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N-regulator: SC will not intervene, says can’t act as House by Krishnadas Rajagopal

Declaring that the “Supreme Court will remain the Supreme Court, and cannot be converted into Parliament”, a three-judge Bench led by Chief Justice of India S H Kapadia today refused to “prematurely” intervene in the setting up of an independent regulator to monitor safety of nuclear plants, saying it was a policy decision, with a Bill already pending in the House.

Efforts by advocate Prashant Bhushan, a Team Anna member, to compare the importance of an independent nuclear regulator with that of an autonomous ombudsman like Lokpal did not impress the court. The Bench told him not to “mix up” the issue of nuclear safety with Lokpal.

Rather than taking up the issue of nuclear safety at a “premature stage” when the Nuclear Safety Regulatory Authority (NSRA) Bill is pending before the ongoing session of Parliament, the Bench said it prefers a public debate.

“So far as public safety is concerned, the court’s power under Article 21 (right to life) is always there. For all other issues (like setting up an independent regulator), it may not be for a court of law to decide. It is an issue of policy, and we cannot convert the Supreme Court into Parliament. The Supreme Court will remain the Supreme Court,” the Bench told Bhushan, representing the NGO Common Cause, and eminent public figures like a former Navy chief, former chief election commissioner, former secretary in the Prime Minister’s Office and an ex-member of the Andhra Pradesh Pollution Control Board, all co-petitioners.

The NSRA Bill seeks “to establish an Authority and such other regulatory NSRA bodies for regulation of radiation safety or nuclear safety and achieving highest standards of such safety”.

The day’s hearing began with Bhushan’s opening submission that “we are sitting on a time bomb waiting to explode”. Inciting the 1986 Chernobyl disaster and the 2011 Fukushima accident in Japan, Bhushan said “anything can happen at any time”.

He argued that the entire nuclear energy programme is under the “unprecedented influence” of the Department of Atomic Energy, which appoints the regulator. Besides, the department comes under the direct control of the Prime Minister’s Office.

“If the Prime Minister is himself pushing for nuclear energy, how can the department appoint a regulator body which will act independently on the question of nuclear safety of the plants? It is essential that the regulator acts independently,” Bhushan argued.

When the court asked him to explain the term “independent”, Bhushan went on to recount his experience with the Anna team on Jan Lokpal. “In Lokpal, there was a lot of debate on what sort of independent party it (Lokpal) should be. We decided that the Lokpal should be independent of the directions and control of the government and the appointment should not be controlled by the government,” he said.

However, the court responded saying that the “Lokpal issue is different and this (nuclear safety) is different”. “Please do not mix up Lokpal with all this. This is a parliamentary democracy and the government is accountable to Parliament,” it said.

Moreover, Chief Justice Kapadia said he did not agree with Bhushan’s submission that regulators should be totally independent of the government in a country like India.

“They cannot be totally independent of the government. Today most of the scientists are government employees. Unlike in the US where there are private scientists, we cannot bring in those ideas here. You can’t suggest that government is dictating to scientists nuclear science. The people in the government may not even be knowing anything about nuclear science,” the Chief Justice said.

The Bench added that they had gone through literature on the advent of nuclear energy in India and found a divide within the scientific community itself. “So please hold a public debate, call experts and suggest a solution, a mechanism, then we (the court) can look into it. We are not experts, and we are of the view that there can be an immediate public debate before the Bill is passed in Parliament, if at all,” the court said.

Adjourning the case for a month, the court told the petitioners they could suggest some regulatory models independent of the government, adopted in countries such as the US, France, the UK and Canada, which it would then “recommend” to the government.

The court did not dismiss the petition, saying: “Mr Bhushan, we are not saying that this is not an important matter, it directly affects the right to life. But we are not experts. Please suggest an independent mechanism.”