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W.P. (C) 407/2012 (tagged with WP (C) 464/2011)
To bring Nuclear suppliers of Kudankulam nuclear plant under 'polluter pays' and 'absolute liability' principles
As a corollary to our PIL challenging the vires of the Civil Liability for Nuclear Damage Act 2010, CPIL, Common Cause and others filed a writ petition to ensure that suppliers of the Kudankulam nuclear power plant in Tamil Nadu are bound by the ‘Polluter Pays’ and the ‘Absolute Liability’ principles, and that in case of an accident the victims can sue the reactor suppliers for damages, even if the Government and the plant operator choose not to sue. The Act channels the liability of a nuclear accident to the operator (Government undertaking) of the said plant and then limits the same at Rs 1500 crores. Section 17 of the Act provides for circumstances which give a right to recourse to the operator against the supplier. Though the liability imposed on the nuclear reactor supplier is very minimal, the Government of India had exempted the Russian company even from this minimal liability by giving an undertaking that Indian public exchequer and the Indian taxpayers would foot the bill in case of an accident thus indemnifying the Russian supplier.
It is a settled law that all agreements/undertakings in conflict of the law or public policy are void to the extent of the said conflict. Also, any action of the executive that requires expenditure from the exchequer would require Parliamentary approval as per the Constitution. No such approval had been taken in this case. The petition sought issuance of appropriate writ declaring that the nuclear suppliers of the Kudankulam nuclear plant in Tamil Nadu would be bound by the Act irrespective of any agreement or undertaking to the contrary. It also challenged Rule 24 of the Civil Liability for Nuclear Damage Rules 2011 that had been categorically found by both Parliamentary Committee on Subordinate Legislation and former attorney general Shri Soli Sorabjee to be ultra-vires of the parent statute itself.