The Civil Liability for Nuclear Damage Bill reflects the perfidy and dishonesty of our government in no uncertain measure. Several experts have taken enormous pains to study the provisions of the Bill in depth and brought out the fatal deficiencies and flaws, in the interest of the public.
What stands out in the Bill is the extent to which it goes to serve the business interests of the foreign reactor builders and their Indian partners, seeks to burden the Indian tax-payer (let us remember that it is the aam admi who will bear the brunt), and encumber the rights of victims of any radioactive release from a foreign-built plant. (Of course, the victims are the farthermost in the mind of our wonderful government – if it has a mind – as we have seen in the case of the Bhopal Gas disaster). A special Indian law limiting liability, in amount and in time, has been sought by Washington, for its nuclear exporting firms, the largest two of them, Westinghouse and General Electric (GE), are set to win multi-billion dollar contracts, to build several commercial nuclear power reactors. To forestall lawsuits being filed in U.S. courts, against American suppliers by victims of a nuclear catastrophe, Washington has sought for exclusive jurisdiction for Indian courts, so that there will be no repeat of what happened after the Bhopal gas disaster. The Bill seeks to help out the U.S. firms on these counts, going at times even beyond what the American law provides. How caring the U.S. is for even for the commercial concerns of its companies, ― and, at the other end of the spectrum,, how uncaring and hostile our own government is for the life and death matters of our own people, the concerned citizens may kindly note! Furthermore, the Bill turns the legal liability of a foreign reactor supplier for an accident into mere financial compensation ― pegged at a pittance, dear readers, and routed through the Indian State operator of the plant.
Under Clause 6 of the Bill, the maximum liability of the operator and the government combined is Rs.2,087 crore ($458 million), which is 23 times lower than what is provided under the equivalent U.S. law. Of this, the liability of the operator is Rs.500 crore ($109 million). The Central Government which, of course, means the aam admi will be liable for damages in excess of Rs.500 crore, but only up to Rs.2,087/- crore. The aam admi will pay the compensation for the death injury etc., of thousands of his fellow aam admi. Long live the central government, he should say! In fact, the Bill seeks to shackle Indian courts, because all nuclear-damage claims will be dealt with not by them, but by a claims commissioner or a Nuclear Damage Claims Commission, and any award made “shall be final” and cannot be appealed against in any court. One cannot imagine a more reckless and heartless anti-people government than this. Equally atrocious, the Bill provides (Clause 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 10 years from the date of incident.” This provision has been retained despite the Environment Ministry’s note of caution – revealed by The Hindu – that the 10-year time limit was untenable because damage to human health from a serious radioactive release involves changes in DNAs, resulting in mutagenic and tetratogenic changes, which take a long time to manifest. It looks as if the government looks upon the people as enemies who have to be checkmated at every step. Although the Finance Ministry had warned that the proposed law would expose the government to substantial liabilities for the failings of the public sector, the Bill seeks essentially to give the Indian and foreign reactor builders a free ride at the expense of the Indian tax payer. In effect, the Bill amounts to a huge hidden subsidy by protecting the (foreign) reactor builders from the bulk of the financial consequences of accidents. The costs of doing business in India for foreign supplies will be low, but the assured profits will be high. They will be free of the task of producing electricity at marketable rates: the NPCIL which will run the reactors will have to be subsidized by the government, as the cost of generation of the electricity will be high.
India is under no international obligation to pass such a law, because efforts to create common international standards as liability and compensation since the Chernobyl disaster have made very slow progress. Hence the “Statement of Objectives and Reasons”, accompanying the Bill is dishonest, as it gives the wrong impression that the proposed law aims to bring India in line internationally. On the other hand, it sets a wrong precedent by its mollycoddling of foreign suppliers.
Technological improvements may have significantly lowered the risks of a major nuclear accident; nevertheless, nuclear technology remains intrinsically a very dangerous one. Given the nuclear safety and security issues which have been highlighted by recent incidents in the country, accident liability is a matter demanding the utmost consideration, and there is no scope for shrugging off such issues or for sweeping them under the carpet, as the government is trying to do, in its anxiety to favour the foreign suppliers. Most importantly, Dr. Placid Rodriguez, President of the Indian Nuclear Society and former Director of the Indira Gandhi Centre for Atomic Research at Kalpakkam had noted, among other things, that it was clear, so far as the scientific community was concerned, that it was the U.S.A. which needed the Indo-U.S. nuclear agreement to go through more than India, because the U.S. had missed three generations of nuclear technologists – they had not built a reactor for 35 years. This means that the U.S. firms would be supplying reactors which had been moth-balled for decades. How could such reactors have incorporated any technological improvements, improved safety factory, etc.?
Brahma Chellaney, a critique of the Bill, has raised the extremely important point! In seeking to invite U.S. reactor builders, should a poor country rush to pass a special law that skews the business terms in their favour, gratuitously burdens the (poor) Indian taxpayer, and ignores the lessons of the Bhopal gas disaster?
Siddharth Varadarajan, in his painstaking analysis of the Bill, wants the victims to be put at the centre of liability law. But, for our wonderful government, the centre of the (non-) liability law consists of the foreign suppliers whose interests and profits should be protected (by “our” government) in every conceivable way, while the interests of its own people who will be affected are peripheral, and even their rights guaranteed by the Constitution should be shackled in every possible way.
Siddharth says that the operator’s right of recourse against the suppliers under Clause 17(b) should be prescribed and strengthened to include defective equipment and design flaws. The right of recourse must be for the total damage caused by the supplier’s negligence and not be limited to the operator’s liability cap. The limit of ten years after an incident, for extinguishing claims for compensation for nuclear damage, is unconscionable. There is no reason why our wonderful Indian law should impose such a limit for injuries to humans, when the Vienna and Paris conventions on nuclear liability allow a 30 year claim period. This attempt of the government to harm our people in every way deserves the strongest condemnation.
The Bill seeks to confine the assessment of charges and claims for a nuclear accident to an executive rather than a judiciary body. Siddharth pertinently observes that the prohibition of judicial oversight by clauses 16 and 35 cannot be justified. In fact, this attempt of the government in this matter is violative of the provisions of Article 32 in Part III of the Constitution which lays down that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. The Supreme Court has held that the jurisdiction of the High Courts under Articles 226/227 and of the Supreme Court under Article 32 of the Constitution, forms part of the inviolable basic structure of the Constitution, and their jurisdiction cannot be ousted. It appears that anything is grist to the mill of the government for grinding the citizen of this country, who dares to challenge the rich and the mighty, especially the MNCs and other foreign agencies!
The health ministry and the health professionals are completely excluded from drafting process, and in line with that philosophy (!), the Bill envisages no role for health and environment experts, laments Siddharth who suggests that amendments should be made to remedy the lacuna. It will be a cry in the wilderness, of course!
Writing under the caption: “Civil Liability for Nuclear Claims Bill, 2010: Is Life Cheap in India?”, Arjun Makhijani, President, Institute for Energy and Environmental Research, Takoma Park, Maryland, U.S., says that before the Indian Parliament votes in limiting liability of the nuclear operators due to accidents, it should carefully consider the much higher limits that the United States has set for itself – about $11 billion per incident industry (the Price –Anderson Act). The liability of the operator proposed by the Nuclear Claims Bill would be just Rs.500 crores, or about $110 million – which is just 1% of the U.S. limit, and about $ 450 million per accident. Parliament should, in fact, consider that the actual damage could be far greater than even the U.S. liability limit.
In order to give an idea of the magnitude of the risks involved, Makhijani has drawn attention to a 1977 study by the U.S. government’s Brookhaven National Laboratory on Lung Island, New York. The study found that the severe spent fuel accidents would result in damages from under $1 billion up to #566 billion, depending on how full and hot the pool is at the time of the accident and the intensity of the fire. The high end figure would amount to over $700 billion. Vast amounts of land have to be condemned; large numbers of people would have to be evacuated. However, the Brookhaven amount does not include excess cancer deaths, estimated in the range from 1,500 to more than 1, 00,000.
Both the U.S. and Indian governments, says Makhijani, seem to be secure in the idea that such a severe nuclear power plant disaster is so unlikely that it can be disregarded. Like the proposed Indian bill, the U.S. government is supposed to cover the excess damages above the corporate limit yet, neither country has any practical financial proposal to cover damages in anything like the estimated amount of damages.
The ongoing disaster of the petroleum volcano caused by blowout of the BP oil well in the Gulf of Mexico should provide to our government and the Parliamentarians who are considering the Bill a sobering object lesson. A mode of thinking which does not consider high-consequence, though low probability, events, borders on folly. India should not ignore its own tragic history of the 1984 Bhopal disaster, still unfolding with the health and lives of tens of thousands of people who have been ruined. The Price-Anderson Act in the U.S., limiting the liability to $11 billion is bad enough. But, the (Indian) Nuclear Liability Bill of 2010 is much worse: first, the $110 million cap for the operator, or the even higher $450 million total cap, would not cover even one-tenth of one paise per rupee of the damage in worst case accident; second, Indian government will be guilty of perpetuating the lamentable long-held imperialist view that “life is cheap in India.”
The bill should be amended to include an explicit provision that says that there would be no operator liability cap; and that an initial payment of $20 billion (about Rs.92,000 crores) would have to be put in escrow in a worst-case accident. (An escrow is a contract or bond, etc., deposited with a third person, by whom it is to be delivered to the grantee on the fulfillment of some conditions). If the Civil Liability Nuclear Claims Bill of 2010 is not amended as above, it should be withdrawn; if it is not withdrawn, it should be soundly defeated, advises Makhijani. But, the tragic fact is, the Bill will be passed, due to herd voting, and the various parties looking to their own survival, rather than the survival of the people and the country.
George Manblot draws attention to the fact that the energy industry has for long dumped its damage and, like the banks, made scant provision against disaster. As recently as June, 2010, the British government bumped to a staggering consequence of failing to take full costs into account. Chris Huhne, the new Secretary of State for Energy and Climate Change, revealed that nuclear decommissioning liabilities will cost the government £4 billion more than it was expecting to pay over the next three years. India’s agreements with France and Russia provide for safeguarded reprocessing of the spent fuel and have no provision for suspension of termination of consent for the reprocessing. An attempt by the American negotiators to reopen parts of the 123 agreement governing nuclear commerce with India has emerged as the main obstacle, with the two countries seeking to finalize a deal on the conditions under which the U.S. – origin spent nuclear fuel can be reprocessed in Indian facilities. With the ghost of Tarapur, where vast acres of spent fuel have accumulated since 1960s, haunting them, Indian officials say that any uncertainty on consent for the reprocessing would make the purchase of U.S. nuclear reactors next to impossible.
It is not clear whether the huge costs towards the provision of insurance against the claims in the event of an accident, and the reprocessing costs of spent fuel, have been taken into consideration while working out the economics of nuclear power generation. Experts had noted that the energy from imported nuclear reactors will cost three times as much as the energy available from coal – fired plants and will, on an average, meet just 3% to 5% of the national power demand. The experts pointed out that the claim that nuclear energy is linked to growth is false. The civil nuclear energy agreement will lead to prohibitive investments, and the cost of energy, for the consumer will be far higher than the cost of Rs.5.50 per unit calculated for imported reactors. In fact, the government of Maharashtra’s latest economic survey had put the cost of 2 units at Jaitapur (at Madban village) at Rs.60,000 crore – and the const of one MW of power at Rs.18 crore, based on this, the cost of a unit would go up to Rs.9.90. So many alternatives/options could be explored at this price. Dr. Gopalakrishnan, former Chairman of the Atomic Energy Regulatory Board pointed out that with the limited data available for analysis, it was clear that imported nuclear reactors should be the last priority for the country to consider.
It will be clear that considering the risks and liabilities for the country, the Civil Liabilities for Nuclear Claims Bill should be rejected, notwithstanding that the prospects of getting nuclear reactors from the U.S. will fall through. This will not be a calamity – in fact, the country will be escaping several calamities!
K.S. Parthasarathy, Raja Ramanna Fellow, Department of Atomic Energy, writing on “India’s innovative nuclear power reactor”, says that people waiting for a nuclear renaissance, expect that the new reactors on the drawing board, should assure a very high level of safety and security; they must have the ability to perform with a lower level of technological infrastructure prevailing in developing countries; and they must have high fuel efficiency and superior waste disposal option..” The development of the Advanced Heavy Water Reactor (AHWR 300 – LEV) is an effort to realize these futuristic objectives through innovative configuration of present day technologies” wrote Anil Kadodkar and Ratan Sinha, the designers of India’s innovative nuclear reactor, in the May 2010 issue of the Nuclear Engineering International. They call the reactor India’s passive breeder. Dr. Sinha stated, in an interview, that the scientists and engineers at BARC have designed a novel advanced heavy water reactor to burn thorium (IEEE spectrum, 2008). They will be breaking new ground because no reactor in the world today uses thorium on a large scale. Currently, BARC has the facility for large scale validation work. The reactor can achieve commercial operation by 2020. Indian scientists have been exploring various fuel cycle options for improved versions of AHWR.
It is essential that the country fully backs up the above efforts by making available funds, personnel and all other facilities needed, instead of yielding to the threats and exploitation of foreign governments and suppliers. People should be on guard against their machinations to sabotage the work of our scientists and engineers by starving them of funds, facilities, government approvals, etc.
To end, a reference maybe invited to what may be taken as the authoritative and final word on the subject from Soli Sorabjee, a former Attorney General for India. He has described, as a violation of fundamental rights, the proposed attempt to cap the level of compensation which the victims of a nuclear accident will be entitled to. He said in a written opinion to the environmental NGO, Greenpeace India, that, in view of several Supreme Court judgments, which are part of Indian jurisprudence, and whose thrust is on the protection of victims of accidents, as part of their fundamental rights under Article 21 of the Constitution of India, there is no warrant or justification for capping nuclear liability. The Bill can be challenged, as it may not stand judicial scrutiny. It is vulnerable, arbitrary and unfair. How can the government legally deprive a victim of fair and just compensation? Any such move would be violative of the right to life. Supreme Court judgments have clearly laid down that, in the case of accidents in plants engaged in a hazardous or inherently dangerous activity which poses a potential threat to the health and safety of persons, such enterprises, applying the ‘polluter pays principle’, owe an absolute and non-delegable duty to ensure that no harm results to anyone.
Pointing out that the main lesson from the Bhopal gas tragedy was that foreign companies engaged in hazardous industries must be made strictly and absolutely liable for any damage caused by their units, Supreme Court lawyer, Prashant Bhushan, said: “the proposed Bill, instead, seeks to limit the liability, which is absurd.”
The Supreme Court has also 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.
Says Sorabjee: “There can be two views about the advantages or disadvantages of foreign investment in the nuclear energy sector in India. But, there can be only one view: health, well-being and problem of our people are paramount and must override dollar considerations. Foreign multinationals are not solicitors of the fundamental rights of our people. The Bhopal Gas case is a burning reminder.
“Any legislation that attempts to dilute the ‘polluter pays principle’, and imposes a cap in liability, is likely to be struck down by the court of law, 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 people of India, whose protection should be the primary concern of any civilized democratic government.” One is forced to wonder whether our government can lay claim to being a civilized democratic government!
In view of all the patience-testing (and rambling!) details put forward above, one fervently hopes that our legislatory will throw out the bill by a thumping majority, as the introduction of the Bill itself, in the face of the constitutional and legal pronouncements, is dishonest and mala fide. It may be pertinent to recall the saying: “The evil that men do lives after them; the good is oft interred with their bones.” In this case, the evil will not only live after the persons who allow the Bill to be enacted: it will live for generations after the victims who have died in a nuclear accident.
by C. A. Balasubramanian,
Addtl. Controller General of Accounts, GOI (retd.)