Indian Civil Liability for Nuclear Damage Bill, 2010

On 15th March 2010, the Civil Liability for Nuclear Damage Bill 2010 (The Bill) will be introduced in the Lok Sabha by Shri Prithviraj Chavan, Minister for State for Science and Technology and Earth Sciences. India has been in the area of nuclear power generation for several decades and the introduction of the Bill at this stage gets importance due to the opportunities raised by the ‘Joint Statement Between Presient George W. Bush and Prime Minister Manmohan Singh of 18 July, 2005’. The introduction of the Bill after the euphoria created by the Women’s Reservation Bill points to the use of ‘spin doctors’, a strategy used by the Blair administration effectively to deflect public attention. For an average Indian who still depends on agriculture or manual labour struggling for his daily bread the provisions of the Bill does not comes into his list of daily concerns.

As a democratically elected government working under the Constitution of India there is a general expectation that the lex loci (law of the place) will be followed for the nuclear damage occurred. The Civil Liability for Nuclear Damage Bill 2010 to everyone’s surprise does not reflect the Indian law on liability nor the principles of international nuclear liability. The Bill fails to acknowledge even the basic concept of ‘judicial review’ under the Indian Constitution through the inclusion of clauses providing finality to awards passed by the Claims Commissioners and Nuclear Damage Claims Commission. It would be wise enough if the Indian government examines the fate of Constitutional (Twenty Fifth Amendment) Act 1971 in Keshavananda Bharati v. State of Kerala in relation to exclusion of judicial review under Article 31C of the Indian Constitution. The exclusion of judicial review implies the lack of application of mind during the drafting of the Bill or its inclusion was to please the private suppliers and operators.

The Bill provides mere ‘liability’ and it does not clarify the application of the concept of “absolute liability” developed by the Indian Supreme Court. The Public Liability Insurance Act 1991 and the National Tribunal Act 1995 even though do not apply to nuclear damage testifies the importance given to the principle of absolute liability by the previous governments. The absence of valid reasoning for the exclusion of absolute liability creates ambiguity on the government’s intention behind the Bill. More over the provisions regarding limitation on time and amount which has been introduced to support the private suppliers as well as future private operators like EDF fails to support the basic concept of reasonable, fair and just.

The Indian Nuclear Energy Programme due to the non-separation of civil and military purposes till the operationalisation of the 123 Agreement is characterised by lack of transparency and high government control. This aspect has been reflected in the Bill through the provisions for Constitution of Nuclear Damage Claims Commission, its dissolution and also in the notification of nuclear incident. The Claims Commissioners have jurisdiction only if the Atomic Energy Regulatory Board notify a nuclear incident and there is guidance regarding what all matters should be taken into account in reaching the decision regarding the notification of nuclear incident under the Bill. This aspect should be seen in the light of the regulatory independence of the Atomic Energy Regulatory Board (AERB) which is constituted from with in the Indian Atomic Energy Establishment and comes with in organisational structure of the Department of Atomic Energy. Even though it has wide powers under various environmental legislations and the Atomic Energy Act 1962 it has never used it powers in a proactive manner. The lack of transparency of the Department of Atomic Energy together with the lack of regulatory independence of AERB will be detrimental to the interest of the victims of nuclear incidents.

The Indian Government through the introduction of the Bill failed to utilise the golden opportunity for acknowledging the aspects of transparency, regulatory independence and also bringing a liability principle suitable for India. In the ‘Statement of Objects and Reasons’ of the Bill the Government highlights the importance of Convention on Supplementary Compensation 1997 (CSC) while the actual provisions of the Bill are silent on the equitable distribution of compensation without discrimination on the basis of nationality, domicile or residence under the CSC. The Government has tried to make the Bill a standalone legislation as neither Atomic Energy Act 1962 nor any other law deals with nuclear liability or compensation. This wilfully ignores the immunity granted for all actions done in good faith by government and also the provisions for licensee’s liability under the 1962 Act. This also raises critical questions whether the drafters of the Bill has even gone through the provisions of the Atomic Energy Act 1962 or the Convention on Supplementary Compensation, 1997. Thus it can be concluded that the various provisions of the Bill protects the interest of the private suppliers and future operators, whether it is foreign or domestic rather than the interest of the victim whether he/she is Indian or International.