THE CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT, 2010

-A law to protect citizens or foreign suppliers?

In our July- September 2011 issue, we had informed our readers about the enactment of a new law by the Union government to fix liability for nuclear damage and to lay down procedures to compensate victims of nuclear disasters. We had also apprised them that it had met with ‘vigorous opposition’ at the Bill stage from a wide spectrum of citizens’ groups as it was perceived that the law sought to indemnify suppliers but fix low liability caps for operators. We had reproduced the text of the public interest petition filed by Common Cause and concerned eminent citizens seeking a gamut of reliefs impinging on public safety and the right to life and safe environment of the populations exposed to the hazard of nuclear accidents. In the first hearing on November 14, 2011, the petitioners were granted two weeks time to file additional material in support of their averments and bring on record their prior correspondence with the authorities concerned to show that they had exhausted the alternate remedies available to them.

We are publishing below the text of the Intervention Application filed by us.

IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 464 of 2011
Common Cause & Ors Versus Union of India & Ors …
I.A. No.2 of 2011
APPLICATION FOR FILING ADDITIONAL DOCUMENTS

To The Hon’ble Chief Justice of India and His Hon’ble Companion Justices, The humble application of the petitioners above named most respectfully showeth:

2. Petitioners would like to clarify that the instant petition is not against the use of nuclear energy per se. Electricity generation is a key requirement for socioeconomic development. But there are serious risks and costs that are inherently associated with nuclear energy that must be factored in so as to create systems and regulations that ensure foolproof level of safety, and informed decision-making. The very fact that nuclear suppliers and operators wish to shield themselves from liability clearly shows that they are unwilling to put their financial health at stake for their own reactors that they claim are 100% safe. In such a situation it is inconceivable that the citizens can be convinced of the safety of their nuclear reactors and plants. According to recent survey conducted by BBC, 77% of India’s population does not support the building of nuclear plants. Opposition to nuclear energy is much stronger in European countries.

3. Justice V. R. Krishna Iyer, former judge of this Hon’ble Court, has termed the Government’s current nuclear programme as a “betrayal of India’s constitutional vision”. He has stated:

“Nuclear energy…involves the potential for dangerous radiation, high cost generation, and the use of delicate technology that could be disastrous.”

“The diabolic, dreadful immortality of nuclear waste that can cause lethal radiation after two or three decades of use of each nuclear power plant represents the gravest crime against humanity.”

4. The above petition came up for hearing before this Hon’ble Court on 14.11.2011. This Hon’ble Court was pleased to grant 2 weeks time to the petitioners to bring on record the steps they have taken in approaching the authorities concerned before filing of the instant petition. Through this application, petitioners would like to bring on record scores of letters/representations that were made by petitioners and non-petitioners for the last several years. None of the letters/ representations received any response. Only a couple of them received routine acknowledgement of receipt of the letter.

5. The instant petition is neither against the use of nuclear energy, nor does it require this Hon’ble Court to get involved in either technical issues or assess the safety & viability of individual nuclear plants. This petition seeks certain general prayers in the interest of nuclear safety for protecting citizens’ right to life, and in the interest of accountable and informed decision-making by the Government. It inter-alia seeks majorly four reliefs:

a) Creation of a nuclear safety regulator that is autonomous and independent of the nuclear establishment / Government,

b) A thorough and comprehensive safety audit of all nuclear facilities (existing and proposed) in India by an independent expert body,

c) A comprehensive ‘risks & costs-benefit’ analysis of proposed nuclear plants and a comprehensive comparative cost-benefit analysis of nuclear energy by an independent expert body,

d) Declaring all nuclear manufacturers/suppliers and operators as absolutely liable in the event of a nuclear accident with no financial cap on their liability, and declaring the contrary provisions of Civil Liability for Nuclear Damage Act, 2010 as unconstitutional. Each of the above prayers and the letters/representations sent regarding them have been dealt separately below.

Need for independent regulator

6. International Convention on Nuclear Safety which India has signed and ratified and which came into force on 24.10.1996 under Article 8 (2) mandates, “Each contracting Party shall take appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.” In India, however, the nuclear regulator has been subservient to those whose stated purpose is the promotion of the use of nuclear energy. So for example, if we take the case of proposed nuclear plant at Jaitapur where French company Areva’s nuclear reactors are being imported. Here the US, UK, Finland and also France Nuclear Regulatory Bodies have officially raised serious concerns over the safety standards of Areva’s reactors. But the Indian nuclear regulator is in no position to do the same, because this is a project that is being pushed very strongly by the entire Government including the Prime Minister. Hence, the safety issues of the project have been left unaddressed as admitted by MoEF itself.

7. Dr. E A S Sarma (Petitioner No. 3), who is former Secretary (Finance) and former Secretary (Power) to the Government of India, and also is a nuclear physicist and an IIT doctorate in energy planning, has been constantly writing to the Prime Minister, who is the minister-in-charge of the Department of Atomic Energy, to make Atomic Energy Regulatory Board (AERB) independent and accountable only to Parliament. He stated “AERB, which is required to exercise independent technical oversight over the DAE, has been so designed as to remain subservient to that Department.”

Need of safety audit

8. As has been pointed in the petition in detail, there are serious risks of catastrophic accidents associated with the use of atomic power. Three research papers published in EPW highlight precisely such risks in India’s various nuclear facilities and conclusively demonstrate that the current regulatory structure does not have the capacity to manage the country’s nuclear facilities. Apart from the safety issues of a reactor, there are serious dangers of contamination from nuclear waste. Waste remains radioactive for hundreds of years, costs tens of thousand of crores for its storage and world has still not found any sustainable solution for its storage. France has been grappling with the problem of nuclear waste.

9. A number of letters have been sent to the Prime Minister and the Minister for Environment & Forests highlighting the safety concerns of nuclear plants by Dr. E A S Sarma (Petitioner No. 3), Capt. J Rama Rao (Indian Navy, Retd.) and Dr. T S Balakrishnan (former Director Geophysics, ONGC).

10. Apart from the above letters, there are a number of letters/representations that have been sent to the authorities highlighting safety issues of specific nuclear plants (proposed and existing) throughout the country. They have been written by Admiral L Ramdas (Petitioner No. 9, Former Chief of Naval Staff), Dr. M V Ramana (Physicist at Princeton University, Board Member of Bulletin of Atomic Scientists), Dr. E A S Sarma, Capt J Rama Rao and environmental organisation Konkan Bachao Samiti and senior politician Shri D Raja.

Need of cost-benefit analysis

11. Nuclear power, unlike other sources of energy, is completely unviable for a private enterprise. All nuclear plants are centrally built and require massive subsidies to operate. New nuclear plants like EPR cost an estimated Rs. 20 crores per MW produced whereas the average cost of energy production from other sources can be as low as Rs. 4 crores per MW produced. Moreover, the construction time for a nuclear power plant is several years more than that for a thermal power plant of a comparable capacity. This is precisely the reason why despite massive amount of budget allocation for DAE, nuclear energy only meets 2.7% of India’s energy production.

12. Apart from the costs of construction, there is the cost of providing security. A nuclear plant is vulnerable to theft, sabotage and attack from terrorists (and other nations in times of war) at every stage of the fuel cycle. As is shown in the petition Government of India has admitted that nuclear installations remain prime targets for terrorists. A successful attack on nuclear reactor would inevitably cause large-scale destruction. A paper published by the official research wing of the US Congress highlights the serious threats nuclear installations face. Providing security from these threats means the deployment of huge amounts of state resources and funds in securing these facilities.

13. A number of letters on the issue of exorbitant costs of nuclear plants have been sent to the Prime Minister and the Ministry of Power. They have been sent by Admiral L Ramdas (Petitioner No. 9, former chief of naval staff), Dr. E A S Sarma (Petitioner No. 3, former revenue & power secretary, GoI), Dr. M V Ramana (physicist at Princeton University) and Dr. T S Balakrsihnan (former Director Geophyisics, ONGC). Out of these, the letter of Admiral Ramdas received a routine acknowledgment of receipt from Prime Minister’s Office.

Liability of nuclear suppliers and operators

14. The instant petition has challenged the constitutional validity of the Civil Liability for Nuclear Damage Act 2010 since it shields nuclear suppliers/manufacturers from liability and drastically limits the liability of the operator. This is in clear violation of the polluter pays principle and the absolute liability principle, as laid down as part of Article 21 by this Hon’ble Court. The petition seeks a declaration that in the event of any nuclear accident, both the supplier and the operator shall be jointly & severally and absolutely liable with no cap on their financial liability.

15. Leading constitutional expert and former Attorney General Shri Soli Sorabjee wrote an article stating:

“It is understood that the government to appease foreign investors proposes to introduce a Civil Nuclear Liability Bill whereby inter alia the compensation payable in case of a nuclear accident is capped at $450 million.”

“This would be directly contrary to the Supreme Court’s ruling that it is not the role of the government to meet the costs involved. The effect of a cap in reality would be to shift the financial burden of the consequences of the accident to the taxpayer.”

“Health, well-being and protection of our people are paramount and must override dollar considerations. Foreign multinationals are not solicitors of the fundamental rights of our people. The Bhopal case is a burning reminder.”

“Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability is likely to be struck down as it would be in blatant defiance of the Supreme Court judgments.”

16. Prof. Brahma Chellaney (one of the country’s leading strategic thinkers) wrote on the nuclear liability law: “The government’s nuclear-accident liability bill seeks to burden Indian taxpayers with a huge hidden subsidy by protecting foreign reactor builders from the weight of the financial consequences of severe accidents… What will it do to nuclear safety to free foreign suppliers upfront from the ‘precautionary principle’ and the ‘polluter pays principle’ and turn their legal liability for an accident into mere compensation, that too at an inconsequential level?”

17. Recently, the Government has notified the Rules made under the Liability law which further restrict liability of the nuclear suppliers. This was done on the eve of the Prime Minister’s visit to meet the US President. Under the law only the NPCIL had right to recourse against the foreign suppliers and that too only after proving fault in supplier equipment. The new rules make that completely subject to contract signed between government operator and the nuclear supplier, over which the citizens and the potential victims have no role. They also restrict the financial extent and time limit of suppliers limited liability that was provided in the law. The entire liability law seems to be India’s gift to the US, prepared without keeping the interest of the victims and the citizens in mind.

18. Dr. E A S Sarma (Petitioner No. 3) had sent two letters to the Prime Minister (one after the Bill was prepared, and one after it was passed and came into force) objecting to the clauses indemnifying the suppliers and putting a cap on financial liability of the operator. None of the letters were responded to by the PMO and no steps have been taken to amend the law.

19. Apart from the above, Justice V R Krishna Iyer, Justice P B Sawant (former Justices of this Hon’ble Court) and Justice H Suresh (former Judge, Bombay HC) issued a joint statement stating that the nuclear deal signed between India and US under which we agreed to purchase nuclear reactors from American companies must be approved by Parliament first and Government’s unilateral decisions are unconstitutional.

20. A group of 60 eminent citizens from all walks of life including formers Chief of Naval Staff, Power Secretary, IISc Director, Planning Commission member, VC of Delhi University, V-C of Jamia Milllia Islamia, Atomic Energy Regulator Board Chief, Ambassador to UN, prominent historians like Romila Thapar, Sumit Sarkar, Ramachandran Guha, economists like Amit Bhaduri, John Dreze, sociologist Ashis Nandy, scientists like PM Bhargava, Satyajit Rath, MV Ramana, writer Nayantara Sehgal, journalists Kuldip Nayar, Praful Bidwai, activist Aruna Roy and other prominent citizens issued a statement stating:

“We strongly believe that India must radically review its nuclear power policy for appropriateness, safety, costs and public acceptance, and undertake an independent, transparent safety audit of all its nuclear facilities”.

21. Recently, several organisations from Japan have written a letter to the Indian PM warning him of the dangers of the nuclear energy. Top nuclear scientist (formerly with AEC) Dr. M P Parameswaran has called for a suspension of nuclear programme saying that the manufacturers are themselves not convinced of the safety of the reactors and that is why they want us to extinguish their liability in case of an accident.

Conclusion

22. Use of nuclear energy saw an unprecedented world-wide rise from 1960- 1986. Since then there has been a decline in the use of nuclear energy and most of the existing reactors were built before 1990. Most countries have not installed a single nuclear reactor for the last 25-30 years. Data on the same is already on record. Germany, Italy, Switzerland and Japan who were extensive users of nuclear energy earlier have now announced a complete withdrawal from the same. There is no dispute that nuclear energy has been on a long term decline after its costs and risks have become clear. Despite very high budgets of DAE, nuclear energy contributes only 2.7% to India’s power production. Just a 10% increase in capacity of thermal power plants or a 10% reduction in T&D losses would generate so much electricity that surpasses nuclear power target of 2050. Despite this, Government has decided to install mega-nuclear parks throughout the country costing lakhs of crores of rupees without any safety analysis and in the absence of an independent regulator. This reckless expansion of nuclear energy could have potentially disastrous consequences for the people of the country and therefore violates their right to life and environment.

23. Nuclear energy is the only form of energy that has the capability to cause catastrophic disasters affecting tens of thousands of people, making entire cities uninhabitable and costing tens of thousands of crores in disaster mitigation. This is the reason nuclear suppliers (reactor manufacturers) want to be indemnified of all liabilities and want the tax-payers to pick up the cost in case of an accident. In a densely populated country like India, a nuclear accident can easily affect lakhs of people and turn them into internal refugees. In such a situation, their rehabilitation in all likelihood is likely to prove impossible. The Government has not even prepared any evacuation plans to deal with such a situation. India and many other countries have witnessed a large number of near-accidents, and probability of accidents is likely to rise sharply with the installation of new untested imported reactors unless remedial measures are taken. In 1995, AERB under the then Chaiperson Dr. A Gopalakrishnan had identified 130 safety issues in Indian nuclear installations with 95 of them being marked ‘top-priority’. That report has suffered the same fate as that of earlier two safety audit reports and no action has been taken. The Indian nuclear establishment has ignored voices from both inside and outside calling for transparent and accountable safety regulatory systems.

24. That the present Application is being made bona fide and in the interest of justice.

PRAYER

In these circumstances the petitioners pray that your Lordships may be pleased to: (i) Permit the petitioners to file the above documents and take the same on record. (ii) Pass other or further orders as may be deemed fit and proper.

And for this act of kindness the petitioners as in duty bound shall ever pray.

PETITIONERS
THROUGH PRASHANT BHUSHAN, COUNSEL

Filed on 28.11.2011 at New Delhi

The matter was again taken up for hearing on December 5, 2011, when the petitioners were asked to submit alternate nuclear regulatory frameworks/legislations from other countries, which could be used as a model for India. We reproduce below the intervention application filed by the us, analysing the regulatory models and the relevant laws of the USA,, Canada and France. The Civil Liability Rules framed by the government were also analysed by the petitioners to demonstrate how these were ultra vires Article 21 as well as the parent Act.

I.A. No. 3 of 2012
APPLICATION FOR FILING ADDITIONAL DOCUMENTS

To The Hon’ble Chief Justice of India and His Hon’ble Companion Justices

The humble application of the petitioners above named most respectfully showeth:

1. The above writ petition has highlighted how in the absence of credible systems for ensuring nuclear safety, the Government has been pushing the country towards an unviable, hugely expensive and dangerous nuclear power expansion programme by entering into agreements with foreign companies for purchase of untested and unsafe nuclear reactors, without adequate examination of their costs and benefits. This threatens the life and health of the citizens and their right to clean environment (free from dangerous radiation) and is thus in complete violation of Article 21 and the ‘precautionary principle’. Nuclear energy is the only form of energy that has the potential of causing catastrophic accidents. One major accident can far outweigh the gains from use of nuclear power accumulated over several decades. Therefore, it is utmost essential that the highest standards of safety and security are maintained with the use of this form of energy.

2. Electricity generation is a key requirement for socio-economic development. But there are serious risks and costs that are inherently associated with the use of nuclear energy that must be factored in so as to create systems and regulations that ensure foolproof level of safety, and informed decision-making. The very fact that nuclear suppliers and operators wish to shield themselves from liability clearly shows that they are unwilling to put their financial health at stake for their own reactors that they claim are 100% safe. The current petition has sought systemic changes and safety review that would ensure some level of safety.

3. Nuclear energy meets less than 3% of India’s electricity demand and is unlikely to contribute much in next several decades. Therefore, the argument that nothing should come in the way of expanding nuclear power is not sustainable. It is important to put adequate institutional mechanisms before a large-scale expansion because of the increased risk of catastrophic accidents that accompany such an expansion.

Nuclear Liability Act

4. The instant petition has challenged the constitutional validity of the Civil Liability for Nuclear Damage Act 2010 since it shields nuclear suppliers/manufacturers from liability and drastically limits the liability of the operator. This is in clear violation of the ‘polluter pays’ principle and the ‘absolute liability’ principle, recognized as part of Article 21 by this Hon’ble Court. The petition seeks a declaration that in the event of any nuclear accident, both the supplier and the operator shall be jointly & severally and absolutely liable with no cap on their financial liability. The Civil Nuclear Liability law as it exists today has incorporated a cap of Rs. 1,500 crores (equivalent roughly to US$300 million) on the liability that could be imposed, whereas recent reports on Fukushima accident indicate that the damage costs could run into tens of billions of dollars.

5. The petitioners had pointed out that leading constitutional expert and former Attorney General Shri Soli Sorabjee had stated:

6. The Civil Nuclear Liability law as it exists today has incorporated a cap of Rs. 1,500 crores (equivalent roughly to US$300 million) on the liability that could be imposed, whereas recent reports on Fukushima indicate that the liability could run into tens of billions of dollars. It will take decades to clean up the Fukushima site from radioactivity and the clean up may never be complete.

7. The petitioners had also filed the Civil Liability Rules framed under the said Act and had shown that they not only violate Article 21 of the Constitution, but they are completely ultra-vires of their parent legislation itself. These Rules completely betray the Government’s intention to shield the foreign nuclear suppliers from any liability in the event of an accident. The new rules make civil liability completely subject to the contract signed between the government operator and the nuclear supplier, over which the citizens and the potential victims have no say. They also restrict the financial extent and time limit / duration of suppliers limited liability that was provided in the law.

8. Shri Sorabjee has now given a categorical opinion to environmental organisation Greenpeace that the said Rules are ultra-vires. He has stated:

“It is plain that the proposed Rule 24 is unduly restrictive as it limits the amount which can be claimed by exercise of the right of recourse to the extent of the operator’s liability or the value of the contract, whichever is less. This would cause great hardship. To illustrate: Take a case where a major nuclear accident occurs due to the fault of the supplier and the value of the contract is say ten lakh rupees. In such a situation while the damages paid by the operator to victims could run into crores of rupees yet the supplier will not be liable for anything more than the value of the contract i.e ten lakh rupees. A criterion such as the value of the contract has no rational nexus to the object sought to be achieved and hence there is no rational basis for curtailing supplier’s liability. Moreover, in my opinion Rule 24(1) is clearly inconsistent with Section 6 of the said Act read with Section 17 inasmuch as it scales down and reduces the liability prescribed by the said Act. Consequently the said proposed Rule is ultra vires the said Act and is invalid.

According to my instructions the period provided for under Rule 24(2) works out to five years. According to the Act, the time limit to claim right to recourse by the operators against the supplier is not provided in the Act and hence it is unlimited. Therefore the proposed Rule 24(2) which restricts the time limit cannot be said to be carrying out the purposes of the said Act but is in fact in conflict with it. Therefore in my opinion Rule 24(2) is clearly ultra vires of the said Act and is invalid.”

Nuclear Safety Regulator

9. During the last hearing of the instant petition on 05.12.2011, this Hon’ble Court had asked the petitioners to suggest nuclear regulatory frameworks/legislations from foreign countries that can be used as a model for an Indian counterpart. The petitioners submit that independence from the Government, while retaining Parliamentary control is an essential pre-requisite for an effective nuclear safety agency. The then Union Enviornment Minister Mr. Jairam Ramesh had publically said that “It is probably time to have an independent regulatory authority which is separate from the Department of Atomic Energy, something on the lines of the Nuclear Regulatory Commission in the United States. I think there would be greater public confidence about issues of nuclear safety in that case.” But his opinion was obviously ignored as the Government later came up with a Bill that makes the nuclear regulator completely subservient and compliant to the Government and nuclear establishment.

10. The International Convention on Nuclear Safety which India has signed and ratified and which came into force on 24.10.1996 mandates that “Each contracting Party shall take appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.” In India, however, the nuclear regulator has been subordinate to and under control of those whose stated purpose is the promotion of the use of nuclear energy. The absence of an independent nuclear safety regulator led to India’s dismal ranking in the Nuclear Materials Security Index. As per the index, compiled by a US nuclear think tank Nuclear Threat Initiative (NTI) and Economist Intelligence Unit (EIU), India has been ranked 29th among the 32 nations that were assessed- just above Iran, Pakistan and North Korea. The major negative factor against India was the absence of an institutionally independent regulatory agency.

11. The petitioners would like to suggest the regulatory systems of France, United States and Canada, on which further improvements and improvisations can be made, as possible models for setting up of a truly effective and independent nuclear regulatory body that works with requisite transparency and accountability. Former AERB Chief Dr. A Gopalakrishnan has also identified the principles of independence/autonomy and transparency as prerequisite for an effective nuclear safety agency. Moreover, the nuclear regulator should have members who do not have any conflict of interest.

The U.S. Model

12. NRC OPERATES AS AN INDEPENDENT REGULATOR - In 1974, the Energy Reorganization Act was enacted with the object of separation of regulatory functions from AEC. Sec 2(c), Energy Reorganization Act, 1974, elucidates, “The Congress finds that it is in the public interest that the licensing and related regulatory functions of the Atomic Energy Commission be separated from the performance of the other functions of the Commission, and that this separation be effected in an orderly manner, pursuant to this Act, assuring adequacy of technical and other resources necessary for the performance of each.” The administrative autonomy has been legislated by giving due powers to the commissioners of the regulatory commission and safeguarding them from unwarranted removal from office.

13. Section 201 of the said Act states:

“(a) (1) There is established an independent regulatory commission to be known as the Nuclear Regulatory Commission which shall be composed of five members... The President shall designate one member of the Commission as Chairman thereof to serve as such during the pleasure of the President. …. The Chairman shall preside at all meetings of the Commission and a quorum for the transaction of business shall consist of at least three members present. Each member of the Commission, including the Chairman, shall have equal responsibility and authority in all decisions and actions of the Commission, … and shall have one vote. Action of the Commission shall be determined by a majority vote of the members present. ...

(b) (1) Members of the Commission shall be appointed by the President, by and with the advice and consent of the Senate.

(2) Appointments of members pursuant to this subsection shall be made in such a manner that not more than three members of the Commission shall be members of the same political party.

(c) Each member shall serve for a term of five years, each such term to commence on July 1….

(d) Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. No member of the Commission shall engage in any business, vocation, or employment other than that of serving as member of the Commission.”

14. The remarks of the then U.S President, Jimmy Carter, when announcing actions taken in response to the report of the President’s Commission on the Three Mile Island accident, further highlight the need for an independent safety regulatory authority which enjoys not only financial and administrative independence, but also independence from any conflict of interest so the body is free to regulate and ensure nuclear safety. He had said that, “The Commission headed by Dr. John Kemeny, found very serious shortcomings in the way that both the Government and the utility industry regulate and manage nuclear power.” To correct these shortcomings, need for strengthening the role of the Chairman of the regulatory commission, to permit him to select key personnel and to act on behalf of the Commission during any emergency was considered important. More significantly, the necessity of appointing a person who had not been a part of the Atomic Energy Council as the new Chairman of the Nuclear Regulatory Commission was realised and acted upon. It was felt to be “in the spirit of the Kemeny commission’s recommendation”.

15. NRC operates in an open and transparent manner – The Freedom of Information Act requires that agencies make public their rules, adjudicatory decisions, statements of policy, instructions to staff that affect a member of the public, and, upon request, such other material as does not fall into one of the Act’s exceptions for material dealing with national security, trade secrets, and the like. The Government in the Sunshine Act requires that collegial bodies such as the Commission hold their meetings in public, with certain exceptions for meetings on matters such as, again, national security.

16. NRC provides ample opportunities for the public to participate meaningfully in NRC’s decisionmaking process. Some examples include invitation to the public to attend Commission meetings held at the NRC headquarters, making available transcripts of such meetings, commission voting record on each issue etc. on the NRC website for public viewing. Also, there are several the public hearings conducted, the dates of which are announced in advance, and that are open to the public.

17. Dr. A Gopalakrishnan, former chairman, AERB, in an article titled ‘Nuclear safety regulator: The US model’, has expressed his admiration of the detailed involvement of the NRC in the safety evaluation of new nuclear reactor facilities and the comprehensive step by step evaluation system–

“The NRO was formed in 2006, to take the responsibility to ensure the safety of any new nuclear reactor facility, of US or foreign design, even before a licence application is entertained to build the first of its kind on US soil. For such reactor installations, the NRO is responsible for preevaluations and regulatory activities in the areas of siting, licensing and oversight to protect public health, safety and the environment. One of the first steps in this NRC evaluation is a ‘design certification’ for approval of a standard nuclear power plant design of that type, independent of a specific site approval application or an application to construct or operate a plant. The design certification application to the NRC from the reactor manufacturer will have to include details similar to what is normally expected in a final safety analysis report for an established reactor type. The application to the NRC from the manufacturer must also include a detailed probabilistic risk analysis and an evaluation of design alternatives to mitigate the impact of severe accidents.”

The French Model

18. TRANSPARENCY– In keeping with their goal “to ensure … credible regulation, recognised by the public and regarded internationally as a benchmark for good practice”, the French nuclear safety authority (ASN) operates in a completely open and transparent manner. Public accountability, participation and dissemination of information are intrinsic to the Act on Transparency and Security in the Nuclear Field (TSN Act, 2006), the Act under which ASN has been established.

19. Article 1 of the Act itself recognizes the public’s right to information on nuclear security and the State’s responsibility to provide it. The article states, “I. …Transparency in the nuclear field consists in the set of provisions adopted to ensure the public’s right to reliable and accessible information on nuclear security. II. - The State ... ensures the public is informed of the risks related to nuclear activities and their impact on personal health and security as well as on the environment”.

20. Article 2. II. 1° incorporates the participatory principle and elaborates an individual’s right to information about the risks related to nuclear activities. It states: “Any person is entitled, ... to be informed of the risks related to nuclear activities and their impact on personal health and security as well as on the environment; and of discharges of effluents from installations.”

21. Article 4 which provides for establishment of ASN again lays emphasis on the importance of dissemination of information in the working of ASN. Article 4. 3° states “The Nuclear Safety Authority participates in informing the public in its spheres of competence”. Article 4. 4° specifies “When an emergency situation occurs, …It informs the public of the safety state of the installation that caused the emergency situation, when the latter is subject to its surveillance, and of the possible releases into the environment and their risks for personal health and the environment;”.

22. ASN’s commitment to transparency is brought forth by Article 6, TSN Act, 2006, which enables ASN to bring to public notice not only the decisions deliberated but also the authority’s opinions. An entire title (Title- III) is dedicated to detailing not only the right to information regarding nuclear safety but also how that information is to be made available to the public and the recourse they are entitled to in the event of non-dissemination. Article 18 says, “The State is responsible for informing the public about the procedures and results of the surveillance of nuclear safety… consequences, on the national territory, of nuclear activities.., especially in the event of an incident or an accident.” Article 19-I states “Any person is entitled to obtain from the licensee of a basic nuclear installation — the information held — on the risks … that can result from this activity and on the safety and protection measures taken to prevent or reduce these risks or exposure.” Article 19-II provides the medium of obtaining recourse “… disputes relative to refusals to communicate information are brought before the administrative court.”

23. INDEPENDENCE- The status of independent administrative authority, granted to ASN by TSN, 2006, confirms and guarantees ASN’s freedom of judgement, action and expression. Under the commission’s leadership, ASN is able to work on its own terms, independently and in complete impartiality. Article 4 establishes the Nuclear Safety Authority (ASN) as ‘an independent administrative authority’.

24. Dr. Gopalakrishnan, in an article has stated, “On June 13, 2006, the French parliament adopted, and the president promulgated, the Act on Transparency and Security in the Nuclear Field (TSN Act, 2006). Under this act the Nuclear Safety Authority was established as an independent entity, not answerable to the government’s ministers but as part of the French state, answering to the French parliament. This ensures the ASN’s effective independence from any governmental structure charged with the promotion of nuclear energy.”

25. The constitution and decision making procedure of the authority provided for by the Act ensure that the commissioners have freedom to act without any bias due to conflict of interest or political allegiance. Also, the various basis of removal from office have been clearly enunciated leaving no scope for the exercise of any arbitrariness in this matter. This alleviates any undue pressure in decision making and operations.

26. The mandate of the members is for six years. The duties of a member cannot be terminated except in the event of an impediment or resignation recorded by the Nuclear Safety Authority acting by a majority of the members of its college or in the cases laid down in Article 13. However, the President of the Republic can also terminate the duties of a member of the college in the event of a serious failure to comply with his obligations.

27. The decision making process under Article 11 and 13 has been spelled out in a manner so as to minimize any outside influence or conflict of interest. Article 11 states “The Nuclear Safety Authority college cannot validly deliberate unless at least three of its members are present. It deliberates by a majority of the members present. In the event of a tie vote, the chairman’s vote is deciding.” “In the event of an emergency, the chairman… takes the measures required by the situation in the fields within the competence of the college. He convenes the college as swiftly as possible to report to it on the measures thus taken.” Article 13 provides “…..The members of the college exercise their duties entirely impartially without receiving any instructions from the Government or from another other person or institution. The post of member is incompatible with any professional activity, any elective mandate and any other public employment. The Nuclear Safety Authority records, by a majority of the members composing the college, the automatic resignation of any member who finds himself in one of these cases of incompatibility. On their appointment, college members draw up a declaration mentioning the interests they hold or have held over the previous five years in the fields within the Authority’s competence.... No member can hold, during his mandate, any interest likely to affect his independence or impartiality…”

The Canadian Model

28. In addition to the above, some elements of the Canadian system can be used for the establishment of a nuclear safety agency in India. In Canada, the nuclear regulator, set up under Canada’s Nuclear Safety and Control Act, is called the Canadian Nuclear Safety Commission (CNSC). Though the level of autonomy as it exists in US and France is not there in Canada, but the CNSC ultimately reports and is accountable to the Parliament. Section 9(b) of the Canadian Act requires CNSC to disseminate objective scientific, technical and regulatory information to the public concerning the activities of the commission and their effects on the environment and on safety of citizens. Dr. Gopalakrishnan has acknowledged the transparency and competence of the said regulator.

Regulator in India

29. The administration of the Atomic Energy Act, 1962, is entrusted to the DAE. The Secretary, DAE, in turn constituted the Atomic Energy Regulatory Board (AERB) by an executive order in 1983, because of which the AERB is a subordinate entity of the DAE. The AERB is answerable to the Atomic Energy Commission (AEC), whose Chairman is also the Secretary, DAE. Indeed, one cannot conceive of a more subservient existence - the regulatory agency has to report to those whom it is required to regulate and control in the public interest. Hence AERB is riddled with conflicts of interests, as it is answerable to a department whose stated aim is to build more and more nuclear plants.

30. Prime Minister’s Office issued a press statement on 26.04.2011 stating the Government would set-up an independent regulator, which petitioners submit, is implied acknowledgment of the fact that currently the regulatory system is virtually dysfunctional. Pursuant to the said statement and in a bid to push for more reactors and counter the charge of having a dysfunctional regulatory system, Government has introduced a Bill called Nuclear Safety Regulatory Authority Bill 2011 creating a Nuclear Safety Regulatory Authority (NSRA). The said Bill envisages a regulator, whose chairperson and members would be selected entirely by central government, and hence regulator would be selected by an establishment that it is supposed to regulate. The central government would also have the power to remove the chairperson and the members in various circumstances including ‘public interest’. The central government may exempt any nuclear material, activity or facility from the jurisdiction of the said authority. The authority is mandated to discharge its functions consistent with ‘international obligations’. The said Bill envisages that the authority would be bound by law to follow all directions of the central government. The government is authorized to supersede the authority if those directions are not followed or are deemed to be in ‘public interest’. The authority would be completely subservient to the wishes of the central government even for its staff or finances. There are no provisions for transparency and public hearings in the Government’s Bill. Hence, for example, it would be no position to question a project like Jaitapur that the Prime Minister and Cabinet have so strongly supported. Such a law, if passed, would obviously not inspire confidence and would necessitate a safety study by an independent body appointed by this Hon’ble Court.

31. Though the AERB is not an independent body, it did conduct reviews of the safety of the existing nuclear power plants on 3 occasions, in 1979, 1986 and 1995. The 1995 review had identified 130 problems out of which 95 were designated as top priority. These reviews though classified and not put in the public domain showed an alarming state of safety of the existing nuclear power plants. There have been several near accidents in the existing power plants, any of which could have been catastrophic like Chernobyl and Fukushima which have caused loss of lives of hundreds of thousands of persons and resulted in damages of hundreds of billions of dollars. There is therefore an urgent need for an independent credible and transparent safety review of all the existing and imminently planned nuclear facilities in the country.

32. In conclusion, the petitioners submit that it is not known if and when a proper legislation would be framed that would set-up a regulator to conduct thorough safety review of nuclear facilities. It is thus essential that in the meanwhile this Hon’ble Court should direct an independent and transparent safety reassessment of all nuclear plants.

PRAYER

In these circumstances the petitioners pray that your Lordships may be pleased to:

(i) Permit the petitioners to file the above documents and take the same on record.
(ii) Pass other or further orders as may be deemed fit and proper.

PETITIONERS
THROUGH PRASHANT BHUSHAN, COUNSEL

Filed on .03.2012 at New Delhi

After much persuasion by our counsel, the Court admitted our PIL on March 16, 2012, only in terms of clause (e) of the prayers, which seeks the declaration of the Civil Liability for Nuclear Damage Act, 2010 as unconstitutional and void ab initio.

In this context, it may be pertinent to recall that in a recent interview with the Journal “Science”, the Prime Minister had questioned the bona fides of the NGOs and activists, who had raised doubts about the motives of the government decisions on sensitive issues, such as genetically modified (GM) foods and nuclear energy. Reacting to the Prime Minister’s petulant remarks, a number of eminent citizens sent a fitting rejoinder, which is reproduced below:

March 04, 2012

YOUR COMMENTS ON THE OPPOSITION TO GM CROPS AND NUCLEAR POWER PLANTS

Dear Mr. Prime Minister,

There has been wide coverage of your interview with the journal ‘Science’, on February 24, 2012 concerning the opposition to nuclear power plants and GM crops in India. You choose to resurrect the old bogeyman of a ‘foreign-hand’, this time pointing to external funding of NGOs to oppose Indian development, as if they are some sort of a 5th columnist operating to undermine the nation’s interest. This we feel, is a highly inappropriate misrepresentation of facts. The misdemeanours of these NGOs, if any, may well be only minor infringements of the letter of a restrictive law that enables government to harass them as is now being undertaken. In reality , what we are all fighting against is indeed a foreign-hand operating at the behest of and from within your government, supported by Indian and foreign commercial entities , to corporatise Indian agriculture & farming practices and the energy sector , without in-depth and impartial analyses which prioritise the country’s security and safety. If this is their sin, it is ours too. Your remarks, in essence, indict every signatory to this letter. Our individual and collective “unthinking state” , an unlikely charge as that is, does not unduly perturb us ; on the other hand, your charge that all those who voice dissent of your government’s policy on GM crops and nuclear power do not belong to the “thinking segment” of society is an indictment of a large section of our citizenry. It betrays an inappropriate distinction between “thinkers” and “non-thinkers” solely on the basis of agreement or disagreement with government policy. Surely, this cannot be. Informed dissent and a healthy response to it by our government through trusted dialogue are vital for a functioning democracy. We are not China. The absurdity of this position is therefore, self-evident and it absolutely requires us to make a measured and robust response through addressing the key issues surrounding GM crops and the nuclear power sector.

The prominently visible foreign hand of the US, in these two greatly important issues with ramifications for our country far into the future (and with regard to GM crops, irreversibly so), is squarely created and abetted by the UPA government. One indication of such collusion is the lineup of support your government has sought or received thus far, from ABLE (the Association of Biotechnology Led Enterprises) , the Indo-US Knowledge Initiative on Agriculture, the Indo-US CEOs Forum , the Indo-US Business Council , etc. , all of which expose the distinct foreign influence deliberately brought into these critical policy areas. Along with your investigations of the so-called anti-national misdeeds of the NGOs , why is your government not probing the influence peddled by these agencies and entities who are primarily furthering the interests of foreign governments and private multinational corporations? Or, is it that only those who support your policies are helping the nation , while those raising legitimate and scientifically-based dissent are all branded as traitors working against the national interest ?

Furthermore, several important communications on key issues have been submitted to you in writing over the last two to three years, without even the courtesy of an acknowledgement from the PMO. We must assume from your remarks to the ‘Science’ journal that the evidence, which has hitherto been offered on the significant gaps in safety and liability surrounding both these technologies, by well informed and deeply concerned individuals and groups in the nation’s interest , has not been seen by you, or else you would surely have taken cognisance of it.

In the attached Annexure, we have presented some key issues on both these technologies and their profound implications for our country. Based on this, we urge the UPA government to initiate a truly inclusive process of deliberations with all stake-holders in civil society to help formulate a rational public policy with regard to both the nuclear power sector and GM crops.

With Regards,
Sincerely Yours,

1.
Justice VR Krishna Iyer, former Judge, Supreme Court of India
2. Dr.A.Gopalakrishnan, Former Chairman , Atomic Energy Regulatory Board
3. E.A.S.Sarma, Former Union Power Secretary, GOI
4. Admiral Vishnu Bhagwat, former Chief of Naval Staff, Mumbai
5. Dr.Pushpa Mitra Bhargava, Former Vice-Chairman , National Knowledge Commission
6. Praful Bidwai, Writer, Columnist and Researcher
7. Mr. J.M. Lyngdoh, Former Chief Election Commissioner
8. Medha Patkar, Convenor, National Alliance of People’s Movements
9. Admiral L.Ramdas, Former Chief of Naval Staff and Magsaysay awardee, Alibag
10. Lalita Ramdas, former Board Chair Greenpeace International, Bhaimala, Alibag
11. Dr Vandana Shiva, Director, Research Foundation for Science , Technology and Ecology
12. Admiral R.H. Tahiliani (Retd.), Former Chief of Naval Staff & former Chairman
Transparency International
13. Prof. Romila Thapar, Professor Emeritus, Jawaharlal Nehru University
14. Aruna Roy, Social activist, MKSS
15. Dr.V.S.Vijayan, Chairman, Sálim Ali Foundation; former Chairman, Kerala State Biodiversity
Board; Thrissur
16. Aruna Rodrigues, Lead Petitioner GMO PIL in the Supreme Court
17. Prashant Bhushan, Advocate, Supreme Court
Cc Smt. Sonia Gandhi, Chairperson, United Progressive Alliance (UPA)
Cc J Jayalalithaa, the Hon’ble Chief Minister of Tamil Nadu

ANNEXURE

REASONS WHY THERE IS OPPOSITION TO GM CROPS AND NUCLEAR POWER PLANTS

Genetically Engineered (GE) Crops

• Brief background: GE crops were invented by the US; given their raison detre of profit for the Industry by patent laws in that country and their commercialisation promoted at the behest of the White House to “foster the biotech Industry” led by Monsanto, the international market leader holding 90% of crop patents. No GM crop is approved ‘as safe’ by US regulatory agencies in the US when they are put to market (GM cotton, Soy and Cotton, all of which are animal feeds). The Industry has held sway; there is little regulatory oversight.

• The KIA (Indo-US Knowledge Initiative in Agriculture) and the conflict of interest within government agencies and our public sector agri-institutions: India is singled out for the commercialisation of GM crops by the US and Monsanto, an objective that is actively facilitated by the Indian regulators. This is well attested to in court documents. This conflict of interest found official expression in the KIA, which the UPA government sought fit to ink with the USA. The ICAR ( the signatory partner for India), along with its affiliates, provided Monsanto with access to India’s genetic resources (Monsanto was elected to its Board, a company that stands formally indicted for fraud, bribes, hounding farmers and some of the worst crimes against humanity). Though this agreement has since lapsed, formal public-private partnership agreements between the biotech Industry and our agri institutions fully supported by the Department of Biotechnology are accelerating this process. The official push for GM in Indian agriculture means that we are the only country extensively testing untested GM crops in open field trials in virtually all our food, ie our staples in grains, our vegetables, oilseeds and fruit with great risk of contamination. In the matter of brinjal, Monsanto stands accused by the NBA (National Biodiversity Authority) of pirating an Indian brinjal gene.

• Bt brinjal and Monsanto’s safety dossier: Bt brinjal was self-attested by Monsanto for safety, clearly an approach that invalidates it. Subsequent appraisals of that dossier by scientists which included globally eminent GM scientists concluded that the dossier was gravely deficient, with many safety issues not addressed at all and which remain unresolved, yet the apex regulator, the GEAC approved it for commercialisation. Shri Jairam Ramesh our erstwhile Minister, MoEF, has himself, very quickly following on from your statement, clarified the basis of the moratorium imposed by him in an open statement, citing the need for independent and long term scientific studies

• The PMO and the UPA are briefed by Industry sources and deeply conflicted Regulators. On the 8 February 2010, two letters were addressed to the Prime Minister by first, 17 international and independent academic scientists and secondly, sent in a sign-on letter to the PM (by civil society spokesmen and prominent persons). Judging from the PM’s comments to the ‘Science’ journal, we doubt whether he has indeed seen them, and yet , these letters are so important for their implications that we request the PM to kindly access them. They pertain to a letter written by Shri Prithviraj Chauhan in 2009, when he was MOS in the PMO to Dr A Ramadoss who had expressed his grave reservations on the safety of Bt brinjal. In his reply, Shri Prithviraj Chauhan said “the various issues raised in your letter have been examined carefully and by applying the best scientific evidence available today—”. In short, he went on to fully support the safety testing regulations for GM crops and Bt brinjal in particular, pronouncing Bt brinjal comprehensively safe. However, the source of Shri Chauhan’s letter was the biotech industry; sections of it were excerpted directly from promotional materials from the Industry, in particular ISAAA, (the International Service for the Acquisition of Agri-Biotech Applications), an organisation that at best can be described as pseudo-scientific, funded primarily by Monsanto and other biotechnology multinational companies and whose admitted purpose is to promote and facilitate the commercial introduction of GM crops in the developing world. Shri Prithviraj Chauhan is not a scientist; but when six National Academies of Sciences similarly encourage the government to vacate the moratorium on GM crops without first addressing safety concerns, through a document that is purportedly scientific, that instead turns out to be similar cut & paste exercise from Industry sources, then it becomes clear that public policy and the basis for it on GM crops is in tatters and our situation is precarious indeed. The information flowing to the Prime Minister is quite simply erroneous. It is pertinent to add that Monsanto and our regulators cannot uphold their extravagant claims of the success of Bt cotton since no attempt has been made by an unconscionable regulator to undertake a post market monitoring of it over the last eight years; but based on official statistics of cotton production, there is reason to believe that current yield is falling to pre-Bt cotton years and the reasons for this have been predicted from empirical evidence of the performance of Bt cotton in other countries, including resistance. We request the PM to kindly take note of this..

• Finally, the evidence against GM crops is overwhelming in that it will not feed the world because it has failed to deliver on yield, traits and sustainability; that evidence is in favour of modern organics and small farmers in the developing world, if only our government will heed and redirect investment into these agro-ecological alternatives. This evidence comes from the UN, the FAO, the World Watch Institute and from the World Bank and UN-led IAASTD (International Assessment of Agricultural Knowledge, Science and Technology for Development). Twice peerreviewed, this was a rigorous four-year process in which 400 scientists conducted the most comprehensive assessment of international agricultural technology and the path forward for agriculture for the next 50 years. India is a signatory to the IAASTD. The ability of agroecology to double food production within 10 years was recently re-affirmed by the U.N. Special Rapporteur on the Right to Food.

Nuclear Power Plants

The Prime Minister similarly criticised NGOs for protesting against the Kudankulam Nuclear Power Project and stalling development in India, placing the blame on NGOs receiving support from abroad. These are serious charges. We hope very much that there will be no misplaced zeal through a witch hunt of NGOs as a result of your statement. On the other hand, there is genuine and increasing public concern over the potential dangers of nuclear technology, particularly because the Indian nuclear establishment is directed by the government to expand their nuclear power activity on the basis of the import of untested reactors and in the absence of an independent & transparent nuclear safety regulator. No nuclear power plant is 100% safe and for the government to make such statements, as have been made only recently, stretch credulity and come across as glib assurances in the backdrop of especially the Fukushima (2011) accident, which has been particularly devastating and is fresh in people’s minds. The accidents at Three Mile Island (1979) & Chernobyl (1986) also involved human error and weak nuclear safety regulation. Japan is a technologically savvy country. Despite this, they have n

January - March, 2012

THE CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT, 2010

Vision

Mission

Objective