September 26, 2014
By PTI | 26 Sep, 2014, 12.52PM IST
READ MORE ON » Narendra Modi | Madison Square Garden |
NEW YORK: The Indian diaspora in the US is willing to go to any extent to watch Prime Minister Narendra Modi's address at Madison Square Garden here on Sunday with several people who were denied the most sought after ticket now willing to be volunteers.
"I was not there at the time of Swami Vivekananda. I did not see Sardar Patel. I do not want to miss the chance of seeing or watching live the greatest leaders of India of our times," Palak Jain, an Atlanta-based software engineer who is among the thousands of Indian Americans who failed to get the ticket, said.
"I wish, I get a glimpse of the Prime Minister, or else, I would watch it at the Times Square," said Jain who left India as a student some 15 years ago.
The Indo-American Community Federation (IACF) which is organising the event said that every day it is receiving hundreds of emails, letters and phone calls from people across the US and even from Canada for a ticket to the most coveted event for the Indian diaspora.
All the 18,000 tickets - 96 per cent of which have been provided free of cost after a computerised draw of lots - were booked weeks in advance.
But people are still calling IACF for tickets and making different kinds of offers from giving several thousand dollars for a seat to doing voluntary service or to manage the crowd just for a ticket of the event scheduled to be held on September 28.
According to IACF, Indian Americans from as many as 48 US States and five Canadian provinces would attend the event.
A majority of them are young Indian Americans with a sizeable number of them being women which reflects the wide popularity he enjoys among the diaspora.
"I have never seen such a craze for any Indian leader in the past several decades of my life," Dr Sambhu N Banik, an Indian American from Maryland who since early 80s was instrumental in organising public reception of several Indian Prime Ministers in Washington, including that of Indira Gandhi, P V Narasimha Rao and Atal Bihari Vajpayee, said.
"He (Modi) is our rockstar. He has gained the status of a rockstar," Banik said.
When the Indian community in Washington in early 80s held a reception for Gandhi, it asked for a donation of USD 2 from those attending.
The entire cost for the Vajpayee's reception was a little over USD 10,000 all raised through "seed money" by the participating Indian American community organisations.
Modi's event at MSG in midtown Manhattan is estimated to cost USD 1.5 million and the organisers have so far raised more than USD 2 million.
When Modi addresses a record 18,000 crowd of Indian Americans, lawmakers and top corporate leaders at MSG - a venue usually reserved for rockstars and sports - it would be the first time in the US history that a foreign head of state attracted such a whopping crowd.
The Dalai Lama, the Tibetan spiritual leader, is the only foreign leader but not a head of State to have addressed a house full MSG.
"It's Modi's Magic working all the way. We are overwhelmed by the response," said Chandra Kant Patel, president of Overseas Friends of BJP and Chairman of IACF.
"I'm really looking forward to hearing Modi speak. I've been really impressed thus far by what he has been prioritising, such as hygiene and sanitation and women's empowerment through holding men accountable.
"I'm thrilled to have the opportunity to hear his next call to action in person," Kavita Pallod, a doctoral candidate at the Rutgers University in New Jersey, said.
One Rakesh Gupta from South Carolina wrote to IACF that he and his wife are ready to be volunteers to get space.
"We are ready to be in any section of volunteer preferably registration, cultural or anything which can enable me to participate in the Modi's event and even have a glimpse of him," he wrote.
"The event at MSG organised by the IACF has 18,500 people attending and has been oversubscribed by more than 10,000 people. Last minute requests to attend the event are coming in at the rate of hundreds per day," Dr Bharat Barai, IACF president said.
IACF spokesman Anand Shah said almost all of the states of India will be represented at the event with Gujaratis, Bengalis, Punjabis, Tamils, Andhras, Biharis, Keralites, Kashmiris all attending Modi's address.
"The diaspora will be travelling from forty eight American states and five Canadian provinces to participate in the event," said Shah.
"There will be small business owners, community organisers, doctors, engineers, scientists, academics, writers, chefs, artists and performers alongside entrepreneurs, media personalities, elected officials, lawyers, the young and the old, the traditional and the avant-garde," Shah said.
September 25, 2014
September 24, 2014
Staff Reporter 2014-09-25 09:13 (GMT+8)
The Changzheng 2, a Type 091 Han-class nuclear-powered submarine has become the first Chinese submarine to visit Colombo Harbor in Sri Lanka according to the website of state-run Sri Lanka News on Sept. 15.
The Chinese submarine arrived at Colombo Harbor one day before Chinese president Xi Jinping began his visit to the country on Sept. 16. In addition to the Changzheng 2, there were two other People's Liberation Army Navy warships in the harbour.
The Changzheng 2 is currently under the command of the PLA Navy's North Sea Fleet. Equipped with C-801 anti-ship missiles, it is capable of attacking targets 80 kilometers away.
Duowei News, a media outlet operated by overseas Chinese, cited photos published by the Sri Lankan state news organization, suggesting that the Changzheng 2 is no longer in the service of the PLA Navy. Duowei News stated that the submarine that visited Colombo Harbor on Sept. 15 was in fact a Type 039 Song-class conventional submarine. The North Sea Fleet's Changxingdao submarine salvage vessel was also there to accompany the submarine.
Duowei said that this is the first time that a Chinese submarine has visited a nation in the Indian Ocean openly. Xi Jinping is the first Chinese leader to visit Sri Lanka in 28 years even though he was only there for one day. Taken together with the joint naval exercises with Iran launched Wednesday, this seems to suggest China's ambitions to project its military power into the Indian Ocean, according to Duowei.
By Kamna Arora | Last Updated: Tuesday, September 23, 2014 - 19:02
From Jawaharlal Nehru’s visit in 1949 to Narendra Modi’s upcoming trip in September 2014, a number of leaders of the world’s largest democracy have been hosted by the world’s oldest democracy. In fact, a momentous political alteration in international relations in recent years is the evolvement of engagement between India and the United States of America.
However, the relation shared by the two has been both intriguing as well as complex, marked by different sources of conflict. In the words of Dennis Kux, a retired US Foreign Service officer, India and the US are “estranged democracies”. Former US secretary of state Madeleine K Albright, in 2000, had cited a former Indian Ambassador to the US as saying that Indo-US ties exhibited "a pattern of misunderstanding, miscalculations, and missed opportunities”. Henry Kissinger's mention of “the never-never land of India-US relations” described the discomfort shared by the two countries in the past.
After a number of dialogues, the New Delhi-Washington agenda today involve a number of issues, ranging from India purchasing C-130s from the Unite Sates to the US Centres for Disease Control and Prevention assisting its Indian counterpart to launch Epidemic Intelligence Service program. Not only this, the US is India’s largest trading partner and bilateral defence trade between the two is also on the rise.
Both New Delhi and Washington have viewed their national interests with respect to the world at large. Though political ties shared by the two countries in the post-Cold War era are less thorny, areas of difference do exist. The ups and downs in India-US ties have largely been due to Washington preferring its global strategic interests and priorities over the regional security interests and priorities of India.
India-US ties vis-à-vis Pakistan
After the Cold War ended, the US continued to keep Pakistan as its ally to meet its strategic objectives vis-à-vis Iran in particular, the Gulf region, and Central Asia. The appeasement policy of the US towards Pakistan has always been a concern for India. This is also worth noting that whenever Washington inches closer to New Delhi, Islamabad becomes querulous.
"You don't love us as much as you love India," was the high-pitched complaint Pakistan's National Security Advisor Sartaj Aziz made earlier this year during his country’s resumed "strategic" dialogue with the United States. India’s increasing influence in Afghanistan has always troubled Pakistan. Islamabad wants the US to curb India’s expansion into Afghanistan in order to maintain its strategic ties with the United States.
But India wants the US to realise the legitimacy of its regional security concerns. Terrorism emanating from Pakistan’s soil is a core concern for New Delhi. The US will have to acknowledge that providing Pakistan with arms and military aid goes against peace and security interests of India.
In this scenario, normalisation of military-to-military ties between Washington and Islamabad, after the killing of al Qaeda’s Osama bin Laden by US forces in Abbottabad in May 2011, is a serious concern for India.
According to publicly available documents, the Pentagon reported that total Foreign Military Sales (FMS) agreements with Pakistan were worth about USD 5.2 billion for the period between FY2002 and FY2012. The Congress has appropriated over USD 3 billion in Foreign Military Financing for Pakistan since 2001, more than USD 2 billion of which has been disbursed.
The United States, India and China are the most important stakeholders in the Indian Ocean Region. The trio not only faces similar security challenges but also share common interests in the region.
A number of analysts opine that the US is keen on forging stronger ties with India in a bid to check China's influence in Asia, albeit New Delhi has ruled out being a part of any US containment strategy toward Beijing. Some experts argue that India wants closer ties with the US to better its regional standing, and to reinforce its security position against China and Pakistan. And China, which is allergic to US-led activities and alliances, is suspicious of Washington-New Delhi intentions.
New Delhi shares a unique relationship with Beijing. India sees China as a major strategic threat, expresses concern about border dispute, but at the same time inches closer to it to increase trade. The wish for better economic growth has been pushing India and China, two of the largest, fastest-growing energy consumers in the world, to maintain better bilateral ties.
According to Sumit Ganguly, the professor of Political Science, Indiana University, India suffers from "status anxiety" in relation to its northern neighbour, and is "constantly peering over the Himalayas at China, trying to catch up”. The US also sees China as an emerging competitor.
As per a study by the world's leading statistical agencies, China is set to overtake the US as the world's number one economy.
India and China, the multi-ethnic democracies, are striving to become the major political and economic force in Asia. China’s rise is inevitable and India's rise, economically as well as strategically (recently an Indian warship exercised with the Vietnamese Navy in the South China Sea), will re-align the balance of power in Asia.
It is pertinent to note here that during his first term as prime minister, in 2006-2007, Japanese PM Shinzo Abe had initiated a Quadrilateral Security Dialogue (QSD) among Asia’s maritime democracies - Australia, India, Japan, and the US. Sensing its consequences, Beijing had protested against the spectre of an “Asian NATO”. The thought that such an alliance could jeopardise his country's ties with China had pushed the then Australian prime minister Kevin Rudd to pull out of the QSD. If revived, the QSD could potentially pit China against the Asian democracies.
After the 2008 Mumbai terrorist attacks, the United States and India had expanded their counter-terrorism and security cooperation. India and the US have joined hands to meet the evolving security challenges of the 21st century. Not only the duo want to tackle terrorism in their own territories, but also share common interests in ensuring a stable Afghanistan.
However, despite wide-ranging anti-terrorism cooperation, a trust deficit mars India-US relationship. There are a number of instances in the US’ history that reveal how the country uses terrorism when it suits its interests, and fight against it when its territory or citizens come under attack. This is why for the US there are “good terrorists” and “bad terrorists”. In the past, India has been disappointed by contradictory statements made by the US vis-a-vis Pakistan-based terrorist threat to India. According to Polly Nayak, the South Asia expert, Indian officials believe that the US has kept back information on al Qaeda terrorist operatives suspected of having ties to Kashmiri militants.
The Indian government has often accused Lashkar-e-Toiba of terrorist attacks, including the one that took place in Mumbai. According to experts, LeT receives backing from Pakistan's Inter-Services Intelligence Directorate (ISI) to fight in Kashmir. The group, founded by ISI darling Hafiz Muhammad Saeed, operates freely inside Pakistan. US officials, who earlier dismissed LeT as a regional problem and concentrated its operation against al Qaeda (the group behind 26/11 attacks), are now persuaded that the terror outfit has not only limited its campaign of jihad against India but also extended it against the United States, Europe, and the US troops in Afghanistan.
Recently, al Qaeda leader Ayman al-Zawahiri announced the creation of a South Asian branch of his outfit to "raise the flag of jihad" in the Indian subcontinent. According to experts al Qaeda launched the wing to counter the global attention being enjoyed by the Islamic State in Iraq and the Levant.
“Zawahiri has longstanding links" to LeT and to its leader Hafeez Saeed, Bruce Riedel, a former CIA analyst and National Security Council official for South Asia, had recently noted in his column.
"In short, the Pakistani Army and its ISI spies are once again playing with fire - with India, the LeT and Kashmir - in order to secure domestic gains against their civilian leaders," Riedel had rightly added. He further urged the US to keep a check on Pakistan.
Notably, India has informed the US that LeT and another Pakistan-based terror group, Jaish-e-Mohammed, are sending recruits to Syria and Iraq through Saudi Arabia and Turkey to join the Islamic State in Iraq. LeT militants and ISIS share the puritan Salafi ideology.
Reports suggest that these Pakistan-based groups could not only help the ISIS target expatriate Indians but also give training its cadres to target the Indian Army. While Saudi Arabia has given an assurance to India that it will not let its territory to be used by Pakistani groups to reach Iraq or Syria, the US and UK intelligence have heard out the Indian request without any response, reports an Indian daily.
Over the past two decades, India has skillfully managed to develop ties with diverse Middle Eastern countries, such as Iran, Israel, Palestine, and Saudi Arabia. India's relationship with the Middle East is quite different today than it was between 1947 and 1986. Earlier, India's policy was too driven by pro-Palestinian ideology, but today New Delhi is developing its new strategy - especially around Iran, Saudi Arabia, and Israel - to pursue its regional interests.
Two decades ago, India-Israel ties were not cosy, so much so that India had refused to maintain an embassy in Israel. However, the bilateral relationship between the two countries became better since the two countries opened diplomatic ties in 1992. Albeit India had recently supported a call for a United Nations Human Rights Council probe into Israel’s offensive in Gaza (the US was the only country which opposed it), it was just a symbolic vote. However, at home, the Indian government blocked parliamentary votes to express disapproval of Israeli actions.
According to Sadanand Dhume, a fellow at the conservative American Enterprise Institute: “New Delhi appears ready to suggest publicly what many officials already acknowledge privately: A burgeoning strategic partnership with Israel matters more to India than reflexive solidarity with the Palestinian cause."
Until the end of the Cold War, India had extended steady support to Palestinians. In fact, in 1974, India became the first non-Arab state to recognise the Palestine Liberation Organization (PLO) as the official representative of Palestinians. International impact of the collapse of the Soviet Union led to a change in India’s foreign policy vis-à-vis Israel. Today, India and Israel, an old ally of the US, engage on matters such as agriculture, commerce, military, and science. The US had consistently pushed Israel to develop strategic relationship between India and Israel. Notably, the single-biggest buyer of Israel's defence products now is India.
As far as Iran is concerned, the West has been obsessed with India-Iran ties, so much so that New Delhi was earlier asked to prove its loyalty to the US by backing it at the International Atomic Energy Agency with regards to Iran's nuclear program. According to experts, the US sees Indian-Iranian ties as having a potentially damaging impact on its interests in Southwest Asia and the Middle East. However, India cannot ignore its energy needs.
The South Asian country is the fourth largest consumer of energy in the world. Also, Indian companies, especially state-owned ones, have investments or interest in the Iranian energy sector. India is also all the time more looking abroad for natural gas. The Iranians have revived dialogue of deep-sea pipelines to India after the failure of the Iran-Pakistan-India pipeline. Earlier this year, a report had claimed that the new plan offers to transport oil and natural gas through deep sea pipelines via Oman. With the help of this process, Iran, Turkmenistan and Azerbaijan energy could feed the pipeline for the Indian market.
Meanwhile, reports suggest that the United States is expected to seek cooperation from Iran and Syria to counter ISIL, which is wreaking havoc in Iraq. India can prove to be an efficient negotiator in the case.
There have been geopolitical tensions where India and the US stand on opposite sides. India and America diverge on many issues. Over the past two years, differences ranging from the arrest of Indian diplomat Devyani Khobragade to India’s nuclear liability law, and intellectual property regime to India’s decision not to ratify WTO's Trade Facilitation Agreement, the alleged snooping by the US National Security Agency to a proposed US immigration bill that targets Indian IT firms, have hit New Delhi-Washington ties. In regards to the crisis in Ukraine, India backed Russia, disappointing the US.
Both India and US are pluralistic societies, largest democracies, economic growth-oriented. The two have moved way forward from the time when US president Richard M Nixon had dispatched the Seventh Fleet into the Bay of Bengal to threaten India. The upcoming visit of Prime Minister Narendra Modi to Washington could write a new chapter in the history of two of the world’s largest and most diverse democracies.
R. S. Kalha
September 24, 2014
Whenever a high level visit takes place between India and China expectations are raised that with a Midas like touch the two leaders would resolve the boundary question and that the two billion plus people of India and China would together shape a new Asia. Such hyperbole remains constant, since few are aware of what Chinese policies actually are. President Xi Jinping reportedly issued a five point directive at the conclusion of a high level Work Forum in October 2013 on China’s policies towards peripheral countries; that while enhancing political ‘goodwill’ and deepening economic integration with them, the peripheral countries would have to respect China’s ‘core’ interests and ‘validate’ China’s efforts to enforce sovereignty and territorial claims.1. If this is indeed the theoretical line that President Xi is pursuing, then there is little chance of any forward movement in settling Sino-Indian boundary issues.
The Chinese, generally speaking, are aware of the Indian fascination for concluding high sounding declarations, statements, principles etc. and therefore have little hesitation in indulging them; knowing full well that if the situation so demands these can easily be flouted. The 1954 Five Principles of Peaceful Co-Existence [Panchsheel] Agreement and the 2005 Political Parameters and Guiding Principles Agreement, particularly Article VII, are prime such examples. The first was easily overturned in the conflict in 1962 and the second in May 2007 when the Chinese Foreign Minister [Yang Jiechi] told the Indian Foreign Minister [Mukerjee] in Hamburg that their understanding of Article VII [‘in reaching a border settlement the two sides shall safeguard due interests of their settled populations in border areas’] did not mean that Chinese claims [Southern Tibet] were affected!
There is no other state in the world that has longer contiguous land frontiers than China; a total of about 22,000 kilometers of which about nearly 19,000 kilometers traverse China’s minority areas.2. At present China has a land border with 14 states. Of the 14 states, 12 have conclusively settled their border disputes with the People’s Republic. 3. India and Bhutan remain the only states that have continuing land border disputes with China [emphasis added]. As regards Bhutan, China alleges that it is still under India’s ‘firm control’ and that India will not allow it to ‘…solve the border issue.’4.
It is indeed an anomaly as to why there is no settlement with India when all other similar boundary disputes with other states have been settled. While assessing the prevailing reality along the Sino-Indian border three factors need to be kept in mind. First, in the western sector the Chinese are in possession of the ‘disputed’ territory. Second, India is in no position to evict them physically. Third, although India is in possession of territory in the middle and eastern sectors, yet the Chinese have never given up their claims. Maybe these are negotiating tactics, but the Chinese even prevaricate on the demarcation of a mutually determined ‘line of actual control’ all along the Sino-Indian border, primarily to keep India off-balance.
In the Chinese mind the settlement of the border issue with India cannot be divorced from regional, political and larger strategic issues. In fact if the regional, political and strategic issues with India were amicably resolved; a boundary settlement would inevitably follow. The position taken by India on the boundary issue has steadily come closer to the stated Chinese position. In the early fifties, Nehru took the position that there was no boundary dispute and all that was needed were small rectifications of the line. This position was overturned by the 1962 conflict and thereafter India took the line that till the boundary issue is settled; no further normalization of relations could take place. This line too was abandoned when PM Rajiv Gandhi visited China in 1988 and the new position was that while negotiations on the boundary issue continued, normalization in all other areas could take place. Finally PM Vajpayee further agreed to conduct boundary negotiations based on ‘political parameters’ and conceded to the Chinese position to settle the boundary in a ‘package.’
The question therefore is why do the Chinese not settle on the basis of a ‘package’ as they had insisted all along? The answer lies in the fact that ever since the boundary issue came to the fore and even at present; this dispute is utilized by China for trying to coerce foreign policy changes by India that often have nothing to do with the dispute itself [emphasis added]. China has used the threat of intrusions across the LAC, as a part of its coercive diplomacy. It is too valuable a coercive diplomatic asset to give up.
From the Chinese point of view the issue of Tibet remains the most significant factor. Although India has officially accepted that Tibet is an autonomous region of China, yet doubts about India’s intentions linger. Even the Chinese military action in 1962 was attributed not to the legality or otherwise of the McMahon Line, but as Mao Zedung told a Nepalese delegation in 1964 that ‘in the opinion of the Indian government, Tibet is theirs.’ The decision by the Indian Army to raise a new strike corps has done nothing to lessen Chinese apprehensions.
Despite enormous efforts, China has still not been able to subdue Tibetan aspirations. China has tried everything from brutal crackdowns to economic sops. Yet the Tibetan yearning for independence just does not die down to China’s utter exasperation. China faces a crisis of credibility in Tibet even after a half century of so-called ‘democratic reforms.’5. Sometimes even Chinese officials, in candid moments, admit that although their economic strategies have been a success, yet their political strategy for ensuring stability has been a dismal failure.6.
China has played a central role in helping Pakistan become a nuclear weapons state. China is helping Pakistan to fuel the fastest growing nuclear arsenal in the world.7. China is also the main military weapons supplier to the Pakistan Army. According to SIPRI nearly 55 per cent of China’s arms exports go to Pakistan. China’s arms exports world- wide rose by an unprecedented 162 per cent for the period 2008-2012.8. The aim is to ensure that India remains occupied in South Asia.
Strategic analysts sitting in Beijing realize that in any Sino-Indian stand-off, the role of the US would be crucial. China watched with some anxiety the US urge India to play a greater role in the Indo-Pacific region. As US Deputy Secretary of State, Burns put it ‘India’s strong presence in the Indian and Pacific Oceans is a source of comfort and affirms its potential as a net security provider in the maritime domain.’9. Therefore, the way Indo-US relations develop is of great strategic significance for China.
The Chinese are aware that PM Modi is visiting Washington shortly. In the Modi-Obama talks, like Banquo’s ghost, the shadow of China will be ever present. The central message therefore is that should India gravitate too closely towards the US inspired ‘rebalance’ to Asia, or move closer to Japan, Australia and Vietnam; it would have to contend with renewed pressure on the boundary. The Chumar standoff is the physical demonstration of the Chinese message.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India
1. Timothy Heath. “Diplomacy Work Forum: Xi Steps Up Efforts to Shape a China-Centered Regional Order” China Brief Vol. 13, No22, 7November 2013.
2. Judge Xue Hanqin [International Court of Justice]. “China and International Law: 60 Years in Review,” Chatham House, 8 March 2013.
4. Liu Zhongyi. The Global Times, 4 August 2013.
5. Dr. Dibyesh Anand. Interview to Zee Television (Delhi: Zee.com), 19 November 2011.
6. Andrew M Fischer. “The Geopolitics of Politico-Religious Protest in Eastern Tibet,” Field-Spots, Cultural Anthropology-on-Line, 8 April 2012.
7. Bruce Riedel. “JFK Overshadowed,” National Interest.org. See also Bruce Riedel. “Divided They Stand,” Indian Express, 28 October 2013, p. 10.
8. SIPRI estimates quoted in the Hindustan Times, 19 March 2013.
9. William Burns, US Deputy Secretary of State address to students of Pune University on 19 December 2011.(Rediff.com)
September 23, 2014
During Prime Minister Modi’s forthcoming visit to US, one of the topics that is likely to be high on the agenda will be the still incomplete US-India nuclear cooperation by way of sales of nuclear reactors to India because of the Indian Civil Liability for Nuclear Damage Act, 2010 (CLNDA).
However, the provisions of the CLNDA have stalled not only sales of nuclear reactors from US to India but from other major nuclear suppliers – Russia and France – as well. Even though the NSG exemption for nuclear commerce was granted more than six years ago, and India had signed the nuclear cooperation agreements with these countries nearly six years ago, it has not been able to finalise even a single commercial contract for the import of a reactors from any of these countries. The only nuclear cooperation that India has been able to conclude with any of the countries with whom it has nuclear cooperation agreements is in respect of nuclear fuel which would not have any implication for application of CLNDA.
However, it is a fact that India, because of the CLNDA, has had to either default on its obligations under the various international agreements or attempt, unsuccessfully so far, to dilute its provisions.
This backgrounder will proceed in the following manner:
First the section of CLNDA standing in the way of reactors transfers will be discussed.
Second, the provisions dealing with nuclear liability in the various relevant cooperation agreements that India has signed with other countries as well as Indian suppliers of nuclear equipment to the indigenous PHWR program will be analysed. It will also discuss the manner in which India has either not acted upon the agreement or is attempting to dilute its provisions will be discussed.
Finally, various alternatives for resolving this contentious issue with or without amendment to CLNDA will be discussed.
The Civil Liability for Nuclear Damage Act, 2010.
The bill was introduced in the Parliament on May 7, 2010 and passed by Lok Sabha on August 25, 2010, the Rajya Sabha on August 30, 2010 and received the president’s assent on September 21, 2010.
The provision of this Act which has so far stood in the way of reactor transfers from abroad, and reportedly hesitation on the part of the Indian supplier to the indigenous nuclear program, has been the section on Right of Recourse (Section 17 of the Act) and in particular Sec. 17(b) according to which,
“The operator of the nuclear installation, after paying the compensation for nuclear damage in accordance with section 6, shall have a right of recourse where-the nuclear incident has resulted is a consequence of an act of supplier or his employee, which includes supply of equipment or material with patent or latent defects or sub-standard services.”
This section has been held to be against the letter and spirit of the three major international conventions on nuclear liability- the Paris Convention, the Vienna Convention, and the Convention on Supplementary Compensation (CSC) in addition to being not part of any other country’s nuclear liability laws- as also against the provisions of the various bilateral agreements.
The various bilateral agreements with liability provisions
There are two relevant agreements with the Russian federation on nuclear cooperation.
The first is the “Agreement Between The Government of The Republic of India and The Government of The Russian Federation on Cooperation in the Construction of Additional Nuclear Power Plants at Kudankulam Site as well in the Construction of Russian Designed Nuclear Power Plants at New Sites in the Republic of India” which was signed on December 5, 2008.
According to Section 13.1 of this Agreement,
“The Indian Side and its authorized organization at any time and at all stages of the construction and operation of the NPP power units to be constructed under the present Agreement shall be the Operator of power units of the NPP at Kudankulam Site and be fully responsible for any damage both within and outside the territory of the Republic of India caused to any person and property as a result of a nuclear incident occurring at NPP and also in relation with a nuclear incident during the transportation, handling or storage outside the NPPs of nuclear fuel and any contaminated materials or any part of NPP equipment both within and outside the territory of the Republic of India.”
And according to Section 15 of the Agreement,
“In case of termination of the present Agreement, the terms and provisions contained in this Agreement applicable to the implementation, completion and lifetime operation of units' 3-4-5-6, including in particular the supply obligations stipulated in Article 4 of the present Agreement shall remain in force except in case of material violation of Article 12 of the present Agreement.”
The second agreement is “Agreement between the Government of the Republic of India and the Government of the Russian Federation on Cooperation in the Use of Atomic Energy for Peaceful Purposes.” which was signed on March 12, 2010 and ratified on September 20, 2010.
According to Article 3.2 of this Agreement,
“Cooperation in areas under this Agreement shall be implemented by the Partíes through development and execution of programs and projects, and conclusion of contracts between the Indian and the Russian organizations, authorized by the Parties' competent authorities. The scope of agreed cooperation, rights and obligations of the participants of the agreements (contracts), financial and other terms and conditions shall be specified in contracts in accordance with respective legislations of the Republic of India and the Russian Federation.” and Further according to Article 8,
“Liability for nuclear damage that may arise from the implementation of cooperation under the Agreement shall be determined in appropriate agreements (contracts) concluded in accordance with paragraph 3.2 of the Agreement and international commitments and legislation of the Republic of India or the Russian Federation as the case may be.”
Thus in case of Russia, India had explicitly absolved the Russian supplier of any liability whatsoever in case of a nuclear incident at any site hosting a Russian reactor. Not only that even if the 2008 agreement was terminated the assurance of no liability was promised in case of the four additional reactors at Kudankulam. However, recent reports indicate that India would like Russia to accept the application of the Indian CLNDA in case of Kudankulam 3 and 4, which is one of the reasons why no contract has been signed by NPCIL for further reactors at Kudankulam. It is ironical that India would like to apply retrospectively a law passed after an agreement was signed when in earlier times, India had objected strongly to an retrospective application of an US law in mid-70s when US stopped supplying nuclear fuel for Tarapur after India’s peaceful nuclear test in 1974, even though the India-US agreement on Tarapur had no clause even referencing a nuclear test by India.
India had signed civil nuclear cooperation, “Cooperation Agreement between the Government of the Republic of India and the Government of the French Republic on the Development of the Peaceful Uses of Nuclear Energy” with France on September 30, 2008 soon after the NSG had given an exemption to India on September 6, 2008.
Article VIII of this agreement dealt with nuclear liability, which stated inter-alia
1. The Parties or persons designated by the Parties with implementing this Agreement shall deal with liability issues, including civil nuclear liability, in specific agreements.
The Parties agree that, for the purpose of compensating for damage caused by a nuclear incident involving material, nuclear material, nuclear equipment, facilities and technology referred to in Article IX each Party shall create a civil nuclear liability regime based upon established international principles.
The Right of recourse clause present in CLNDA is not present in either any of the international conventions or any of the other nuclear liability laws in countries not signatory to any of the three conventions-Paris, Vienna or CSC. It is also not in line with the recommendations for a nuclear liability law suggested by the IAEA (Chapter 11, Handbook of Nuclear Law, IAEA, 2003) either. Hence the CLNDA is not a “civil nuclear liability regime based upon established international principles’ as required by the India-France agreement on civil nuclear cooperation.
The India-US “AGREEMENT FOR COOPERA TION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF INDIA CONCERNING PEACEFUL USES OF NUCLEAR ENERGY” which was signed on October 10, 2008 does not have any explicit reference to civil nuclear liability. However, through exchanges of bilateral assurances and Joint statements by the respective heads of governments, India committed itself to a set of principles in civil nuclear liability.
On September 10, 2008 in a letter to Mr. Burns, the then US Under Secretary of State, Mr. Shivshankar Menon, the then Indian Foreign Secretary, wrote “India also recognizes the importance of establishing an adequate nuclear liability regime and it is the intention of the Indian Government to take all steps necessary to adhere to the Convention on Supplementary Compensation for Nuclear Damage prior to the commencement of international civil nuclear cooperation under the Agreement.”
Subsequently in a Joint Statement issued November 8, 2010 during the visit to India by President Obama the President and Prime Minister Manmohan Singh said “They noted that both countries had enacted domestic legislations and were also signatories to the Convention on Supplementary Compensation. They further noted that India intends to ratify the Convention on Supplementary Compensation within the coming year” Although nearly four (4) years have passed since that Joint Statement, India has still not ratified the CSC.
It is clear, therefore, that both in letter and spirit India has not adhered to its obligations due as result of the international agreements it has signed.
Indian suppliers of nuclear equipment
Not only did the CLNDA went against the foreign suppliers and agreements, it was also contrary to agreements that NPCIL had till then with its suppliers in respect of nuclear liability. As per the standard General Conditions of Contract for Supply of Indigenous Stores (General Conditions of Contract (FORM NO. GCC/Supply-1/Rev.1)),,
“6.7.7 The Purchaser shall indemnify and hold harmless the Contractor in respect of Third Party life and Property damage claims arising out of nuclear event at Purchaser’s Site.”
So what are the options available to get out from these constraints? The objections of suppliers to Sec. 17(b) are not difficult to comprehend. Nuclear reactors have long operating life- 40 years or more- and while nuclear incidents of very severe nature are rare, and in incidents like that of Fukushima can result in damages amounting to US $ 1 billion or more, commercial firms would be loath to agree to compensate for unspecified- and unlimited- damages extending over an unspecified period of time. Any proposed, and acceptable, solution to all parties must exclude such an option.
The obvious way out would be to amend the CLNDA to remove Sec. 17(b). However, this is likely to be difficult since, the present ruling party BJP was one of the prime and major initiator and supporter of this section during the very contentious debate that took place in Lok Sabha during the debate preceding the enactment of the Act. In addition, the debate in the parliament was influenced very strongly by the verdict on the Bhopal gas Tragedy that was delivered during the course of the progress of the CLNDA bill. With the Bhopal gas tragedy still in public mind and with BJP now commanding a majority in Lok Sabha, it is extremely unlikely that any amendment proposing deletion of Sec. 17(b) would be able to get past the house.
So any proposed solution will have to take into account the presence of Sec. 17(b) in the CLNDA.
The government realizing the difficulties with the CLNDA in its present form and taking into account the possible concerns of suppliers both foreign and domestics, formulated the rules for implementing the CLNDA in manner which addressed some of the major concerns of the suppliers and in particular, reduced substantially both the suppliers liability and the time period through which such a Right of Recourse can be enforced. The Civil Liability for Nuclear Damage Rules 2011 came into force on November 11, 2011. According to Section 24 of the Rules which dealt with the Right of Recourse,
“24. Right of recourse- (1) A contract referred to in clause (a) of section 17 of the Act shall include a provision a for right of recourse for not less than the extent of the operator's liability under sub-section(2) of section 6 of the Act or the value of the contract itself whichever Ìs less
(2) The provision for right of recourse referred to in sub-rule (1) shall be for the duration of initial license issued under the Atomic Energy (Radiation Protection) Rules, 2004 or the product liability period, whichever is longer
Explanation 1 – For the purposes of this rule, the expressions,-
"product liability period" means the period for which the supplier has undertaken liability for patent or latent defects or substandard services under a contract;
"supplier” shall include a person who-
manufactures and supplies either directly or through an agent a system, equipment or component or builds a structure on the basis of functional specification; or
provides build to print or detailed design specifications to a vendor for manufacturing a system, equipment or component or building a structure and, is responsible to the operator for design and quality assurance; or
provides quality assurance or design services.
Explanation 2.- For the removal of doubts it is clarified that an operator's claim under this rule shall in no case exceed the actual amount of compensation paid by him up to the date of filing such claim.”
As a consequence of these rules, the liability of the suppliers, irrespective of total damage, was limited to the maximum liability of the operator, namely rupees one thousand five hundred (1500) crores (equivalent to US $ 250 million) under Sec. 6(2) of CLNDA, although this section does provide for enhancement of the maximum liability. Thus there is no issue of unlimited liability.
As for the period through which this Right of recourse can be exercised, according to Section 9 of the Atomic Energy (radiation Protection) Rules, 2004,
“9. Period of validity of Licence:- Every licence issued under rule 3 shall, unless otherwise specified, be valid for a period of five years from the date of issue of such licence.”
Thus the burden on the supplier, in terms of both the monetary obligation and the time period, was reduced substantially by the government, making it easier to enable both the supplier and the operator to enter into commercial contracts.
What then are the options available under these rules?
Since both the liability and the time period have been reduced substantially and the chances of a major incident in a new nuclear plant in the period of five years immediately following the commissioning of the plant has never happened so far in more than tens of thousands of years of reactor operation worldwide, suppliers can with a high degree of confidence can enter into a reactors sales contract. If they still feel uneasy, they can front load the maximum liability on the contract price, which may add about ten (10 %) to nuclear power plant price of about $ 2.5 billion for a 1000 MWe plant. Or the operator and supplier can split the amount of liability, adding only US $ 125 to the power plant cost.
Another option would be for the operator to forego the Right of Recourse in the contract. This option can be examined under two situations. The first is with respect to a contract with Russia and the second with respect to all parties, domestic and foreign.
In reply to a question in Rajya Sabha on December 13, 2012, the Government had replied that “As regards Russia, Atomstroyexport (ASE), the authorised organisation of Russian Federation, in their commercial offer to Nuclear Power Corporation of India Limited (NPCIL) in respect of Kudankulam Units 3&4 had stated that NPCIL being operator is fully responsible for any damage caused to any person and property as a result of a nuclear incident occurring at NPP. Further, ASE had mentioned that their plea was based on the principle of continuity of cooperation in construction of KKNPP in accordance with the agreement between the USSR and Republic of India dated 20th November 1988, supplement thereto dated 21st June, 1998 and in line with the provisions of Intergovernmental Agreement dated 5th December, 2008.”
According to reports, the Centre, had sought the AG's (Attorney General) opinion on legality of a MEA (ministry of External Affairs) proposal before the Cabinet Committee on Security, which read, "Authorize Nuclear Power Corporation of India Ltd not to exercise operators' right to recourse under Section 17 of the Civil Liability for Nuclear Damages Act, 2010." The MES in its note is reported to have stated that “We consider the section 17 of CLNDA is a kind of enabling provision; it gives a specific right to operator but does not place any mandatory obligation or requirement to exercise the right of recourse against supplier. In the absence of a mandatory obligatory, the operator could choose not to exercise that right. It is a statutory right and not a fundamental right under the Constitution.”
In giving his opinion, the then AG, the late Mr. Vahanvati has said that "The views of the MEA cannot be said to be legally wrong but a question may arise about the advisability of such a waiver, particularly when NPCIL is a public sector undertaking and the failure to provide for and have recourse against supplier would ultimately impact public funds." And also that “I am formulating an answer to this question purely from the point of view of legality and not a policy issue. To approach this point of view of law, legality and not policy it appears that as a matter of legal permissibility, it can be done.”
However, Mr. Vahanvati had raised a question about the advisability of such a waiver especially when NPCIL is a PSU, since "Non-recourse or limited recourse may entail a burden on the tax payer, particularly when the nuclear programme is being implemented through a PSU and having regard to the provisions of Section 7, where the ultimate liability is that of the central government."
Now coming to the issue of waiving the Right of Recourse with respect to countries other tha Russia, the government had reportedly asked, "Would it be prudent to waive the right to recourse in regard to Russia only when Section 17 is applicable to all nuclear installations, keeping in view the provisions of Inter-Governmental Agreement with Russia? No such provision exists in the existing IGA with other countries." To which the AG had replied that “this again is not an issue of law but one of propriety and prudence. The ultimate test would be whether there is no choice available commercially and whether there is no option to agree to waiver, as demanded. As far as the other countries are concerned, I do not agree with the MEA view that there could be no objection to the international law angle and a third state cannot be demanding similar rights as a matter of right. The fact is that no other bilateral agreement has such a provision.”
It would appear, therefore, that according to one official legal opinion there should be no bar to NPCIL agreeing to forego the Right of Recourse but not the others. It should, however, be mentioned that some other eminent jurists have suggested that it would not be consistent with the CLNDA.
A fourth option would be for the operator not only to take an insurance or financial security required under section 8 of CLNDA for the amount of the liability of the operator as specified in section 6(2) of CLNDA but also a similar cover on behalf of the supplier. In such a case, if and when, a nuclear incident places a demand for damages on the operator which is covered by the insurance taken by the operator, if the Right of recourse is exercised by the operator on the supplier, the supplier can meet such demand from this insurance cover it also has. Such an insurance cover taken by the operator on behalf of the supplier, for a limited period (of maximum duration) would hardly make a difference to the final cost of the NPP purchased by the operator. This option may, however, may not be suitable in case of Indian suppliers, since there are numerous indigenous suppliers of nuclear equipment, systems and services to NPCIL, whereas in case of foreign suppliers of NPPs, the contract will be only with one party.
A fifth solution is suggested by the remark of the AG in discussing the waiver of Right of Recourse by NPCIL namely that NPCIL is a PSU and the waiver of Right of Recourse by NPCIL would entail a burden on the tax payer and especially when the ultimate liability is that of the Central government according to provisions of section 7 of CLNDA. This handicap would be absent when the operator is not a PSU but a private entity. There is involvement of public funds when a private entity is required to pay for the damages as a result of a nuclear incident and therefore, there is no bar on a private entity waiving the Right of Recourse. Therefore, the government should seriously consider the issue of allowing private ownership of nuclear NPPs, even allowing for the possibility of allowing FDI.
The sixth solution would be to factor in (i) the limits placed on exercise of Right of Recourse in Civil Liability for Nuclear Damage Rules 2011 and (ii) the extremely low probability of any nuclear incident in the first few years of the life on nuclear power plant by having a clause on nuclear liability in the techno-commercial contract which states that ““Liability for nuclear damage that may arise from the implementation of cooperation under the Agreement shall be determined in accordance with the national legislation of the two countries and their international agreements and commitments. In case of any dispute arising from the interpretation of this clause, the matter will be resolved through international arbitration the arbitrators being assigned either by the Director General of IAEA or the International Court of Justice” or something similar to it. The Russian and French Agreements for cooperation would sustain their case for the non-application of the Right of Recourse.
As for US, India’s accession to CSC would automatically protect the US suppliers from any liability. US is also a party to CSC and the US legislation for the implementation of CSC specifically states that it does not provide for an operator of a nuclear installation covered by CSC any right of recourse under the CSC. This implies that even if the operator has a written contractual provision with the supplier explicitly providing for such a right of recourse, it would not be admissible under US laws!
It has been held by some Indian commentators that while under the CSC and the proposed Indian law, victims of a nuclear accident in India would not have the right to approach an American court or even an Indian court directly, a claim against a U.S. supplier under the right of recourse can be pressed by the operator before an Indian judge and that Article XIII.6 of the CSC, to which the U.S. is now a party, says the judgment of a court in the country where the accident occurs shall be legally enforceable by any other contracting party “as if it were a judgment of a court” of its own. Thus, if an Indian court were to accept that a particular nuclear accident were caused by negligence on the part of an American supplier, the U.S. authorities would be obligated to help the operator recover the money already paid out in compensation to the victims from the U.S. companies concerned. Unfortunately the above reasoning is only partly true since Art. XIII.5 of CSC also states that “A judgment that is no longer subject to ordinary forms of review entered by a court of a Contracting Party having jurisdiction shall be recognized except: (c) where the judgment is contrary to the public policy of the Contracting Party within the territory of which recognition is sought, or is not in accord with fundamental standards of justice.” And as the US CSC implementing legislation states that as a matter of law, and hence public policy, there is no provision for the operator for any right of recourse, even if an Indian operator were to get a favourable judgment it cannot be enforced in the US under the CSC.
The last option would be for the CLNDA to be declared unconstitutional by the Indian Supreme Court. There is pending at the moment, two suits before the Supreme Court challenging the constitutional validity of the CLNDA. In May 2013, while disposing of Civil Appeal 4440 of 2013 along with Civil Appeal Nos. 4441/4442/4443 of 2013, the Court observed “ The constitutional validity of the said Act is under challenge before this Court in Writ Petition (Civil) No. 464 of 2011. Various prayers have been made in the above mentioned writ petition, but this Court issued the notice only with regard to the prayer clause no. (e), i.e. to declare the act as unconstitutional and void ab initio.” That writ petition has not yet been decided. It is quite possible, that till the constitutionality of the CLNDA is decided, there can be no final agreement on either the liability or the Right of Recourse, none of the solutions mentioned above except, perhaps, the sixth one, can really be a workable option which bypasses section 17(2) of the CLNDA. Indeed, declaration by Supreme Court that the CLNDA is unconstitutional may be the best option. In such a case, without any CLNDAS in place, status quo ante will prevail. NPCIL can enter into contracts with Indian suppliers, as it has been doing for so many years, absolving them of any liability for civil damage. They can probably enter into such contracts with foreign suppliers as well. In the absence of a domestic CLNDA, India can accede to the Vienna Convention and hence CSC. That will solve everybody’s problem!