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Monday 19 March 2012

Supreme Court will examine the constitutional validity of the Civil Liability for Nuclear Damage Act, 2010

 Supreme Court will examine the constitutional validity of the Civil Liability for Nuclear Damage Act, 2010

Published: March 17, 2012 03:25 IST |
Updated: March 17, 2012 03:25 IST

Supreme Court to examine constitutional validity of nuclear civil liability law
J. Venkatesan

The Supreme Court will examine the constitutional
validity of the Civil Liability for Nuclear Damage Act, 2010, which
limits the liability of an operator in the event of a nuclear disaster
to Rs. 1,500 crore.
A Bench of Chief Justice S.H.
Kapadia and Justices A.K. Patnaik and Swatanter Kumar on Friday issued
notice to the Centre on a writ petition filed jointly by Common Cause;
the Centre for Public Interest Litigation; former bureaucrats,
including T.S.R. Subramanian; the former Chief Election Commissioner,
Gopalaswami; and university professors, challenging the vires of
the Act, and seeking a re-assessment of the safety of all nuclear
facilities and a comprehensive long-term cost-benefit analysis of the
nuclear plants.
Counsel Prashant Bhushan argued
that though three safety audits of nuclear plants had highlighted a
number of alarming issues, the government had done nothing for the past
17 years. He wanted the court to order the setting up of an independent
regulatory body.
Justice Kapadia told counsel: "On the legalities of the Act, we are
with you and we will examine the vires of the Act, but not on other
issues. Whether a reactor is harmful, it
is viable, it can be allowed or not, we don't have the expertise. They
are all highly scientific issues. Can this court interfere?"
Justice Patnaik told Mr. Bhushan: "Recently, we had directed the
setting up of a committee for interlinking of rivers. So many opinions
have come. So
many articles are coming for and against it. Some say the Supreme Court
should not have done it. We have our limitations. It is for Parliament
and the government to go into the safety aspects."
When Mr. Bhushan pointed out that a number of agitations were going on
against nuclear plants, and if anything happened, it would be a great
disaster, Justice Patnaik said: "For the government to listen, there
are bound to be agitations. You may be having nightmares, not
everyone. We
don't know what may happen. Don't scare us. Then we should stop all
trains, aircraft because accident may happen?"
Bhushan countered that trains and aircraft could not be compared with
nuclear plants, as a disaster caused by nuclear accidents to the
humanity would be very grave.
Attorney-General G.E. Vahanvati said a comprehensive Bill was already
pending consideration in Parliament.
The Chief Justice told Mr. Bhushan: "Parliamentarians might address the
issues and all your concerns, and ask that the Act should come with a
regulator. We will examine the vires of the Act vis-à-vis Article 21
of the Constitution [the right to life]. We can't go into other
The petitioners said: "The Act channels all the liability to the nuclear
operator [now the government itself], and the victims are not allowed
to sue companies supplying reactors and other materials. The Act,
Section 6, also limits the liability of the operator to Rs. 1,500
crore, which is quite low, and states that the remaining damages may
be made
good by the government at the cost of the exchequer. The Act also
excludes the liability of the operators in certain circumstances."
The petitioners said the Act was passed because the U.S., France and
Russia, with which India had signed nuclear deals, pressured the
government to buy expensive reactors from their suppliers. Thus, the
Act, by excluding the supplier's liability, violated the principle of
'polluter pays.'
Moreover, the Act did not protect
the right of a person to a clean, healthy and safe environment, which
is also part of Article 21. It indemnified the supplier, regardless of
the cause of the accident. In the absence of financial liability, the
supplier would not want to invest in safer technology as there would be
no incentive for doing so. "By limiting the financial liability and by
indemnifying the supplier, we are facilitating an environment where
operators and suppliers would rather invest [in] and develop cheaper
nuclear reactors than safer reactors, which are the need of the hour
and in the best interests of the people," the petitioners said.


Supreme Court to examine validity of nuclear liability law
Dhananjay Mahapatra,
TNN | Mar 17, 2012, 06.04AM IST

NEW DELHI: The Supreme Court on Friday agreed to examine the
constitutional validity of the Civil Liability for Nuclear Damage Act,
2010 and admitted a PIL, which accused the UPA government of
succumbing to foreign pressure to limit compensation obligation of
nuclear reactor operators to a meagre Rs 1,500 crore when leakage or
accident could
prove catastrophic for a huge population.

A bench of Chief
Justice S H Kapadia and Justices A K Patnaik and Swatanter Kumar,
however, refused to go into the other part of the PIL demanding a
transparent safety audit of existing nuclear reactors and setting up of
an independent regulator to recommend safety measures.

"We are
not experts and have scientific limitations to adjudicate highly
technical issue like reactor safety. But since the Civil Liability of
Nuclear Damage Act has a link to right to life, we will examine the
validity of the law," the bench said.

Advocate Prashant
Bhushan, appearing for NGO 'Common Cause', strived to convince the bench
 about the importance of independent safety audit of nuclear reactors.
"Only three safety audits have been carried out so far and no one knows
what happened to the 95 safety recommendations," he said.

"Fukushima disaster forced Japan to close down all its nuclear reactors
despite these contributing 30% of power. That is because the Japanese
government respected the citizens' serious concern about safety of
nuclear power plants. This again is the reason behind the ongoing
agitation against a nuclear power plant in India," he added.

The bench said, "For the government to listen, there has to be
agitation. There is no doubt about it. But we have our Constitution
which provides for separation of power. We understand your concern. But
this is something the government is required to do. The courts cannot
intervene in everything. Moreover, there is a bill for setting up of
nuclear regulator pending in Parliament. Who can say at the end of the
debate, the mechanism adopted by legislature would not make it a very
independent body."

Bhushan said for last 17 years, there had
not been any independent safety audit of nuclear reactors and now the
Centre has proposed a regulating body which on paper appeared to be
"completely subservient to the government".

Attorney general G E
 Vahanvati opposed Bhushan's remarks on the independence of the proposed
 regulator. He said, "The proposed body is most independent. In the US,
the president can remove members of the regulator at his whims and
fancy. In India, we have put a clause that they can be removed only on
misconduct count."

The petition, filed through advocate Pranav
Sachdeva, said the Act by limiting liability on nuclear reactor
operators to Rs 1,500 crore had breached the "polluter pays" principle
laid down by the apex court and did not protect the right of the citizen
 to a clean, healthy and safe environment. 

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