Parliament’s Recommendations on the Nuclear Liability Bill – Why the “and”?

Anirudh - August 20, 2010

In law, the addition or deletion a single punctuation or a single word can have a major impact on the effect of that law.  One such example can be seen from the recommended changes in the Civil Liability for Nuclear Damage Bill, 2010 by Parliament’s Standing Committee. The Civil Liability for Nuclear Damage Bill, 2010 was introduced in the Lok Sabha on May 7, 2010.  The Bill was referred to the Parliamentary Committee on Science and Technology, Environment and Forests, which submitted its report on the Bill yesterday (August 18, 2010).  The Committee has made a number of recommendations regarding certain clauses in the Bill (See summary here).  One of these may have the effect of diluting the provision currently in the Bill.  The main recommendations pertain to:

  • Preventing the entry of private operators.
  • Allowing the government to increase the total liability for a nuclear incident by notification, but not decrease it.
  • Increasing the liability of the operator to Rs 1,500 crore from Rs 500 crore.
  • Increasing the time limit for claiming compensation to 20 years from 10 years.
  • Changing the provision giving operators a right of recourse against persons actually responsible for causing damage.

Clause 17 of the Bill which gives operators a right of recourse against those actually causing damage had been opposed as it was felt that it was not strong enough to hold suppliers liable in case the damage was caused by them.  Clause 17 gave a right of recourse under three conditions.  The exact clause is reproduced below: The operator of a nuclear installation shall have a right of recourse where — (a) such right is expressly provided for in a contract in writing; (b) the nuclear incident has resulted from the wilful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee; (c) the nuclear incident has resulted from the act of commission or omission of a person done with the intent to cause nuclear damage. Under this clause, a right of recourse exists when (a) there is a contract giving such a right, or (b) the supplier acts deliberately or in a grossly negligent manner to cause nuclear damage, or (c) a person causes nuclear damage with the intent to do so.  If any of the three cases can be proved by the operator, he has a right of recourse. The Committee has stated that “Clause 17(b) gives escape route to the suppliers of nuclear materials, equipments, services of his employees as their willful act or gross negligence would be difficult to establish in a civil nuclear compensation case.” It recommended that Clause 17(b) should be modified to cover consequences “of latent or patent defect, supply of sub-standard material, defective equipment or services or from the gross negligence on the part of the supplier of the material, equipment or service.” The Committee also recommended another change in Clause 17.  It recommended that clause 17(a) may end with “and”. This provision may dilute the right of recourse available to operators.  The modified clause 17 would read as: The operator of a nuclear installation shall have a right of recourse where — (a) such right is expressly provided for in a contract in writing; and, (b) the nuclear incident has resulted as a consequence of latent or patent defect, supply of sub-standard material, defective equipment or services or from the gross negligence on the part of the supplier of the material, equipment or services.; (c) the nuclear incident has resulted from the act of commission or omission of a person done with the intent to cause nuclear damage. This implies that for Clauses 17(b) or (c) to be applicable, the condition specified in clause 17(a) has to be compulsorily satisfied.  Two examples highlight the consequence of the recommended change in Clause 17(a) of the Bill:

  1. A person X deliberately commits sabotage in a nuclear plant and causes damage.  Under the Bill, the operator has recourse under Clause 17(c).  If the recommendation regarding clause 17 is accepted, the operator may also have to also prove the existence of a pre-existing contract with X in addition to clause 17(c).
  2. If a supplier supplies defective equipment, but does not have a contract in writing stating that he will be liable for damage caused by defective equipment, the operator may not have a right of recourse against the supplier under 17(b).

The effect of the changes recommended by the committee may thus dilute the provision as it exists in the Bill.  The table below compares the position in the Bill and the position as per the Standing Committee’s recommendations:

Right of recourse - The Bill gives operators a right to recourse under three conditions:  (a) if there is a clear contract; (b) if the damage is caused by someone with intent to cause damage; (c) against suppliers if damage is caused by their wilful act or negligence. In the Bill the three conditions are separated by a semi-colon.  The Committee recommended that the semi-colon in clause 17(a) should be replaced by “and”. This might imply that all three conditions mentioned need to exist for an operator to have recourse.
Right to recourse against suppliers exists in cases of “willful act or gross negligence on the part of the supplier”. (Clause 17) The Committee felt that the right of recourse against suppliers is vague.  It recommended that recourse against the supplier should be strengthened.  The supplier is liable if an incident has occurred due to (i) defects, or (ii) sub-standard material, or (iii) gross negligence of the supplier of the material, equipment or services. The variance with the Convention continues to exist.

The Prevention of Torture Bill, 2010

Anirudh - August 12, 2010 1 Comment

The Prevention of Torture Bill, 2010 was introduced in the Lok Sabha on April 26, 2010, and was passed by the Lok Sabha on May 6 (See Bill Summary here).  The Bill was not referred to a Standing Committee of Parliament.  The Bill has been introduced to allow India to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.  The Convention against Torture requires member countries to bring their domestic legislation in conformity with the provisions of the Convention.  The main features of the Bill, and the issues are highlighted below (For the PRS Legislative Brief on the Bill, click here). Main features of the Torture Bill

Features Explanation
Definition of ‘torture’ A public servant or any person with a public servant’s  consent commits torture if all three conditions are met:
  1. An act results in (i) Grievous hurt to any person  (Grievous hurt as defined in the Indian Penal Code - includes damage to limbs or organs); or (ii) danger to life, limb or health (mental pr physical) of any person, and
  2. The act is done intentionally, and
  3. The act is done with the purpose of getting information or a confession.
When is torture punishable?
  1. When it is committed for gaining a confession or other information for detecting an offence, and
  2. The torture is committed on certain grounds such as religion, race, language, caste, or ‘any other ground’.
Conditions under which courts can admit complaints
  1. The complaint has to be made within six months of the torture having been committed.
  2. The approval of the central or state government appointing the accused public servant has been taken.

The definition of torture The definition of torture raises the following issues:

  • It is inconsistent with the definition of torture in the Convention against Torture which India seeks to ratify;
  • It does not include many acts amounting to torture which are punishable under the Indian Penal Code;
  • It adds a requirement of proving the intention of the accused person to commit torture.  Current provisions in the IPC do not have this requirement.
  • Grievous hurt does not include mental suffering or pain.

Dilution of existing laws on torture The Bill makes it difficult for those accused of torture to be tried.  This is because (a) complaints against acts of torture have to be made within six months, and (b) the previous sanction of the appropriate government has to be sought before a court can entertain a complaint.

Relevant provisions in the Criminal Procedure Code and the Bill.
Subject Criminal Procedure Code Bill
Requirement of government sanction Sanction needed if (a) a public servant is not removable except with the sanction of the appropriate government, and (b) the public servant was acting in the course of his duties. Prior sanction of the appropriate government needed in all cases.
Time limits for filing complaints Time-limits exist for offences punishable with maximum imprisonment of up to three years. No time limits for offences which are punishable with imprisonment of more than three years. There is a time-limit though torture is punishable with maximum imprisonment of up to ten years.  Complaints have to be filed within six months.
Sources: Sections 197 and 468 of the Criminal Procedure Code, 1973; PRS.

Independent authority to investigate complaints There is no independent mechanism/ authority to investigate complaints of torture. The investigating agency in most cases of torture would be the police.  In many cases, personnel of the police would also be  alleged to have committed torture.  In such cases, the effectiveness of investigations in incidents of torture will be affected.

Independent authorities in other countries to investigate incidents of torture.
Country Authority/ Institution
France Comptroller General of the places of deprivation of liberty
Germany The Federal Agency for the Prevention of Torture
New Zealand Human Rights Commission, Police Complaints Authority, Children’s Commissioner
United Kingdom 18 different organisations, including Independent Monitoring Board, Independent Custody Visiting Associations, etc.
Sources: National Preventive Mechanisms, UN Subcommittee on Prevention of Torture; PRS.

Police Personnel sent for trials under existing laws, and convictions

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Parliamentary oversight of intelligence agencies

Anirudh - July 8, 2010 1 Comment

"Parliamentary approval of the creation, mandate and powers of security agencies is a necessary but not sufficient condition for upholding the rule of law. A legal foundation increases the legitimacy both of the existence of these agencies and the (often exceptional) powers that they possess." Though mechanisms for ensuring accountability of the executive to the Parliament are in place for most aspects of government in India, such mechanisms are completely absent for the oversight of intelligence agencies. In India, various intelligence agencies such as the Research and Analysis Wing, and the Intelligence Bureau are creations of administrative orders, and are not subject to scrutiny by Parliament. This is in direct contrast to the practise of the Legislature's oversight of intelligence agencies in most countries.  Though different countries have different models of exercising such oversight, the common principle - that activities of intelligence agencies should be subject to Parliamentary scrutiny, remains uniform. In the US for example, both the House and the Senate have a Committee which exercises such scrutiny.  These are House Permanent Select Committee on Intelligence, established in 1977, and the Senate Select Committee on Intelligence, created in 1976.  Both committees have broad powers over the intelligence community.  They oversee budgetary appropriations as well as legislation on this subject.  In addition, the House Committee can do something which the Senate can not:  “tactical intelligence and intelligence-related activities.”  This gives the Committee the power to look into actual tactical intelligence, and not just broader policy issues.  Intelligence agencies are also governed by a variety of laws which clearly lay out a charter of responsibilities, as well as specific exemptions allowing such agencies to do some things other government agencies ordinarily cannot. (For source, click here) In UK, the Intelligence Services Act of 1994 set up a similar framework for intelligence organisations in the UK, and also set up a mechanism for legislative oversight.  The Act set up a Committee which should consists mostly of Members of Parliament.  The members are appointed by the Prime Minister in consultation with the leader of opposition, and the Committee reports to the Prime Minister.  The Prime Minister is required to present the report of the Committee before Parliament. (For the Act, click here) Recently, the Committee has expressed concerns in its 2009-10 report over the fact that it is financially dependent on the Prime Minister's office, and that there could be a conflict of interest considering it is practically a part of   the government over which it is supposed to express oversight. (For the report, click here) A study titled "Making Intelligence Accountable: Legal Standards and Best Practice" captures the best components of Parliamentary oversight of intelligence bodies.  Some of these are:

  1. The entire intelligence community, including all ancillary departments and officials, should be covered by the mandate of one or more parliamentary oversight bodies.
  2. The mandate of a parliamentary oversight body might include some or all of the following (a) legality, (b) efficacy, (c) efficiency, (d) budgeting and accounting; (e) conformity with relevant human rights Conventions (f) policy/administrative aspects of the intelligence services.
  3. The recommendations and reports of the parliamentary oversight body should be (a) published; (b) debated in parliament; (c) monitored with regard to its implementation by the government and intelligence community.
  4. The resources and legal powers at the disposal of the parliamentary oversight body should match the scope of its mandate.
  5. Parliament should be responsible for appointing and, where necessary, removing members of a body exercising the oversight function in its name.
  6. Representation on parliamentary oversight bodies should be cross-party, preferably in accordance with the strengths of the political parties in parliament.
  7. Government ministers should be debarred from membership (and parliamentarians should be required to step down if they are appointed as ministers) or the independence of the committee will be compromised. The same applies to former members of agencies overseen.
  8. The oversight body should have the legal power to initiate investigations; Members of oversight bodies should have unrestricted access to all information which is necessary for executing their oversight tasks.
  9. The oversight body should have power to subpoena witnesses and to receive testimony under oath.
  10. The oversight body should take appropriate measures and steps in order to protect information from unauthorised disclosure.
  11. The committee should report to parliament at least yearly or as often as it deems necessary.
  12. The oversight body should have access to all relevant budget documents, provided that safeguards are in place to avoid leaking of classified information.

Civil Nuclear Liability and International Principles

Anirudh - June 21, 2010 1 Comment

The Civil Damage for Nuclear Liability Bill, 2010 has been criticised on many grounds (Also click here), including (a) capping liability for the operator, (b) fixing a low cap on the amount of liability of the operator, and (c) making the operator solely liable.  We summarise the main principles of civil nuclear liability mentioned in IAEA's Handbook on Nuclear Law: Strict Liability of the Operator: The operator is held liable regardless of fault.  Those claiming compensation do not need to prove negligence or any other type of fault on the part of the operator.  The operator is liable merely by virtue of the fact that damage has been caused. Legal channeling of liability on the operator: "The operator of a nuclear installation is exclusively liable for nuclear damage. No other person may be held liable, and the operator cannot be held liable under other legal provisions (e.g. tort law)...This concept is a feature of nuclear liability law unmatched in other fields of law."  The reason for this has been quoted in the Handbook as:

"...Firstly, it is desirable to avoid difficult and lengthy questions of complicated legal cross-actions to establish in individual cases who is legally liable. Secondly, such channelling obviates the necessity for all those who might be associated with construction or operation of a nuclear installation other than the operator himself to take out insurance also, and thus allows a concentration of the insurance capacity available.”

Limiting the amount of liability: "Limitation of liability in amount is clearly an advantage for the operator.  Legislators feel that unlimited liability, or very high liability amounts, would discourage people from engaging in nuclear related activities. Operators should not be exposed to financial burdens that could entail immediate bankruptcy....Whatever figure is established by the legislator will seem to be arbitrary, but, in the event of a nuclear catastrophe, the State will inevitably step in and pay additional compensation. Civil law is not designed to cope with catastrophes; these require special measures." Limitation of liability in time: "In all legal systems there is a time limit for the submission of claims. In many States the normal time limit in general tort law is 30 years. Claims for compensation for nuclear damage must be submitted within 30 years in the event of personal injury and within 10 years in the event of other damage. The 30 year period in the event of personal injury is due to the fact that radiation damage may be latent for a long time; other damage should be evident within the 10 year period." Insurance coverage: "The nuclear liability conventions require that the operator maintain insurance or provide other financial security covering its liability for nuclear damage in such amount, of such type and in such terms as the Installation State specifies....This ensures that the liability amount of the operator is always covered by an equal amount of money. The congruence principle is to the advantage both of the victims of a nuclear incident and of the operator. The victims have the assurance that their claims are financially covered, and the operator has funds available for compensation and does not need to convert assets into cash.

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Summary: Civil Liability for Nuclear damage Bill, 2010

Anirudh - May 25, 2010 3 Comments

The Civil Liability for Nuclear Damage Bill, 2010 was introduced in the Lok Sabha on may 7, 2010.  The following is PRS’s summary of the Bill (The Bill summary and the Bill along with related media articles can also be accessed on the PRS Website):

The main features of the Bill are:

a. It defines nuclear incidents and nuclear damage, nuclear fuel, material and nuclear installations, and also operators of nuclear installations.

b. It lays down who will be liable for nuclear damage, and the financial limit of the liability for a nuclear incident.

c. It creates authorities who will assess claims and distribute compensation in cases of nuclear damage. It also specifies who can claim compensation for nuclear damage, and how compensation can be claimed and distributed.

d. It specifies penalties for not complying with the provisions of the Bill, or any directions issued under it.

Nuclear damage means (a) loss of life or injury to a person, or loss of, or damage to property caused by a nuclear incident (b) economic loss arising out of such damage to person or property, (c) costs of measures to repair the damage caused to the environment, and (d) costs of preventive measures.

The Atomic Energy Regulatory Board has to notify a nuclear incident within 15 days from the date of a nuclear incident occurring.

The operator of a nuclear installation will be liable for nuclear damage caused by a nuclear incident in that installation or if he is in charge of nuclear material. If more than one operator is liable for nuclear damage, all operators shall be jointly, and also individually liable to pay compensation for the damage. The Bill also provides certain exceptions to an operator’s liability.

The operator has a right of recourse against the supplier and other individuals responsible for the damage under certain conditions.

The Bill states that the total liability for a nuclear incident shall not exceed 300 million Special Drawing Rights (Approximately Rs 2100 crore at current exchange rates).

Within this amount, the liability of the operator shall be Rs 500 crore. If the liability exceeds Rs 500 crore, the central government shall be liable for the amount exceeding Rs 500 crore (up to SDR 300 million). If damage is caused in a nuclear installation owned by the central government, the government will be solely liable.

The Bill allows the central government to create two authorities by notification:

a. Claims Commissioner: The Claims Commissioner will have certain powers of a civil court. Once a nuclear incident is notified, the Commissioner will invite applications for claiming compensation.

b. Nuclear Damage Claims Commission: If the central government thinks that with regard to a nuclear incident (a) the amount of compensation may exceed Rs 500 crore, or (b) it is necessary that claims will be heard by the Commission and not the Claims Commissioner, or (c) that it is in public interest, it can establish a Nuclear Damage Claims Commission. The Commission shall have the same powers as that of a Claims Commissioner.

An application for claiming compensation can be made by (a) person sustaining the injury, (b) owner of the damaged property, (c) legal representative of a deceased person, or (d) an authorised agent. An application can be made within three years from the date of the person having knowledge of nuclear damage. This right to make an application is however exhausted after a period of ten years from the date of the notification of the nuclear incident.

he Civil Liability for Nuclear Damage Bill, 2010 was introduced in the Lok Sabha on May 7, 2010. The main features of the Bill are:

a.

It defines nuclear incidents and nuclear damage, nuclear fuel, material and nuclear installations, and also operators of nuclear installations.

b.

It lays down who will be liable for nuclear damage, and the financial limit of the liability for a nuclear incident.

c.

It creates authorities who will assess claims and distribute compensation in cases of nuclear damage. It also specifies who can claim compensation for nuclear damage, and how compensation can be claimed and distributed.

d.

It specifies penalties for not complying with the provisions of the Bill, or any directions issued under it.

§

Nuclear damage means (a) loss of life or injury to a person, or loss of, or damage to property caused by a nuclear incident (b) economic loss arising out of such damage to person or property, (c) costs of measures to repair the damage caused to the environment, and (d) costs of preventive measures.

§

The Atomic Energy Regulatory Board has to notify a nuclear incident within 15 days from the date of a nuclear incident occurring.

§

The operator of a nuclear installation will be liable for nuclear damage caused by a nuclear incident in that installation or if he is in charge of nuclear material. If more than one operator is liable for nuclear damage, all operators shall be jointly, and also individually liable to pay compensation for the damage. The Bill also provides certain exceptions to an operator’s liability.

§

The operator has a right of recourse against the supplier and other individuals responsible for the damage under certain conditions.

§

The Bill states that the total liability for a nuclear incident shall not exceed 300 million Special Drawing Rights (Approximately Rs 2100 crore at current exchange rates).

§

Within this amount, the liability of the operator shall be Rs 500 crore. If the liability exceeds Rs 500 crore, the central government shall be liable for the amount exceeding Rs 500 crore (up to SDR 300 million). If damage is caused in a nuclear installation owned by the central government, the government will be solely liable.

§

The Bill allows the central government to create two authorities by notification:

a.

Claims Commissioner: The Claims Commissioner will have certain powers of a civil court. Once a nuclear incident is notified, the Commissioner will invite applications for claiming compensation.

b.

Nuclear Damage Claims Commission: If the central government thinks that with regard to a nuclear incident (a) the amount of compensation may exceed Rs 500 crore, or (b) it is necessary that claims will be heard by the Commission and not the Claims Commissioner, or (c) that it is in public interest, it can establish a Nuclear Damage Claims Commission. The Commission shall have the same powers as that of a Claims Commissioner.

An application for claiming compensation can be made by (a) person sustaining the injury, (b) owner of the damaged property, (c) legal representative of a deceased person, or (d) an authorised agent. An application can be made within three years from the date of the person having knowledge of nuclear damage. This right to make an application is however exhausted after a period of ten years from the date of the notification of the nuclear incident.

Legislative debate: Influencing amendments to the Green Tribunal Bill, 2010

Anirudh - May 4, 2010 2 Comments

One of the main tasks of the Parliament is to frame laws through debate and discussion on the floor of the House.  However, there have been repeated instances where Bills introduced by the government have been passed without substantive discussion (For news reports, click here and here).  Even where Bills are debated extensively, occasions where the government introduces changes in the Bill directly as a response to Parliamentary debate are hard to find.

One recent exception is the list of amendments introduced to the National Green Tribunal Bill, 2010 by the Minister for Environment and Forests directly in response to issues raised on the floor of the House.

The Bill

The National Green Tribunal Bill, 2009 aims to set up specialised environmental courts in the country.  It will hear initial complaints as well as appeals from decisions of authorities under various environmental laws.  The Tribunal shall consist of both judicial and expert members.  Expert members have to possess technical qualifications and expertise, and also practical experience.

The Tribunal shall hear only ‘substantial question relating to the environment’.  Substantial questions are those which (a) affect the community at large, and not just individuals or groups of individuals, or (b) cause significant damage to the environment and property, or (c) cause harm to public health which is broadly measurable.

PRS in its analysis of the original (unamended) Bill, had raised the following issues (for detailed analysis, clickhere) :

  • The criteria to determine what a ‘substantial question related to the
    environment’ are open to interpretation.
  • The Bill may reduce access to justice in environmental matters by taking away the jurisdiction of civil courts.  All cases under laws mentioned in the Bill will now be handled by the Tribunal which will initially have benches at only five locations.
  • The Bill does not give the Tribunal jurisdiction over some laws related
    to the environment.
  • The qualifications of judicial members of the Tribunal are similar to that of the existing National Environment Appellate Authority (NEAA).  The government has been unable to find qualified members for the NEAA for the past three years.  The Green Tribunal Bill gives an explicit option to the government to appoint members with administrative experience as expert members.
  • The Bill does not specify the minimum number of members the Tribunal and also does not mention of the composition of the Selection Committee for selecting members.

The Debate

In the debate on the Bill in the Lok Sabha on April 21, 2010 a number of MPs raised substantive issues with respect to the Bill.  Some of the issues raised were (From the news article quoted above):

1. The Bill fell short on parameters of “scope, efficiency, and access to justice”.

2. Setting up five benches while barring the jurisdiction of courts will “create huge distance for the poor community members and tribals to seek justice”.

3. Offenses under the Wildlife Protection Act and the Wildlife Protection Act will not be heard by the Tribunal.

4. “Section 15 puts an embargo against [persons] other than retired Judge of Supreme Court or Chief Justices of High Court. The other clause puts 15 years of administrative experience, which would open the path for packing the Tribunal with bureaucrats of the kind who did not enforce the environment related laws in their time in service.”

The Minister acknowledged the contribution of the members by stating that: “The members have made important suggestions. Even though their exact demands may not be part of the official amendments moved by the government… but I am open to their suggestions…I will remove all objectionable clauses or sections in the proposed law and keep the window of discussion open.”

The Minister’s response

In response to these issues, the Minister Mr. Jairam Ramesh introduced 10 amendments to the Bill on April 30, 2010.  Though not all the issues raised were addressed, a number of changes were made.  In addition, the Minister also assured the House that issues regarding access would be addressed by the government by following a “circuit” approach for the benches of the Tribunal i.e. the benches would travel around the area within their jurisdiction to hear complaints. (To read the response, click here, page 15250)

Some of the main amendments are:

1.  Now any aggrieved person can can approach the Tribunal.  Earlier limited access was provided.

2. The whole Act will be operational by notification at the same time.  Different provisions will not be enforced separately at different points of time.

3. There is a procedure for direct appeal to the Supreme Court from the judgement of the Tribunal.

4. The number of expert and judicial members is clearly specified.

In addition, the Minister also assured that the Selection Committee for picking the members of the Tribunal will be transparent and will ensure that members are not “a parking place for retired civil servants”.

Re-starting the Tamil Nadu Legislative Council

Anirudh - April 19, 2010 2 Comments

Anirudh and Chakshu Friday's issue of Indian Express carried an op-ed article by the Director of PRS on the issue of the re-establishment of the Legislative Council (upper house) in Tamil Nadu. The article (a) traces the history of the legislature in Tamil Nadu, (b) the efficacy of having upper houses in state legislatures, (c) arguments for and against having legislative councils in state legislatures, and looks at the larger issue of how efficiently state legislatures perform their expected role. General information on Legislative Councils in India: The Legislative Council (Vidhan Parishad) of a state comprises not more than one-third of total number of members in legislative assembly of the state and in no case less than 40 members (Legislative Council of Jammu and Kashmir has 36 members vide Section 50 of the Constitution of Jammu and Kashmir). Elections: (a) About 1/3rd of members of the council are elected by members of legislative assembly from amongst persons who are not its members, (b) 1/3rd by electorates consisting of members of municipalities, district boards and other local authorities in the state, (c) 1/12th  by electorate consisting of persons who have been, for at least three years, engaged in teaching in educational institutions within the state not lower in standard than secondary school, and (d) one-twelfth by registered graduates of more than three years standing. Remaining members are nominated by Governor from among those who have distinguished themselves in literature, science, art, cooperative movement and social service. Legislative councils are not subject to dissolution but one-third of their members retire every second year. The points below provide more information on the Tamil nadu legislative Council: - The Government of India Act, 1935 established a bicameral legislature in the province of Madras. - May 14, 1986 [eigth assembly] the government moved a resolution for the dissolution of the Legislative Council.  The resolution was passed. - The Tamil Nadu Legislative Council(Abolition) Bill, 1986 was passed by both the Houses of Parliament and received the assent of the president on the 30th August 1986.  The Act came into force on the 1st November 1986.  The Tamil Nadu Legislative Council was abolished with effect from the 1st November 1986. - February 20, 1989, [ninth Assembly] a Government Resolution seeking the revival of the Tamil Nadu Legislative Council was moved and adopted by the house - The Legislative Council Bill, 1990 seeking the creation of Legislative Councils of the Tamil Nadu  and Andhra Pradesh was introduced in Rajya Sabha on the 10th May 1990 and was considered and passed by the Rajya Sabha on the 28th May 1990.   But the Bill could not be passed by the Lok Sabha. - October 4, 1991, [tenth Assembly] a Government Resolution was adopted in the Assembly to rescind the Resolution passed on the 20th February 1989 for the revival of the Legislative Council in the State of Tamil Nadu. - July 26, 1996, [eleventh Assembly], a Government Resolution seeking the revival of the Tamil Nadu Legislative Council was moved and adopted by the house.

Control over Budget: Effectiveness of Parliament

Anirudh - March 25, 2010 2 Comments

During the recess, the Departmentally Related Standing Committees of Parliament examine the Demand for Grants submitted by various Ministries.  The Demand for Grants are detailed explanations of that Ministry's annual budget which form part of the total budget of the government.  These are examined in detail, and the committees can approve of the demands, or suggest changes.  The Demand for Grants are finally discussed and voted on by the Parliament after the recess.  (The post below lists the ministries whose Demand for Grants will be discussed in detail after the recess). The issue is - how effective is the institution of Parliament in examining the budget?  Though India specific information on this subject is hard to find, K. Barraclough and B. Dorotinsky have cited the World Bank - OECD Budget procedures Database to formulate a table on the legislature approving the budget presented by the executive ("The Role of the Legislature in the Budget Process: A Comparative Review", Legislative Oversight and Budgeting).  I reproduce the table below:

In Practice, does the legislature generally approve the budget as presented by the Executive? (in percent)
Answer All Countries OECD Countries Presidential democracies Parliamentary democracies
It generally approves the budget with no changes 34 33 14 41
Minor changes are made (affecting less than 3% of total spending) 63 67 71 59
Major changes are made (affecting more than 3% but less than 20% of total spending) 2 0 7 0
The budget approved is significantly different (affecting more than 20% of total spending) 0 0 0 0
Sources:  K. Barraclough and B. Dorotinsky; PRS.

Ratifying Reservation

Anirudh - March 10, 2010 6 Comments

There have been articles in the media on the future passage of the Women's Reservation Bill stating that the Bill will have to be ratified by state legislatures before it is signed into law by the President.  Our analysis indicates that ratification by state legislatures is not required.  We state the reasons below: This Bill amends the Constitution.  It (a) amends Article 239AA,  Article 331, and Article 333, and  (b) inserts Article 330A, Article 332A, and Article 334A.  In doing so the Bill:

  • Seeks to reserve one-third of all seats for women in the Lok Sabha and the state legislative assemblies;
  • One third of the total number of seats reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women of those groups in the Lok Sabha and the legislative assemblies;
  • Reserved seats may be allotted by rotation to different constituencies.

Article 368 regulates the procedure for amending the Constitution.  It states that the ratification of the state legislatures to a constitutional amendment is required in the following cases: a. If there is a change in the provisions regarding elections to the post of the President of India. b. If there is a change in the extent of the executive power of the centre or the state governments. c. If there is any change in the provisions regarding the Union judiciary or the High Courts. d. If the distribution of legislative powers between the centre and the states is affected. e. If any of the Lists in the Seventh Schedule is affected. f. If the representation of the states in the Rajya Sabha is changed. g. Lastly, if Article 368 itself is amended. None of these provisions are attracted in the case of the Women's Reservation Bill.  The Parliament recently extended the reservation of seats for SCs, STs and Anglo-Indians in Lok Sabha and Legislative Assemblies by another ten years.  Article 334 was amended to state that such reservation "will cease to have effect on the expiration of a period of seventy years from the commencement of the Constitution."  The 109th Amendment Bill was passed by both Houses of Parliament and did not require the ratification of the states before being signed into law by the President.  It follows that if Bills amending provisions for reserving seats for SCs and STs don't need ratification by state legislatures, a bill reserving seats for women does not need ratification either. Thus Article 368 very clearly lays down situations in which state legislatures have to ratify a piece of legislation before it can receive the assent of the President.

Budgetary History: Evolution of legislative "power of the purse"

Anirudh - March 4, 2010 5 Comments

The presentation of the Annual Budget before the parliament is one of the mechanisms available to any legislature to scrutinise and authorise revenues and expenditures of the country.   In this post I quote and summarise from two sources (Rick Stapenhurst, "The legislature and the Budget", in Legislative Oversight and Budgeting, World Bank Institute Development Studies, and The evolution of parliament’s power of the purse) which describe briefly how oversight by the legislature over the state's finances evolved historically. "The evolution of legislative "power of the purse" dates back to medieval times, when knights and burgesses in England were summoned to confirm the assent of local communities to the raising of additional taxes."  By the 1300s the English parliament had begun to use its power to vote on funds depending on the acceptance of petitions presented by parliament to the monarch.  In 1341, the monarch agreed that citizens should not be taxed ("charged or grieved to make common aid or sustain charge") without the assent of Parliament. "In parallel, the English Parliament began to take an interest in how money was collected, as well as how it was spent."  In the 1300's itself, it started appointing commissioners to audit the accounts of tax collectors. This power of oversight however evolved gradually, and particularly over the 16th century, when the "monarchs needed parliamentary support and voting of funds for their various political and religious battles.  King Henry VIII for example, gave Parliament enhanced status in policy making, in return for support during his battles with Rome." The 1689 Bill of Rights firmly established "the principle that only Parliament could authorize taxation.  Still, at this stage there was still no such thing as an annual budget, and there was no comprehensive control of expenditures."  The British Parliament also passed a resolution in 1713 to limit Parliament's power to "not vote sums in excess of the Government’s estimates. Consequently, the only amendments that are in order are those which aim to reduce the sums requested." "Since that time, the "power of the purse" function has been performed by legislatures around the world as a means to expand their democratic leverage on behalf of citizens."