With the Indian
government acting in favour of the nuclear industry, contrary to the interests
of potential victims of a disaster, the question of liability deserves greater
attention
In its efforts to
promote nuclear commerce with the United States, the Narendra Modi government
has run into a dichotomy that lies at the heart of this industry. While
multinational nuclear suppliers, such as G.E. and Westinghouse publicly insist
that their products are extraordinarily safe, they are adamant that they will not
accept any liability should an accident occur at one of their reactors. The
joint announcement by Mr. Modi and U.S. President Barack Obama last month
raised concerns that the government would move to effectively indemnify
suppliers, contrary to the interests of potential victims. The list of
“frequently asked questions” (FAQs) on nuclear liability released by the
Ministry of External Affairs on February 8 confirms the suspicion that the Modi
government is trying to reinterpret India’s liability law by executive fiat in
order to protect nuclear vendors.
The government has
disingenuously suggested that it achieved the recent “breakthrough” by
establishing an insurance pool to support suppliers. However, to focus on this
arrangement is to miss the wood for the trees as even a cursory analysis of the
economics of nuclear plants shows.
A section in the Indian
law called the “right of recourse” allows the Nuclear Power Corporation of
India Ltd. (NPCIL) to claim compensation from suppliers up to a maximum of Rs.1,500
crore ($240 million). This pales in comparison with the total cost of the six
planned Westinghouse reactors at Mithi Virdi in Gujarat; estimates from similar
plants under construction in the U.S. suggest that this may be as high as
Rs.2.5 lakh crore. In the U.S., all nuclear plant operators must have
third-party insurance for at least $375 million, and suppliers could easily set
aside a small portion of their profits to do the same for reactors sold in
India.
Problematic principle
What suppliers are
worried about is not the amount, but the principle. More concretely, if the law
places some responsibility on suppliers, then a future Indian government could
use this to gain leverage by forcing them to pay substantially more for a
serious disaster. Moreover, their executives could be held accountable under
other civil and criminal statutes in India. The FAQs released by the government
are meant to reassure nuclear vendors on these counts.
The FAQs claim that the
provision allowing the NPCIL a right of recourse “is to be read … in the
context of … the contract between the operator and supplier.” This goes beyond
the law, where the right of recourse exists independently of a contract.
In 2010, when a
parliamentary standing committee suggested such a linkage, its recommendation
was rejected by the Cabinet after a public outcry. Although the FAQs later
state that “a provision that was expressly excluded from the statute cannot be
read into the statute by interpretation,” this is precisely what the government
is doing here.
The FAQs suggest that
the government is also committed to the interests of the public sector NPCIL
which “would insist that ... contracts contain provisions that provide for a
right of recourse consistent with Rule 24 of CLND Rules of 2011.” However, this
is a cunning sleight of hand. A central element of these rules is that “the
provision for right of recourse … shall be for the duration of initial
license,” which is usually granted only for five years. In contrast, the
promised lifetime of modern reactors is 60 years, and failure rates tend to
increase in later years. Therefore, linking the right of recourse to a contract
is an attempt to water down supplier liability to a meaningless level.
“Just because the
Manmohan Singh government accepted the Faustian Indo-U.S. nuclear pact does not
mean that India needs to bend its laws and spend billions of dollars on U.S.
reactors”
The FAQs also declare
that suppliers cannot be “asked to pay more compensation in the future … than
currently provided under the law.” However, this ignores the fact that the law
itself has a provision for revising liability, which states that “the Central
Government may … from time to time … specify, by notification, a higher
amount.”
A revision of the cap
with time is only natural. Several decades from now, Rs. 1,500 crore may be
worth much less than it is currently. Therefore, the government’s move to
perpetually limit supplier liability to this nominal amount defies basic
economic principles, and implies that victims will receive a lower
compensation, in real terms, for future accidents.
Finally, the FAQs
assert that the liability act, ipso facto, takes away the rights of victims to
sue suppliers even under other laws. If this interpretation of the law is
correct, then it implies that suppliers cannot be prosecuted even for criminal
negligence.
Double standards
This provides a
striking example of double standards. Under U.S. law, suppliers can be held
legally responsible for accidents. Consequently, for decades, the U.S. refused
to join any international convention that would require it to legally indemnify
suppliers. When it engineered the Convention on Supplementary Compensation for
Nuclear Damage, it inserted a “grandfather clause” to ensure that it would not
have to alter its own law. In contrast, the Indian government seems willing to
meekly surrender the rights of its citizens.
It is sometimes argued
that India must make these concessions to “repay” the U.S. for its help in
facilitating India’s access to international nuclear commerce. U.S.
policymakers pushed for such access in a calculated attempt to induce India to
support its geostrategic objectives and to ensure that U.S. companies would
have access to the emerging Indian nuclear market. However, just because the
Manmohan Singh government accepted this Faustian pact — and even cast an
unconscionable vote against Iran at the International Atomic Energy Agency —
does not mean that the country needs to repay this self-serving “favour”
endlessly by bending its laws and spending billions of dollars on U.S.
reactors.
Although the question
of liability is somewhat abstruse, it deserves greater public attention because
it serves as a clear lens to understand the central conflict involved in
India’s nuclear expansion: the desire of nuclear vendors to have profitability
without accountability and the interests of ordinary people who could be
potential victims. The government’s attempt to resolve this conflict in favour
of the industry is a revealing indicator of its priorities.
(M.V. Ramana and Suvrat
Raju are physicists with the Coalition for Nuclear Disarmament and Peace.
Ramana is the author of The Power of Promise: Examining Nuclear Energy in
India, 2012.)
Analysis: From Team work for CSE-2015
What portion it will
fill
________________________
GS -3
1/ infrastructure-
energy
2/ science and technology development and their impacts on everyday life.
3/ Disaster and disaster management.
4/ Environmental pollution and degradation
5/ role of external state and non state actors and creating challenges to
internal security.
GS --1
------
6/Distribution of major resources.
Essence of the
editorial
________________________
Provision of "
Right to recourse ".
__________________________
It compels the
suppliers to pay to NPCIL in case of failure or accident.
Why the suppliers
protest against it
________________________
A/ Under Indian law ;
this " right of recourse " is signed between suppliers and NPCIL
under a contract but in Western countries it is independent of any contract.
B/ Under Indian law
there is a chance to make suppliers and executives to be more liable and
punishable in future.
What is the ground of
criticism from Indian side
___________________________
1/ The " right of recourse " is only for initial 5 years.
What is the problem
here ?
_________________________
A/ The life of a nuclear plant is 60 years. The failure of nuclear plant might
come towards the last part. In that case compelling suppliers only for 5 years
is meaningless.
B/ It is dangerous
both to NPCIL and victims. The latter will be hugely affected by this
provision.
2/ Indian law prevents
victims filing cases against suppliers while US government strictly observe
this rule where under strict provision victims can file suit against suppliers.
Why this is leverage
to suppliers ?
_______________________________
As believed ; US has
greater role in making india a nuclear enriched country. So ; this kind of
flexibility is to suppliers.
How it will help us ?
_________________
1/ It gives us light about energy related issues fulfilling topic 1.
2/ it says impact of
any accident by nuclear plant and development of indigenous nuclear technology
and fulfills topic 2+3
3/ you can extract
about possible environment pollution related with nuclear plant thus fulfilling
topic 4.
4/ It gives us light
to consider security issue of nuclear plant and possible threat of non state
actors to nuclear sector fulfilling topic 5.
5/ we can search for
major nuclear deposits in world along with india thus fulfilling topic 5.
Subjectives
------------
Q/ The southern coast of India is said to be deposit golden sand-- why?
Q/ Recently NGT banned
mining of sand ore in southern coast-- why ?
Q/ What is rare earth
materials ? Narrate the environmental pollution caused by rare earth material
with reference to major countries dealing with it.
Q/ There is a need to
regulate NGO run by foreign aid through strict law. Consider the statement
under the controversy of Kalpakkam.
Q/ Write a short note
on the nuclear resources of india.
GS--4
--------
You are president of a NGO working for protection of environment. You are a
nuclear scientist. A nuclear power plant is going to establish in your region.
A public outcry is already in out.
What you will do in
such cases as a nuclear scientist as well as a president of NGO for protection
of environment ?
Objectives
___________
1/Correct
A/ Domiasiat is the largest sandstone type uranium deposit in khasi hills in
arunachal.
B/ A peculiar type of bacteria exist here.
1/ both
2/ none
3/ a
4/ b
2/ correct decreasing
order regarding the position of their utilisation in india--
A/ Electricity energy;
thermal; hydro and renewable energy; nuclear energy.
B/ electricity energy; hydro n renewable energy; thermal; nuclear energy..
C/ Electricity energy; thermal; nuclear; hydro and renewable energy.
3/ arrange the
following in decreasing order of their deposit of uranium.
A/ Tummalapalle; chitrial; peddagattu; rohil
B/ rohil; chitrial; tummalalpalle; peddagattu.
4/ correct
A/ Rare earth materials are very rare in earth.
B/ They are 17 materials found in periodic table like scandium and yttrium and
difficult to extract.
C/ Extracting rare earth materials causes huge scale environment pollution and
china and Malaysia are the example of it.
1/ all
2/ ab
3/ bc
4/ ac
5/ correct
A/ monazite is a rare earth material found in southern coast sand of india.
B/ it is mixed up with thorium.
C/ India has rare earth material treaty with japan
D/ Rare earth materil is used from mobile to laptop.
E/ singhbhum in bihar has
1/ all
2/ abc
3/ bce
4/ abde
Major nuclear power
plants in India
_________________________
Kaiga--karnataka
Kalpakkam-- Tamilnadu
Kakrapara -- gujrat
Raeathbhata -- Rajasthan
Tarapur-- Maharashtra
Narora-- uttar pradesh.
I have furnished an
article on nuclear law.
After the Nuclear
Cooperation treaty with US india has to create a domestic law to find
consonance with the Convention on supplementary compensation for nuclear damage
( CSG) as india has not ratified the CSG treaty. To enter into the global arena
of nuclear power india legislates the Nuclear Liability Law of india but it is
vehemently criticized on various grounds. This article tries to throw light on
some grounds of criticism of the bill.
Liability cap
------------
The nuclear liability law caps the compensation to be paid by operator to the
victims at a very minimum level. It breaches indian and international law on
various grounds---
1/ Article 21 of
indian constitution
_____________________
Protection of environment comes under the ambit of article 21 as it is related
with right to life. A healthy environment is necessary for healthy life. The
supreme court in Oleum gas leak case clearly mentions that an enterprise with
hazardous process of producing any chemical or any hazardous substances that
viable the integrity of environment is solely responsible to the compensation.
From this point of view capping of the compensation amount of the nuclear
operator and rest to be paid by the government violates the rule of Supreme
court.
2/Indian law of full
compensation
_______________________________
The Indian law provides for full compensation to any victim. This capping
system violates this principle also.
3/Polluter pay
principle
_____________________
Both indian law and international law says that it is the polluter who have to
pay the ultimate price. Both law even says that an enterprise has to pay not
only the compensation to victim but also to the price for environmental
regeneration. In Indian council for enviro legal action Supreme court applies
this principle that only the polluter will pay. From this point of view also;
capping of compensation amount by the enterprise violates indian and
international law.
4/ Propensity of the
nuclear damage
_________________________
The damaged caused by a nuclear accident is enormous and it cant be fulfilled
by a minimum capping amount as provided in India's Nuclear Liability Law.
5/ Government
enterprise
_________________________
One section of society accuse that pushing the enterprise only to liability
without nuclear supplier is to attract the foreign investment in nuclear field.
In india; the enterprise is government controlled. So; ultimate responsibility
remains with the government.
6/Burden on tax payer
____________________
Besides these; to fulfill the rest compensated amount by the government;
government might have to increase the the tax on its citizens.
7/No mention of cap
__________________
The convention of supplementary compensation for nuclear damage act (CSG)
doesn't mention about any cap as a condition to entry into the nuclear
suppliers group and no other country who are part of this convention has
provided such cap.
Other grounds of
criticism
---------------------------
1/ The bill provides a ground to sue the nuclear supplier if it is proved that
any incident has been occured due to the negligency of nuclear supplier group.
It prevents the foreign nuclear companies to invest in indian nuclear field.
2/ The bill relieves
the nuclear operator from liability if accident is due to cause of natural
disaster; terrorism and armed conflict. It invites utter threats to the life of
millions of people.
Some legal grounds of
criticism regarding conflicting clause of the Nuclear Liability law
------------------------------
Clause 6 and emanating
controversy
________________________
According to this clause the operator can claim any liability from manufacturer
and supplier in case of nuclear accident if it is written in the contract. But
here the operator is Nuclear Power Corporation of India which itself is a
government owned enterprise. So; in that case; to cope up with current
situation government can put up a new bill or mayvamend the existing bill that
might go against the victims.
Controversy regarding
clause 18
______________________________
The clause 18 of the
nuclear liability bill maximizes the time of 10 years under which a victim has
to file a complaint while it is well known to all that it is a very short
duration of time because DNA of human bodies expresses nuclear related
syndromes upto a long time along with several mismatches caused by nuclear
disaster.
Controversy regarding
clause 35
_______________________________
Thr clause 35 of the nuclear liability law provides that only nuclear damage
claim commissioner can run the trial of operator or responsible person liable
to the accident without any provision of civil court. It is contrary to the
counterpart of US where accused are tried under civil court. It also conflicts
with indian law.
Controversy regarding
clause 17 and other deprivation of victim's rights
____________________________
The nuclear liability
bill provides utmost responsibility to determine the claim of victims to the
Nuclear damage commissioner.Not only this; the clause 17 of the bill prohibits
the victims from filing any case against liable persons which can be done only
by the operator that is NPCIL. It also prohibits the victims from filing any
cases against the order of nuclear damage commissioner. It violates the civil
rights of citizens.
Solution
--------
From international front
____________________
As said by foreign nuclear companies and the US government the section 17 (b)
and 46 of the Nuclear Liability Law that provides strict legal action against
the nuclear suppliers in case of default of any mechanism or equipment is
neither mentioned in CSG treaty nor mentioned in law of the countries who are
party to the convention.
To resolve the
problem; without diluting the provision but a much rationalised provision can
be added diplomatically.
In case of insurance
stalemate; a perfect risk management system combining insurance pool of indian
insurance companies and US insurance companies can solve the matter.
From domestic front
____________________
After the Bhopal gas incident the domestic problems that might atise by such
hazardous industry should be concerned effectively. A proper compensation
system considering the propensity of such huge loss caused by nuclear accident
and with inclusion of a longer time period to file suit can mitigate the problem.
The inclusion of civil court in the trial process will add transparency and
also will be in resonance with indian law.
India needs clean
energy to appear on equal foot with other developed countries. Nuclear energy
can pave this way for india. But a highly effective protection system with
utterly responsible government machinery along with adequate law is necessary
for a balancing nuclear power in india.
Questions to try
----------------
1/ The nuclear liability law of india conflicts with the indian as well as
international law-- exemplify.
2/ The nuclear
liability law of india deprives the indians from entertaining fundamental
rights-- put forward valid reasons.
