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The protests against the nuclear power plant at Kudankulam have intensified over the recent weeks. The Kudankulam plant is expected to provide 2 GW of electricity annually. However, activists concerned about the risks of nuclear energy are demanding that the plant be shut down. The safety of nuclear power plants is a technical matter. In this blog post we discuss the present mechanism to regulate nuclear energy and the legislative proposals to amend this mechanism. Atomic materials and atomic energy are governed by the Atomic Energy Act, 1962. The Act empowers the central government to produce, develop and use atomic energy. At present, nuclear safety is regulated by the Atomic Energy Regulatory Board (AERB). Some of the drawbacks of the present mechanism are discussed below. Key issues under the present nuclear safety regulatory mechanism The AERB is not empowered to operate as an independent operator. The AERB was established by the government through a notification and not through an Act of Parliament. Its powers and functions are therefore amendable by the Department of Atomic Energy through executive orders. The parliamentary oversight exercised upon such executive action is lower than the parliamentary oversight over statutes. [1. The executive action or the Rules are in force from the date of their notification. They are to be tabled before Parliament mandatorily. However, an executive action is discussed and put to vote in Parliament only if an objection is raised by a Member of Parliament. The executive orders may be reviewed by the committee on sub-ordinate legislation. However, this committee has to oversee a large volume of rules and regulations. For instance, there were 1264 statutory notifications that were tabled before the Rajya Sabha in 2011-12.] Furthermore, the Atomic Energy Commission that sets out the atomic energy policy, and oversees the functioning of the AERB, is headed by the Secretary, Department of Atomic Energy. This raises a conflict of interest, as the Department exercises administrative control over NPCIL that operates nuclear power plants. It is pertinent to note that various committee reports, including a CAG Report in 2011, had highlighted the drawbacks in the present regulatory mechanisms and recommended the establishment of a statutory regulator. A summary of the Report may be accessed here. Proposed mechanism Following the Fukushima nuclear incident in 2011, the Nuclear Safety Regulatory Authority Bill, 2011 was introduced in Parliament to replace the AERB. The Bill establishes the Nuclear Safety Regulatory Authority (NSRA) to regulate nuclear safety, and a Nuclear Safety Council to oversee nuclear safety policies that the NSRA issues. Under the Bill, all activities related to nuclear power and nuclear materials may only be carried out under a licence issued by the NSRA. Extent of powers and independence of the NSRA The Bill establishes the NSRA as a statutory authority that is empowered to issue nuclear safety policies and regulations. The Nuclear Safety Council established under the Bill to oversee these policies includes the Secretary, Department of Atomic Energy. The conflict of interest that exists under the present mechanism may thus continue under the proposed regulatory system. The Bill provides that members of the NSRA can be removed by an order of the central government without a judicial inquiry. This may affect the independence of the members of the NSRA. This process is at variance with enactments that establish other regulatory authorities such as TRAI and the Competition Commission of India. These enactments require a judicial inquiry prior to the removal of a member if it is alleged that he has acquired interest that is prejudicial to the functions of the authority. The proposed legislation also empowers the government to exclude strategic facilities from the ambit of the NSRA. The government can decide whether these facilities should be brought under the jurisdiction of another regulatory authority. These and other issues arising from the Bill are discussed here.
The Transgender Persons (Protection of Rights) Bill, 2016 has been listed for passage during the ongoing Winter Session of Parliament. This Bill was introduced in the Monsoon Session last year and referred to the Standing Committee on Social Justice and Empowerment, which tabled its report earlier this year. The Bill seeks to recognise transgender persons, and confer anti-discriminatory rights and entitlements related to education, employment, health, and welfare measures. This post explains key provisions of the Bill and certain issues for consideration.
Self-identification and obtaining a Certificate of Identity
The Bill provides for ‘self-perceived gender identity’ i.e. persons can determine their gender on their own. This is in line with a Supreme Court judgement (2014) which held that the self determination of one’s gender is part of the fundamental right to dignity, freedom and personal autonomy guaranteed under the Constitution.[1]
Along with the provision on ‘self-perceived gender identity’, the Bill also provides for a screening process to obtain a Certificate of Identity. This Certificate will certify the person as ‘transgender’. An application for obtaining such a Certificate will be referred to a District Screening Committee which will comprise five members including a medical officer, psychologist or psychiatrist, and a representative of the transgender community.
The Bill therefore allows individuals to self-identify their gender, but at the same time they must also undergo the screening process to get certified, and as a result be identified as a ‘transgender’. In this context, it is unclear how these two provisions of self-perceived gender identity and an external screening process will reconcile with each other. The Standing Committee has also upheld both these processes of self-identification and the external screening process to get certified. In addition, the Committee recommended that the Bill should provide for a mechanism for appeal against the decisions of the District Screening Committee.
Since, the Bill provides certain entitlements to transgender persons for their inclusion and participation in society, it can be argued that there must be an objective criteria to verify the eligibility of these applicants for them to receive benefits targeted for transgender persons.
Status of transgender persons under existing laws
Currently, several criminal and civil laws recognise two categories of gender i.e. man and woman. These include laws such as Indian Penal Code (IPC), 1860, National Rural Employment Guarantee Act, 2005 (NREGA) and Hindu Succession Act, 1956. Now, the Bill seeks to recognise a third gender i.e. ‘transgender’. However, the Bill does not clarify how transgender persons will be treated under certain existing laws.
For example, under NREGA, priority is given to women workers (at least one-third of the beneficiaries are to be women) if they have registered and requested for work under the Act. Similarly, under the Hindu Adoptions and Maintenance Act, 1956, there are different eligibility criteria for males and females to adopt a girl child. In this context, the applicability of such laws to a ‘transgender’ person is not stated in the Bill. The Standing Committee has recommended recognising transgender persons’ right to marriage, partnership, divorce and adoption, as governed by their personal laws or other relevant legislation.
In addition, the penalties for similar offences may also vary because of the application of different laws based on gender identity. For example, under the IPC, sexual offences related to women attract a maximum penalty of life imprisonment, which is higher than that specified for sexual abuse against a transgender person under the Bill (up to two years).[2]
Who is a transgender person?
As per international standards, ‘transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth.[3], [4] For example, a person born as a man may identify with the opposite gender, i.e., as a woman.[5] In addition to this sense of mismatch, the definition provided under the Bill also lists further criteria to be defined as a transgender person. These additional criteria include being (i) ‘neither wholly male nor female’, or (ii) ‘a combination of male or female’, or (iii) ‘neither male nor female’.
The Supreme Court, the Expert Committee of the Ministry of Social Justice and Welfare, and the recent Standing Committee report all define ‘transgender persons’ based on the mismatch only.1,[5],[6] Therefore, the definition provided under the Bill does not clarify if simply proving a mismatch is enough (as is the norm internationally) or whether the additional listed criteria ought to be fulfilled as well.
Offences and penalties
The Bill specifies certain offences which include: (i) compelling transgender persons to beg or do forced or bonded labour, and (ii) physical, sexual, verbal, emotional or economic abuse. These offences will attract imprisonment between six months and two years, in addition to a fine.
The Standing Committee recommended graded punishment for different offences, and suggested that those involving physical and sexual assault should attract higher punishment. It further stated that the Bill must also specifically recognise and provide appropriate penalties for violence faced by transgender persons from officials in educational institutions, healthcare institutions, police stations, etc.
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[1]. National Legal Services Authority vs. Union of India [(2014) 5 SCC 438]; Article 21, Constitution of India.
[2]. Sections 354, 354A, 354B, 375, Indian Penal Code, 1860.
[3]. Guidelines related to Transgender persons, American Psychological Association, https://www.apa.org/practice/guidelines/transgender.pdf.
[4]. Standards of Care, 7th Version, The World Professional Association for Transgender Health, https://s3.amazonaws.com/amo_hub_content/Association140/files/Standards%20of%20Care%20V7%20-%202011%20WPATH%20(2)(1).pdf.
[5]. Report of the Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Empowerment, January 27, 2014, http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.
[6]. Report no.43, The Transgender Persons (Protection of Rights) Bill, 2016, Standing Committee on Social Justice and Empowerment, July 21, 2017, http://164.100.47.193/lsscommittee/Social%20Justice%20&%20Empowerment/16_Social_Justice_
