Regulating India’s nuclear estate

HAPPYMON JACOB

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For the country’s nuclear energy sector plans to be effective, the government should lift the veil of opaqueness surrounding its civilian programme. The first step would be to establish an autonomous, transparent and accountable regulatory institution

The 2014 Nuclear Materials Security Index prepared by the Washington-based Nuclear Threat Initiative (NTI) has ranked India 23rd out of 25 countries with weapons-usable nuclear materials. While the NTI ranking has been criticised for a variety of reasons including inadequacies in its methodology, it has rightly pointed out the absence of an independent nuclear regulatory mechanism in India with the mandate to ensure that high standards of safety and security are observed in India’s civilian nuclear facilities. Even though many Indian analysts and officials dismiss the NTI ranking as being uninformed, New Delhi needs to take such criticism seriously given its long-standing desire to mainstream itself into the global nuclear order including gaining membership to key international export control cartels such as the Nuclear Suppliers Group (NSG). Given this context, there is a need to take a critical look at the proposed Nuclear Safety Regulatory Authority.

Background to the Bill

Currently, the Atomic Energy Regulatory Board (AERB), established in 1983 through a gazette notification, is tasked with regulating the safety and security aspects of the country’s civilian nuclear facilities. However, it is not an autonomous body as it depends on the Department of Atomic Energy (DAE) for all practical purposes. It has, as a result, been unable to perform its regulatory functions effectively. The demand for establishing a truly autonomous nuclear regulatory authority has been a long-standing one. In 1997, the Raja Ramanna Committee report had recommended that the Atomic Energy Act (1962) should be amended to enhance the effectiveness of the nuclear regulatory system in the country. Even though the Union government, in 2000, had directed the DAE to suggest the necessary amendments to the 1962 Act, nothing substantial happened for almost a decade. Finally, it was the Mayapuri radiation accident (New Delhi) in 2010 and the Fukushima disaster (Japan) of 2011 that served as a wake-up call for the DAE.

 “Since the NSRA Bill will now have to be reintroduced in Parliament, the Department of Atomic Energy should try and accommodate the eminently useful suggestions given by the standing committee and other independent experts” 

In 2011, the Nuclear Safety Regulatory Authority (NSRA) Bill was drafted by the DAE and submitted to the Union Cabinet for approval. The DAE note that sought approval from the Cabinet to introduce the Bill in Parliament had cited both the Mayapuri and the Fukushima accidents as the factors that contributed to the urgency to strengthen the country’s nuclear regulatory mechanism. However, even the NSRA, as currently envisioned by the DAE, does not propose the establishment of a truly autonomous regulatory authority. The Bill, first introduced in the Lok Sabha in 2011, has now lapsed and will have to be reintroduced in the new Lok Sabha. Before the NSRA Bill is reintroduced in Parliament, there is a need to strengthen the powers of the regulatory authority that it proposes to set up.

CAG and Committee reports

Even as the DAE was preparing to table the NSRA Bill in Parliament, the Comptroller and Auditor General (CAG) of India had undertaken a “Performance Audit on Activities of Atomic Energy Regulatory Board.” The CAG report, tabled in Parliament in August 2012, concluded that “the legal status of AERB continues to be that of an authority subordinate to the Central Government, with powers delegated to it by the latter,” and recommended to the government to “ensure that the nuclear regulator is empowered and independent. For this purpose, it should be created in law and should be able to exercise necessary authority in the setting of regulations, verification of compliance with the regulations and enforcement of the same in the cases of non-compliance.”

Following the CAG report, the Public Accounts Committee (PAC) of Parliament also produced a report in 2013 entitled “Activities of Atomic Energy Regulatory Board” in which it agreed with the view taken by the CAG on the functioning of the AERB. The PAC also highlighted the observation made by the “Parliamentary Standing Committee on Science and Technology, Environment and Forests” in 2012 that the NSRA lacks autonomy. The PAC, in the light of the observations made by the standing committee and the CAG, was critical of the functioning of the AERB as well as the proposed NSRA Bill and stated in its report that the “DAE should seriously re-examine the provisions of the Bill and take necessary steps urgently so as to ensure that the nuclear regulator becomes an independent and credible body at par with similar regulators in other Countries.” In other words, the NSRA Bill, as it stands today, is far from satisfactory even though the DAE has made the assurance that the Standing Committee’s recommendations would be seriously considered.

Issue of authority

The Council of Nuclear Safety to be established by the NSRA Bill — with the Prime Minister as the Chair and mostly government representatives as members — will be a very powerful body with the power to appoint the chairperson and members of the new regulatory body. This will diminish the powers of the regulator since it will be subordinate to the Council chaired by the Prime Minister. We will, as a result, end up having a government-controlled regulator all over again. The NSRA Bill is explicit on the ability of the government to control the regulator: “the Central Government may, by notification, supersede the Authority for such period, not exceeding six months, as may be specified in the notification.”

The NSRA also does not say which facilities would be put under the new authority — currently, the AERB can only oversee the civilian facilities. The Bill states that “the Central Government may, for the purposes of national defence and security, exempt any nuclear material, radioactive material, facilities, premises and activities; the premises, assets and areas associated with material and activities from the jurisdiction of the Authority.” So, the question is this: who will oversee the safety and security of the strategic facilities and programmes for which there is currently no regulatory authority? The Bill mentions that new regulatory bodies can be created to regulate the strategic programmes. The Department-Related Parliamentary Standing Committee had recommended the creation of other bodies to do so. However, there has not been any movement so far on that front. Another issue is the exclusion of the NSRA from the purview of RTI Act, thereby reducing the requirement for the regulator to be transparent.

This is not to say that the NSRA Bill is not an improvement from the existing AERB. Clearly, there are significant differences between the two. For one, while the AERB was set up by a government order, the new regulator will be established by an Act of Parliament, thereby making it more powerful. More so, while the AERB reported to the AEC, the new authority will not report to the AEC but will submit its report to Parliament.

Way ahead

It is unknown how many of the amendments suggested by the standing committee have been incorporated by the DAE. Since the Bill will now have to be reintroduced in Parliament, the DAE should try and accommodate the eminently useful suggestions given by the standing committee and other independent experts. The new government should encourage the DAE to carry out at least the following three amendments: one, the new regulatory body should be given complete financial, administrative and institutional autonomy from the Central government and made accountable to Parliament; two, the new regulatory body should also include persons from outside government such as scientists, civilian auditors, environmentalists and independent experts; three, given the crucial role that the NSRA will play in the years to come, the selection of its members should be done by a body comprising the Leader of the Opposition and the Speaker of the Lok Sabha.

If India’s plans to drastically expand its nuclear energy sector have to be effective, and acceptable to the people at large, it should bring the country’s civilian nuclear establishment out of the thick layers of secrecy and opaqueness within which it has traditionally operated. The first step in that direction will be to establish a genuinely autonomous, transparent and accountable institution that is capable of regulating the country’s “nuclear estate.”

The words of Professor Kiyoshi Kurokawa, who chaired the Fukushima Nuclear Accident Independent Investigation Commission are eminently appropriate in the Indian context as well: “What must be admitted — very painfully — is that this was a disaster ‘Made in Japan.’ Its fundamental causes are to be found in the ingrained conventions of Japanese culture: our reflexive obedience; our reluctance to question authority; our devotion to ‘sticking with the program’; our groupism; and our insularity … nuclear power became an unstoppable force, immune to scrutiny by civil society. Its regulation was entrusted to the same government bureaucracy responsible for its promotion.”

(Happymon Jacob teaches Arms Control and Disarmament at the School of International Studies, Jawaharlal Nehru University, New Delhi. E-mail: happymon@gmail.com)

(Source: The Hindu, August 29, 2014. URL: http://www.thehindu.com/opinion/lead/lead-article-regulating-indias-nuclear-estate/article6360984.ece)

Playing Chicken with Pakistan

New Delhi’s decision to call off the August 25 Foreign Secretary level talks with Islamabad in response to the latter’s unwillingness to stop consulting the Kashmiri separatists is counterproductive and short-sighted even as such a populist act makes perfect electoral sense for the BJP in the run up to the Assembly elections in Jammu and Kashmir (J&K) where it looks to make unprecedented electoral gains. 

On the face of it, New Delhi’s argument for calling off the talks might look logical and based on national interest. But a deeper analysis would show that there are a number of problems with the rationale for doing so. First of all, discussions between the separatists and Pakistani diplomats/politicians have never led to anything. For the most part, these discussions have been symbolic and at best, an irritant. More importantly, ever since Pervez Mushrraff gave a new direction to Pakistan’s Kashmir policy, Pakistan has been cold-shouldering the Kashmiri separatists, especially Ali Shah Geelani who, as a result, has become very critical of Pakistan’s new Kashmir policy. And the Kashmiri separatists have also often reminded Pakistan that there is a need to discuss the situation in Pakistan Administered Kashmir as well. Now, with one strike, New Delhi has undone all that and forced a new friendship between the separatists and Islamabad: a classic diplomatic self-goal.

BJP’s ‘Mission Kashmir’This sudden move by the Modi government should also be seen as an important piece in BJP’s evolving electoral strategy for winning a significant number of seats in the upcoming Assembly elections in J&K so as to play a major role in the government formation in the state. Finding potential partners in Kashmir, which it is currently engaged in, is a major part of this mission. Consolidating the non-Muslim vote in J&K is another major part of this strategy. In this context, the earlier statements by BJP on Article 370 and the return of Pandits to Kashmir, and now calling off the talks with Pakistan form part of a well-considered strategy to increase the party’s popularity in Jammu and even in parts of Kashmir. 

On the other hand, in Kashmir, denial of its ‘representative role’ by New Delhi will force the separatists to strengthen their poll boycott calls. The boycott call by the separatists, and BJP’s increasing popularity in Jammu and Ladakh, could lead to the emergence of BJP as a key player in post-poll J&K. This then is a game being well played by BJP. 

Implications for Kashmir New Delhi’s relationship with Kashmir’s separatist leadership is far more complex than it is often recognized. Both India and Pakistan have funded separatist groups in the Valley, promoted one over the other depending on the political climate, played one against the other, and engaged in overt and covert negotiations with them. Indeed, New Delhi, over last two decades, has understood the ‘importance’ of the Kashmiri separatists, especially the moderate ones, and as a result they have been a crucial part of New Delhi’s containment strategy in the valley.  Over the past few years, however, the influence of the moderate Kashmiri dissidents in the valley has been steadily diminishing among the valley’s alienated youth even as Geelani’s, the most hawkish of them all, popularity has only increased. New Delhi’s objection to the meeting between the Pakistan High Commissioner and the separatists will only improve Geelani’s standing in the eyes of the Kashmiris. This will be damaging for New Delhi’s long-term strategy to contain the Kashmir insurgency. 

Kashmiri separatists have consistently argued that there are three parties to the Kashmir conflict: New Delhi, Islamabad and Kashmiris, an argument vehemently rejected by New Delhi. Now, by engaging in a public spat with Islamabad based on the logic “either us or the separatists”, New Delhi has not only pitched itself and the separatist leadership at the same level but also unwittingly admitted that the separatists are a party to the Kashmir conflict. 

Portraying Kashmiri separatism through the political articulations of Geelani, in a sense, does help the Indian state in arguing that Kashmiri separatism is essentially anti-India and Pro-Pakistan (which is fundamentally misleading). However, such arguments tend to paint Kashmir’s non-mainstream politics with the same brush and silence the reasonable voices of Kashmir’s moderate dissidents. This, as a result, delegitimises the genuine demands of the Kashmiris in the eyes of the Indian public and help fan separatist passions in the Valley. The reality is that, whether or not one likes it, the Indian state needs the Kashmiri separatists if it wishes to bring about genuine peace and reconciliation in the valley. 

Implications for Indo-Pak relations
By calling off the meeting between the two Foreign Secretaries, the Modi government has convoluted a bilateral dialogue process that was beginning to take a positive direction after the ‘historic’ meeting between the two Prime Ministers. There is no clarity as of now whether or not the other scheduled Indo-Pak engagements will take place. Given that the Modi government has indirectly set a pre-condition for future talks, it will be perceived as fickle-minded if future interactions indeed take place without Pakistan having conceded to the Indian demand vis-à-vis Kashmiri separatists. On the other hand, if the “Islamabad should only talk to us or we won’t talk at all” logic applies to future interactions as well, New Delhi will eventually be forced to get down from its diplomatic high horse or risk not having a dialogue process with Islamabad at all. 

It is indeed a bizarre logic to argue that a bilateral Indo-Pak dialogue process is only useful for Pakistan, not India. The reality is that India needs a dialogue process as much as Pakistan needs it. In reality, no government in Pakistan can become popular by talking to India, but every Pakistani government does so because they realize its importance. New Delhi, therefore, needs to shed the illusion that by engaging in a bilateral dialogue, it is doing a favor to Islamabad. In any case, Islamabad has not been too pleased with the ongoing dialogue with New Delhi as the former thinks that the talks are progressing on terms set by the latter. For instance, the contemporary Indo-Pak dialogue has three broad focal areas: acts of terrorism against India, trade and transit, all of which are important for New Delhi, not so much for Pakistan. On the other hand, Pakistan would like more progress on finding a political solution for Kashmir and resolving the Siachen standoff both of which are not emphasized by the current dialogue process. So how is it that India is in any way ‘hurting’ Pakistani interests by calling off a dialogue which Islamabad thinks is going in India’s favour?  

From a long-term strategic point of view, attempts by New Delhi to achieve stability in Kashmir without giving Pakistan an honorable exit will not be an enduing one. And that is precisely what Islamabad is looking for vis-à-vis Kashmir: an honorable exit from the mess that Kashmir has become for Pakistan’s life as a nation. The Kashmir formula proposed by Pervez Musharraf was exactly one such honorable way out. Even today, the broad contours of such a formula, minus the Musharraf tag, have great traction within Pakistan’s political class.   

Moreover, New Delhi’s decision to call off the engagement with Pakistan comes at a time when it needs to proactively engage with Islamabad for a number of reasons. The implications of the NATO drawdown from Afghanistan and the stunning military exploits of the Islamic State of Iraq and the Levant (ISIL) are still not properly understood even as they are unfolding not too far from India. Therefore, sustaining a stable relationship with Islamabad is important for New Delhi when considering the long-term strategic implications of the geopolitical churning that is taking place in its near abroad.

(Source: Greater Kashmir, August 24, 2014. URL: http://www.greaterkashmir.com/news/2014/Aug/24/playing-chicken-with-pakistan-5.asp)