Nuclear liability law of India: an appraisal of extent of liability, right of recourse and transboundary applicability

Abstract

The making of the ‘Civil Liability for Nuclear Damage Act 2010’ was one of the finest legislative endeavours in the recent times. The exercise was significant because nuclear energy and the consequences of pursuing such an energy form were debated extensively in the Parliament for the first time. The result was a liability law that had an exceptional domestic political acceptability, but in many ways appeared to defy conventional international practice. The international nuclear community, led by supplier countries and vendors has argued that the law should be amended to be compatible with the established practice of international nuclear liability law. Examining through two specific examples – limitation of liability and right of recourse, the author argues, that though the Indian law gives the impression of defiance, the Parliament has only utilised the provisions of international nuclear law conventions – expanding boundaries of interpretation. Further, a section on transboundary applicability of the Indian law, and India’s commitment under Convention on Supplementary Compensation to its neighbours is analysed to see the operational difficulties.

Keywords:

• India
• civil nuclear liability law
• convention on supplementary compensation
• right of recourse
• limited liability
• transboundary application
• South Asia
• international nuclear liability law

Acknowledgements

This paper draw’s from the author’s doctoral thesis ‘Transboundary nuclear liability regime: A case for South Asian nuclear energy risk community’ submitted to Indian Institute of Technology, Kharagpur. The author acknowledges the comments of Dr K.D. Raju and M.V. Shiju in structuring the paper and two anonymous reviewers for critical suggestions.

Notes

1. On the issue of safety of the Kundankulam nuclear power project, Supreme Court in the case of G.Sundarrajan v. Union of India & others (May 2013) in its final judgement reposed confidence on Atomic Energy Regulatory Board’s competence and stated, ‘notice(d) that adequate and effective protection measures are in place’. Further, court relied on many expert committee reports which are unanimous that there will not be any deleterious effects due to radiation from the operation of Kudankulam plant, and that adequate safety measures have already been taken. The court took a view that the project is ‘part of the national policy’ and it ‘is not for courts to determine whether a particular policy or a particular decision taken in fulfilment of a policy, is fair’.

2. ‘Supplier’ shall include a person who – (i) Manufactures and supplies, either directly or through an agent, a system, equipment or component or builds a structure on the basis of functional specification; or (ii) provides build to print or detailed design specifications to a vendor for manufacturing a system, equipment or component or building a structure and is responsible to the operator for design and quality assurances; or (iii) provides quality assurances or design services.

3. Section 1, (2) It extends to the whole of India. (3) It also applies to nuclear damage suffered – (a) in or over the maritime areas beyond the territorial waters of India (b) in or over the exclusive economic zone of India as referred to in Section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976; 80 of 1976. (c) on board or by a ship registered in India under Section 22 of the Merchant Shipping Act, 1958 or under any other law for the time being in force; 44 of 1958. (d) on board or by an aircraft registered in India under clause (d) of Sub-section (2) of Section 5 of the Aircraft Act, 1934 or under any other law for the time being in force; 22 of 1934. (e) on or by an artificial island, installation or structure under the jurisdiction of India.

4. The South Asian countries are Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka. As of today, only India and Pakistan have nuclear energy programmes and also have ambitious expansion programs. Bangladesh is about to start construction of its first nuclear power project with the Russian Government’s assistance at Roopur. Sri Lanka too has taken a policy decision to incorporate nuclear power into its energy mix (IAEA 2010) Afghanistan; Bhutan; Nepal and Maldives do not have any plans for nuclear energy.