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Editorial : Civil Nuclear Deal - Government of
Is the GOI backing Criminal Corporations , as it did earlier ?
What if a nuclear accident happens
- BILL LIMITS LIABILITY OF OPERATOR TO RS 5OO CRORE, ANYTHING ABOVE WILL BE GOVT RESPONSIBILITY
Answers to questions on the nuclear damage bill the Centre withdrew from the Lok Sabha on Monday
What is the bill’s purpose?
The Civil Liability for Nuclear Damage Bill seeks to set down mechanisms and rules for liability claims and payments that might arise because of a nuclear incident and to pave the way for
What kind of nuclear liability regime does
All of India’s nuclear power reactors and nuclear facilities are owned by the central government, or by the Nuclear Power Corporation and Bharatiya Nabhikiya Vidyut Nigam (Bhavini) — both public sector enterprises. Any liability issues that emerge from incidents become the responsibility of the central government. The inter-government agreements between
Why has the bill become necessary now?
The Indo-US civilian nuclear agreement allows US suppliers to sell nuclear power reactors to
What does the bill propose?
A leaked version of the proposed bill circulated by environmental groups indicates that the government plans to cap the maximum liability for each nuclear incident to 300 million Special Drawing Rights ($460 million or Rs 2,100 crore). This is lower than the $470 million settlement in the
If the claims for compensation for nuclear damage exceed SDR 300 million, an additional 300 million SDR may be available through an international convention.
The liability of a nuclear power operator (so far only the NPC and Bhavini) for each nuclear incident will be Rs 500 crore. The limit will also apply to private companies if they are allowed entry into the sector.
The central government will be liable for nuclear damage if the liability exceeds the operator’s limit.
Why has this generated controversy?
The bill has generated the widespread perception that it will allow US companies to go scot-free in the event of a nuclear accident and saddle the Indian government with the liability — in other words, Indian taxpayers will have to pay for damages. Some environmental activists are contrasting the proposed Indian cap of $460 million with the much larger $10 billion pool of funds available in the
Will the bill really allow foreign companies to go scot-free?
A clause in the bill appears to allow the nuclear operator to have “a right to recourse” —which would mean the operator could seek assistance — when the nuclear incident has resulted from negligence on the part of a foreign supplier of a material, equipment or service. However, this would have to be reflected in written contracts between the Indian operator (the NPC, for now) and the foreign suppliers. Environmental groups are sceptical, and fear that this will not emerge in actual contracts.
How is the bill linked to the international nuclear liability regime?
The Convention on Supplementary Compensation under the International Atomic Energy Agency provides for an international fund to compensate for nuclear damage in the event of an accident. The convention envisages a two-tier system — the state will ensure availability of at least 300 million SDR, and an international fund for which all participating nations are obliged to contribute. Any country that plans to join will have to ensure its national legislation is consistent with the convention’s provisions. By enacting domestic legislation,
How is nuclear liability covered in the
The Price-Anderson Act enacted in 1957 ensures the availability of a large pool of funds — about $10 billion — to provide compensation to people who incur damages from a nuclear accident — no matter who is liable.
Have nuclear liability claims been paid in the
The American Nuclear Society estimates that the nuclear insurance pools have paid a total of $151 million in the past 43 years. The
What kind of liability regimes do other countries have?
They vary from country to country.
Deputy National Security Advisor Froman reveals administration’s double standards on corporate accountability for victims of Bhopal Gas Disaster
At a time when the world is focused on corporate accountability in the wake of the BP's Gulf Oil Spill, a leaked email from the Obama administration shows that it values profit over people, when the profit benefits American corporations. The victims of the world’s worst industrial disaster were disappointed to see today that the White House is not pursuing the same levels of accountability from American Dow Chemical as it has from BP. When Dow purchased Union Carbide in 2001, the corporation acquired outstanding liability for the ongoing disaster in
Today, Mumbai-based Times Now published an email chain between White House Deputy National Security Advisor Michael Froman, and Indian Deputy Chairman of the Planning Commission, Montek Singh Ahluwalia. In response to an Ahluwalia’s email requesting assistance as
"We are aware of this issue and we will look into it. We are hearing a lot of noise about the Dow Chemical issue. I trust that you are monitoring it carefully. I am not familiar with all the details, but I think we want to avoid developments which put a chilling effect on our investment relationship."
Here Obama’s Deputy NSA apparently tied potential development aid to
Following months of safety cuts, on Dec 3, 1984 the Union Carbide pesticide plant in
The Indian Government has been forced to address the
The International Campaign for Justice for
CONTACTS:
Shana Ortman, 415-746-0306, shana@panna.org , ICJB
Claire Rosenfeld, 408-348-2554, clairerosenfeld12@gmail.com , ICJB
www.studentsforbhopal.org * www.bhopal.net
Nuclear Liability Bill in India
NEW DELHI: Government has brought some fresh amendments to the Nuclear Liability Bill that are likely to trigger a fresh controversy as these could be seen as diluting the right of recourse of operator to seek damages from supplier in the event of an accident.
One of the 18 amendments cleared by the Union Cabinet yesterday suggests that an accident in a nuclear plant should have occurred as a consequence of an act done with an "intent" if an operator has to claim damages from supplier.
The amended Clause 17 says "the operator of a nuclear installation, after paying the compensation for nuclear damage in accordance with Section 6, shall have a right of recourse where --
(a) such right is expressly provided for in a contract in writing;
(b) the nuclear incident has resulted as a consequence of an act of supplier or his employees, done with the intent to cause nuclear damage, and such act includes supply of equipment or material with patent or latent defects or sub-standard services;
(c) the nuclear incident has resulted from the act of commission or ommission of an individual done with intent to cause nuclear damage."
Experts feel that the mention of "intent" in the sub-clauses (b) and (c) regarding an accident may give a route to suppliers to escape responsibility because it would be difficult to prove intent in any such mishap.
This amendment in the Civil Liability for Nuclear Damage Bill, 2010 will be moved along with 17 other amendments in the Lok Sabha on August 25.
Significantly, neither the original bill nor the recommendations of Parliamentary Standing Committee which examined it had contained such a proposal.
Only earlier this week, the government had to beat a hasty retreat when a controversy arose over inclusion of a word "And" between sub-clauses (a) and (b) in Clause 17 which the BJP and Left parties feared diluted the supplier's liability in case of an accident.
The government then dropped the controversial word but reworked the language of the Clause 17 in which the word "intent" has been included.
CPI leader D Raja reacted strongly to the fresh changes made by the government, saying these would dilute the supplier's liability drastically.
"I don't understand what they say. Disaster is a disaster. Who will agree that this was done willfully or deliberately. It is irrational and ridiculous," he said.
The Left parties would look at the amendments carefully when these are brought to Parliament and decide their strategy.
Read more: Fresh changes in N-bill may trigger a new row - India - The Times of India http://timesofindia.indiatimes.com/india/Fresh-changes-in-N-bill-may-trigger-a-new-row/articleshow/6388939.cms#ixzz0xJX0utbm
Capping nuclear liability is a non-starter
Soli J. SorabjeeThe government proposes to introduce a Civil Nuclear Liability Bill to appease foreign investors. Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability will be in blatant defiance of Supreme Court judgments and is likely to be struck down.
One of the vital guarantees in our Constitution is the protection of the Right to Life enshrined in Article 21. Our Supreme Court by creative interpretation ruled that the expression ‘life’ does not connote merely physical existence but embraces the right to live with “human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head.” Thereafter it further expanded the concept of the right to live with human dignity to encompass within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water.
Our Constitution evinces great concern for environment. Article 48-A of the Directive Principle mandates that the state shall endeavour to protect and improve the environment. One of the fundamental duties prescribed in Article 51-A is, inter alia, to protect and improve the natural environment.
Despite these constitutional provisions, pollution continues unabated. The river Ganges was brazenly polluted by the discharge of effluents by some tanneries in
In its landmark judgment in the Oleum Gas Leak case, the Supreme Court laid down certain important principles. A five-judge bench unanimously ruled that “an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.” The court further held that “it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.”
At first blush, this may appear unduly harsh. However the rationale for this rule as explained by the court is that “such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such activity indemnifies all those who suffer on account of the carrying on of such activity regardless of whether it is carried on carefully or not.” Therefore in a case of escape of toxic gas, “the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions.”
In 1996 in the case of Indian Council for Enviro-Legal Action Justice Jeevan Reddy speaking for the court pointed out that the rule of absolute liability is premised on the very nature of the activity carried on and “it is the enterprise carrying on the hazardous or inherently dangerous activity alone has the resource to discover and guard against hazards or dangers.” The court further introduced the Polluter Pays Principle, which according to it requires that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings that cause the pollution. Under this principle, it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The responsibility for repairing the damage is that of the offending industry. It is noteworthy that the Polluter Pays Principle has been incorporated into the European Community Treaty as part of the new articles on environment that were introduced by the Single European Act of 1986.
In its subsequent judgment in Vellore Citizens Forum, Justice Kuldip Singh speaking for the court held that “the Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development.” This is a milestone judgment in our environmental jurisprudence. The court reaffirmed the Polluter Pays Principle laid down in its previous judgments to mean that “the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable Development and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.” The seminal significance of this judgment lies in the court’s holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country and the court’s pointed reference to Articles 21, 47, 48-A, and 51-A (g) of the Constitution in this connection.
The thrust of these Supreme Court judgments is for compensating and protecting the victims of accidents as part of their fundamental right to life under Article 21 of the Constitution. Under our Constitution, Supreme Court judgments constitute the law of the land and are binding on all courts, authorities and persons.
It is claimed that foreign companies are reluctant to invest in
In effect, this means that in case the actual damage and the cost of remedying environmental degradation exceeds the proposed ridiculously low cap of $450 million or any other sum, the government would have to bear the remaining burden. 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. According to the Polluter Pays Principle that has been embedded in our jurisprudence, the liability and responsibility for compensating the victims of accident and remedying the environmental damage caused is that of the offending industry alone. No part of the liability can be limited nor passed on to the government.
There can be two views about the advantages or disadvantages of foreign investment in
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. Moreover, it would be against the interests and the cherished fundamental right to life of the people of
India’s Nuclear Liability Bill
Chaitanya Ravi
A Civil Liability for Nuclear Damage Bill that is essential for American commercial nuclear firms to enter the US$150 billion Indian civil nuclear energy market has sharply polarized Passage of the bill is considered important for the full implementation of the landmark Indo-US nuclear deal that was signed in December 2008. It may also result in contracts worth US$10 billion for the moribund American nuclear industry from the two reactor sites allotted to Westinghouse Electric (a unit of Toshiba) and GE Hitachi by the Indian government. Indian planners consider nuclear power to be an important part of the energy mix and aim to increase nuclear capacity from the current 4560MW (3% of total capacity) to 20,000MW by 2020 and 63,000MW by 2032.
Bitter memories of past industrial accidents and pricing controversies over major power projects among India’s political and intellectual class has cast a shadow over the nuclear liability debate.
At present,
Since all civil nuclear facilities are owned by the Central Government (Nuclear Power Corporation of India Limited and the Bharat Navbhikiya Vidyut Nigam, both public sector enterprises), the liability issues arising from these installations are its responsibility. Under existing Indian legislation, foreign suppliers may face absolute, unlimited and non-delegable liability, something that prevents them from taking insurance cover. Private American firms are more affected than their government backed French and Russian counterparts. There is no clarity over trans-boundary liability issues and liability during transport of nuclear material.
The provisions in the bill that deal with total compensation in case of a nuclear accident and limits on the liability of the nuclear operator are the most controversial. Clause 6 caps the maximum amount of liability in case of a nuclear accident at 300 million Special Drawing Rights (SDR’s- around US$460 million or Rs2100 crore) while the liability of the operator for each nuclear incident has been capped at Rs500 crore. The government will be responsible for liability over Rs500 crore.
In a move that is likely to strengthen the government’s case, the country’s atomic energy establishment including Srikumar Banerjee, Chairman of the Atomic Energy Commission, Anil Kakodkar and MR Srinivasan- both former Chairmen of the Atomic Energy Commission have come out in support of the deal. They have pointed out that India needs a well defined liability framework and claim that the liability bill will pave the way for India to join an international liability regime and access additional funds (if compensation claims exceed the overall cap specified in the liability bill, an additional 300 million SDR can be made available through the Convention on Supplementary Compensation).
Clause 3 of the bill requires the Atomic Energy Regulatory Board to notify the nuclear incident within fifteen days. Clause 9 empowers the Central Government to appoint a Claims Commissioner (or a Nuclear Damages Claims Commission if the liability exceeds Rs500 crore) for adjudicating claims for compensation and deciding awards.
Opponents like anti-nuclear activist Praful Bidwai and leading strategic expert Brahma Chellaney argue that the government, by channeling the legal and financial liability to the operator is exempting foreign suppliers from the legal and financial fallout of negligence at the cost of the Indian taxpayer.
Former Attorney General Soli Sorabjee has termed the US$460 million cap as ‘ridiculously low’ and has argued that the legislation “attempts to dilute the Polluter Pays and the Precautionary Principle,” in “blatant defiance of Supreme Court judgments.” He reckons that the legislation “would be against the interests and the cherished fundamental right to life of the people of
Critics have also questioned the ten year time limit to claim compensation for any nuclear damage (Clause 18) and argue that the effects of radiation extend across generations. They are strongly opposed to Clause 35 of the bill that prevents Civil Courts from exercising any jurisdiction over the proceedings of the Nuclear Damages Claims Commission and its final award; which according to them, is tantamount to preventing victims from suing foreign suppliers in Indian courts.
Bhopal
By Madhur SinghAs BP struggles to contain the damage the Deepwater Horizon oil spill has caused to the Gulf of Mexico and to the people whose livelihoods depend on its waters, a legal judgment in the worst industrial catastrophe in history highlights how wrong the aftermath of such disasters can go — not just in terms of a cleanup but in the matter of justice. It is a terrifying lesson in how a corporation can evade full responsibility for one of the most heinous accidents in human history.
On Monday, more than 25 years after 40 tons of highly toxic methyl isocyanate (MIC) was released from a Union Carbide plant in the central Indian city of
The judgments are likely to be appealed. Given the speed of the wheels of justice in
The outcome of the case has ignited outrage and disbelief across
The letdowns have been serious and repeated — and apparently preordained because of decisions that facilitated the disaster itself. Investigations over the years have shown that the
The Indian government seemed to go out of its way to cushion the experience for Union Carbide. After first suing the company for $3.3 billion in 1985,
The various governments that have ruled
Although environmental legislation was ramped up in the wake of the
There is still outrage that the
Indians point at the way the U.S. government is now confronting BP — holding it squarely responsible for the oil spill and accountable for all cleanup costs — as a stark contrast to the way their own government has dealt with Union Carbide. The hope in
See the world's top 10 environmental disasters.
See pictures of critters caught in the Gulf oil spill.
Corporate Responsibility or Corporate Liability
by Mukesh Williams
Two momentous events separate in time and location have seared our consciousness—the British (Beyond)
The neo-classical model of economics has reduced our land and environment to a mere abstraction that can be exploited in terms of supply and demand without compunction. Big companies continue to wreck havoc on our human and natural systems devastating our lives in the name of human progress and development. At such moments we often wonder where is the fashionable concept called social corporate responsibility that is often taught as a philanthropic and ethical tool in business management departments to unsuspecting students. Corporate greed like all other forms of human greed need to be kept under strict check by international pay czars or up-to-date legislation based on global standards with teeth for swift punishment. Also the rhetoric of corporate companies must be separated from what they actually do, how long they do what they do, and what they hide. A constant monitoring system both on the part of governments and private groups must be effectively installed in collaboration with the media to thwart their nefarious activities and ulterior motives.
Union Carbide
Early this month the Indian Supreme Court passed a verdict indicting the American CEO of Union Carbide Warren Anderson who was allowed to escape to the
Seemingly neither the American nor the Indian establishments saw the industrial disaster as the responsibility of the MNC Union Carbide. The company was bought by Dow Chemical Company in 1999 further camouflaging accountability. Dow Chemical was the second biggest
Even after 25 years the public would like to know if it was Arjun Singh the chief minister of Madhya Pradesh or influential persons in Rajiv Gandhi’s government at the center or the prime minister himself responsible for giving a free passage to Anderson to fly back to the U.S. India has an extradition treaty with the United States and under changed circumstances today when America itself is suffering from another MNC BP, there might be possibility of bringing the fugitive CEO back to justice if India can put together enough evidence. Greenpeace believes that in the 1982 safety audit of the
British or Beyond Petroleum
The British are desperate to save BP from going down by bringing silly arguments like BP has been a part of America since it merged with American energy Amoco in 1998 and acquired the Gulf of Mexico drilling rights (The Independent, “Cameron Warns Obama over Criticizing BP” 13 June 2010). The new British Prime Minister David Cameron has also chipped in underscoring the sustained “economic importance” of BP to both
The British are cut up with Obama’s off the cuff remark that he would have fired BP’s chief executive Tony Hayward if the latter had worked for him. With US pressure rising BP may not pay its quarterly dividends which are essential to maintain equilibrium for
Now BP is using two kinds of dispersants manufactured by Nalco—Corexit 9500 and Corexit EC 9527A. Corexit (deodorized kerosene) is banned in the
The British rely on BP as the national icon and savior of British deficit. Last year BP paid 1.4 billion dollars in taxes on its profits. The oil spill in the
It stands to logic that a “large, wealthy company” which is eager to pay 1.8 billion quarterly dividends to its shareholders and whose last year’s sales and operating revenues were 239 billion USD, should pay 100 billion USD in damages. Since the oil spill began on April 22, 2010 till June 15, 2010, 55 days have gone by. And if we estimate the oil spill at 50,000 barrels a day it comes to 27500000 gallons. If each gallon spill is fined 4300 USD as the
Both the American government and public are hopeful that since earlier erring companies like Texaco was forced into bankruptcy in 1987 after paying 10.53 billion USD claim, BP too would have to cough up huge sums. And BP’s reputation does not help a wee bit whatever they claim to the contrary in those daily briefings on the Internet. BP is known as one of the “ten worst corporations” in the world when evaluated on their environmental pollution and infringement of their human rights record. It also has the dubious distinction of being the most polluting company in the
BP’s propaganda regarding its CSR is highly effective as it tries to highlight only the positive aspects of what it has done. In the past BP has invested some money in alternate fuel and green technologies but it has been criticized for proving private funds to public universities of the California Bay Area and closing down its green technology office in
BP in its regional spill plan for the
Corporate Social Responsibility
Corporate social responsibility is one of the modern movements like environmental or tribal movements that have become the buzz word in both business and academic circles. Both businessmen and academics are cashing upon the divine benefits of CSR making more money for their companies and jobs for their departments. Middle level managers and professors have extolled about the virtues of CSR with other buzz words such as people friendly, eco friendly and sustainable. We have come to hear about the unselfishly egalitarian aspects of CSR. It is really a wondrous transformation of the greed-driven capitalist economy of which the corporate system is a byproduct.
Most critics of CSR are not against it per se but against the recent hype associated with it as a panacea of all corporate evils. It is hard to believe that companies are out there not to make profit. We are not talking of basket cases but any company worth its salt aggressively markets itself to make real profit. And what’s wrong in it. Companies are floated for this very purpose both by the shareholders and managers. But in a changed climate of political advocacy of human rights against corporate greed, CSR seems to a new combative tool for companies to be both politically correct and make money as usual. The problem however is that if business corporations give an inch they take a mile.
Definitions and Objections to CSR
In the United States CSR is seen as philanthropy while others see it as improving society, workforce and government. There are arguments in favor of CSR where it is believed that it can support the social fabric of society and promote responsible business practices. But CSR is usually presented as a marketing strategy that articulates business performance rather than encompass social and ethical standards. The recent collapse of American business and manufacturing sectors has revealed the gap between CSR and actual self-regulation. Some CSR models take the company beyond the law into providing public benefits, increase sales, market shares, brand position, retain employees, reduce operating costs and increase investments (Baron, 2001 7-45). There are models of CSR that take into account competitive advantage, positioning, commitment, organizational integration, shareholder’s cooperation and self-correction. CSR helps to create a positive image of a company and brings it rich dividends. Though there are many definitions of CSR we must see CSR as the way business companies conduct their core business not the sops they give to society.
A common objection leveled against CSR comes from the advocates of the laissez faire system who complain that CSR infringes upon the human rights of company shareholders as company managers unilaterally divert company resources to society in the name of better management (Sternberg, 1999). Detractors of CSR complain that there should be a stakeholder claim in CSR as to how it is done. A business corporation should be fair and honest to both the shareholders and customers. CSR therefore depends on the model a company chooses and the reasons for its choice. If a company uses CSR for image building through philanthropy it leads to both ethical and human rights problems. You cannot give away money which ultimately belongs to someone else. On the flipside it also follows that if stakeholders possess sole rights they also should bear full responsibility when there are environmental or social disasters. However if a CSR model seeks a consensus of both stakeholders and company managers then it must become more open to the public. CSR must concentrate upon building customer relationships, attracting talented people, conducting risk management and building the company’s reputation.
Corporate Reputation and CSR
Corporate business companies such as BP or Coca Cola cannot ignore their reputation as about 90 to 95 percent of their assets are intangibles and the remainder immovable property. Big companies such as General Electric, IBM or Motorola use the rhetoric of CSR to show public responsibility and environmental concerns but while conducting hard-nosed bullying business practices are not so transparent in their dealings. A few years ago Sir John Browne of BP was praised for his aggressive promotion of BP while providing environmental leadership but now we come to know that all along BP compromised on safety costs in oil drilling. This is happening in a powerful country like the
CSR invariably works for companies and countries with resources and political clout. It is not for companies which are small and weak. Small companies fight for survival, cut costs to make ends meet and do not possess precious resources to waste on CSR. Nor can they follow up on legal battles if they come under the scanner. They function in a world of poverty, deprivation and loss.
Conclusion
It is no longer tenable to follow neo-classical economics of Smith, Mill and Bacon that the world is made for us and for us alone. We must eschew the economic theories of Pareto and Hayek as we can no longer treat nature as a mere variable and commodity. Depreciation of ecological assets has taken place at an increasing fast rate. Economics should no longer be about inflation, economic value of goods or maximization of income. It should take into account our natural world as property that belongs to every one of us (McNeill,
An Analysis of Civil Liability for Nuclear Damage Bill 2010
- Professor Madabhushi Sridhar
In recent times, no draft law has generated such a commotion among various sections of people as the Civil Liability of Nuclear Damage Bill 2010 has. This article is an attempt to explain and analyze the Bill with the background of law of liability that evolved over a period of time.
I. BackgroundBecause developing India needs more power to meet increasing demands and it is not self-sufficient in nuclear fuel; India India India
Nuclear Power or Nuclear Market? Whether India US was in forefront in imposing isolating sanctions over India US changed its policy and offering unprecedented cooperation in the field of nuclear power in India US lobby has even coerced international community to accept India India India France and Russia India
While US desires to grab this market through its own MNCs and prevent nuclear industrial giants from other western countries from taking it over, India too was anxious to fall in line to attract the US India India suggest that the US might have linked the completion of the Indo-US nuclear agreement to India
In his analytical article, Mr. Sukla Sen[1] says that India is paying back for the generosity of US and explained US
This Bill is generally being looked upon as a continuum of that process, allegedly, in order to ensure a “level playing field” for the American enterprises – to let them have a significant share of the cake[2] – the Indian nuclear market – a part payback for the American generosity bestowed upon India, for its very own reasons though. The move had, however, been first conceived by the then NDA government way back in 1999[3]. When the US Secretary Of State, Hillary Clinton, visited India Washington DC
Another famous critique, Praful Bidwai[8] wrote about US interest in maximizing its business and hurry preventing the competition from other western countries:
The US evidently wants a share of India’s nuclear power pie for American corporations and is loath to see the French and the Russians cornering the bulk of the new atomic power projects that have been made possible by the US-India nuclear deal and its endorsement by the International Atomic Energy Agency and the 45-nation Nuclear Suppliers Group—secured by Washington. But so crude is the application of the US
The discreet demand to limit the liability itself reflects lack of concern for human lives, exposing them to nuclear accidents and also represents disinterest in shouldering responsibility for damaging consequences. If ‘absolute liability’ law remains in force the western MNC considers it as a big financial burden. It is evident that they do not worry about the fatal consequences of lethal nuclear accidents. Without the fear of huge damages and criminal liability how any MNC will realize responsibility to improve safety? It might be in their business interest the MNCs are pressurizing the third world to make a law for limiting their liability, with a veiled threat that otherwise none would provide fuel and technology to any Indian nuclear power plant. But why the states under rule of law with welfare objective which are expected to secure the lives of the people, offering these exemptions and immunities? Is it not inhuman that no nuclear exporting country or company is willing to undertake the responsibility of safety in operations and maintenance of the plant in a country to which it has sold nuclear fuel, generator and technology? Their liability to the human lives and environment depend upon their fault and not on their undertaking. It is unreasonable to desire to share only benefit and relinquish responsibility.
II. Emerging Liability JurisprudenceAs per the international and domestic Environmental law principles, polluter has to pay. If there is a nuclear accident caused by the MNC, it will be that polluter, which has to bear the burden. The expression payment means compensating the loss totally. There are various principles of liability that evolved over a period of time in UK , US and India
- Fault based liability, where the victim has to prove the fault of the wrong doer, while the defendant will get a chance to plead absence of negligence or fault etc.
- Strict liability or no fault liability, where the wrong doer will be liable with or without proof of fault by the claimant.
- Absolute Liability: stricter than the strict liability, where person engaged in hazardous and dangerous activity would be liable to pay for every loss. Principle of absolute liability is laid down by Supreme Court in Shriram Gas Leak case: Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident or in the operation of such hazardous or inherently dangerous activity resulting for example, escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands v Fletcher.[9].
- Product Liability: Whatever may be the consequence of the use of the product, if that resulted in any loss or harm, it is the bounden duty of the producer of the product to compensate the loss. It is a kind of product related strict liability, which exempts non-interfering middle agencies such as links between maker and seller. (Donogue v Stevenson[10]). If nuclear reactor is defective, and that caused an accident, more than an operator it is the maker or supplier to take up the responsibility of defective product i.e. the reactor and be liable.
On February 14, 1989 the Supreme Court[11], based on earlier settlement, directed the Union Carbide to pay up US $ 470 million in “full and final settlement” of all claims, rights, and liabilities arising out of the disaster in 1984. The entire suit was ordered to be settled with a view to provide ‘immediate and substantial relief to the victims, essentially on the following conditions:
(1) The Union Carbide Corporation shall pay a sum of US $ 470 million (approximately 750 Crores) to the Union of India in full settlement of all claims, rights and liabilities related to and arising out of the Bhopal Gas disaster;
(2) All Civil proceedings arising out of the Bhopal Gas disaster shall stand concluded in terms of the settlement and all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending..
In response to criticism from several quarters, and review petitions were filed by several action groups, the Supreme Court decided in 1991[12] upholding the settlement except the condition of quashing criminal charges. The Supreme Court has set aside the quashing of the Criminal proceedings being not justified and said that those proceedings would continue[13]. The UPA Government’s bill with liability limitations had several clauses against these norms debated during Bhopal
Unlimited liability: Common law and law of Torts impose liability in tune with the loss as part of civil rights of the people, besides inevitable criminal liability. Over a period of time the tort law gave rise to ‘strict liability’ (Rylands v Fletcher[14]) without expecting victim to prove the fault of wrong doer, and at a later stage, developed a stricter law of liability called ‘absolute liability’ (Sri Ram Gas leak case[15]) where the wrong doers will be asked to pay compensation to all those who suffered because of their dangerous activity irrespective of their diligence, absence of negligence or lack of proof of fault. The legal regime has traveled so long that to go back from these well established norms will be a retrograde step without justification.Primarily the liability is fault based. But most of the systems under rule of law have already working with ‘strict liability’ or no-fault liability principle to ensure quick realization of compensation from the industries causing disasters. The Supreme Court of India in Sriram gas leak case and other cases has rightly come out with new principle of ‘absolute liability’ where defences are reduced to a bare minimum and proof of negligence is totally done away with.
Supreme Court said in Vellore Citizens Welfare Forum vs Union of India
The provisions of liability and limitation on the controversial bill 2010 are in contradiction with the precautionary principle and the polluter pays principles, which are internationally accepted norms. These norms were also upheld and made law by the Supreme Court in relation to fundamental constitutional rights. It is not proper for any body to involve in potentially harmful activities. Those who indulge in inherently dangerous activity should bear cost of all consequences of accidents, without availing any defences recognized for ‘strict liability’ in Rylands v Fletcher[17] principle. Public Liability Insurance Act, 1991 has codified this absolute liability principle as explained by the apex court, which amounts to legislative validation.
Even in Motor Vehicle Accidents, the liability towards third party is unlimited, which means whatever is the loss caused to third party by the involvement of automobile, the owner will be liable to compensate which of course is done by insurance company through compulsory insurance. After Motor Vehicle legislation, the Public Liability Insurance Act introduced another involuntary insurance for industrial disasters. Thus the law of unlimited liability for inherently dangerous operations is already in operation wherever the Motor Vehicle laws are enforced, it was extended to industry by legislation, and it was effectively evolved and approved by the apex court in India
Limitation on Liability is Unconstitutional: The eminent jurist, and former Attorney General, Soli Sorabjee has explained the legal position and viability of this proposed legislation[18]: Any legislation that attempts to dilute the norms of ‘Polluter Pays’[19] and ‘Precautionary Principle’ and imposes a cap on liability is likely to be struck down as it would be in blatant defiance of the law laid down by the Supreme Court judgments. In Indian Council of Enviro-Legal case[20], the Court ruled that according to this principle;
…once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. … It is that the enterprise (carrying on the hazardous or inherently dangerous activity) alone has the resource to discover and guard against hazards or dangers – and not the person affected and the practical difficulty (on the part of the affected person) in establishing the absence of reasonable care or that the damage to him was foreseeable by the enterprise[21].
The apex court also ruled in the above judgment that the responsibility for repairing the damage is that of the offending industry[22] and imposed on the offending industry the obligation for carrying out necessary remedial measures to repair the environmental damage caused[23].
A three judge bench of the Supreme Court in Vellore
“The Polluter Pays Principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable Development” and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology”[25].
Apart from these profound judicial pronouncements, the constitutionally guaranteed rights of people in general also need to be secured. It would be against the interests and the cherished fundamental right to life of the people whose protection should be the primary concern of any civilized democratic government. The Supreme Court reiterated that “the Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land” and referred to Articles 21, 47, 48-A and 51-A(g) of the Constitution. The Supreme Court further held that “the onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign”[26].
With regard to measure of compensation also the Supreme Court was very specific: In Shriram gas leak case it said:
We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the entire, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.
III. Problematic Provisions of Civil Liability for Nuclear Damage Bill
There are four major problems with the Bill:
- It caps the total liability for a nuclear mishap, however serious, at as little as 300 million SDR (Special Drawing Rights), and the liability for the operators of nuclear facilities to Rs.500 crore.
- It imposes liability only on the operator, which means statutory exemption to plant designers, manufacturers and suppliers.
- It leaves the determination of the occurrence and gravity of a nuclear accident exclusively to the four claims commissions at four zones under Atomic Energy Regulatory Board (AERB), which means a non-judicial executive body, would determine the losses in contradiction to existing law.
- It bars the post-mishap period for which the operator is liable to only 10 years. If compared with
The crucial clause that limits liability is 6 (2) which says: The liability of an operator for each nuclear incident shall be rupees five hundred crores. The Clause 7 (1) provides: The Central Government shall be liable for nuclear damage in respect of a nuclear incident. (a) Where liability exceeds the amount of liability of an operator specified under sub-section of section 6; (b) occurring in a nuclear installation owned by it. Furthermore, the Clause 6 (1) provides: The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights. It means that in case of the power plants the quantum of “liability” is “three hundred million US
If the operators are private parties, there are apprehensions about their safety adherence. There is higher number of safety hazards unique to nuclear industry and the nuclear power plants are suspected to be potentially catastrophic, as proved in the Chernobyl Disaster. Will it be proper to hand over such a vulnerable industry with dangerous tendencies of killing people and destroying environment, to private hands with reduced liability law?
There are immunity clauses where the operator is exempted. Clause 5 (1) says operator will not be liable for damage as a consequence of (i) a grave natural disaster of exceptional character and (ii) an act of armed conflict, civil war, hostility, civil war, insurrection or terrorism. Clause 5(ii) offers six excuses for an operator to escape liability. Clause 5(2) says the operator shall not be liable for damage caused to nuclear installation or to any property connected to installation or damage caused to the means of transport upon which nuclear material involved was carried at the time of nuclear incident. The bill also says the operator of a nuclear power plant will be liable for all accidents, including those that occur during the transport of the material. Of course, force majeure occurrences such as armed conflicts, natural calamities, terrorist attacks, etc., are excluded.
The maximum financial liability in case of an accident in nuclear reactors which has been set at the rupee equivalent of 300 million or Special Drawing Rights (SDRs) as per clause 6 is considered meager in comparison to the destruction caused by a nuclear accident. Especially when a similar law in US has set the financial liability for such accident at $10.5 billion, why there should be such a low limit in India
There is further sharing of liability among liable groups as defined by clause 7, which states that the operator will have to pay Rs. 500 crore and the remaining amount will be paid by the Indian government. By this law the Central Government also undertook to bear the damage from nuclear incident caused by grave natural disaster, or terrorism, or damage caused to nuclear installation owned by it. Because these are defences which immune the operator totally. Does it mean that private operators are free to operate reactors in existing nuclear installations, and cause any damage to those government installations without any fear of liability?
The limits spelt in the Bill would mean immunity to certain sections which are otherwise liable. The clause 17 deals with the liability in case of a nuclear accident. It allows only the operator to sue the manufacturers and suppliers, i.e., victims will not be able to sue them. Combined reading these clauses will lead to an understanding that no one will, in fact, be legally liable because the recourse taken by the operator will yield only Rs. 500 crore at maximum. If written into the contract, the operator can claim the liabilities from the manufacturer and supplier as per that contract. This is purely between the product maker and supplier and operator. But the maximum amount payable by the foreign companies, as per this bill will be limited to a meager sum of Rs. 500 crore.
In sum and substance, this bill envisages to
a) prohibit the victims to sue operator for beyond Rs. 500 crore,
b) prohibit operator from getting more than Rs 500 crore from supplier or manufacturer,
c) prohibit victims from suing suppliers or manufacturers directly,
d) prohibit the courts of law from hearing the claims, and prohibit the claims beyond ten years from date of nuclear accident.
Mr. Sukla Sen[27] analysed and compared the liability amounts with the Bhopal
In case of Bhopal Gas Disaster, the Supreme Court had approved a deal between UCC and Union of India providing compensation to the victims amounting to US$ 470 million. That was way back in 1989, more than two decades ago. Even at that time this was considered grossly inadequate. So, while whatever cap on “liability” is unacceptable; this cap on total “liability” or the “maximum amount of liability”, as the draft Bill has put it, is woefully paltry. More so, given the fact that a catastrophic nuclear accident may very well dwarf the Bhopal Gas Disaster in terms of devastations. In case of Chernobyl Disaster, while no precise estimate of total economic impact is available, as per one report, the total “spending [only] by [neighboring] Belarus on Chernobyl
If we take inflation since 1984 into account, even the Bhopal Bhopal
Another point of view is that this legislation is necessary because the Indian Atomic Energy Act of 1962 has no provision for liability or compensation in the event of a nuclear accident even though India
The Bill provides for increase and decrease also. The Central Government may, having regard to the extent of risk involved in a nuclear installation by notification, either increase or decrease the amount of liability of the operator. Assessing the loss and imposing liability is supposed to be done by an independent adjudicator like court of law or special tribunal in each individual case separately. Giving power to the Government to increase or decrease the amount liability by issuing notification, which again amounts to ‘executive limitation’ on overall size of the liability, which is against principles of justice and cannot work out in actually providing relief and compensation to the victims.
One interesting feature of the Bill is that it recognizes that the consequences of a nuclear accident may not be limited to national borders and provides for liability outside India
Right of Recourse: Although the bill channels all liability for a nuclear accident to the operator of the facility, Clause 17 of the draft allows the operator a ‘right of recourse’ which means the right to recover any compensation it is forced to pay. The Clause 17, inter alia, provides as under: The operator of a nuclear installation shall have a right of resource where – (a) such right is expressly provided for in a contract in writing; (b) the nuclear incident has resulted from the willful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee; and (c) the nuclear incident has resulted from the act of commission or omission of a person done with intent to cause nuclear damage. The clauses (a) and (c) are mentioned in the model law developed by the Convention on Supplementary Compensation for Nuclear Damage (CSC). However the CSC does not prohibit the inclusion of additional provisions. Indeed, some countries have already included gross negligence by suppliers as grounds for invoking the right of recourse in their liability laws. Article 4 of the South Korean Act on Compensation for Nuclear Damage, for example, includes language similar to 17(b) of the Indian draft. Clause 17(b) is needed to deter suppliers from being negligent. Clause 17(a) alone is inadequate since no supplier will agree to accept liability for negligence in a contract. But, surprisingly, the Union government has agreed to delete this key provision. The Hindu newspaper reported[29] how the U.S.
Another ridiculous ‘immunity’ provided by the bill to the nuclear radioactive polluters is that victims cannot question them ten years after the accident. The objections raised as regards the 10-year limit to “liability”, as provided in Clause 18 (Chapter IV), are very reasonable and quite valid[31]. In case of exposure to low dose radiations, the injuries caused thereby – mostly in various forms of cancer, may take much longer time to manifest. However, it is very difficult to establish the causal link.
Exclusion of Courts jurisdiction: Clause 35 extends the legal binding that the responsible groups may have to face. The operator or the responsible persons in case of a nuclear accident will undergo the trial under Nuclear Damage Claims Commissions and no civil court is given the authority. The country will be divided into zones with each zone having a Claims Commissioner. This is in contrast to the US counterpart – the Price Anderson Act, in which lawsuits and criminal proceedings are taken up under the US
Disadvantage to US companies?: One general and strong argument that is put forward by the supporters of the bill is that without this kind of law the US companies would be at a disadvantage, and that will affect our nuclear industrial progress. Their disadvantage is correct. The American vendors will be at no disadvantage as compared to their competitors as the vendors are routinely “indemnified for consequential damages”. Even otherwise, the Bill does not prohibit the operator from making the equipment vendor liable on account of an accident. That is between the operator and the vendor. Liability depending upon the operation is something to do with the rights of the people at large that cannot be considered a disadvantage. No nation can allow any operator including Government operator to exempt from liability after causing a disaster through its dangerous operations.
Criminal Liability: Another basic omission in this Bill is mention of criminal liability. As we have seen from Bhopal
Vicarious liability: The Bill should specify absolute liability principle and also impose vicarious liability with specific provisions on the persons including corporations who involved in selecting, designing and sending the technology or product which might have given rise to the dangers of disasters to pay the damages and fix up criminal liability on the overall in-charge of principal MNC. The problem of escaping from liability and imposing liability only on subsidiary or operator must be thoroughly dealt with and the Bill should send across a message to the whole world that third world will not tolerate any more the accidents or disasters and excuses from liability.
Political Opposition: As the essential aspects of the Bill became controversial the United Progressive Alliance could not table the Civil Liability for Nuclear Damage Bill, 2010, on March 15, 2010 with the strong opposition from the Left parties, sections of the Bharatiya Janata Party, other centrist parties and some of the Congress’ own allies. It was referred to a Parliamentary Standing Committee, to analyze it thoroughly and critique the rationale for limiting the liability for accidents in civilian nuclear installations. Earlier, the Union Cabinet has openly ruled out the objections raised by the Finance and Environment ministries indicating that it succumbed to the pressure of the US
The Bill in the Clause 9 (Chapter III) provides: The Central Government shall, by notification, appoint one or more Claims Commissioners for such area, as may be specified in that notification, for the purpose of adjudicating upon claims for compensation in respect of nuclear damage.
The Chapter IV deals with ‘Claims and Awards’, which is the main part of the law. The clause 6 prescribes the limits of “liabilities”, clause 7 spells out the “liability” of the Central Government and the clause 5 lists out the circumstances under which the “operator” shall not be “liable”. The liability of supplier or producer is totally removed, which amounts to granting immunity to producers apparently a major departure from principle of product liability in strict terms.
Openings to Private Operators: After reading the serious apprehensions as introduction and brief outline of the killer bill let us study the impact of this defective law on this nation. Today we have a law called Environment Protection Act, 1985 which makes the polluter to pay and imposes on polluter a legal obligation to take precaution. This was strengthened by the most imaginative judicial legislation principle of Absolute Liability laid down by Supreme Court in 1986. These two legal instruments were not available to tackle the Bhopal India United States of America and Union of India
Apparently serving the US
Enforcing liability strictly is what is needed than mere regulation, because regulatory mechanisms can at best only “regulate”. Hence, the envisaged ushering in of private players as “operators” of nuclear power plants has become an open invitation to disaster. Thus validating the private participation as “operator” of nuclear power plants in India
Limiting the total “liability” of the (private) “operator” plus the “state” regardless of the scale of the disaster is the most unreasonable part of the draft law. Generally an enactment aims at imposing liability in the interest of the people who are innocent victims. Strangely this law proposes just unacceptable propositions of reducing the liability and offering immunity, besides legally burdening the state to pay for by foreign nuclear corporate caused disasters.
Defending the Bill: The provisions regarding liabilities are very crucial in this Bill of 2010. The defence of the bill rests on this aspect and on the need for nuclear power to end the scarcity of power. The scientific studies and advances in nuclear technology have significantly reduced the probability of a nuclear catastrophe and thus nuclear power is considered an environment friendly and sustainable source of energy, though environmentalists oppose to agree that it is clean or green energy. The supporters of bill say, however, it is still necessary to keep in mind the possibility of nuclear accidents and other negative aspects of the nuclear energy and measures must be taken for its peaceful use. Substantial part of the controversy is about providing sufficient financial assistance under such circumstances.
Having brought it, naturally the government has defended this civil nuclear liability legislation. Pointing to the fact that only the government or NPCIL runs nuclear power plants in India US United States has displayed its concern for the safety of the US
There are certain contentions in favour of the statutory limit on liability. Prakash Nanda[34], a journalist and editorial consultant for Indian Defense Review says comparing with Bhopal
As regards the limit, the government has said that the amount could be raised. The point to note here is that in India all nuclear power plants are owned by the government, so there is no private motive in limiting the liability in cases of a nuclear accident, which, in any case, is a rarest of rare possibilities. Therefore, comparing the situation with the Bhopal-gas tragedy in 1985 is irrelevant since Union Carbide, owner of the Bhopal plant, was a foreign body (U.S. organization), whereas here the government of India France and Russia
Comparison with Bhopal Bhopal Bhopal India
Official sources say still there is no problem, as general remedies are not closed by this law. Scope for legal action against a supplier of faulty or unsafe equipment is possible as per clause 46 of the nuclear bill, which says that the Act’s provisions “shall be in addition to, and not in derogation of, any other law for the time being in force.” This will allow the filing of tort claims and even criminal charges in case a nuclear accident is caused by negligence on the part of the nuclear operator or its equipment suppliers. Most of the Torts claims are not pursued here in this country which presents very less possibility of enforcing general remedies. It is proved that general remedies could not be pressed in Bhopal
IV. Liability norms in other countries
Other countries, while implementing the broad principles laid down under international conventions, have framed their own legislative regimes for nuclear liability. They also impose financial security requirements on the operator, which vary from nation to nation.
The Situation in the US : For instance, in the US Three Mile Island . According to World Nuclear Association data, in mainland Europe , individual countries have their own cap levels.
In US, in the event of an accident, the first $375 million is paid by the insurer(s) of the plant. It is mandatory to insure the plant. Beyond that, up to US$ 10 billion is paid out of a fund jointly contributed by the “operators” as mandated by the Price-Anderson Nuclear Industries Indemnity Act. Beyond that, the Federal Government pays[35]. For US victims of nuclear accidents, they guarantee 10 billion US dollars from a fund of operators, and for the victims in India India
In Germany : Germany France Switzerland Paris and Brussels Finland Sweden has ratified the Joint Protocol relating to Paris and Vienna
In Canada
$75 million per power plant set in 1976 as the insurance cover required for individual licensees was increased to $650 million in the Act’s 2008 revision.
In Japan , China etc: Japan Russia Ukraine and is setting one up with China China
V. Nuclear Accidents
It is necessary to study technicalities and the possible quantum of damage in nuclear accidents. In any nuclear industry, the maximum accident is a core meltdown: the overheating of the core of a nuclear reactor, the site of fission, due to a Loss of Coolant Accident (LOCA) or some other malfunction. It is the meltdown that caused disaster in Chernobyl (1986) Even the Three-Mile Island India
What happens when there is a nuclear accident? Even if one of 430 operating commercial nuclear reactors can undergo a core meltdown, it would release vast amounts of radioactivity. The radioactivity, carried in dust clouds, can spread over hundreds of kilometres depending on the wind direction and speed. Such a spread of radioactivity to distant places will have a far reaching effect. It is inevitable to refer again to the worst example in Chernobyl accident, wherein leaked radioactivity made thousands of sheep in faraway Scotland and reindeer in northern Sweden India
A Chernobyl-like accident (1986) will wreak damage upon human and animal life, the environment and the infrastructure running into hundreds of billions to several trillions of dollars, and make huge swathes of land uninhabitable for centuries. The initial damage from the reactor-core meltdown in Chernobyl Germany Chernobyl Bhopal
It is impossible to imagine that the damage from an Indian reactor-core meltdown will be less severe. Even lesser accidents such as spills and leaks of nuclear material during transportation and handling, loss-of-coolant accidents (LOCAs), other radioactivity releases, and overexposure of the public to emissions and effluents containing dangerous material can cause grave damage. With our industrially safety norms, mostly violated and the history of industrial disasters, the nuclear radioactivity leak or meltdown would have a very serious impact on human life, animals and environment. Referring to Charles Perrow’s classic Normal Accidents; Basic Books, 1984, Praful Bidwai explained: Nuclear technology is extremely hazardous, indeed uniquely so: it is the only mode of energy generation capable of catastrophic accidents. Nuclear reactors concentrate within a small volume large quantities of fissile material, equivalent to several hundred multiples of the critical mass needed to make a nuclear bomb – and hence a high energy density. Their core must be cooled effectively and without interruption so that it does not overheat, potentially leading to a runaway reaction. That apart, all nuclear power generation based on existing reactor designs is inherently hazardous because, as organization theory puts it, it involves large, complex systems within which various subsystems are tightly coupled, leading to a rapid transmission of a problem event to the entire system and hence to catastrophic accidents. The probability of catastrophic nuclear accidents is admittedly low. But their consequences are extremely large, indeed unacceptably so. Praful Bidwai[39] wrote further:
According to a post-Chernobyl study by an independent expert body, Gruppe Ökologie (Germany Chernobyl U.S. since 1973, even before Three Mile Island (1979). This has severely limited safety innovation.
Two new designs – Westinghouse’s AP-1000 and Areva’s European (since pompously renamed Evolved) Power Reactor – have just emerged. These are claimed to be “Generation III-plus” and safer than the designs of the 1970s. But they have run into problems with regulatory authorities in the U.S. , France , the United Kingdom and Finland , where the first fully market-driven nuclear project in Europe is now in progress – three-and-a-half years behind schedule and with 60 per cent over budget. Scrapping the Olkiluto project will produce a potentially fatal setback to the global nuclear industry.
At any rate, the none-too-happy story of nuclear safety warrants a liability compensation regime which is strict and based on the polluter pays principle and the precautionary principle. That alone can provide the nuclear industry the incentive to redesign reactors for greater safety and operate them with abundant caution. The Bill does the opposite by lightening the nuclear industry’s responsibility by Rs.1,800 crore to compensate the victims of a nuclear accident.
Another critical analyst Shobhana Saxena[40] wrote in Pak Observer: The Gulf of Mexico slick threatens the fishing industry, thousands of jobs, tourism and marine life in the coastal American states. The tragedy is that President Obama’s effort to raise the liability cap to $1.5 billion failed as the Republicans in the Senate didn’t allow the bill to be tabled. The Obama administration wanted to increase from $1 billion to $1.5 billion the amount that could be spent from an emergency cleanup fund paid with industry fees, and raise a $75 million liability limit BP would bear for costs not directly connected to cleaning up the spill, such as lost wages and tourism. Even as Obama licks his wounds, the real tragedy is unfolding in India US US
Did we learn any thing from Bhopal Bhopal Bhopal
The second question is about civil liability, which is equally complex and totally depends upon the international cooperation. In Bhopal Bhopal Bhopal Bhopal genocide caused through pesticide factory by Union Carbide, how India Bhopal India India India and filed the affidavit signed by Government of India, claiming immaturity of system to provide answer to Bhopal
Disaster and Compensation: An estimated 8,000 people died immediately and another 12000 thereafter, when Union Carbide’s pesticide plant in Bhopal Bhopal survivors filed a class action suit in U.S. courts against Union Carbide, asking that the company be held responsible for violations of international human rights aw and for the cleanup of environmental contamination in Bhopal India
After purchasing Bhopal Bhopal
Although the stunt was quickly revealed as a hoax, the result was that Dow Chemicals lost $3 billion dollars in less than a half hour during a frantic stock sell-off that followed the faux announcement.
The Union Carbide could get away lightly after causing the world’s worst industrial tragedy at Bhopal Bhopal
Considering India’s population density (even stampedes at temples leave hundreds dead every year) and poor industrial safety record (radioactive material can be found in scrap markets), a nuclear accident can cause immense damage both in terms of loss of human life as well as environmental destruction.
TheBhopal
The
When the civil liability is truncated by Government itself, it is almost impossible to visualize making guilty criminal liable and sent to jail. The successive governments have not shown any desire to get Warren Anderson, the criminal-in-chief of Bhopal tragedy, extradited from New Jersey Bhopal Bhopal
VI. International Law of Nuclear Liability
Liability for Nuclear disasters is explained in four conventions. They are: 1. The International Atomic Energy Agency’s (IAEA) Vienna Convention of 1963 (since 1977); 2. The Organization for Economic Co-operation and Development’s (OECD) Paris Convention on third party liability in the field of nuclear energy of 1960 (since 1968); 3. Brussel’s Supplementary Convention of 1963; 4. Convention on Supplementary Convention (CSC) 1997. The very low liability levels which were started with the Paris Convention of SDR 5 million, or €6 million, to SDR 175 million (about €210 million) were adopted by the Brussels Convention. However, by the 1982 Protocol, those levels were raised to SDR 300 million. In 1997, the Vienna Protocol and the Convention on Supplementary Convention (CSC) marked increased limits and set up a somewhat extensive, but still limited, definition of nuclear damage altered to include preventive steps and environmental reinstatement, and changes such as allowing compensation to residents of non-Contracting Parties and making 300 million DRs (about €360 million) the minimum amount that State Parties must make available under national laws, and the CSC would provide for a supplementary fund.53 On the basis of installed nuclear capacity, the CSC provides for additional funds to be made available through contributions by State Parties collectively and a UN rate of assessment. Although the CSC is not functional yet and is not going to come into force anywhere in the near future, whether or not a State is party to any existing nuclear liability convention or has nuclear installations on its’ territory, it may adopt to the CSC[41].
The expression “appropriate international liability regime” in objective statement of the Bill clearly refers to ‘Convention on Supplementary Compensation for Nuclear Damage’ (CSC) 1997, which is based on the earlier Paris and Vienna Conventions. India India India
Sukla Sen[42] pointed out: The mainstream, and also radical, critics, known to be otherwise knowledgeable, have rather pitiably missed the central point that the essential thrust of the Bill is to enact a law defining “civil liability” in case of “nuclear damage”, in compliance of the CSC, and usher in private players as “operators” and peg their “liability” at ridiculously low levels, going much beyond the framework of the CSC. The CSC does not obligate a member state to open up its womb to private players nor does it compel the “liability” to be pegged at a level below SDR 300 million.
Of the 30 countries that operate 436 nuclear power plants, 28 countries, with 416 such plants, have some sort of nuclear liability act in force in their territories. Only India , which operates 18 nuclear power plants, and Pakistan India , unlike Pakistan
There must be a national law or bilateral arrangement or international liability regime such as the Vienna-based Convention on Supplementary Compensation for Nuclear Damage[43] or the Paris Convention on Third Party Nuclear Liability in the Field of Nuclear Energy – for the exporter and importer to manage the liability in case any nuclear accident takes place. India United States , Argentina , Morocco and Romania
This Bill is claimed to have been made as per on two nuclear liability conventions of the early 1960s, the “Convention on Third Party Liability in the Field of Nuclear Energy”, or the Paris Convention of the Organization for Economic Cooperation and Development (OECD), and the Vienna Convention on Civil Liability for Nuclear Damage of 1963 under International Atomic Energy Agency (IAEA) auspices.
These conventions limited nuclear liability because nuclear power was believed to have unlimited potential for public welfare. Sixty years on, nuclear power has comprehensively belied its early promise. It is far more expensive (about twice as costly as) than electricity from fossil fuels or even renewables like wind. It is inappropriate for developing-country grids that have large peaking-power requirements. And it bristles with safety problems – from radiation exposure of occupational workers, routine radioactivity releases, LOCAs, and problems posed by high-level wastes, which remain hazardous for thousands of years. Besides, many renewable energy sources have since evolved impressively, demolishing the no-alternative-to-nuclear-power claim. The global nuclear industry, working through the IAEA, recently sponsored the Convention on Supplementary Compensation (CSC) for Nuclear Damage which works within the Paris-Vienna framework but doubles the maximum compensation, to $986 million. The global nuclear industry, working through the IAEA, recently sponsored the Convention on Supplementary Compensation (CSC) for Nuclear Damage which works within the Paris-Vienna framework but doubles the maximum compensation, to $986 million[44].
Science and Technology Minister of Government of India claimed that the CSC was tried and tested, widely respected international treaty “the international regime for compensation payment in case of nuclear accidents”. But the reality is otherwise. Since it was opened for signature in 1977, the CSC has only been signed by 13 states and ratified by only four countries (Argentina , Morocco , Romania and the U.S. Germany , Austria and Sweden U.S.
In his analysis Sukla Sen further pointed out the difference between the CSC and our Bill, saying: However, once India
VII. Conclusion: Draft Law in Breach of Law
The Sovereign Republic of India in its 60th year of Constitutional Rule of Law is reinventing the liability jurisprudence to detriment of people and for the benefit of MNCs. It can also be condemned because it promotes all terms of MNCs at the cost of people and future generation. The bill is virtually the Corporate Immunity for National Damage Bill 2010. It appears that Indian political rulers are apprehending post-nuclear-accident-trauma of foreign corporate bodies and scripting a legal remedy as a sequel to nuclear disaster if happens at all. ‘King can do no wrong’ was an old British maxim about sovereign immunity in tort (civil wrongs) law. But for modern India India is trying to curry favour of US companies by this law, just to secure foreign direct investment or foreign technology and the nuclear reactors to India
In 1999, soon after the second Pokhran tests, the Vajpayee government initiated the process of India
It is claimed that the IAEA is an impartial body as regards nuclear safety or regulation, its very charter commits it to promote nuclear power on the presumption that it is safe and economical. This agency has refused to involve another United Nations agency, in particular the World Health Organisation with its strong health mandate, in assessing the damage from Chernobyl
Here it is pertinent to keep in mind that the CSC does not establish either a floor or a ceiling on the liability of the operator or require the concerned state to limit the liability of the “operator”. It in no way makes it incumbent upon any member country to either bring in private “operator” or limit/cap its “liability” at a level lower than the “total liability” (of minimum 300 million SDR)[47]
Sidhartha Varadarajan, wrote in The Hindu[48] quoting the responses of American nuclear industry representatives. Speaking on background because of the sensitivities involved, an American nuclear industry source told The Hindu, “CSC Annex Article 3.3 says, ‘The liability of the operator for nuclear damage shall be absolute’… [But] the draft India
“Like the lack of absolute or strict liability, 17(b) is inconsistent with the CSC, as well as the Paris and Vienna Conventions and the nuclear liability laws of every other country with a nuclear power programme,” the U.S.
The American source also found fault with Article 46. “If this article means the operator would not be exempt from any other proceedings [other than criminal liability], that too would be inconsistent with the CSC requirement for exclusive operator liability. CSC Annex Article 3.9 provides, “he right to compensation for nuclear damage may be exercised only against the operator liable … The draft bill has no such provision channelling liability exclusively to the operator.”
While the Obama administration has not said anything to India about these “problem” clauses, Indian officials say they are aware that the nuclear industry association in the U.S. Washington
When basic principles such as liability to the extent of damage caused which is conveniently transferred to insurer under a risk management mechanism, polluter shall pay and no harm rule reflected in International Environmental Law, how can some conventions force the states to agree to cap the liabilities which stand to no reason or logic?. While the philosophy of sustainable development is universally agreed, how can any convention or law give primacy to development to the global environment and lives of people?
If the above referred conventions contradict other conventions of environment and sustainable development, the law proposed by India India
Is it a draft law aiming at limiting liability only to operator and awarding immunity to producer or any other player? How far it is proper to offer legal immunity or reduce the liability to those who install nuclear reactors which can cause nuclear dangers in its general operations? It is pathetic that we offer in golden plate the lives and golden environment of this great country to international corporate thugs in the name of ‘energy development’. This bill is in the form of a pledge that we do not make any claim against suppliers and producers of defective nuclear reactors, and not claim beyond Rs.500 crore from operators even if thousands of us are killed and valuable environs are destroyed. The liability jurisprudence evolved from fault-based liability to no-fault liability emerging into absolute liability. This bill proposes retrograde law limiting liability in general and granting absolute immunity to some, imposing liability on the state itself in brazen violation of international liability norms, Constitutional principles, profound judicial pronouncements and environmental enactments.
What cannot be included in agreement, in the interest of people and the environment, is being made into a law. A government elected for five years, is attempting to inflict a permanent damage on coming generations depriving their right to remedy and to full compensation to the damage suffered.
For these reasons, this Civil Nuclear Liability Bill should not become law in present form. Better we do not have any law in its place because this bill is a manifestation of unreasonable bias towards the global nuclear industry and commerce with scant regard for human life in India India
Finally, this bill is totally unwarranted and good if withdrawn. If the Government has a strong will to provide perfect systems of liability and remedies, there should be a comprehensive law to impose civil liability on principal companies, manufacturers along with operators. Absolute liability norms which are scattered in judgments and various laws or rules should be codified into law. Following is the table of demerits of the Bill and suggestions to remove the damage going to be caused by the Bill.
The Damage Bill 2010 | To remove the Damage by the Bill |
S 1(3) Bill extends to Territorial Waters, Continental shelf, Maritime Zones, on board Ships and Aircrafts and artificial islands. | With various limitations on liability provided in other sections, this extension becomes meaningless. |
s 2(f) defines nuclear damage in extensive terms. Covers human, property, economic, environmental losses and costs of preventive measures too. 2 (f) “nuclear damage” means— (i) loss of life or personal injury to a person; or (ii) loss of, or damage to, property, caused by or arising out of a nuclear incident, and includes each of the following to the extent notified by the Central Government; (iii) any economic loss, arising from the loss or damage referred to in clauses (i) or (ii) and not included in the claims made under those clauses, if incurred by a person entitled to claim such loss or damage; (iv) costs of measures of reinstatement of impaired environment caused by a nuclear incident, unless such impairment is insignificant, if such measures are actually taken or to be taken and not included in the claims made under clause (ii); (v) loss of income deriving from an economic interest in any use or enjoyment of the environment, incurred as a result of a significant impairment of that environment caused by a nuclear incident, and not included in the claims under clause (ii); (vi) the costs of preventive measures, and further loss or damage caused by such measures; (vii) any other economic loss, other than the one caused by impairment of the environment referred to in clauses (iv) and (v), in so far as it is permitted by the general law on civil liability in force in India and not claimed under any such law, in the case of sub-clauses (i) to (v) and (vii) above, to the extent the loss or damage arises out of, or results from, ionizing radiation emitted by any source of radiation inside a nuclear installation, or emitted from nuclear fuel or radioactive products or waste in, or of, nuclear material coming from, originating in, or sent to, a nuclear installation, whether so arising from the radioactive properties of such matter, or from a combination of radioactive properties with toxic, explosive or other hazardous properties of such matter; | Because this definition covers almost all imaginable losses, it leaves no scope for any body to claim a relief or compensation. Good definition, but because of limitations and exemptions provided in other sections does not serve purpose. Limitations should be removed and every element of nuclear damage has to be compensated. Definition of “nuclear damage” covers “impaired environment”. There is no provision as to who can lodge claims for “costs of measures of reinstatement” as mentioned therein. Any public spirited group or citizen, apart from public bodies like Gram Sabha, panchayat, municipality etc. and affected persons, must be entitled to raise such claims. |
S 3: Atomic Energy Regulatory Board shall notify nuclear incident. 3. (1) The Atomic Energy Regulatory Board constituted under the Atomic Energy Act, 1962 shall, within a period of fifteen days from the date of occurrence of a nuclear incident, notify such nuclear incident: Provided that where the Atomic Energy Regulatory Board is satisfied that the gravity of threat and risk involved in a nuclear incident is insignificant, it shall not be required to notify such nuclear incident. | It shall notify every incident causing damage and accident causing serious damage. Whether damage is substantial or not, there is a duty to compensate every loss. Word ‘Accident’ be added and Proviso be removed. Non-notification shall be considered as dereliction of duty and penal consequence should be prescribed Any private citizen, or group, should have the right to draw the attention of the AERB to an alleged “incident’ in case it is not notified by the AERB suo moto. The AERB shall duly examine and respond to such request. |
S 4. Liability of operator. 4. (1) The operator of the nuclear installation shall be liable for nuclear damage caused by a nuclear incident — (a) in that nuclear installation; or (b) involving nuclear material coming from, or originating in, that nuclear installation and occurring before — (i) the liability for nuclear incident involving such nuclear material has been assumed, pursuant to a written agreement, by another operator; or (ii) another operator has taken charge of such nuclear material; or (iii) the person duly authorized to operate a nuclear reactor has taken charge of the nuclear material intended to be used in that reactor with which means of transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose; or (iv) such nuclear material has been unloaded from the means of transport by which it was sent to a person within the territory of a foreign State; or (c) involving nuclear material sent to that nuclear installation and occurring after— (i) the liability for nuclear incident involving such nuclear material has been transferred to that operator, pursuant to a written agreement, by the operator of another nuclear installation; or (ii) that operator has taken charge of such nuclear material; or (iii) that operator has taken charge of such nuclear material from a person operating a nuclear reactor with which a means of transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose; or (iv) such nuclear material has been loaded, with the written consent of that operator, on the means of transport by which it is to be carried from the territory of a foreign State. | This section explains various kinds of situations wherein liability arises but proviso states that liability is limited as prescribed by section 6. Liability of operator should be joint and several along with makers and suppliers including principal companies. To be further added: The operator shall deposit a sum of 300 million SDR in an escrow account for each nuclear reactor to be operated before start of operation. |
S 4(2) Joint liability of all operators. Section 4 (2) Where more than one operator is liable for nuclear damage, the liability of the operators so involved shall, in so far as the damage attributable to each operator is not separable, be joint and several: Provided that the total liability of such operators shall not exceed the extent of liability specified under sub-section (2) of section 6. (3) Where several nuclear installations of one and the same operator are involved in a nuclear incident, such operator shall, in respect of each such nuclear installation, be liable to the extent of liability specified under sub-section (2) of section 6. Explanation.— For the purposes of this section,— (a) where nuclear damage is caused by a nuclear incident occurring in a nuclear installation on account of temporary storage of material-in-transit in such installation, the person responsible for transit of such material shall be deemed to be the operator; (b) where a nuclear damage is caused as a result of nuclear incident during the transportation of nuclear material, the consignor shall be deemed to be the operator; (c) where any written agreement has been entered into between the consignor and the consignee or, as the case may be, the consignor and the carrier of nuclear material, the person liable for any nuclear damage under such agreement shall be deemed to be the operator; (d) where both nuclear damage and damage other than nuclear damage have been caused by a nuclear incident or, jointly by a nuclear incident and one or more other occurrences, such other damage shall, to the extent it is not separable from the nuclear damage, be deemed to be a nuclear damage caused by such nuclear incident. | It explains in detail the liability of the operator and discusses in minute aspects the liability of separate operators, and says where separation is not possible the liability is joint and several. Again it is limited by a cap in section 6. Makers and suppliers should be added for imposing liability. |
S 5. Liability and immunity of operators. 5. (1) An operator shall not be liable for any nuclear damage where such damage is caused by a nuclear incident directly due to— (i) a grave natural disaster of an exceptional character; or (ii) an act of armed conflict, hostility, civil war, insurrection or terrorism. (2) An operator shall not be liable for any nuclear damage caused to— (i) the nuclear installation itself and any other nuclear installation including a nuclear installation under construction, on the site where such installation is located; and (ii) to any property on the same site which is used or to be used in connection with any such installation; or (iii) to the means of transport upon which the nuclear material involved was carried at the time of nuclear incident: | 5 (1)(ii) should be removed. This should be absolute liability. Only possible exception is grave natural disaster. Immunity under 5(2) is meaningless, why should installation suffer from the acts of operator, without any remedy of compensation? This immunity should be removed. The corresponding CSC clause – Annex, Article 3, 5. b. – provides that national law may have provision to drop such circumstances from the list of exceptions. Cl 591)(ii) does not figure in the corresponding CSC clause: Annex, Article 3, 5. a. The concept of “strict liability” being the foundational concept, such exceptions, and consequent transfer of liability for damage under such circumstances to the “Central Government”, and thereby to the Indian taxpayers, in case of a private operator, is wholly undesirable and unjustified. |
Proviso to Section 5 Liability Provided that any compensation liable to be paid by an operator for a nuclear damage shall not have the effect of reducing the amount of his liability in respect of any other claim for damage under any other law for the time being in force. | Securing liability under other law is good. But how many proceedings that law will allow for claiming damages. Because of rule that one cause of action arises out of one wrong,, this provision may not help the victims. This law prohibited other actions for claiming damages other than under this law. |
Section 5 (3) Where any nuclear damage is suffered by a person on account of his own negligence or from his own acts of commission or omission, the operator shall not be liable to such person. | This is against the norms and principles of compensation as prescribed under Workmen’’ Compensation Act, 1923. This has to be removed. |
S 6. Capping liability 6. (1) The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights. (2) The liability of an operator for each nuclear incident shall be rupees five hundred crores: Provided that the Central Government may, having regard to the extent of risk involved in a nuclear installation, by notification, either increase or decrease the amount of liability of the operator: Provided further that where the amount of liability is decreased, it shall not be less than rupees one hundred crore: Provided also that the amount of liability shall not include any interest or cost of proceedings. | Most unlawful and unreasonable provision of this Bill, and should be deleted outright. Liability should commensurate the damage and compensate every loss. Penalty in proportion to guilt and compensation to wipe out the loss are basic and universal norms. A government elected for five years has no authority to sacrifice this right of future generations for benefit of a business company. Remove all limits on liability. Do not deny the rights of people by passing a new law. It is unconstitutional, against the norms of Environmental law, International Law, etc. How can the Government deny the interest and cost of proceedings if the victim is otherwise entitled to? The Convention for Supplementary Compensation (CSC) does not obligate the GoI to go in for such differentiated liabilities, one for private operator and another for the state affiliated operator. This provision has to go. In case of In case, of oil spill in the |
S 7. Liability of Central Government 7. The Central Government shall be liable for nuclear damage in respect of a nuclear incident, — (a) where the liability exceeds the amount of liability of an operator specified under sub-section (2) of section 6, to the extent such liability exceeds such liability of the operator; (b) occurring in a nuclear installation owned by it; and (c) occurring on account of causes specified in clauses (i) and (ii) of subsection (1) of section 5. | If a government, who is not supplier, operator, or investor can be made liable for the damage caused by accident, it can be called absolute liability which stricter than absolute liability recognized, where even Act of God or Civil war is no defence. Then why not this liability be extended to maker/supplier and operator? Why should Government spend people’s money to pay people’s loss caused by MNC? |
S 8 Insurance cover to limited liability 8. (1) The operator shall, before he begins operation of his nuclear installation, take out insurance policy or such other financial security, covering his liability under sub-section (2) of section 6, in such manner as may be prescribed. (2) The operator shall from time to time renew the insurance policy or other financial security referred to in sub-section (1), before the expiry of the period of validity thereof. (3) The provisions of sub-sections (1) and (2) shall not apply to a nuclear installation owned by the Central Government. | When even Motor Vehicle Act imposes a statutory obligation on owners of vehicles to insure their ‘unlimited’ liability towards third parties, how can insurance of nuclear operator be limited? “Under Sub-section (2) of S 6” should be removed. |
S 9: Claim Commissioners 9. (1) Whoever suffers nuclear damage shall be entitled to claim compensation in accordance with the provisions of this Act. (2) For the purposes of adjudicating upon claims for compensation in respect of nuclear damage, the Central Government shall, by notification, appoint one or more Claims Commissioners for such area, as may be specified in that notification. | It should be called special nuclear claims courts and be made independent in function so that they decide liability and do justice. But the hands of these commissioners are tightened with limitations. Remove these limitations. The Claims Commission must include member(s) of the medical profession with an established track record of engaging with people’s health issues to ensure the proper assessment of the health impact of an “incident”. |
S 15 Procedure for claims 15. (1) Every application for compensation before the Claims Commissioner for nuclear damage shall be made in such form, containing such particulars and accompanied by such documents, as may be prescribed. (2) Subject to the provisions of section 18, every application under sub-section (1) shall be made within a period of three years from the date of knowledge of nuclear damage by the person suffering such damage. | Prescribing such forms as mandatory will limit the rights of the victims. These forms should not be made compulsory though advised to be used. |
S 16(3) Order to restrain the operator who is likely to remove the property. (3) Where an operator is likely to remove or dispose of his property with the object of evading payment by him of the amount of the award, the Claims Commissioner may, in accordance with the provisions of rules 1 to 4 of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908, grant a temporary injunction to restrain such act. | It is good but not enough; it should be empowered to attach the property also. |
S 17 Right to recourse when contract is there. 17. The operator of a nuclear installation shall have a right of recourse where — (a) such right is expressly provided for in a contract in writing; (b) the nuclear incident has resulted from the willful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee; (c) the nuclear incident has resulted from the act of commission or omission of a person done with the intent to cause nuclear damage. | Right to recourse is available whether there is contract or not. This provision limits the right unreasonably. The right under (b) should extend against manufacturer also. The contract between any and every operator and its supplier(s) (of equipment, material or services, as the case may be) must include in writing a provision to the effect that the operator shall have the right of recourse in case of an “incident” without any exception, including as regards the damage to the equipment/plant/ site. |
S 18: Right to claim extinguishes in 10 years. 18. The right to claim compensation for any nuclear damage caused by a nuclear incident shall extinguish if such claim is not made within a period of ten years from the date of incident notified under sub-section (1) of section 3: Provided that where a nuclear damage is caused by a nuclear incident involving nuclear material which, prior to such nuclear incident, had been stolen, lost, jettisoned or abandoned, the said period of ten years shall be computed from the date of such nuclear incident, but, in no case, it shall exceed a period of twenty years from the date of such theft, loss, jettison or abandonment. | There should not be such limit at all. |
S 20 Nuclear Damage Claims Commission 19. Where the Central Government, having regard to the injury or damage caused by a nuclear incident, is of the opinion that— (a) the amount of compensation may exceed the limit specified under sub-section (2) of section 6; or (b) it is expedient and necessary that claims for such damage be adjudicated by the Commission instead of Claims Commissioner; or (c) it is necessary in the public interest to provide special measures for speedy adjudication of claims for compensation, the Central Government may, by notification, establish a Nuclear Damage Claims Commission, for the purposes of this Act. | It totally depends on Govt. opinion. If Govt. thinks compensation is sufficient there will be no commission. Only bureaucrats cannot decide independently. It should consist of independent members from judiciary and people’s agencies without bureaucrats because they are not trained to assess the claims. |
S 35 no injunction can be given by courts. 35. No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Claims Commissioner or the Commission, as the case may be, is empowered to adjudicate under this Act and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. | Section 5 Proviso says the choice of claiming damages under other laws is available. That is denied here in s 35. |
S 39 Offences and Penalties, 5 yrs imprisonment 39. (1) Whoever— (a) contravenes any rule made or any direction issued under this Act; or (b) fails to comply with the provisions of section 8; or (c) fails to deposit the amount under section 36, shall be punishable with imprisonment for a term which may extend to five years or with fine or with both. | These offences are breach of order by Commission, not taking insurance cover for limited liability and not depositing amount in advance. Here criminal liability provision should be made: If the act leads to death of human being, operator shall be prosecuted for murder. |
S 40 Offences by Companies | Principal company should be made liable jointly along with subsidiary company. It is against the principle of command responsibility and thereby would ensure that minions are punished in case of violations and senior officers go scot free. This has to be amended as:Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act, if he proves he exercised all due diligence to prevent the commission of such offence. “that offence was committed without his knowledge or”: to be deleted. |
S 47 Protection for action taken in good faith | No such immunity in operating a nuclear plant/installation is called for. Such immunity will only engender criminal negligence and worse. Instead of this or along with this there should be a provision to impose liability for action taken not in good faith, or done without due care or caution, or negligently done. |
[1] See: Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
[2] See http://indiacurrentaffairs.org/civil-nuclear-liability-bill-prefering-interests-of-us-companies-over-indian-people/
[3] See:
[4] See
[5] See:
[6] See:
[7] See the Abstract at
[8] Don’t Amend, Just Scrap the Bill, Praful Bidwai Opinion, Financial Chronicle, mydigitalfc.com, March 24, 2010
[9] Decision in M.C. Mehta v Union of India (Sriram gas leak case) (1987) 1 SCC 395, AIR 1987 SC 965
[10] Donoghue v Stevenson, 1932 AC 562
[11] Union Carbide Corporation v Union of India, AIR 1990 SC 273
[12] Union Carbide Corporation v Union of India, AIR 1992 SC 248
[13] The Accused has been charged under Section 304A Indian Penal Code, Keshub Mahindra v State of Madhya Pradesh, 1996 (2) Scale 522)
[14] Rylands v. Fletcher [1868] (19) LT[15] AIR 1987 SC 965
[16] [1996 (5) SCC 647]
[17] Rylands v. Fletcher [1868] (19) LT
[18] http://beta.thehindu.com/opinion/lead/ article64688.ece?homepage=true,
[19] Indian Council of Enviro-Legal Action vs. Union of
[20] [1996 (3) SCC 212]
[21] [ibid, see page 246 para 65]
[22] [ibid, see page 248]
[23] [ibid, see page 247 para 67]
[24] [1996 (5) SCC 647]
[25] [ibid, see page 659]
[26] [ibid, see page 658 para 11]
[27] Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
[28] Bhopal CJM court punished officials of Indian company UCIL, leaving out chief of UCC, on June 7, 2010.
[29] See the Hindu news papers dated March 8 and April 1, 2010
[30] Sidhartha Varadarajan, Government dilute nuclear Bill under US pressure, The Hindu, 10th June 2010.
[31] The bill lets nuclear equipment suppliers and designers off the hook, from The great nuclear folly by Praful Bidwai at
[32] The bill was approved by Union Cabinet on November 20, 2009
[33] See revised bill at http://www.cndpindia.org/download.php?view.36> and earlier version given in Nuclear Liability Law in Developing Countries – Indian Case by B. B. Singh at
[34] Prakash Nanda is a journalist and editorial consultant for Indian Defense Review, Right Angle column, published on March 30, 2010
[35] See:
[36] News Report by Anil Sasi, Businessline, April 5, 2010
[37]Praful Bidwai, A Flawed Bill, Frontline, March 27, April 9, 2010, http://www.flonnet.com/stories/20100409270709500.htm
[38] Ibid
[39] Ibid
[40] Views From Abroad, http://pakobserver.net/detailnews.asp?id=32103, by Shobhan Saxena
[41] Report on Civil Liability for Nuclear Damage Bill by Ajay Goyal, Anand Misra, Bikas Mohanty, Shaunak Kashyap, for Greenpeace, 2010, at page 37
[42] Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
[43] See: <http://www.iaea.org/Publications/Documents/Conventions/supcomp.htmll
[44] Praful Bidwai, A Flawed Bill, Frontline, March 27, April 9, 2010, http://www.flonnet.com/stories/20100409270709500.htm
[45] Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
[46] Praful Bidwai, A Flawed Bill, Frontline, March 27, April 9, 2010
[47] The Convention on Supplementary Compensation for Nuclear Damage: Catalyst for a Global Nuclear Liability Regime by Ben McRae at
[48] Sidhartha Varadarajan, The Hindu, 1 April 2010
Vedanta mines illegal, must be shut down: Green panel
These are some of the findings of the four-member N C Saxena committee, which on Monday recommended that the company not be allowed to mine in the hills that are the abode of the Dongaria Kondh and Kutia Kondh tribes in Orissa.
The no-holds-barred indictment of the state and private sector in the $1.7billion project brings out the short shrift given to concerns about tribal rights and environmental protection. It is significant also because it underlines the changed sensibilities of the government towards the issues against the backdrop of Left-wing extremism and why Naxalites are finding it easy to influence alienated tribal belts.
The stern report of the environment and forests ministry panel signalled that tribal rights and environmental isssues have finally muscled their way onto the governance agenda, forcing the authorities to take action against corporates who may have shown disregard for rules. The Saxena committee report, which could lead to shutting down of the Vedanta smelters in Orissa, comes after the MoEF moved to stop or stall several high-profile, heavy-investment projects, including the Posco Integrated Steel project in Orissa, which, at Rs 56,000 crore is the single-largest foreign direct investment in India, the Jindal thermal power plant in Chhattisgarh (Rs 10,000 crore), hydroelectric projects on Bhagirathi in Uttarakhand and the Navi Mumbai airport in Maharashtra (Rs 7,972 crore).
The panel was set up by the ministry of environment and forests to investigate if the state government and the aluminium giant had complied with the Forest Rights Act and Forest Conservation Act while mining for bauxite.
The report reveals exhaustive evidence to nail the complicity of the state government in permitting Vedanta to flagrantly violate the laws.
But the committee, even as it recommended that the mining project be disallowed, stopped short of asking for prosecution of the officials involved in what seems to be a blatant fraud that went unchecked for years.
"The question of whom to prosecute is secondary. First, we have to consider the clearance," said Union minister for enviroment and forests Jairam Ramesh. Asked if the violations could be set right now, the minister said, "Without prejudice to the existing case, it would be a tragedy that one violates laws and still has a window of opportunity to just pay a penalty and get away with it later."
The report will now be reviewed by the statutory Forest Advisory Committee, which will then give its recommendations to the ministry to take a final call on the forest clearance.
The report says, "This committee is of the firm view that allowing mining in the proposed mining lease area by depriving two primitive tribal groups of their rights over the proposed mining area in order to benefit a private company would shake the faith of tribal people in the laws of the land which may have serious consequences for the security and well-being of the entire country."
The report records how the state government falsified documents and concealed information from the central government to facilitate the aluminium refinery in mining bauxite while the company encroached upon government and tribal lands with impunity.
The aluminium czar Anil Aggarwal's company has illegally -- despite legal notices from the
The committee -- that included S Parasuraman, director of Tata Institute of Social Sciences; Promode Kant, retired forest official; and Amita Baviskar, professor at the Institute of Economic Growth -- pointed out how right from the beginning, the firm had furnished falsified reports to the Centre to seek clearance, and how the state officials ranging from the highest bureaucrats to the collectors of two districts either refused to enforce existing laws or simply colluded with the company to deny the tribals right over their lands.
Read more: Vedanta mines illegal, must be shut down: Green panel - India Business - Business - The Times of India http://timesofindia.indiatimes.com/business/india-business/Vedanta-mines-illegal-must-be-shut-down-Green-panel/articleshow/6321872.cms#ixzz0xJfQXrtF
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