'Autonomy' of Nuclear Regulator: The ideal and the reality

Guest Post by Prashanth Reddy

Sometime later this year, Parliament is going to have yet another debate on the degree of ‘independence’ of an Indian regulatory body. The regulator in question is the nuclear regulator that has been proposed under the Nuclear Safety Regulatory Authority of India Bill, 2011 (NSRAI). The debate on the ‘independence’ of the nuclear regulator in India has been one of several contradictions. Despite the nuclear establishment repeatedly claiming that its regulator – the Atomic Energy Regulatory Board (AERB) – was independent, Rural Development Minister Jairam Ramesh very obviously contradicted the entire establishment when he publicly called for the creation of an ‘independent’ AERB. 


In order to understand the differing versions of ‘independence’, it is necessary to understand the history of nuclear regulation in this country.   At the time of its inception, soon after independence, the Indian nuclear industry was regulated mainly by ad-hoc safety committees of the Department of Atomic Energy (DAE). In 1972 the DAE passed an office order creating the institutionalized mechanism - DAE-Safety Review Committee (SRC), which would now be responsible for safety of Indian nuclear plants. 


In 1979 the then Secretary of the DAE ordered the DAE-SRC to review its functioning and recommend any possible changes. This Committee was headed by M.V. Meckoni, Director BARC and its final report which was submitted in February 1981 came to be known as the Meckoni Committee Report and it is this report which formed the basis of the creation of the AERB. (The report can be downloaded over here.

A fatal error in this entire exercise was the composition of the Committee itself, which is not to say that the members of the Committee were incompetent but the fact that all seven of them were serving members of the nuclear establishment and would most likely not be capable of an objective assessment of independent regulatory requirements. 


The final recommendations of the Committee called for an ‘autonomous’ AERB staffed by members of BARC and the ‘DAE Family’ therefore in effect creating another ‘in-house’ body. Most of these suggestions were followed by the DAE when it created the AERB through an Executive Order of the President in 1983. In the process the only useful suggestion of the Meckoni Committee, which was to create the AERB through a legislation of Parliament was ignored. The problem with Executive Orders is that they can be modified by the DAE itself, something which it demonstrated in the year 2000 when it excluded BARC, India’s principal nuclear weapons establishment, from the purview of the AERB.

The AERB created by this Presidential Order was a system mired in severe ‘conflict of interest’. As per this Order the AERB was responsible to the Atomic Energy Commission (AEC). The AEC itself was responsible for promoting the use of nuclear energy in India and is in itself headed by the Secretary of the DAE. The DAE is the department which controls BARC, India’s primary nuclear weapons establishment and more importantly, the Nuclear Power Corporation of India Ltd. (NPCIL) – the government company which operates all of India’s nuclear reactors. The AERB’s mandate was to regulate the nuclear reactors operated by the DAE but at the same time made responsible to the AEC which was headed by the Secretary of the DAE. Further, the Executive Order also stated that the DAE would control the AERB’s budget and be responsible for it before Parliament.

Any objective assessment of the above setup would lead to the logical conclusion that the AERB was anything but ‘independent’ of the DAE. Surprisingly however, the AERB in its yearly reports to the IAEA under the ‘Convention on Nuclear Safety’ (CNS) has consistently claimed that it is an ‘independent’ body.

Section 8(2) of the CNS defines independence in the following terms: Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy. 


In its latest Report to the IAEA, the AERB has stated the following: “The position of AERB in the government set up ensures administrative and financial independence in its functioning. Technical support is drawn from various  national laboratories as well as from other national academic and research institutions. The Central Government provides the financial resource to AERB according to its proposed budget. There has never been shortage of finance towards fulfilling its mandate and responsibilities. The statutory and legal provision of the Act & various rules framed there under and the powers conferred by the gazette notification provides AERB with the authority for its independent and effective functioning. Hence, India complies with the intent and spirit of Article 8 of the Convention.”  

Obviously, the nuclear establishment and the political establishment have differing version of ‘independence’. The question for future debate is whether India’s latest attempt to create an independent nuclear regulator is compliant with its treaty obligations under the CNS? Ideally the government should have released a white paper on the status of the AERB before it proceeded to create a new regulator. However as always we put the cart before the horse.

[ Prashant Reddy T. is an Advocate, blogger at SpicyIP and a co-founder of the Pre-Legislative Briefing Service (PLBS).] 

Guest Post by Prashant Iyengar: A tribute to the late Professor Vepa P. Sarathi

The renowned legal scholar, eminent jurist, former Law Commission member and Senior Advocate of the Supreme Court Vepa P. Sarathi passed away yesterday, four years short of his 100th birthday. There were
portents: this is after all a season in which diminutive titans have been missing centuries. To the generation of his students at NALSAR and elsewhere, this news has come as a shock. I think many of us believed audaciously that he could live forever, or at least that our adoration of him would make it so. We mourn his passing today.

Professor Sarathi was the grandsire of NALSAR and stewarded us through many difficult legal battlefields. At once, Bhisma and Sarathi, he was to us, entirely the stuff of legend. A glance at his eclectic scholarly oeuvre -  including bestselling books on statutory interpretation, property law, evidence, his authorship of law commission reports, and his semi-professional interests in literature, vedic mathematics and astronomy, all attest to his extraordinary erudition. The NALSAR university website lists him as having taught courses in the Indian Penal Code, Criminal Procedure, Transfer of Property, Evidence and the Constitution. He also taught Judicial Process and Company Law and was available for guest talks in many other courses. With him around we had the rare privilege of having eight decades of legal virtuosity at our continuous disposal.  NALSAR will be hard pressed to find five new faculty who could be the equal of one Professor Sarathi. But more than his scholarly attainments, he was also habitually a friend, guide and mentor to almost everyone who crossed his path, and was the affable grandfather-in-law (avus lex) who we all looked up to. He was simply the kindest man we knew. It is this latter avatar that we will miss the most.

In his first satire, the Roman poet Horace pauses to ask rhetorically, “Ridentem dicere verum Quid vetat?” (roughly, “What prevents me/one from speaking the truth in a playful mood/smilingly?”). I think this question quite aptly describes Professor Sarathi’s teaching style, if not his entire mien. He had a rich fund of humour - anecdotes and clever limericks, many of his own coining - which he employed to dilute the viscosity of legal discourse. As a teacher his lectures were always riveting– whether he was discussing arcane principles of
property law or lighter themes like law and literature. He had the magician’s knack of nonchalance. The rabbit of the rule against perpetuities was conjured effortlessly from his top hat of legal knowledge, and presented to us matter-of-factly. Having only recently turned law professor - of property law, at that - I am now more fully able to appreciate the wizardry required to be able to convey nuances of property dogma to a class of indifferent nineteen year olds!

More than an institutional loss, his passing will be felt as a national loss. For over four decades, his books on Property, Evidence and Statutory Interpretation have instructed thousands of law students interested in acquiring more than a mere guidebook education. Moreover, at 96 he was one of the last surviving repositories of a
legal memory that spanned, and could give firsthand accounts of four distinct eras of our legal culture - colonial, national, post-emergency and post liberalization. He could speak of law with the same facility as narrating his own family’s history. He was simultaneously museum, relic, encyclopedia, chronicler, genealogist and exponent of Anglo-Indian law. A true national treasure. 

A friend’s favourite Vepa Sarathi story is about how she once discovered him in his office at NALSAR reclining comfortably in his chair, feet resting on his table, absorbed in a Harry Potter book. This has also become my favourite image of the man. At 95, this is what I aim to be doing. To have accomplished in law even a fraction of
what he did, but also to stretch my legs on a table and read whatever it is the kids are going crazy about. To have authored dense legal commentaries and have read Cicero, but also to retain my curiosity in the fabulous. This ‘passionate curiosity’ will be one of Professor Sarathi’s enduring legacies. It is the thing he has infected us, his grateful students, with.

We will miss your gentleness, you erudition and your humor Professor Sarathi. Thank you for everything.

Guest Post by Anup Surendranath: Children Born Out of Inter Caste Marriages – Abandoning a Pure Group Assimilation Approach

The recent decision by a two judge bench of the Supreme Court (Justices Aftab Alam and Ranjana Desai) in Rameshbhai Dabhai Naika v. State of Gujarat has clarified that a person born out of an inter-caste marriage can inherit the caste/ tribe status of the mother (for the purpose of reservations) as result of an evidence-based factual determination of the disadvantages suffered. The court held that a mechanical application of the position in Hindu personal law that a child born out of an inter-caste marriage inherits the caste of the father is constitutionally invalid as far as determining beneficiaries of reservations is concerned. This judgment consolidates the Supreme Court’s departure in the mid-90s from its early discourse on such issues developed between the 50s and 70s through cases like Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram (1954), N.E Horo v. Jahan Ara Jaipal Singh (1972) and Guntur Medical College v. Mohan Rao (1976). In my view, the importance of the decision in Rameshbhailies not so much in the fact that it reiterates the established position since the 1950s that a woman need not necessarily assume the caste/ tribe status of her husband as far as reservations are concerned, but rather in its consolidation of the position that the individual experience of disadvantage is just as relevant as group membership even for Scheduled Castes and Scheduled Tribes (admittedly restricted to contexts of non-birth based membership in the group).

In the Jasani and Jahan Ara era, when confronted with determination of caste/ tribe status arising out of inter-caste marriage and adoption cases in the context of reservations, the Supreme Court’s response was to focus on the assimilation of the person within the beneficiary group. Questions concerning acceptance by other members of the beneficiary group and nature of assimilation were central to the discussion. However, it must be noted that even during this period the emphasis was very much on an evidence-based factual determination but with a completely different focus.

The judgment of the Gujarat High Court in Rameshbhai Dabhai Naika (2010) that the action of the relevant authority in cancelling the appellant’s Scheduled Tribe certificate was valid on the ground that the appellant could only inherit his father’s caste (forward caste Kshatriya) and not his mother’s Scheduled Tribe status was rightly seen as an incorrect application of precedent. The two judges disagreed with the manner in which the decisions in Valsamma Paul v. Cochin University and Ors. (1996), Punit Rai v. Dinesh Chaudhary (2003), and Anjan Kumar v. Union of India (2006) were interpreted and held that those decisions in fact supported the position that every such case must be decided on particular facts as applicable to the individual.  Though there could be a presumption that a child born out of an inter-caste marriage inherited the caste of her/ his father, the Supreme Court was of the view that such a child could lead evidence to rebut the presumption while demonstrating that she/ he was brought up by the mother and was also accepted by the mother’s community along with those outside the community.

However, the nature of the factual determination being discussed in the Supreme Court’s judgment in Rameshbhai is significantly different from what was contemplated in Jasani and Jahan Ara. Starting with Valsamma, the Supreme Court has sought to move away from a framework that requires factual determination only along the lines of acceptance by group members and assimilation. In Valsamma, the Supreme Court explicitly holds that, for purposes of Article 16(4), recognition of the individual by the beneficiary group is irrelevant and it is the life experience of the individual that is relevant. Decided by a two judge bench, the decision was arguably not in consonance with what was decided by larger benches (three judges) in Jasani and Jahan Ara. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Ors. (2005), three judges of the Supreme Court over-ruled Jahan Arato the extent that it does not take into consideration the actual background and circumstances of the person in question and relies solely on questions of group assimilation. Marriage into a beneficiary group and acceptance by the members of that group is held to be insufficient for an individual to claim benefits under Articles 15(4), 16(4) and 332.

The Supreme Court’s decision in Rameshbhai is a logical extension of the decision in Sobha. While in Sobha, the question was whether a woman from a socially dominant group could marry into a beneficiary group and claim the benefits of reservation, in Rameshbhai the court was faced with the reverse fact scenario. The individual in question wanted to inherit his mother’s Scheduled Tribe status despite her marriage to a forward caste man. The court was correct in extending the analysis in Sobha to establish the position that an examination of the individual’s circumstances can lead to her/ him inheriting the mother’s status.

Therefore, the big news from the Supreme Court’s decision in Rameshbhai is not really that an individual can inherit her/ his mother’s status in certain circumstances, but rather that the Supreme Court now seems to have established the position that, in cases of inter caste marriage, children born out of inter caste marriage and adoptions, there is an additional level of investigation to be conducted to decide the eligibility for reservations – and that additional level of investigation centres around individual deprivation and moves away from pure notions of group membership even in the case of Scheduled Castes and Scheduled Tribes.

Undoubtedly, it would have been possible to reach the same conclusion through the framework developed in Jasani and Jahan Ara but the additional individual-based investigation in the manner envisaged Valsamma onwards certainly contributes to fine tuning India’s reservation policies.    

PRS' Legislative Assistants for Members of Parliament (LAMP) Fellowship Programme

PRS Legislative Research is accepting applications for their Legislative Assistants for Members of Parliament (LAMP) Fellowship Programme. Please see below for details about the fellowship and the criteria for selection.

The Legislative Assistants for Members of Parliament (LAMP) Fellowship is an opportunity for exceptional young Indians who are seeking to widen their understanding of politics and policy-making in the country. The LAMP Fellowship is a unique initiative, designed to provide individualised research support to MPs, by training Fellows to assist them in their tasks as law-makers. The LAMP Fellowship was conceptualised by PRS Legislative Research in 2010, launched with a pilot initiative consisting of 12 LAMP Fellows. Currently, the LAMP Fellowship 2011-12 has 46 LAMP Fellows, who come from diverse academic backgrounds and are working with Members of Parliament from across political parties.

Role of a LAMP Fellow: Each Legislative Assistant is assigned to an MP, to provide quality research support for their legislative and oversight duties. The LAMP Fellow will help MPs frame Parliamentary questions, raise issues, participate in parliamentary debates and speeches and help prepare for committee meetings.

Essential Criteria: Under the LAMP Fellowship, PRS is seeking committed, highly-motivated individuals to assist MPs for their work in Parliament. Applicants must meet the following criteria:
Applicants must be no more than 25 years of age (born on or after January 01,1987)
Applicants must have at least a Bachelor’s degree in any discipline.
LAMP Fellows are required to be based in Delhi for the entire duration of the Fellowship.
Only Indian citizens can apply.
Duration: June 2012 to May 2013.

The last date for applications for the LAMP Fellowship 2012-13 is February 26, 2012.