It's absolutely essential, "If there was not a cap and if there was not suitable legislation insurance in place, then we wouldn't be in the nuclear industry." - Peter Mason, president and chief executive of nuclear supplier GE-Hitachi Nuclear Energy Canada explained to the Parliamentary Standing Committee of the Canadian House of Commons on Natural Resources that is dealing with Bill C-20, their Nuclear Liability and Compensation Act, November 2009

The Congress-led United Progressive Alliance government’s proposals for a Civil Liability for Nuclear Damage Bill, 2009 and an environmental court through The National Green Tribunal Bill, 2009 are ridden with glaring loopholes, designed to insulate corporations from punitive legal consequences.

The Union Cabinet cleared the text of The Civil Liability for Nuclear Damage Bill on November 19, 2009 for introduction in the Parliament. The passage of the Nuclear Liability Bill will allow India to join the international convention on civil liability for nuclear damage. So far this Nuclear Bill is not in the public domain but the Green Tribunal Bill is publicly accessible.

While placing a cap on the compensation to be paid in the case of an accident at a nuclear site, the proposed legislation, in keeping with the demands by the Multinational Corporations like Union Carbide Company and Dow Chemicals Company, puts the responsibility for paying this compensation on the operator and not the suppliers or foreign companies installing the reactors in India. The Bill reportedly proposes to cap the level of compensation at $450 million. This provision is clearly designed with the interests of the nuclear power corporations, specifically US corporations in mind, rather than the welfare of potential victims of a disaster. Nuclear power companies in general and US nuclear companies like GE Hitachi Nuclear Energy, Westinghouse and Babcock & Wilcox intend to invest in India if and only they are provided anticipatory bail for their legal liability for nuclear accidents in future. US Assistant Secretary of State for South and Central Asian Affairs Robert Blake informed a US House committee: “… we are hoping to see action on nuclear liability legislation that would reduce liability for American companies and allow them to invest in India…” French and Russian companies, which are either completely or partially owned by their governments, could easily buy an insurance cover for $450-million; the privately owned US companies would have found this difficult. Had the bill not absolved the supplier of liability, the latter might be edged out of the $200 billion-worth Indian market.

The US nuclear industry is addicted to special laws made by the US government that limits their liability from nuclear radiation accidents, and wishes to operate only under laws shaped by it. It has been noted that US companies who are part of a US commercial nuclear mission to India organised jointly by the Nuclear Energy Institute and the US India Business Council (USIBC) have informed media that they are satisfied with the Bill and are in active discussion with Nuclear Power Corporation, Tata Power, GMR, Jindal, NTPC, L&T to explore business potential. Clearly, the US nuclear companies have seen the Bill (and may have drafted it as well?) which has not even been tabled in the Indian Parliament.

Notably, Federation of Indian Chambers of Commerce and Industry (FICCI)’s 25-member Working Group on Civil Nuclear Energy-2009 under the Chairmanship of Dr. S.K. Jain, CMD, Nuclear Power Corporation of India Ltd came out with a 57-page report which discusses the format of the proposed Civil Liability for Nuclear Damage Bill, 2009.

The composition of the FICCI Working Group on Nuclear Energy reveals a long list of entrenched business interests owing allegiance to a range of corporations – including Reliance, Tata, Larsen and Toubro and many others, with no expertise to suggest policy on nuclear liability issues. Predictably, the FICCI Report also recommends that the responsibility for paying compensation rest on the operator; the Report suggests that the operator and supplier can, possibly, enter into a private contract to share the compensation burden.

The international conventions which provide for liability regime also favour the industry and not the possible victims and provides for indemnity to the global nuclear industry: the Paris Convention (1960), the Vienna Convention (VC) revised in 1997 and the Convention on Supplementary Compensation for Nuclear Damage (CSC). FICCI has recommended that the Government of India should ratify the VC on an immediate basis and the CSC later on in a phased manner deemed fit, supplemented by incorporating appropriate internationally-accepted provisions in the consequent/parallel CNL domestic legislation.

The CSC limits the compensation payable by the operators of nuclear plants for any accidents or damage to $450 million, leaving the responsibility for the rest to national governments. Ironically, this is similar to the range of (painfully inadequate) compensation paid to the victims of the Bhopal’s industrial disaster ($470 million). One can also recall that the damage from Chernobyl is estimated at some $250 billion. If $470 million was peanuts for the Bhopal victims, one can only imagine how inadequate it would be in the case of a Chernobyl-scale nuclear accident.

Not surprisingly, the FICCI report feigns ignorance about all the nuclear accidents in the world and has repeatedly cited the Supreme Court order in the Charan Lal Sahu, Petitioner vs. Union of India, Respondent case which received international criticism for invoking the doctrine of parens patriae – i.e that the government was ‘parent’ of citizens and therefore had a exclusive right to represent the gas victims.

Notably, the Supreme Court also held that the Act only deals with civil liability and as such does not curtail or affect rights in respect of criminal liability. The Civil Liability from Nuclear Damages Bill must be redrafted to include both criminal liabilities and deterrent civil liabilities.

National Green Tribunal Bill

The National Green Tribunal Bill has been envisaged as a single tier Tribunal which is proposed to sit at 5 places; these shall have the same powers irrespective of their location. Among other things the time frame of approaching the Tribunal is highly confusing and it has no power to stop damage to environment before it occurs.

Why should this Tribunal not have the power to act for the protection of environment, cancel environmental clearances if necessary and to provide incentives to individuals of civil society who are working as eyes and ears of nature and wildlife instead of penalizing them as is the case as of now? Why should it not have the power to issue contempt of court notices?

The 29-member Parliamentary Standing Committee on Science and Technology, Environment and Forests headed by Dr. T. Subbarami Reddy (Indian National Congress) submitted its report in late November, 2009 and had suggested 12 changes in the Bill of which the government has accepted ten and rejected two. This Parliamentary Standing Committee was constituted on 31st August, 2009. The committee presented its report on the Bill to the parliament on 24th November, 2009. The parliamentary committee errs in letting the Tribunal deal only with cases of a civil nature excluding environmental crimes of a criminal nature.

As per the report “The Committee feels that it would be in the interest of fairness if one year period to bar members of the tribunal from being employed by a company that appeared before them in the tribunal be extended to two years.” This is not sufficient; members of the Tribunal should be banned from taking assignments with the beneficiary company.

This Bill comes in response to the 186th Report of Law Commission of India on the Proposal to Constitute Environmental Courts in September 2003. This Report notes that Tribunals under the NEAA Act of 1997 and NET Act of 1995 are “non-functional and remain only on paper.” The Green Tribunal Bill is meant to replace NEAA Act of 1997 and NET Act of 1995. Some of the major problems with the Bill are that it places restrictions on who can approach the Tribunal; limits the period of accountability; includes implicit threat of heavy costs to petitioners in their claim is found false; excludes non-point sources of pollution and fails to make companies criminally liable for their acts of omission and commission.

The Cabinet Committee on Economic Affairs (CCEA) has not accepted the recommendation that every amendment to Schedule I of the Bill be voted by Parliament. The Parliamentary Committee has rightly argued that vesting the “such an overriding power in the Ministry undermines the supremacy of Parliament.” It had therefore recommended that “any basic change from the concept of the Bill should be done only through an amendment passed by Parliament and not by notification.” By not accepting this recommendation, the CCEA has belittled the significance Parliament and parliamentary committees. The power of subordinate legislation has consistently been misused by the CCEA despite the fact that institutional accountability of Bhopal and Kaiga like disasters rests with them.

Indian people must demand that the National Green Tribunal Bill and the Nuclear Liability Bill be redrafted, incorporating stringent criminal and civil liability provisions, after taking lessons from the worst nuclear accidents – such as the accident at the civilian nuclear power plant in Three Mile Island (TMI) in 1979 in the US and the Chernobyl disaster, in 1986 at the Chernobyl Nuclear Power Plant in Ukraine.

Both the CNL and NGT Bills in their present shape will do nothing to protect the rights of potential victims of a future Bhopal, Chernobyl or Kaiga, but will rather protect the perpetrators. Moreover, the CNL Bill is designed to enable US companies to corner the Indian nuclear market, endangering the potential Indian victims of any accident. This is the deadly fallout of the Indo-US Nuke Deal. Also, any move to allow private profiteers as ‘operators’ of nuclear installations will further endanger people: Bhopal is a reminder of how profit-minded corporates have scant concern for safety regulations.