"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, February 22, 2024

India's Planning to Attract Private Investment in Nuclear Sector to the Tune of US$ 26 Billion

In a major development, the print media reports that India is in talks with various private firms to attract investment to the tune of US$ 26 billion in the nuclear sector, in order to produce electricity from sources that do not produce carbon emissions. India plans to increase the percentage of contribution by non-fossil fuel sector in electricity generation. The current contribution of the nuclear sector and other sectors towards electricity generation is given below:

Installed Power Generation Capacity (2023)

Particulars

 Installed Capacity (MW)

Percentage

Fossil Fuel

      2,37,269

57%

Renewable Energy

           1,73,619

41%

Nuclear Power

                6,780

2%

 India now seeks to increase this 2%. News reports also suggest that the Government has been in talks with Reliance Industries, Tata Power, Adani Power and Vedanta to contribute about $ 5.30 billion each for investments in the nuclear sector. India is no exception: a substantial number of countries are looking at the nuclear option to meet their Net Zero commitments.

From a legal perspective, there might be a need to modify the present regulatory structure of nuclear energy in order to attract private investments (see, for instance, here). The increased focus on nuclear energy presents important opportunities, albeit long term, for law firms. Specialisation in nuclear power regulation, contracts relating to nuclear power plants, etc. will go a long way in catering to the potential market. Likewise, legal education in India could also focus on nuclear energy law, as this post notes.

Saturday, January 27, 2024

"A Employee" and the Employee's Compensation Act, 1923

The Workmen's Compensation Act, 1923 was amended in 2009 through the Workmen's Compensation (Amendment) Act, 2009. One of the main purposes of the amendment was to make the said law applicable to all categories of employees and to bring about a gender neutral term. 

For that purpose, the Short Title to the Act was changed to "Employee's Compensation Act, 1923" instead of "Workmen's Compensation Act, 1923". The term "workman" and "workmen" were replaced with "employee" and "employees". To do so, Section 5 of the Workmen's Compensation (Amendment) Act, 2009 provided:

"5. Throughout the principal Act, for the words "workman" and "workmen", wherever they occur, the words "employee': and "employees" shall respectively be substituted, and such other consequential amendments as the rules of grammar may require shall also be made." (emphasis added).

In effect, Section 5 stated that wherever the term" workman" occured, it should be substituted with "employee" and corresponding grammatical changes would also be made. For instance, if the phrase "a workman relinquishes" it would have to be changed to "an employee relinquishes" although Section 5 of the the Workmen's Compensation (Amendment) Act, 2009 calls for substitution of the term "workman" with "employee".

Unfortunately, we see in the Employee's Compensation Act, 1923, as is uploaded in the India Code website that the consequential grammatical changes were not made although "workman" was substituted with "employee". Some examples of this situation is provided in the table below:

Section

Text of the Statute

2(1)(e)

“when the services of a [employee] are temporarily lent or let on hire”

2(1)(g)

“earning capacity of a [employee] in any employment”

2(1)(l)

“incapacitates a [employee] for all work which he was capable of performing”

2(1)(m)

“paid by the employer of a [employee]”

 The Act is replete with such errors in various other provisions. This requires correction.

Thursday, January 18, 2024

India Postpones Bringing Into Effect the Digital Personal Data Protection Framework

 India enacted the Digital Personal Data Protection Act, 2023 ("DPDPA" or "Act") and the statute has been published in the Official Gazette. The Act along with the regulatory framework is yet to be brought to force. Section 1(2) of the Act reads:

"(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision."

The Central Government is yet to notify the date on which the provisions of the Act would come into force. 

From media reports (here and here), it initially appeared that the Government was making rules and the same would be published and the regulatory framework would be brought into effect by January 2024. However, media reports now (here and here) suggest that the Government has postponed its decision to make the Act and the regulatory framework effective to post-elections, which are generally held in the months of April/ May. 

European Data Protection Board's Coordinated Enforcement Framework

The EU EDPB (European Data Protection Board) came up with a Coordinated Enforcement Framework (CEF) in 2020 with the objective of facilitating joint actions among Supervisory Authorities under the EU General Data Protection Regulation, 2016.

The objective of the CEF was to facilitate joint actions among supervisory authorities in a coordinated manner. The legal basis of the CEF is contained in Article 61(1) read with Article 57(1)(g) of the GDPR. Article 61(1) reads:

"Supervisory authorities shall provide each other with relevant information and mutual assistance in order to implement and apply this Regulation in a consistent manner, and shall put in place measures for effective cooperation with one another. Mutual assistance shall cover, in particular, information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations."

Article 57(1)(g) states: 

"1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory: ...

(g) cooperate with, including sharing information and provide mutual assistance to, other supervisory authorities with a view to ensuring the consistency of application and enforcement of this Regulation;

Article 62, which deals with joint operations of supervisory authorities is also relevant for this purpose. Article 62(1) provides: "The supervisory authorities shall, where appropriate, conduct joint operations including joint investigations and joint enforcement measures in which members or staff of the supervisory authorities of other Member States are involved."

The role of EDPB is captured in Article 70(1)(u) of the GDPR, which states:

"1. The Board shall ensure the consistent application of this Regulation. To that end, the Board shall, on its own initiative or, where relevant, at the request of the Commission, in particular:...

(u) promote the cooperation and the effective bilateral and multilateral exchange of information and best practices between the supervisory authorities;"

These provisions form the legal basis for the CEF, which is basically a structure for coordinating recurring annual activities of the Supervisory Authorities under the GDPR through the EDPB. 

On the CEF, the EDPB Document states: "The objective of the CEF is to facilitate joint actions in the broad sense in a flexible but coordinated manner, ranging from joint awareness raising and information gathering to an enforcement sweep and joint investigations." (Para 5).

Why is the CEF important? The ultimate aim is compliance with GDPR and protection of rights and freedoms. The CEF reduces risks of compliance in wake of new technologies in data protection.

The CEF works in the following way:

In 2022, the EDPB picked the role of Data Protection Officers for its 2023 Study. Now EDPB has come up with the report on the designation and position of Data Protection Officers, which can be accessed from hereThe 2022 study was on use of cloud-based services by the public sector.

For 2024, the topic has been chosen by the EDPB in October 2023, which relates to the implementation of the right of access by controllers.

Tuesday, January 2, 2024

India & Pakistan Exchange List of Nuclear Installations under 1988 Agreement

 It has been widely reported in the news media (see, for instance, here and here) that India and Pakistan have exchanged a list of nuclear installations further to a Press Release by the Ministry of External Affairs, Government of India. The Press Release notes that the exchange of lists was pursuant to an agreement which was signed on 31.12.1988, which came into force on 27.01.1991. Since then, the Release notes, both countries have exchanged lists 33 times (including the present one). This short post discusses the Agreement, known as India Pakistan Non-Attack Agreement, and the title of the Agreement is "Agreement between India and Pakistan on the Prohibition of Attack Against Nuclear Installations and Facilities". The Non-Attack Agreement was signed in Islamabad, Pakistan.

The Non-Attack Agreement is a short one consisting of three articles. The Preamble to the Agreement recognises both countries' "commitment to durable peace and the development of friendly and harmonious bilateral relations; conscious of the role of confidence building measures in promoting such bilateral relations based on mutual trust and goodwill..."

Article 1(ii) defines "nuclear installation or facility" as including "nuclear power and research reactors, fuel fabrication, uranium enrichment, iso-topes separation and reprocessing facilities as well as any other installations with fresh or irradiated nuclear fuel and materials in any form and establishments storing significant quantities of radio-active materials." Thus, the definition is comprehensive where fresh or irradiated nuclear fuel or material in any form is used.

Article 1(i) contains the "Non-Attack" clause and states: "Each party shall refrain from undertaking, encouraging or participating in, directly or indirectly, any action aimed at causing the destruction of, or damage to, any nuclear installation or facility in the other country."

Article 2 is the one which has led to parties exchanging the list of such installation/ facility. It obligates India and Pakistan to exchange lists of the latitude and longitude of nuclear installations/ facilities on the 1st January of each calendar year and includes changes in the latitude/ longitude, perhaps covering extensions/ contractions of such installations/ facilities. The language used is: "Each Contracting Party shall inform the other on 1st January of each calendar year of the latitude and longitude of its nuclear installations and facilities and whenever there is any change."

Article 3 concerns ratification. It states: "This Agreement is subject to ratification. It shall come into force with effect from the date on which the Instruments of Ratification are exchanged." 

At the end of the Agreement, there is an interpretation clause. Although the Agreement is purported to be in Urdu, Hindi and English, it provides that the English text would govern in case of disputes in interpretation. It states: "Done at Islamabad on this Thirty-first day of December 1988, in, two copies each in Urdu, Hindi and English, the English text being authentic in case of any difference or dispute of interpretation."

The Non-Attack Agreement can be downloaded from here.