody who is a manufacturer, importer, seller, designer, of any plant or machinery were to come into India, and they were to sell it to an actual user, who gives a written undertaking that if properly used it will not result in any health damage, damage of any kind, then prima facie it absolves that person. Think about Union Carbide when you say this. It will absolve them of any liability. So even to begin with you will say, ‘No, no, no, no, it could not have been the designer’s fault, because you as the actual user gave a written undertaking saying that if properly used nothing will go wrong. So if something has gone wrong, it is because you did not use it properly.’ It was slipped in. Many people within the government were aware of it. They felt that it was not a correct provision to be there, but it has taken years and years and years before finally now and this is one, it is not a full silver lining, but at least it begins to, there is at least a glimmer there, that now they are saying that this is not the language that we are willing to use. It is not about if it’s properly used, but they say as far as practicable if you can make sure, ‘as far as practicable’ is still something we can challenge, you have to make sure that your design or machinery will not cause any harm. If you are able to do that, then if you have breached that provision that’s where the problem comes in, the penalty is very meager. They say some three months. Now when you have massive, you know that comes after Bhopal Gas Disaster. You can’t have three months as punishment for anybody. It’s like an insult to people who are going to die. We have had about 25,000 people die of the Bhopal Gas Disaster already, and to say that you will have 3 months imprisonment or 1 lakh fine is not saying very much. But it is still a shift from where we were, where we were putting the burden on the local and completely absolving the global. I think that shift if this comes through we would have at least taken one step towards improving that situation.

I must, however, make just one mention that, you know, you have the National Green Tribunal. Now they want to dilute the National Green Tribunal. It’s not going to be that easy, like some journalists have been saying, it’s not going to be that easy because too many people are watching it and too closely. But the National Green Tribunal itself has a very interesting, I don’t know how many people really noticed, that the National Green Tribunal is not only about environment clearances, it is also about the fallout of Bhopal. See, when the disaster happened, then in 1991 you had some interim compensation through a law. In 1995, they passed a law called the National Environment Tribunals Act, aptly acronym-ed NETA and like most NETAs it didn’t have a beginning at all. It was never activated. It just sat there on the statute books. The Executive never notified it. And then it kept waiting patiently till it was merged with the National Green Tribunal. And now nobody knows of its existence. Even people who work on the field are not aware that you have some remedies which have built into it. It is a very shoddy piece of legislation, but it is there. That part of it is very shoddy on how they have included the principles of compensation and restitution in to the National Green Tribunal. But this is one of those cases where we have secret-law-making not because the law itself is secret but because nobody tells you it’s there and it takes a long time before you discover it’s there. But it is there, so please take a look at it. It’s something that we need to work on because if industry, does in fact, come like it’s intended now.

You know, it’s one of those ironies. I don’t know how else to view this, except with stronger language maybe. We talk about a cleaner India and then we are asking for pollution everywhere because that’s the only way we can develop. And we haven’t really applied our mind to this at all, because we are asking for dilution of air pollution and water pollution standards. We are asking for dilution when it comes to deciding where you are going to locate industry.

So in labour law, you find that what has become very popular now in this present government is to say let’s have self-certification. And let’s do it all E. You send me one e-application. I will send you one e-acceptance. That will make it quick. That it may actually make it inaccurate and meaningless is getting lost somewhere. And it is also interesting that when the TSR Subramanian Committee was looking at how permissions need to be given, the case that they referred to was the Lafarge case. Lafarge case, itself, deserves to be maligned and it has been maligned by many. Because it’s one case where you have the Supreme Court saying, at the time when this company went to mine limestone they were told that there are no forests. How were they to know that there were forests? Now a company that is going to set up shop in an area, going to do mining there, it left it to some consultant to go and find out if there was mining and the consultant gave them wrong information and they had no idea. So this idea that poor things with their ignorance of what there is on the ground that was endorsed by Lafarge. So to use that as an example, for saying that we need to make things simpler and even in Lafarge they said whatever they said is side-stepping the main issue and looking for comfort in the only place maybe where they could find it. Because if they had to refer to Vedanta in the same way, they might have not got the same kind of answers. In labour laws, they are talking about e-application, e-registration, and you can also e-de-register, which means you can just close and inform the authorities that you are closing.

This is a country where every time we have had failures we find solutions that have nothing to do with the problem itself. So in this country we have had a very poor record of labour law implementation. I think all of us know it. It’s been really difficult to get any kind of labour law implemented. So they are saying let’s not implement, let’s not regulate. Why have regulators? So in the small scale industry sector, now they want to bring a law which will say that forget about Payment of Wages Act, Employment Provident Fund Act, forget about all these legislations, Minimum Wages Act, Maternity Benefit Act; we need to acknowledge that all employers must pay minimum wages, all employers must pay wages on time, all employers must be good to their workmen, or whatever. And then you just have one agency and that’s enough. You go to them, if you have a complaint, you go to them. They will deal with it. So the idea that they had before, in the earlier legislation, where you have an inspector who takes responsibility as the State to make sure that there is no exploitation of labour, that’s totally taken off. So there were certain categories of labour that were always recognised as being exploited or had the potential for being exploited. These were people like contract labourers, especially. Now all those protections now they need to take off and they want to bring in hire-and-fire because that’s only way you can generate employment. As we have seen even now around us, what it does generate in huge measure is insecurity. And there is no means today under the new kinds of laws that are coming in of preventing victimization. So if anybody does make a complaint, if somebody does go and say that there is a problem, they can be thrown off their jobs and there is nothing in law to protect them. By breaking down structures of unionization, by breaking down the idea of regulation and taking away the responsibility of the State to make sure that people are not exploited, and locating that in the inability or the non performance of the State so far, amounts to an abandonment of a whole class of people who are the new working class and the old working class. So this is broadly what they say.

For instance, there are new kinds of terms coming in. For instance, Apprentices Act. Initially when they were amending the Apprentices Act; you know, now we have started watching it more carefully, because many of these seem to have a similar kind of agenda. In the Apprentices Act, earlier you would see that they can be employed as apprentices at the age of 16 up to 18 after which either they get absorbed, but their apprenticeship period will be for that period. Now they say you can employ them at the age of 14 and there is no obligation on the employer to keep them on even when they turn 18. And they can use them in multiple ways. It’s like getting cheap labour, without having to take responsibility for that labour. Maybe I’m a softie on this, but I was thinking, you are even doing it to children now. How far will we go? Why would we want to say it’s alright, lets put children into it, let them do the work? In the Right to Education, we know that there has been a problem with this idea of having Right to Education just between the ages of 6 and 14. When we tried digging out to see where did this 6 to 14 come from, I mean most of our children go to school before they are six and nobody stops their education at 14; maybe today if somebody stops their education at 14, they would find themselves able to stand for panchayat elections in Rajasthan where they want you to be at least have an eighth standard pass. It’s completely ridiculous. But what you have here is 6 to 14 again being endorsed, and then saying that 14 you can use them as apprentices and there is no responsibility for providing continuing education along with that apprenticeship. So all you get is this kind of vocationalizing, with no guarantee at the end of it of being absorbed anywhere or for any agency to take responsibility for placing them anywhere.

This is broadly what we have. I’ll stop now.

***

This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the talk to Dr. Usha Ramanathan and Madras Institute of Developmental Studies. Recording done by Radio Potti.

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“We are sitting on the brink of disaster with Tarapur,” says Former Chairman of Atomic Energy Regulatory Board.

A Gopalakrishnan in conversation with Prabir Purkayastha, Newsclick (Part 1)

Published on Newsclick YouTube Channel on 18 February 2013. 17 mins 40s

English transcript available below. 2456 words. Download the transcript in .doc format.

PP: Hello and welcome to Newsclick. Today we have with us Dr. A Gopalakrishnan, Former Chairman of the Atomic Energy Regulatory Board. We’ll discuss the nuclear energy programme in India and what’s happening to nuclear energy in the world.

Gopal, Jaitapur issue has again become hot because the President of France Hollande is to be in India and also because EPRs (European Pressurized Reactors) seem to have run into further trouble. (Ref: France, India committed to Jaitapur project, WNN)

What do you think is the issue with respect to the EPRs? Why is it suddenly that the cost of EPRs has gone up by almost 30% and Flamanville now is going to cost a whopping 8.3 billion euros, if the figure that EDF (Électricité de France) is saying are correct? (Ref: EDF raises French EPR cost to over $11 billion, Reuters)

AG: The EPRs, which are the reactors, which are meant for Jaitapur, they’re under sharp focus even in Europe, everywhere. Especially after the Fukushima accident, because as you know, the European Union conducted a series of stress tests among the European countries to look at what modifications need to be done if any to the European nuclear reactors. So, in doing this, France, of course, took on the task of looking after their reactors and so also did Finland.

And the reason I mention Finland is, the EPRs today are in three places. There is the first reactor which was started, the EPR couldn’t be sold in France initially, so they went and convinced the Finnish people and they bought one reactor, which is under construction since 2008 and it was promised to be completed way earlier. I mean it was, in four years time, but it never took place. And because it has already run in to various problems in its.. earlier stages, the Finnish people were very particular that they should reexamine the EPR design, which they have. And at the same time, the French nuclear regulator, who is one of the strictest in the world, I mean, it is very impartial and competent regulatory agency…

PP: It reports directly to the President of France.

AG: Yes and they have a transparency law, a nuclear transparency law under which the public have to be kept informed about it. Basically, quite a model that if half of that can be followed in India we’ll be much better off. In any case, so, they have also done the same thing and they have come up with various things in the system, which they think can be strengthened. Mainly because, now we are talking about beyond design-basis accidents. Earlier, you know, it was really designed only to full care of the design-basis accidents, nothing beyond design-basis, which means this extraordinarily high earthquakes, floods, etc. Now it has been made mandatory that those things also, you should show that under those circumstances also public safety will be ensured.

So, I think, the French after a detailed study, in about six or nine months they completed it, and they have made it mandatory that certain corrections will have to be made, and its an extensive list. It would require hardware changes. It also asks for, some substantial changes are being made that ultimately the entire safety analysis report will have to be redone so that the Integrated System Safety can be studied and also a probabilistic safety analysis will also have to be repeated.

So, it would imply even for the Flamanville reactor, which is the French reactor, this will imply a substantial increase in cost plus also increase in schedule, it will also get extended. And the Finnish having seen this they certainly don’t want to be one step behind the French and they wanted all those corrections also to be made in the Finnish reactor, EPR reactor. But in addition the Finnish inspections and studies also pointed to some new further changes that they wanted, which in turn the French also accepted. Therefore, what the Finland people thought of is also getting incorporated in the French reactor there. Ultimately, the EPR and Areva is getting overload with all the changes which they have to do if they want to sell these reactors anywhere in Europe. And this going to add about 25 to 30% more cost. The EPR was one of the costliest reactors even before all of this. And now, as you know, it has all come down to about 36 crores, in our terms, 36 crores per megawatt.

PP: That’s the interesting part. When it started it was 3 billion euros for Flamanville, 3.3 billion euros for the Finnish reactor, now they are all talking about 7 to 8 billion. Électricité de France, in fact, said it’s going to be 8.3 billion euros, which calculated in Indian terms, comes to 36 crore per megawatt.

Now, coming to one particular point that you had mentioned about the stress tests, which the European regulators did for the European existing nuclear reactors. India seems to have done a stress test within a month and declared that all the reactors are safe and there’s nothing to be done, including the Tarapur reactor, which as we know has the same problem as the Fukushima design had. In fact, there is a problem over the power system, which is not backed up, and so on. And yet, in the report of Tarapur it says yes back-up power systems have to be provided, they’ve given them two years and in this meanwhile in these two years Tarapur reactors are still supposed to run. How do you look at that?

AG: I think we are sitting on the brink of disaster with Tarapur. In 1995, when I visited United States as the Atomic Energy Regulatory Board, I had an opportunity to talk to the Department of Energy officials. I had gone on a sort of a sensitive mission trying to get some spare parts, some essential spare parts for the Tarapur reactor. Now, it can be said. That time I was sent with a list of spare parts written, typed up in a plain sheet of paper, with no signature, with no letterhead of the Department of Atomic Energy. And I was supposed to go discuss and tell them, this has come from Department of Atomic Energy and could you sell us these parts. And they were all for the Tarapur reactor.

So, I, Hazel O’Leary, was the Secretary of Energy at that time, she had come before that to India. So, I had also met her at that time. She said, you’re welcome. Come to Washington. We’ll see. So, I took this along with various other things which we wanted to discuss, but I gave this paper to her and she was sympathetic, because she understood the public safety aspect of it; that is if this reactor melts down it’s also a bad name for the United States.

Mind you, the days when I was doing all this were pre-2008 and post-1990. I mean not the 1998’sbut we were still under sanctions, U.S. sanctions. To make a long story short, she took this list and there’s a White House group which has to clear such requests first, and that included their National Security Advisor, and others. And they.. Next day, she called me up and said, Please come, I want to talk you. I went there and she said, I’m very sorry the White House group is totally against it. So, I was told to tell you to inform the Government of India that if they feel that strongly about the safety of Tarapur, it will be best if they shut down those reactors and not operate them.

This is a very considered opinion that these reactors have to be shut down. They are one of the oldest reactors. We’ve talked to the General Electric people and they also advised that this should be done. Then they gave me couple of the old-timers from General Electric who were in Washington D. C., put me in touch with them and told me a story. And some of them were involved with the Tarapur construction at that time. They said, look we ourselves don’t even have the  drawings of any kind of that and we’re on telephone giving instructions to Tarapur people to make this change and that change, and they were cutting and re-welding all that inside that reactor, what is left there and the state of health we are not aware. And it will be good if those, I’m telling it as from a technical person to technical person, it will best if those reactors are shut down. And this was the year 1996.

And today, we are sitting here about what…

Both simultaneously: seventeen years down the line.

AG: And of course in between the Nuclear Power Corporation has gone ahead and done some revamping and all that they have said they have done. And we’re still running them. These reactors are an even older version than the Fukushima reactors, which went into trouble. And many things, I mean the containment is shared by two reactors share the same containment building. And various things in there the emergency core-cooling system are not the ideal ones, even today…  This is why when India recently decided to get, invite the IAEA (International Atomic Energy Agency) team to review one of our reactors, one of our reactor plants, I thought that they would at least ask Tarapur to be reviewed, because you know it would have been the most relevant reactor to select. If you want an independent honest opinion from a multinational group, and that’s just not Americans. It’s not that all of them are going to gang up and say shut down this reactor, unless there is technically good reasons.

So, anyway, this reactor was not given. And what we put before the IAEA team was, what I would consider some of the best, two of the best reactors of our current generation PHWR (Pressurised Heavy Water Reactor), obviously we didn’t get much of a criticism, because those reactors are reasonably okay and new. We had placed Tarapur to for such a study, I’m sure in fourteen days of their inspection they would have come out and given us a list of hundred and fifty things which need to be changed. Much more likely that they would have said it is best that you shut down.

PP: So, Tarapur is a ticking bomb.

AG: Tarapur is.

PP: Tarapur Unit 1 and 2 are ticking bombs

AG: And I think in the same way among the projects, which say that we are concentrating on the safety of a lot of these imported plants, etc., but the similar ticking bomb among the projects is the Fast Breeder Reactor which we are building very quietly down there [in Kalpakkam], knowing very little about it. This is a big scale of act from a 40 megawatt thermal to 100 megawatt electric fast breeder, which is about a step of 40 increase, a factor of 40 and the two don’t look alike at all.

Fast Breeder technology, you know, I myself worked for three years on a fast breeder on the operating side. I can tell you that it’s not a benign technology at all. It is not a forgiving technology. If something goes wrong, it will boom the whole countryside will go.

So, I can only keep my fingers crossed. I wish much more transparency comes out in these programmes. Both Tarapur and here. And you know, why, what are we risking all this for? In Tarapur with all the de-rating and all that today, ultimately there are 160-megawatt per reactor we are getting. So, two reactors put together we are getting we have about 320-megawatt electricity. You can just as well set up a coal based plant or something else. If Tarapur is not that close to major cities, you could very well set up that and decommission this, or use that site or the neighbouring site, already there are two other PHWRs there which are producing 1000 megawatt altogether.

So, I think we are doing a lot of foolish things and pushing our luck far beyond. And this going for the Jaitapurville is also a similar situation of pushing our luck beyond.

PP: Jaitapur brings me to this issue of cost, of course, because apart from the safety issues, there is a issue of cost. And we already have in Maharashtra they show Enron, where we went in again for a foolish project where the cost of electricity today from Dabhol is so high that it virtually runs, it doesn’t run at all, or if it runs, it runs at one-sixth of its capacity. So, if we have 36 crore per megawatt, the electricity cost is going to be Rs. 12 to Rs. 14 a unit, and that cost is really not viable. So, why is Government of India really pushing for such an unviable nuclear path? That doesn’t seem to be clear.

AG: It’s a very clear thing, now that I look back. Now, I have been studying the Indo-US Nuclear Deal threadbare from day one. The whole thing has its origin in deception, in a way. I think the Prime Minister did not start this entire nuclear power programme, imported reactor programme, was not set up with power enhancement of electric power in the country but basically it was… As Kakodkar himself, as previous Chairman of the Atomic Energy Commission, accepted in one of his interviews with a Marathi newspaper it was really a gift to three or four nations, which helped us in getting this energy clearance, Nuclear Supply Group clearance for the deal. And I’ll tell you that in 2005 July the Prime Minister went to America, came back with this agreement for out of the nuclear pariah status. And interestingly in 2006 the, Montek Singh sitting as the Deputy Chairman of the Planning Commission creates a Integrated Energy Policy (IEP), in 2006. And in there, it is built in that 63,000 megawatt of nuclear power will set up by 2032. That’s the date, 2032. It is part of 63,000 megawatt of nuclear, if you analyze you find that in a you’d find that in DAE’s earlier books you’ll find that 23,000, which was their projection of the indigenous programmes’ capability by 2032. So it is clearly a 40 added to the 23 that was already in the books. And lo and behold, up to 2008 when the deal was signed, Kakodkar announced that we need a surge by introducing 40 gigawatt of imported light water reactors. Then only we can really move forward to something like 600 gigawatts, that is 600,000 megawatts of nuclear by 2050. And that would be at that point about 50% of the energy.

Grand over projection, but nevertheless to achieve that he said it was imperative that 48,000 megawatt should be imported, light water reactors should be imported, with 20 years. Now, that is how the case for a nuclear import is built in… and then you go back in history and even Kakodkar said this in 2008. And 2006 we have letters written by the Foreign Secretary to the American State Department promising that we will buy at least 10,000 megawatt of US reactors from them.

PP: Gopal, let’s take this out from India for the moment, let’s look at what’s happening to the programme elsewhere . We’ll do that in the next part of this discussion. So, keep watching Newsclick and the next part of the discussion for what’s happening to the nuclear programme in the world.

***

This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the video interview to A Gopalakrishnan and Newsclick.

Chai Kadai. (chaikadai.wordpress.com | chaikadai@gmail.com)

The Power of Promise: Examining Nuclear Energy in India

M V Ramana in conversation with Nityanand Jayaraman

Date: February 18, 2013. Location: Asian College of Journalism

Published on Youtube on Mar 3, 2013. 30 mins 21s.

English transcript available below. Download the transcript in .doc format.

NJ: Dr. M V Ramana is a physicist at the Nuclear Futures Laboratory, Princeton University. Besides authoring numerous technical papers on the subject of nuclear power, Dr. Ramana is also known as an eloquent and an articulate speaker on the geopolitics of nuclear energy and its changing prospects over the years. In late 2012, Penguin India has published his first solo book, which is called The Power of Promise. He is currently in Chennai, as part of a multi-city tour of India to discuss and release his book. Good afternoon, Dr. Ramana. Thank you very much for being with us at ACJ.

So your book has a very interesting title, The Power of Promise, and in Tamil Nadu, we are painfully aware of the undelivered promises of power, especially the electricity. What is the point that you are trying to make by this title that you have chosen?

Click on cover to see the book in Flipkart.com

Click on cover to see the book in Flipkart.com

MVR: The title came after I wrote the book and as I was studying the history of nuclear energy in India. And what I saw was that over the course of the last seven decades when nuclear power has been established in this country since its inception of the Department of Atomic Energy, the nuclear establishment has made a number of promises of how important nuclear power is going to be as a source of electricity generation in the country, in the future. These projections have always been for the future and they have never been delivered as such. But, by making this promise that in the future there is going to be a large amount of power, they ensure that the Department of Atomic Energy and all the nuclear activities it conducts are supported by the political leadership as well as the elite in the country and this is also combined with yet another promise.

So, the promise here is of two natures. One is of large amounts of energy in the future, but also of, perfect security through building of nuclear weapons. And the Department of Atomic Energy is unique in being a technology that offers these two different promises, these two different aspirations that the elite have. One of being able to consume large amounts of energy, which they feel is necessary for development and economic growth. And of nuclear weapons, which they feel is going to provide them with security. In that sense, nuclear power forms a technology that offers the capacity for mass production, mass consumption, and mass destruction; in that sense, very very unique. What I find is that the nuclear establishment gets its political power through these promises.

NJ: One of the important, kind of, methods by which the nuclear establishment has tried to get its bind to this project, to this whole programme, has been its much doubted three-stage programme. And your book suggests that this has been and will remain a non-starter. Can you tell us more about what this three stage programme is and why you think its going to be a non-starter?

MVR: Before I would say, first I would say, I don’t think it is a non-starter. It has already started, but it’s going it be a non-deliverer. The three-stage programme was first enunciated by the Department of Atomic Energy, in particular its founder who is called Homi Bhabha. The first time he talked about this in 1954 and this was in the context of a debate in parliament, with a critic of the nuclear establishment  as it had been set up at that point, a chap called Meghnad Saha, who was a well-known physicist. And Bhabha basically used the idea that India has a large amount of thorium and he wanted to try and use that thorium to try and make their nuclear power. The reason he wanted to do that has to do with this question of promise.

Let me start by explaining what the basic issue is. So if you wanted to generate large amounts of nuclear power in the country, then you needed large amounts of uranium. And at that time, and subsequently too, what it seems is the case with India and, Indian geology in particular, is that we have fairly limited amount of uranium and the uranium is not particularly of good quality. And to qualify that let me also point out, by limited amount, I mean limited amount of uranium that’s high of quality, that its economic to mine it. Uranium is plentiful. You can find it in your backyard. The amount of uranium you will find by sifting through your entire backyard, will probably be a few grams. So, its not worth it. But, if you wanted to look for somewhat good quality uranium ore then the amounts are fairly limited in India.

Now, nuclear energy is to be big source of power; and that too you want to do it in such a way that it only depends on indigenous resources, then you could not depend on this uranium as it were. It so happens that India also has a large amount of thorium and around the world at that time [1950s], people in nuclear establishments in many different parts of the world felt, France for example, all felt they had limited amounts of uranium and they had to find ways of  exploiting this thorium, which is typically found more abundantly around the world. And as a way to do that, they set up a three-stage programme. In the first stage, what you do is find natural uranium that you find in nature in the cores of what are called heavy water reactors. These are reactors where the neutrons are slowed down through an interaction with water, where there is a heavier isotope of hydrogen called deutirium, which is present. And that deutrinium slows down the neutrons so efficiently that the neutrons have a much higher probability of hitting another nucleus of uranium causing it to fission. So that’s the first stage of reactors.

The next stage is that you take the spent fuel, that is the fuel that has been irradiated inside a nuclear reactor, during the course of which the uranium that’s initially in the fuel would have got converted to plutonium. So you take this spent fuel, after cooling it for a while, you process it in a reprocessing plant, which is basically a chemical plant where you dissolve it in acid and so on, add various chemicals, trying to separate the plutonium. The plutonium in turn, in the second phase, will be used to fuel the reactor, which is called a breeder reactor. A  breeder reactor is one where the core has plutonium, which is actually the one which is fission-ing, and then is surrounded by the blanket of other uranium or thorium, which in turn will absorb some of the neutrons that are escaping from the core of the reactor, to be converted into plutonium, if it’s uranium, or Uranium 233, a different isotope if it’s thorium. And in turn if you produce enough Uranium 233, you could start thinking about reactors where you had Uranium 233 in the core and thorium [indistinct word]…  So, this is the three-stage idea that Bhabha had.

All-Atomic Comics pp. 17 Breeders. Leonard Rifas

All-Atomic Comics pp. 17 Breeders. Leonard Rifas. Click on image to read.

The problem with this idea is essentially the second stage. The second stage involve these so called breeder reactors and these breedor reactors, because of the fact that you’re using this highly fissile plutonium in a very dense configuration you produce a huge amount of heat in a very small volume and this requires the use of metals, molten metals to conduct this heat on to the reactor. You cannot lose water. And this has been a huge source of problems with nuclear reactors around the world. The other set of problems with breeder reactors are that they are susceptible to certain kinds of very catastrophic accidents. All of these typically conspired to make breeder reactors very expensive. And as a result of these many countries, which initially thought much about breeder reactors, have abandoned this idea; this includes the United States, includes the United Kingdom, France… So, as of now, it’s mostly India and Russia, and to small extents China, which is interested in this. If you get through this whole stage, then you have to get to the thorium problem/stage, and thorium has all the problems of the second stage of uranium and other problems, which have to do with the fact that when it produces Uranium 233, it comes with a contaminant, which is Uranium 232, which highly radioactive. So, even to make that substance into fuel rods, you have to do it remotely behind concrete walls and things of that sort, which makes the process very expensive. So, thorium, I would expect it to be much more expensive than the breeder reactors we have. 

NJ: But, we do have a breeder reactor in Kalpakkam coming up.

MVR: We do have, and I’ll talk about that.

NJ: Okay, we’ll come to that in a bit. Now, authoritative sources, including the likes of the Prime Minister, have suggested that India will get nearly 275 gigawatts of electricity through nuclear power by 2052. And we have seen numerous news reports that have just reproduced this, without any critical insight into how achievable it is. What are your thoughts on this and what do you say about it in the book?

MVR: These kind of goals, as I have said, have been enunciated many many times in the past and have never been achieved. The 275000 megawatts by 2052 came around in the early 2000s. And actually in more recent years, it has been devised in a upward storm to 470,000. I’ve seen figures as of that. Apart from all the other problems of nuclear power that it has, long reactor construction time, it’s expensive, all that, all those issues, there is a special problem to this particular projection.

This particular projection is based on building large number of breeder reactors. These breeder reactors, I’ve told you have other problems, but even if you set aside all those problems, assume that you have the money to put in to this and so on, there’s a problem with this projection, which has to do with the accounting for the plutonium that is required. So, as I mentioned earlier, breeder reactors are ones where if you put in a certain amount of plutonium it could generate more plutonium at the end of the cycle. But, in order to get that plutonium out you have to do various things. So, you will have to take the spent fuel out of the reactor, you will have to wait for it to cool, you have to reprocess it in a reprocessing plant, then you will have to take the plutonium out, and make it into fuel rods, rebuild another reactor core with it and then start that reactor. All those things take a certain amount of time. And in the case of the DAE’s projections they have just not alloted enough time for that. So, this is not a matter of being optimistic or pessimistic, it is a matter of physics.

And in mathematical terms, for those people who ubderstand mathematics, the difference between having what’s called a differential equation and a what’s called a difference equation. And the DAE’s thing is inaccurate because it just assumes that the growth will be so smooth and exponential whereas you have to take in to account these discreet actions which have to be done. Once you put into… again, if you go by the DAE’s projections, you will actually end up soon in five to six, ten years with negative amounts of plutonium, because you need the plutonium to fuel the reactor and so on. This is not enough plutonium for that. If you do try to be careful about the plutonium accounting and not assume to have produced it out of thin air, then what happens is these projections are automatically down by 40 to 60%. And if you try to get into account more realistic projections, then you’ll probably come out with 80% of what they have have. Even at the theoritical level, you are not going to be able to reach 275000-475000 numbers that you are talking about.

NJ: Then that figure you’re saying assumes that the second and third stage will be able to go up to…

MVR: This is all only the second stage.

NJ: Only second stage.

MVR: Yeah thorium, even in Department of Atomic Energy’s plans, comes about only after 2052. ….Also, I want to say one more thing about thorium, since you have talked about it. Which is that, there used to be a joke in the electronics industry. The electronics industry, as you know, is mostly based on silicon. And in the 80s, they used to talk about germanium as being ideal metal for semi-conductors and all kinds of chips and so on. But, germanium was found to have various problems. So in the 80s and 90s, people used to make this joke about germanium – Germanium is the material of the future, always has been, always will be. And you see, thorium is very much like that. It’s this magic grade that they want to have it, it’s always in the future, and always will remain in the future.

NJ: Your book meticulously highlights the various mishaps and hurdles faced during the construction and commissioning of various reactors. In one instance, you mention a fire and an explosion proceeded and closely followed the Prime Minister’s visit to Kalpakkam, when she went there, when Indira Gandhi went there to dedicate the MAPS-1 reactor to the nation. Was this incident widely reported? Do these mishaps, which you know are infamously called incidents, come to light automatically and immediately?

MVR: Usually not. In some cases, they do come about. I think, I do not know actually if this widely reported at that point. I found out about it actually through the writings of the retired DAE Secretary, M R Srinivasan, in his autobiography he had talked about this. That’s how I found out about it. What typically happens in  many of these cases is that immediately after the event you often will not find anything about it in public media. Occassionally, some workers leak news of these kinds of things to media and so on. That’s how you find out about it. You find out some, some mishaps through the annual reports that the atomic energy regulatory board…so, you find some information. The picture is neither completely dark nor completely transparent. It’s somewhat mixed. You do find out some details, but some times not.

The 500 MWe Prototype Fast Breeder Reactor (PFBR) under construction at Kalpakkam. Photo credits: S Raghunathan, The Hindu.

The 500 MWe Prototype Fast Breeder Reactor (PFBR) under construction at Kalpakkam. Photo credits: S Raghunathan, The Hindu.

NJ: You’re now in Chennai, a metropolis less than 100 kms from Kalpakkam. And on the other side of Kalpakkam sits Pondicherry, another teeming town. NPCIL [Nuclear Power Corporation of India Ltd.] claims, I mean I know one of its, 25th year, it claimed that the Kalpakkam plants have operated without any hazards for several reactor years. How true is this? What are the kind of facilities that are currently running in Kalpakkam? Is there any cause for concern for people who are living in Chennai or in Pondicherry?

MVR: I would answer this at three levels. First level is, asking just what we know, in terms of empirical things. There have been a number of small incidents of the kind that you have mentioned, various heavy water leaks, things tripping, so on and so forth. Now, if you think about all these things as some kind of an indicator of the health of the system it is sort of like saying – if there is a man that is going around, or woman for that matter who is going around, who has got occassional shortness of breath, who is not able to climb stairs, who has some occasional slight chest pain, and things of that sort, he or she might have not had a heart attack at that point, but clearly those signs are not good. Another thing, to sort of, look at this whole picture is to say, look at the experience so far and can you decide that there has, because there hasn’t been any major accidents, catastrophic accidents, that the system is safe. And again, the answer is no, because the number of years of experience is very very limited compared to the accuracy at the confidence that you want to have about how few accidents there are.

So, to give you an example, if you see the discussions about Koodankulam or any of these reactors, they would often say things like, we have done our analysis of this and the probability of a core damage accident in this will be 10-6  per reactor, or 10-7 , or something like that. Really small number, one part in a million, or one part in ten million, and so on and so forth. If you wanted to get that kind of a figure from empirical data, you would have to have tens and hundreds of thousands of years of reactor experience, without any accidents, to say well this is reasonable. In the absence of that kind of experience, you cannot say, you cannot be sure of this number with any great confidence.

Finally, I would say the most concern about the kind of facilities that they are building in Kalpakkam are two-fold. One, is this breeder reactor that they are constructing, the prototype fast-breeder reactor. It’s the first reactor, commercial scale reactor of the second stage of this nuclear programme. It’s a 500 megawatt reactor, fueled by plutonium, with liquid sodium removing the heat from the core. And this has various problems with its design. In particular, it has something called the positive void coefficient which is very dangerous, which actually led to the accident in Chernobyl, the reactor has a certain kind of behaviour that is not stable. And this proto-fast breeder reactor has been built with a containment, which is the big structure that you see from far in any reactor, which is not of adequate strength in order to contain the accident, if one should happen, a really worse case accident. So, that’s one area where I will concerned about the Kalpakkam reactor.

The second thing is the reprocessing plant, which also is in Kalpakkam, where spent fuel is chopped up and dissolved in acid and plutonium extracted. When this process is done, one should remember that all the radioactivity that is sitting inside this spent fuel, none of it goes away, because that’s a physical property. We cannot destroy radioactivity. So, what happens is all this radioactivity gets stored in the form of, what are called, high level waste, which is extremely concentrated source of radioactivity; usually kept in steel tanks. Ideally, one would like to seal this liquid, actually blend it with glass to form something that is called vitrified waste. In Kalpakkam, for whatever reason, I don’t know why they haven’t managed to get the vitrification plant to work. All the annual reports from the Department of Atomic Energy talk about them building a reprocessing, I mean a vitrification plant, and they always say work is progressing, it’s expected to be completed. But, I have never seen one which says it is completed, as of about a year or so. So, in my sense, even if the  plant is not operating  there will probably be a huge backlog high level waste and this is something which if cooling fails for some reason it can actually explode due to the chemical reactions, in principle it’s possible and this kind of explosion has happened in 1957 at the Mayak processing plant in the Soviet Union, which contaminated a huge area of land. So, that goes to the kinds of things that there would be any worry about.

NJ: Nuclear electricity is cheap! What do your studies suggest, conclude about this suggestion?

All-Atomic Comics pp. 22. Leonard Rifas.

All-Atomic Comics pp. 22. Leonard Rifas.

MVR: This claim about nuclear power being cheap has been made in two ways. One is when the early days of nuclear power, they talked about it being too cheap to meter. That it is so cheap that you don’t even have to cost it, and so on. Those kinds of claims have largely vanished. The Economist magazine said nuclear power has changed from being too cheap to meter to being too expensive to matter. Something of that sort. But, now if you look at the other way by which they talk about this, when nuclear power is compared with another source of energy and ultimate dismay that is cheaper than that.

So, in India the primary source of energy of electricity generation in the country has been coal. And nuclear power has been consistently compared to that. So, in the early years, what they quickly realized was that nuclear power can’t compete directly with coal. So, the strategy was to say, well, near the coal mines, we will certainly not be able to compete, but as you go further and further away from where most of the coal is mined, then you have to include the cost of transporting coal to that thing. And the assumption is, once you go sufficiently far away, then nuclear power is going to become cheaper. So, there will be at least some parts of the country where it makes economic sense to have nuclear power, because the cost of delivering coal for generating electricity will be too high.

So, in the early years, what they would talk about in the 50s and 60s, they were talking about 600 kilometres of distance, 500 or 600 kilometres, and once you go beyond that then nuclear power would be cheaper. But this was before any reactors had actually been built. Once the first set of reactors had been built and their costs sort of understood, what happened was you found that this was not going to happen. So, by the 1980s, as the first reactors happen, they talked about it being 800 kilometres away. Once it was 800 kilometres away, then it can compete. But then, they were very confident at that time, that by the 1990s, Oh, we would have lowered the costs of nuclear power plants, so that it’s going to compete even with the pithead where the coal is mined. Now come the 1990s, all they could say was, you go to 1200 kilometres and then maybe it is going to be competitive. Now, this is roughly the period when I started looking into nuclear power and the early 2000s I made a costing of comparing electricity being generated at the Kaiga Nuclear Power Plant, with a core plant that had recently been constructed at that point at Raichur.

Now, the other thing that you found in all these studies of economics was that they would never use costs of real nuclear power plants, real core plants. There would be some arbitrary figure, 5 crores per megawatt, 3 crores per megawatt, sort of just pulled out of a hat and say, this is the cost of your nuclear power plant. So, we said, no we would like do it empirically, and we look at the Kaiga plant and the Raichur plant. The coal for the Raichur plant comes from 1400 kilometres away. So, more than the 1200 kilometres. And we still found that nuclear power is more expensive for realistic discount rates.

The other claim that you see all the time is that nuclear power so far has not been cheaper but in the future it is going to be cheaper, because we are going to decrease the costs of building these nuclear power plants. Again, experience around the world suggests that this is not the case. In both the United States and France, which have the had the most experience building nuclear power plants, costs have actually increased over a period of time. And this is primarily because, they have had to incorporate more and more safety features into nuclear reactors in part, and in part because everything else has become more and more expensive. So, on the whole I would say, the claim that nuclear power is cheap is just not been found to be true.

NJ: This, you’re not even going into the aspects of waste management and costs of an catastrophic event.

MVR: That’s right. And also, in these so called breeder reactors, this tends to be even more expensive than ordinary reactors.

NJ: So, why is it that if nuclear power is so hazardous, so dirty, so unpopular, why is it that civil countries with democratic governments  are pursuing this so avidly?

MVR: This is a million dollar question. I think that it’s…to answer that, I think you have to understand that countries are not unitary objects. There are different people involved, there are different groups involved. Some of the costs, many of the risks and so on are very unequally borne. The primary risk of having a nuclear power plant accident from a nuclear power plant is very local. Even though, some amount of radioactivity might escape and might spread all over the world, as in the case of Chernobyl and so on, the primary impact is within tens of kilometres of a nuclear power plant whereas for somebody sitting in Delhi or Bombay faraway that’s not a big issue.

Likewise, many of these things, I think, are not, are done on the basis of taxpayer money, not on the base of private money. And in many countries where nuclear power has been put to the test at the market place, even if it is backed up with strong political commitment by the political leadership it has often failed. This has been the case in the United States, it is proving to be the case right now as we are speak in the United Kingdom… so on and so forth. I think that the places where it can be absorbed through some combination of government largesse and public taxpayer money, has been the place where it grows.

NJ: And finally, what is your take on Koodankulam? And what would you do if you were in control of the country’s decision making? And what would you have done and what would you do now that the protests have erupted?

Sea Siege. Koodankulam 08 October 2012. Photo credits: Amritharaj Stephen.

Sea Siege. Koodankulam 08 October 2012. Photo credits: Amritharaj Stephen.

MVR: Yeah. So, that’s a very big if. Somebody like me would never be in the government, in a position of power, but let me try and answer that to the extent that I could. So, you said, if I were in a position of power right now, as your first position, that I take to mean, that I couldn’t sort of answer something like, well, I will just abandon the project as it is. Because that would come out of huge political cost. Assuming that particular answer is not open to me, let me try and suggest a few things, I think, a good responsible government should do in this place.

So, the argument here is that you have already spent 17,000 crores on it, we cannot waste that investment, and so somebody has to bare the risk and so on and so forth. I think that three things should be done. One is that, if this plant were to be commissioned, it should be commissioned with complete transparency to the local people, who are the people who are concerned about the safety of it. So, I would say, if in order to win their trust, which is completely absent at this point, I would open up the operating records, as and when the plant is commissioned. And if at any stage, the local population, if they feel uncomfortable about this plant, about how it is operating and maybe invoking the use of expert knowledge from other places and so on feel that this plant is not operating well, then I would commit to having that shut down and those problems rectified.

The second, I would say, is that having learnt this lesson from Koodankulam, no more nuclear power plants should be commissioned without the consent of the people who live in the neighbourhood. So, in the case of Jaitapur for example, where the local population has clearly shown that they are not interested, that they do not want this plant, I would abandon it right away. This is not fair to sort of do that.

And finally, to address the fact that many of the people who are opposing this plant, are not just opposing it because of fear of radiation or of accidents, but also because it is going to impact their livelihood, the least one can do is to say, well, we would compensate you in case you find, for example, that fish catch are going down or people are not buying your fish or something like that. To which you have to start some kind of baseline survey, and then make some arrangements for how these people will be compensated in case they are going to be bearing losses.

These I think are three very minimal measures that have to be taken, short of sort of shutting this down, if you’re going to ahead with commissioning it.

NJ: One last question I had has got to do with this nuclear power plant in New York, Shoreham, which was, I think, abandoned at the last stage and was then subsequently converted in to using gas as a fuel. Now, why was that done? Why wouldn’t that be a feasible option in India?

Wunderland Kalkar 024

Wunderland Kalkar 024 (Photo credit: Henk-Jan van der Klis)

MVR: It could entirely be a feasible option. I have not really looked in to that. That’s one reason I am not talking about it. That’s an excellent question. There have been plants that have been abandoned at various stages after construction. And perhaps, the even better example than Shoreham is that of the Kalkar reactor in Germany, near the border with Netherlands, which was actually abandoned after the whole plant construction had been done, costing about 5 billion dollars, but before the fuel was loaded in to it. And it was subsequently converted in to an amusement park.

Coming back to the basic question, if you want to say you’ve built this infrastructure, some of it can certainly be salvaged and used for other kinds of power generation, whether that is a realistic alternative or what are the costs of that I have not looked in to this, I have not seen any body else look in to this, so I cannot say it with any authority as to what that would be, how much that would cost, how feasible that would be, and what would have to be left out.

NJ: Thank you very much, Ramana, for your time.

MVR: Thank you.

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Credits:

Camera: Abdullah Nurullah, Urvashi Mukherjee, Shatakshi Gawade, Bhaskar Goswami.

Editor: Soofara Ali

Assistant Editors: Shataskshi Gawade, Abdulla Nurullah

Special thanks to Sashi Kumar, Chairman, Asian College of Journalism.

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This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the video interview to the authors and Asian College of Journalism. 

Chai Kadai. (chaikadai.wordpress.com | chaikadai@gmail.com)

 

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Sustained notes of struggle: The Anti-Koodankulam Nuclear Power Plant Movement

APEX Express is a “weekly magazine-style radio…committed to building a broader social movement for justice and collective liberation for all oppressed people, including poor & working-class people, people of color, women and queer people.” Read more about APEX Express on their blog.

On 18 October 2012, APEX contributor Marie Choi called in activists from the Chennai Solidarity Group for a discussion on the various aspects of the anti-nuclear struggle in Koodankulam and the Government of India’s and the state government’s reaction to it. What follows is only the transcript of the conversation between V. Geetha and Nityanand Jayaraman (Chennai Solidarity Group) and Marie Choi (APEX). Listen to the full episode here and tune in every Thursday 7-8 p.m. for new episodes here.

Introductions

Protest against proposed nuclear power plant in Koodankulam, 1989. Shared by Prabakar Kappikulam

The People’s Movement Against Nuclear Energy has been picking up steam and they’re organizing against the Koodankulam Nuclear Power Plant in the southernmost part of India. People in Tamilnadu have been organizing opposition to this nuclear power since 1988 when the Indian and Russian governments collaborated with big energy corporations and agreed to build this plant with no public information or input.

So when the Soviet Union collapsed in 1991, United States stepped in hoping for their own piece of the Indian nuclear pa[indistinct] and eased India’s way into Nuclear Suppliers Group. The project was slated to move forward. Last year, the Fukushima nuclear disaster renewed concerns about the impact of nuclear plants on the health and safety of people living nearby. In August 2011, just five months after the Fukushima nuclear disaster, protests in Tamilnadu picked up, with over sixty villages opposed [indistinct] people engaging in hunger strikes. Since then, the protests have escalated, with thousands of fisher people and residents staging protests in the waters around the nuclear plant.

We sat down with V. Geetha and Nityanand Jayaraman, members of the Chennai Solidarity Group, who have been working on the grounds to support the protests against the Koodankulam Nuclear Power Plant.

My name is Nityanand Jayaraman. I am a writer, researcher and also a volunteer with the Chennai Solidarity Group for the Koodankulam struggle.

My name is V. Geetha. I am writer and historian. I’ve been working with the Chennai Solidarity Group which supports the struggle against the nuclear plant in Koodankulam.

English: Construction site of the Koodankulam Nuclear Power Plant Deutsch: Baustelle des Kernkraftwerks Kudankulam (Photo credit: Wikipedia)

Construction site of the Koodankulam Nuclear Power Plant (Photo credit: Wikipedia)

Marie Choi – There’s been opposition to the plant for years and years, but was there something that shifted in August 2011? 

V. Geetha – Fukushima of course, which brought to reality what can happen in case a nuclear reactor goes in to danger. Also, what was happening in Japan, I think, that triggered off a major sort of anxiety about the plant. But, prior to that, I think, the people who have been coordinating the People’s Movement Against Nuclear Energy have been doing a lot of work on the ground. They’ve been going from village to village and trying to persuade people that this not such a good thing, and there may be jobs for a few, but in the end it’s really going to sort off affect their communities, their resources, their right to livelihood, their future and so on. So, I think, both these things came together and then people decided enough was enough. And they decide to this sort of prolonged sit-ins in their villages. The fishers, of course, have been the most vociferous, because they stand to be immediately affected since their livelihood depends on the sea. But, everyone else has pitched in as well. Those that do farming, small shopkeepers, teachers, just about everybody else that keeps a community going. I think, what has happened is that something which would have been just a routine government decision has become something that people have started talking about. They are talking about the environment. They are talking about safety issues. And they are also raising very fundamental questions about what kind of electricity do we need.

Marie Choi – Can you talk a little about why this particular nuclear power project is so important nationally within India?

Nityanand Jayaraman – I don’t know who it is important for. Certainly not for me. For the government, it has become both an issue of prestige and also, I think, it is payback time. With the nuclear deal with India and Russia, where India was seeking a way out of its, kind of, you know, it hadn’t planned much of its stake as far as the Nuclear Suppliers Group’s concerned. The Americans tried to mediate and tried ease the way for India to join the nuclear club without risks. As a result, it is now payback time. Corporations from Russia, from France, and from America would like a piece of the nuclear vibe. There’s supposedly a huge market in India. If all the plants that the government has proposed to build are constructed, there is a lot of money to be made. The Government of India is caught in a diplomatic bind, where it has promised to foreign governments access to India’s nuclear markets. This is not about India’s energy security. It is about honoring the debt, honoring the legitimate concerns of the corporations that might have bailed India out or helped India, the lobbying capacity of the Government of the United States.

V. Geetha – I would actually see it in the larger context of what is happening in countries like India, which is that a lot of communities dependent on natural resources, whether it’s the sea, the forest or the rivers, are being told that they must give over their resources to companies that are interested in mining, that are interested in generating electricity for the industrial use. And these communities are faced basically [with] a very drastic choice – that they give up their traditional ways of living, or they give up their dependence on natural resources, come to the city as cheap labour and work, or they protest and face the consequences.

Marie Choi – I’m curious. Do you see any connection between the nuclear energy projects and broader militarization?

V. Geetha – It may not be easy to make direct connections with absence of public information. But, one can safely say that the nuclear establishment whether it is concerned with civilian uses or for military uses is completely untransparent. You are simply not able to find out who makes decisions, on what basis are these decisions made. And anyone who interrogates the nuclear establishment, even the civilian nuclear establishment stands to be seen as an enemy of the State. So you have this very absurd and menacing scenario, where ordinary fisher folks of a village next to the plant, over 2000 of them have been charged with Sedition. So that should give you a sense of how the Government of India treats nuclear power, you know, capability. It’s obviously a matter of State secrecy, it’s matter that’s beyond civilian control, and the government’s, sort of, determined to keep it that way.

Links to Report on the Convention against Sedition and other Repressive Laws. PUCL.

Marie Choi – And, can you explain what Sedition means?

V. Geetha – Well… You know, as I said, it’s absurd and menacing. Certainly, because it’s ridiculous to charge a 14 year old with Sedition or 75 year old with Sedition, right? That’s whats being done! The Sedition law goes back to colonial times. It was used by the British to arrest Indian freedom fighters. And it’s a shame that we haven’t been able to take the law of our statued books. There’s been a campaign by civil liberties, civil rights group to do that. But, that hasn’t really ended. What’s happened over the years is that it is used by the State to quell dissent of any kind. And once you’re booked under Sedition Law, of course you’re allowed access to the courts..you may hear, you know, opt to defend yourself, you may have lawyers defending you, but it can mean a very protracted trial. And that can be very despairing for people who are poor, and who don’t want to be caught in this scenario, and who are merely protesting their right to, to retain their right to livelihood. So that’s on the one hand. On the other hand, you have the entire hysteria that can be whipped up around Sedition by the Media, by right-wingers, by those that are not supportive of people’s struggles. So. Whatever happens in the courts is one thing, but in the public eye this can create a lot of discomfort as well.

Marie Choi – If you are tried for Sedition and found guilty, then what happens to you? 

V. Geetha – Depending on the actual particular instance, which has earned you this label of being a seditionist. You could be imprisoned for life. You could have a very long jail term. And the worst case scenario is, if your name has been linked, whatever that means, if it has been proved that you’ve inflicted murder, you could face capital punishment.

Marie Choi – I’m also curious how class is being used? With all that’s going around this particular nuclear power plant. I mean, I’ve been seeing reports that they’ve been cutting power to people, even in the surrounding areas. But, a lot of it has been appealed to the middle class as well this energy is for you, this is to support your lifestyle, how is that played out? How real are those claims? 

Nityanand Jayaraman – In a sense, this kind of fixation on electricity, is essentially a class issue. If you look at what’s being talked about here that the nuclear power plant is crucial for India’s energy security, not electricity security, but energy security. We need to have efficient policies of how we can conserve on the transportation needs, how we can vamp up our public transportation, subsidize public transportation, and penalize private transportation and cars. I think, that there is a mis-match. I see electricity which is only 12% of the energy basket, to cooking which is a major issue. Our preoccupation if it were on cooking fuel, I think we would say that this is a society that tries towards equity. But the focus is on electricity. I think electricity is important, for people like me it is crucial both to conduct my work and everything else. The power cuts are real. I don’t think.. There might be orchestrated to some extent. But there is a scarcity of electricity. Are these electricity cuts equitably distributed? No. Yet, the IT companies, the Hyundai Motors, the Ford car company, these guys have 24/7 electricity. But children who want to study in the evening do not have electricity. The small entrepreneurs, the small, you know, people who run small workshops, they don’t have electricity. So the people who are being hardest hit are the people who can least afford it. And the people who are not being hit, are luxury consumers of electricity, like software companies and car manufacturers.

Marie Choi – Why is this something that people who don’t live in that area, who come from different class background, why is it something that they should care about?

V. Geetha – It is very, sort of, painful to watch ordinary people being made to go through such difficulties. I think there is a sense of social justice that people in the cities are sensitive to. I mean, this is not a large number obviously. But, there are enough people that  feel quite annoyed that their government is doing this to its own people. That’s on the one hand. Then of course, I think, there’s been a very real concern about nuclear energy. And I must say, Fukushima has played a very important role at least in sensitizing this generation of people to what a nuclear disaster could actually result in. That is also an important aspect to be kept in mind. And thirdly, post-tsunami 2004 there’s been a general sense of anxiety about what the sea can do, because the sea really caught everyone unaware. And those that live in the coastline, like in the city where I live, Chennai’s a coastal city, there’s also a sense that the coast is not something you can treat lightly, it follows rhythms that we don’t quite understand and we may not want to tamper with its natural rhythms over much. People also come to that from that understanding.

Anti-nuclear protest, near Idinthakarai, Koodankulam. September 13, 2012. (Photograph by Amirthraj Stephen)

Marie Choi – Four hundred days of sustained protest. What is it that sustained that?

Fisherfolk of this part of the country have a reputation for being fearless and militant. There’s that. [indistinct] That’s also, they will tell you if you ask them why, “Everyday we face death in the sea, so what do we have to fear?” So there’s that sense of romantic disregard for life. But, I also think that there is a certain disciplined organizing that has come about because the local communities have stood by them and the local church groups which have organized fisherfolk in particular have been very supportive. The Catholic church is very strong in these parts. And local members of the Catholic Church, I’m not talking about the Catholic hierarchy, but the local members of the Catholic Church have always been very involved in civic issues. And that has gone both ways. It has also meant that they support they most powerful amongst the fishing groups or they take the part of the more subaltern and the more oppressed. In this case, I think, the fact that everyone rallies around for a meeting when the church bell is struck, you know, that’s how they call people for a meeting. It’s also meant that they feel a sort of ethical, spiritual sense of doing this together in the name of something that is beyond us, not God so much, but the name of a nature that includes us, includes the natural world that is non-human. So there is that as well.

Marie Choi – If everything goes you’ll way, what does that look like? 

Nityanand Jayaraman – We would like to have this nuclear programme ended, at least for now. And the plant not commissioned. And the plant used for something that is saner, I don’t know what that is. The other thing is that the government should drop the cases that were filed against the people of Idinthakarai and Koodankulam. More than 300 cases have been filed against about 150000 people. 10,000 people have been charged with Sedition and waging war against the state. This is the response a democratic state has had to bunch of people protesting nonviolently for more than a year. Among the people who are charged with Sedition and Waging War Against the State are also children. I think, that, they must drop these. And if they have the courage, apologize sincerely to the people of Idinthakarai and thank them for trying to bring sanity in to India…

The music played in the background is ‘Song of the Coastal Lilies’, (Neythalin Paadal), a movement song  by Pedestrian pictures

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This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the podcast interview to APEX Express. 

Chai Kadai. (chaikadai.wordpress.com | chaikadai@gmail.com)

 

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Koodankulam: Curb on Free Speech (Part 3)

Interviews by Nityanand Jayaraman | Camera by Siddharth Muralidharan

Continued from yesterday’s interviews…

+ Koodankulam: Curb on Free Speech (2 Parts)

Since March 19, 2012, when Tamil Nadu Chief Minister Jayalalithaa announced that work on the controversial Koodankulam nuclear plant could be resumed, and even before that actually, the protesting villagers have been at the receiving end of a vicious state led campaign to paint their non-violent struggle as a violent one, and to crush their campaign into silence by using harsh sections of the Indian Penal Code. More than 7000 cases of “sedition” and “waging war against the Government of India” have been filed just in the Koodankulam police station. That is probably more than in any other police station in India. Certain sections of the media too have played the role of a willing partner in propagating the State’s propaganda. In pursuing this counter-campaign against its own people, the State Government has placed itself above the law of the land and pursued an openly anti-democratic agenda.

The interview below with M. Vetriselvan, Advocate (Chennai), seeks to explore the seemingly ironical situation of a “Democratic” State whose actions are anti-democratic.

PART III – M. Vetriselvan, Advocate, Chennai

[http://www.youtube.com/watch?v=GulwQMmAOS0]

Tamil (English translation below), 1 min, 38s. Published on 15 April 2012.

 

NJ: What is your reading on the attempt to use repressive laws to suppress the democratic protest of the people of Koodankulam?

MV: For the past eight months, in Koodankulam, there has been a very large collective protest going on. This protest is against the nuclear power plant near Koodankulam. So far, this has continued to be a peaceful protest. People have not indulged in any kind of violence or repression against the State. Their method of protest has primarily been fasting. In their own areas, they have been peacefully fasting, going on marches, gathering people and spreading awareness – nothing more! In this situation, for these actions, various cases of sedition have been filed on them. Approximately, 200 cases have been filed on them,  all under various sections in Sedition. This has to be severely objected. One can object to any state policy in a democracy. Protesting against the nuclear policy is important to one’s right to expression. These people are exercising that right. Trying to suppress this demand through such disgusting violence is against democracy.
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This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the video interview to the authors mentioned above.  

Chai Kadai. (chaikadai.wordpress.com | chaikadai@gmail.com)

Koodankulam: Curb on Free Speech (2 Parts)

Interviews by Nityanand Jayaraman | Camera by Siddharth Muralidharan

Since March 19, 2012, when Tamil Nadu Chief Minister Jayalalithaa announced that work on the controversial Koodankulam nuclear plant could be resumed, and even before that actually, the protesting villagers have been at the receiving end of a vicious state led campaign to paint their non-violent struggle as a violent one, and to crush their campaign into silence by using harsh sections of the Indian Penal Code. More than 7000 cases of “sedition” and “waging war against the Government of India” have been filed just in the Koodankulam police station. That is probably more than in any other police station in India. Certain sections of the media too have played the role of a willing partner in propagating the State’s propaganda. In pursuing this counter-campaign against its own people, the State Government has placed itself above the law of the land and pursued an openly anti-democratic agenda.

The interview below with eminent legal scholar Dr. Usha Ramanathan and Adv. R. Vaigai, a senior lawyer from the Madras High Court, seeks to explore the seemingly ironical situation of a “Democratic” State whose actions are anti-democratic.

PART I – Usha Ramanathan, Legal Scholar, Delhi

[http://www.youtube.com/watch?v=hYU3txYh6Do]

6 mins, 09 s. Published on Youtube on 13 April, 2013

NJ: You told us that constitutional guarantees offers fundamental rights. Why is the government refusing to respect our fundamental rights?

UR: See, the Government over the years, and more recently you can see it in a very in a dominant kind of way… the Government is now using methods for social control… It’s seeing the need to exercise its social and political control for it to go ahead with its agenda. Fundamental rights should be a priority on their agenda for them to recognize it. Since it is not, the easiest way of dealing with it is by going on imposing restrictions, which they’ve done over the years. And now, they criminalize all action. So, it’s no longer…the debate is not even on fundamental rights as far the State is concerned.

NJ: Any examples of, you know, recent things that have happened which,

UR: Of Fundamental Rights, yeah sure! My favorite example of UID or of the NCTC or the National Intelligence Grid, where they’re saying you forget about.. for instance, they say, the poor don’t have any interest in this fundamental rights business, they need food. It’s like you don’t need your rights. What you need is welfare and services. You get your electricity you shouldn’t worry about somebody else’s fundamental rights. If you get your food in time, you shouldn’t worry about your own fundamental rights. Because the State then is a service provider. You forgo your rights and then we’ll see how we’re going to provide you the service. This is a.. there is a certain diabolic nature to the way in which this is debated. You bring corruption and inefficiency to a point where people are so fed up with it and you can get them to give up almost anything, to have the State deliver on some things. That’s one. That’s as far as service delivery is concerned. But, I think the other huge problem is that terrorism has become just a phrase that encompasses everything …(not audible). Fear is a factor for losing fundamental rights. And fear is now being implanted deliberately in the minds of people and the promise that is made is – if you give up your fundamental rights, maybe we can provide you with a little better protection.

NJ: The other issue… the State itself appears to be anti-democratic, where people are fighting for democracy or say that they are fighting for democracy, and the State appears antidemocratic. How is that?

UR: I’m not sure that we should even look for the State to be democratic. It’s not the State, it’s not the Government which is democratic, it is people who are democratic. States, in fact, find it very inconvenient to have to practice democracy. They need democracy to survive as a “democratic State”, because that’s the only way that the game of politics gets played out and there is a certain value that some of them may have for a “constitutional, moral, ethical” in that sense, way of life. But it’s people on whom the burden rests to ensure the democracy is not lost. Therefore, every assertion… we keep saying, if you don’t exercise your fundamental rights you lose them. They vanish. And, it’s therefore become important… when we talk.. I think somebody asked if India is a fake democracy? I don’t think so at all. The fact that there are so many movements all across the country. It’s not like, you know, everyone has to be right to be able to say what they are saying. But, everyone should be able to say it and should be able to find the space where they can discourse a lot of this and to do more than that, you know do things for each other, to find support across classes, castes, whatever – that is the practice of democracy. That is done by people. So if we were to ask, can democracy survive in India? I think so long as the people of India are clear that, and that there are classes among the people of India and there are groups among the people of India who believe in the practice of democracy and keep practicing it, I think we’re alright!

NJ: In the case of Koodankulam, since March 19th, even before that, there’s been a whole lot of language war that has been deployed and now also a war using IPC sections. The Media has also played a very interesting role in this. Overall, what is your reading on this language war that has been played by people like Mr. Narayan Swamy or the Media war that has been used by the State quite effectively. What does it mean for our fundamental rights?

UR: Yeah see, I think one of the things we’ve said about the Media, which is very worrying, is that it is two things is that it’s corporatized, heavily corporatized and it is heavily upper class, whether it is, and it is dominated by those who are not part of the political establishment, but who have access to it, who find various ways of controlling it, like multi-nationals, for instance.

In Koodankulam, I think there is an additional factor. This is the first time we are seeing the State come out and say openly that We have power, and we will decide how we want to use it, and the law cannot bind us. We can use the law to do what we want to do. This use of the Sedition provision, for instance, is a classic case of a State not even needing to hide behind anything, when it is treating itself as in a state of exception in relation to the law. Because, they know even if all the cases fall at the end of the day it doesn’t matter, because they’ve had their purpose served. You can beat people up, you can put them away. It’s a total abuse of a power that actually doesn’t exist, but which they have managed to cultivate for themselves. I think this is the first time… you know, when people ask the difference between colonial times and now. I think in Colonial times, you knew who was on which side. You know who the Colonizer was and who the people of India were. I think after all these years, it is only now, that an ‘us and them’ in this context has gotten created. Koodankulam has actually shown us that.

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PART II – R Vaigai, Advocate, Chennai

[http://www.youtube.com/watch?v=Xf01PSCG0Y8&feature=relmfu]

6 mins, 55s. Published on Youtube on 13 April, 2013.

NJ: We wanted to ask you what is Good Faith exemption in law and how does the State, that is the Executive and Judiciary use Good Faith exemption to violate the law and get away with it?

R. Vaigai: See this Good Faith is something, well it’s a Colonial legacy. Even in Evidence Act, you have a section which says, there are sections which talk about what is admissible evidence, what is acceptable evidence and all. So there is a section which says that official records are presumed to be correct. So you don’t have to, if you produce, for example, your birth certificate – there’s a presumption that the date of birth recorded in the birth certificate is correct as against any other village records or something… But, as far as minor matters like birth certificates, death certificates are concerned it’s fine. But, when it comes with dealing with State issues vis a vis people, larger issues, it becomes a problem. It’s like how in the Koodankulam issue where on the challenge to the Section 144 order, the statement of the District Collector was per se accepted by the court, without asking any questions. There was no, you know, not even one iota of suspicion that was cast on the statement made by the Collector by the court. [Faced with allegations that the State Government was blocking the movement of essential commodities like milk, water and of people seeking access to medicine or medical help, the District Collector asserted that the 7000-strong police force posted outside the protesting villages was merely to ensure law and order, and that no restrictions on goods or people had been imposed.] So its weighs very heavily in legal proceedings on the mind of the court. It grants certain immunity. For example, when we are talking about large scale police violence on people and the court calls upon the police department as to what exactly happened and they produce a certain version of what happened. Prima facie the court is inclined to accept these versions granted by the police. Very often, what happens is when you are questioning police action vis a vis people and supposing it is a private company where a person says that I’ve been assaulted by the police, that is any violence indulged by the police. The policeman comes before the court and says that this was an action that I had to take in the discharge of my official duty. So if it is an action taken in the discharge of official duty, I was forced to take this action. That was the answer given by the police in all the encounter deaths cases. Therefore, not even a charge sheet for murder was ever filed in the encounter death cases, because the answer is – it was an action taken in the discharge of my official duty. Now, fortunately for us the Supreme Court has interpreted the phrase ‘in the discharge of official duty’ to be confined only to legitimate actions and not illegitimate actions. So, there are judgements which say that only legitimate actions can have the cover of immunity and not illegitimate… Supposing a policeman goes into a house for interrogation and rapes a woman. Now interrogation may be a legitimate action, but rape is not. So, there are judgments like that. We have to make use of those judgments in the given kind of situation.

NJ: In the case of Koodankulam, what was the Collector’s Statement and what was the problem with it?

RV: No, the collector’s statement was that there is no problem as far as disruption of essential supplies. It was a very curt statement saying that essential supplies were never cut off and people were receiving all the essential supplies, water, milk and food and whatever ration and all that and electricity and that the situation was normal. It is a very brief statement. Now, as against that was the detailed affidavit that was produced by the people of, I mean, the petitioners who had filed the public interest litigation; who had taken oral versions of the people concerned, interviewed them, and then given the affidavits stating that these are all the things that have happened: like water pumps were not working, there was no water supply in the taps, and there was no milk supply. There were small children who were not allowed to go to school. There were detailed versions given in the affidavits. Despite that, the court is not inclined to, you know, question the Collector on this any further, on the statement. That was the problem.

NJ: With things like Good Faith exemptions or Sections of IPC like Sedition, there’s a mention that this runs counter to the ideals of democracy. Either Sedition survives or Democracy survives. Where does one go to change these things? Are courts the place or are we supposed to resort to other…

RV: No. No. It’s only through the Parliament, not the courts. Courts will only implement the laws that already exist and they have done the maximum as far as Sedition is concerned. They have pointed out that the old concept of sedition cannot survive along with our present concept of democracy. Therefore, sedition will have to be used only in very exceptional cases where a clear case of act of enemy against the State is made out and a clear intention to challenge the State has made out, not otherwise. Therefore, they have read down the sedition penal position to the maximum. It is another matter that it’s being abused by the Executive, but courts have done their maximum. They have pointed out that if sedition has to co-exist with our constitutional provisions and democratic provisions it will have to be a very exceptional situation, and not the routine situation. That the courts have done. Beyond that, you cannot tell the court that the police cannot ever impose sedition charges, because it is antithetical to democracy. That is a solution you will have to ask the Parliament and not the court.

NJ: And the court is not likely to come down heavily on instances where sedition has been abused by the forces? will there be…

RV: We just have to hope that they do come down, because nothing prevents them from not coming down.

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This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the video interview to the authors mentioned above.  

Chai Kadai. (chaikadai.wordpress.com | chaikadai@gmail.com)

Related Articles

+ Koodankulam Update April 16, 2012. Kafila.org

Koodankulam and Nuclear Power: Some myths, realities, and frequently asked questions. Nityanand Jayaraman and G. Sundar Rajan of Chennai Solidarity Group for Koodankulam Struggle.

+ The State has Police. A Letter from Mr. V Pugazhenthi, a barefoot doctor in Sadras village near the Kalpakkam Nuclear Power Plant.