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Supreme Court to examine constitutional validity of nuclear civil liability law by 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, N. 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 viresof 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?”

Mr. 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 issues.”

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, under 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.