Killing Democracy Slowly

While there has been a furore over the Women’s Reservation Bill, the government has been attempting to push through the Nuclear Liability Bill, Communal Violence Bill and Biotechnology Regulation Bill without the discussion and consultation that are mandatory in a democracy, writes Manish

    1990: The Union Carbide Corporation is made to pay $470 million in compensation to the victims of the Bhopal gas tragedy, India’s worst industrial disaster, which claimed 16, 000 lives. Despite the seemingly large amount, several questions were raised about the manner in which the settlement was obtained and the fact that it would still be inadequate for a disaster of this magnitude.

    2010: The union government, despite massive public and political protests, proposes to table the Nuclear Liability Bill in parliament. Among its provisions is a clause restricting the liability of foreign nuclear suppliers to$109 million in case of any accident at a nuclear reactor.

The Nuclear Liability Bill is not the only legislation that the government is attempting to push through without discussion or public consultation. Two more controversial legislations – the Biotechnology Regulatory Authority Bill and the Communal Violence Bill – are scheduled to be tabled, and possibly passed, by parliament in the 2010 budget session. What is worrying is not merely the fact that these Bills contain anti-democratic provisions or are drafted in such a manner as to run detrimental to the interests of civil society and general public, but the intentions of the government which are reflected in the complete absence of consultation with interested stakeholders and participatory discussions with the general public at the time of their framing. Instead of taking the citizenry into confidence and involving them at every stage of the lawmaking process, the lawmakers have carried out matters in a hushed and secretive manner.

A brief discussion of each of the proposed legislations, and the complete disregard by government of public opinion on these legislations, should make matters clear.

The Nuclear Liability Bill 2010 seeks to limit the liability of foreign nuclear suppliers in case of a nuclear accident. The Bill seeks to establish a Nuclear Liabilities Commission, which would determine the liabilities of the company, including amount of compensation payable to the victims in case of a nuclear accident. The Bill further provides that of this amount, no more than Rs 500 crore (approximately $109 million) shall be payable by the company, and in case the damages awarded are higher, they would be payable by the government – effectively using tax-payers’ money to pay for the inefficiency and negligence of foreign corporations – up to an arbitrarily fixed upper ceiling of Rs 2,087 crore (approximately $458 million). Under no circumstances, irrespective of the severity of the accident, the quantum of negligence and the number of victims, can the compensation amount exceed $458 million, a figure that, even without accounting for inflation, would be less than the amount awarded in the Bhopal gas leak case two decades ago. Worse, the Bill effectively blocks victims of a nuclear accident involving a foreign-built reactor from suing the supplier or builder, either in India or the home country. And all claims will have to be filed within ten years, failing which the right to claim compensation shall be forfeited.

What is interesting is the government’s apparent haste in pushing the Bill through in parliament, notwithstanding the opposition of two of its own ministries.  While the Ministry of Finance has opposed the clause that makes the government liable to pay compensation for the negligence of a foreign operator, the Ministry of Environment and Forests has opposed the ten-year limit for filing claims as untenable since damage to human DNA caused by radioactivity could take a long time to manifest. The Bill has also been opposed by several civil society organisations, NGOs, environmentalists and political parties – all of which have been repeatedly ignored in the government’s enthusiasm to push the legislation through. The primary reason behind this is to ensure that the Indo-US nuclear deal – touted as an achievement of the present government – is implemented, by providing these concessions and indirect subsidies to American corporations. Effectively, it amounts to providing these corporations fertile ground for easy profits while absolving them of most of the liability – a tab that will, instead, be picked up by the hapless taxpayer. While the government has recently decided not to table the Bill for now in the wake of mounting opposition to it, the larger question persists – isn’t a legislation that fundamentally affects the rights of citizens, not to mention the economy of the country, deserving of greater public involvement in its drafting?

The case of the Communal Violence Bill is no different. Yet again, a legislation that affects the rights of individuals, and strengthens state authority, has been sought to be pushed forward almost unilaterally by the government, bypassing public opinion and criticism from civil society over its provisions which will not serve the purpose for which they are intended, and at the same time fortify the state machinery with almost unbridled powers. Instead of helping victims of communal violence and making public servants accountable in case of their culpability, activists argue that the Bill will not only fail to secure justice for victims of communal violence, but also make it more difficult to secure accountability of public officials while strengthening the protection enjoyed by those who plan and organise such violence. The Bill also fails to tackle sexual violence in communal situations, which is often aimed at degrading and humiliating a particular community by violating its women, and does not recognise the right to justice of a victim or survivor of communal violence.

Since 2005, when the Bill was originally introduced in the Rajya Sabha, civil society organisations have repeatedly attempted to engage with government at various levels and have submitted several alternative drafts, changes in the existing draft and critiques of the present version. Unfortunately, these vociferous efforts on the part of civil society have largely been ignored by the government. Nowhere is this more clearly reflected than in the 2009 amendments to the Bill, which merely made cosmetic changes and did not incorporate a single suggestion made by civil society groups. Rather than making piecemeal amendments benefiting nobody, it would have been more appropriate for the government to sit down with civil society organisations, address their concerns and come out with a comprehensively revised draft.

The process repeats itself in the matter of the Biotechnology Regulatory Authority Bill, which has received much media attention in the context of the present debate over genetically modified foods. The Bill seeks to create a regulatory body, the Biotechnology Regulatory Authority of India, consisting of technocrats and experts in the field of biotechnology, which will oversee and approve the implementation of GM crops. Disturbingly, this authority will also be the nodal agency for biosafety, replacing the existing authority, the Genetic Engineering Approval Committee, which is a widely representative body composed of members from different ministries, agencies and departments, as well as expert members who are heads of agricultural research, medical research, scientific and industrial research, the DG health services, Directorate of Plant Protection, Pollution Control Board etc. Public opinion, state governments and elected representatives are completely bypassed in matters which could have a direct bearing on the health and safety of local communities in particular and the public at large.

The most draconian sections of the Bill, however, pertain not to regulation but to censorship. Indeed, the Bill seeks to stifle all forms of dissent, going so far as to penalise anybody who criticises GM products – with a fine of Rs 200,000 and imprisonment of not less than six months. Thus, it imposes crippling restrictions on the fundamental rights of citizens to express themselves, and further seeks to hinder activists by effectively restricting their right to information. Expressly overriding the Right to Information Act, the proposed authority has been vested with the power to decide what information pertaining to GM products and their regulation can be disclosed to the public. All powers of the proposed authority pertaining to decisionmaking are proposed to be vested in one individual, namely the chairperson of the authority, who will be a biotechnologist, thereby emphasising the centralised, autocratic nature of the authority which will tend to be easily influenced by the biotechnology industry. Safety, freedom of expression and public opinion are banished to the margins. Despite the numerous concerns that have been raised over it provisions by a few state governments as well as activists and civil society organisations, the government has been attempting, without discussion or consensus, to push this Bill through parliament. Is this behaviour of the central government, in respect to a legislation which involves issues as diverse and crucial as public safety and freedom of expression, justifiable in a democratic nation?

The procedure for drafting parliamentary legislation is provided in the Manual of Parliamentary Procedure, prepared and published by the Ministry of Parliamentary Affairs. Shockingly, the Manual does not prescribe any specific requirement for public consultation, or even consultation with members of parliament (especially those in the opposition). All that is prescribed by Rule 2 of Chapter 9 of the Manual is a bland and ambiguous directive to formulate legislative proposals “in consultation with all the interests and authorities concerned, essentially from administrative and financial points of view” (emphasis added). While the lack of a specific directive which arbitrarily leaves the extent of public consultation, if any, to the discretion of the government, is troubling, more worrying is the portion of the quoted Rule that has been emphasised above, which would in effect restrict the consultation to an inter-departmental or at most, an inter-ministerial one, which is in consonance with the remaining provisions of the chapter. When rules of procedure which exist are rampantly flouted – the numerous instances of RTI applications being rejected on frivolous grounds or approvals for change in land use being granted without public hearings are cases in point – the complete  absence of such due procedure for public consultation in drafting legislation – which usually affects large sections of society – is most disturbing.

The effect of this undemocratic method of legislation is the gradual demise of democracy itself. When Bills like the Biotechnology Regulatory Authority Bill become law, they empower the vested interests whose cause they were designed to serve, which means that even when civil society gets wind of the matter and attempts to seek amendments or repeals, these are likely to be less than forthcoming, because those in a position of easy power will be loathe to surrender it. The overall lack of transparency means that the executive also selectively implements the law, choosing to notify or not notify particular – sometimes crucial – sections of Acts that have been passed by legislatures. All of this corrodes the heart of democracy – the will of the people. Therefore, in order to retain the ideals of democratic practice which are enshrined in our Constitution, the government must engage with civil society and other stakeholders who are likely to be affected by the provisions of any proposed legislation, and incorporate their suggestions into the draft of the Bill that is finally tabled in parliament. In order to ensure that this practice is strictly adhered to and not dispensed with by governments at their convenience, it must be made a matter of policy, as integral to the passing of the Bill as a vote in parliament. While direct democracy may face problems in implementation in a country of India’s size, consultative processes while framing legislation are essential to ensure that the basic tenets of democratic doctrine become a reality. Only then will the government, as much as the laws it makes, truly be of the people, by the people and for the people.


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