Dr. T. Subbarami Reddy,
Parliamentary Standing Committee on Science & Technology, Environment & Forests,
Sub: Representation on ’Civil Liability for Nuclear Damage Bill 2010’
The above-referred bill having been placed before the Parliament on May 7 2010, the last day of the last Budget Session, was subsequently, after a week, referred to the Standing Committee headed by you for considered and thoughtful recommendations to be submitted to the Parliament after due examination of the same.
We hope you would readily agree that this is an issue of great national import and various sections of our citizenry, including the polity, have expressed grave reservations on the intent and actual content of the Bill.
We, as a coalition of concerned Indian citizens, NGOs and other organizations engaged with the nuclear issue for about a decade by now (further details are available at: www.cndpindia.org->http://www.cndpindia.org), would like to submit the following in the above context.
The defining features of the Bill, to our understanding, are as under:
One, it is an attempt to enact a law defining and tackling civil liability for nuclear damage, which does not obtain as of now, to facilitate participation of foreign players in Indian nuclear market.
Two, the Bill is also a move towards joining the Convention on Supplementary Compensation (CSC) regime by enacting a law in alignment with that.
Three, the Bill is a stepping stone to ensure entry of private players, whether foreign or indigenous, as "operators", as had been demanded by the FICCI in its June 2009 Report.
The Bill, however, proposes to go way beyond the CSC framework to roll out a red carpet for the prospective private players to assume the mantle of "operator".
Our major concerns, in brief, are as under:
I. The entry of private players as "operators" is too dangerous given the unique nature of nuclear power industry and its catastrophic potentials, as chillingly illustrated by the Chernobyl Disaster on April 26 1986. The fact is that profit maximisation is the very raison d’etre of a private enterprise giving rise to the consequent innate tendency to cut corners in terms of safety measures. Regulatory mechanisms can at best only “regulate”. Hence, the envisaged ushering in of private players as “operators” of nuclear power plants is an open invitation to disaster.
What is of great relevance here is that the CSC framework in no way obliges the country to open doors to private players, foreign or indigenous, as “operators” of nuclear power plants.
II. There must not be any overall "cap" on the quantum of compensation to potential victims. That is too unjust and inhumane. It has to relate to the actual damages caused. The overall “cap” of 300 million SDR, which works out to about 460 million US$, is even lower than the compensation amount of US$ 470 million ratified by the Indian Supreme Court to the victims of Bhopal Gas Disaster way back in 1989.
The CSC, again, does NOT so obligate. It actually allows for a three-tier compensation regime. Up to a limit, or “cap”, of 300 million SDR, in the first tier, to be paid by the “operator” or the national government, as per the law of the land. Then another tier, to a further 300 million SDR or so to be drawn from the common pool of funds maintained by the CSC. And then the national government may, at its own option, pay even beyond the upper limit of this second tier limit without any “cap” whatever.
Of some relevance here is the fact that in case of the US, in the event of an accident, the first $375 million is paid by the insurer(s) of the plant. It is mandatory for the operator to insure the plant. Beyond that, up to US$ 10 billion is paid out of a fund jointly contributed by the “operators” as mandated by the Price-Anderson Nuclear Industries Indemnity Act. Beyond that, the Federal Government pays.
The BP, just the other day, in the context of (continuing) accidental oil spill caused by it in the Mexican Gulf has been made to commit US $ 20 billion, and no less, as compensation for the damages being caused.
III. The Bill pegs the “liability” of the private “operator” at Rs. 500 crore per incident, with the further proviso to lower it down to even paltrier Rs. 100 crore. And the state, i.e. the Indian taxpayers/citizens, will have to pay, in case of an accident in a privately operated nuclear power plant, the amount of “liability”, i.e. compensations for damages, exceeding the “cap” for a private "operator" subject to the overall limit of 300 million SDR.
Even in this case, the CSC does NOT obligate to peg the "cap" for the "liability" of any "operator" any lower than 300 million SDR, which amounts to around Rs. 2,100 crore or 460 million US$. And while the CSC obligates that there must be a (first-tier) cap of 300 million SDR, it does not envisage any overall cap on the compensation to be made available to the victims by a member nation.
This is evidently a brazen attempt to favour private enterprises at the cost of Indian citizens. And a lower “cap” for a private “operator” would only further strengthen its intrinsic propensity to cut corners in the realm of “safety”, with nightmarish prospects.
|Contentious clauses||Draft Bill provides||Suggestion|
Channelising the liability to “operator”.
(Chapter II, Cl. 4 (1))
|The operator for the nuclear installation shall be liable for nuclear damage …||This is a welcome provision as otherwise there would be no pre-designated (singular) source from which the compensations for the victims to be obtained. And the whole process could turn utterly cumbersome and lengthy.
However, there must be provisions for the operator to claim compensations, in turn, from the supplier/designer/consultant etc. in an unrestricted manner, without diluting its liability to the victims.
(This is the case with US and Russia, at least.)
Exceptions to the operator as regards liability
(Chapter II, Cl. 5(1) ii)
|The list of exceptions includes “terrorism”.
“grave natural disaster …”
|To drop “terrorism” from the list.
It does not figure in the corresponding CSC clause: Annex, Article 3, 5. a.
To be dropped in entirety.
The corresponding CSC clause - Annex, Article 3, 5. b. - provides that national law may have provision to drop such circumstances from the list of exceptions.
The concept of “strict liability” being the foundational concept, such exceptions, and consequent transfer of liability for damage under such circumstances to the “Central Government”, and thereby the Indian taxpayers, in case of a private operator, is wholly unjustified.
The liability of a (private) operator
(Chapter II, Cl. 6(2) and 7(a) and (c))
|Rs.500 crore as operator liability ceiling, with a provision for reduction to Rs. 100 crore.
The balance, if any, up to 300 million SDR to be paid by the Central Government
|This provision to be dropped.
The operator is to be held liable for compensation up to 300 million SDR.
No lower limit of liability for (private) operator.
Clauses (6 & 7, in particular) to be modified accordingly.
N.B.: In any case, the discretionary provision for lowering the limit any further (to Rs. 100 crore) is utterly unjustified. That makes nonsense of the “cap” of Rs. 500 crore. And the whole process of determining the “cap” appears to be entirely discretionary.
The Convention for Supplementary Compensation (CSC) does not obligate the GoI to go in for such differentiated liabilities, one for private operator and another for the state affiliated operator.
In case of an “incident” of exceptional gravity, the cap on the liability of the Central Government will stand withdrawn through due notification by the Claims Commission.
This, by the way, does not contradict the provisions of the CSC. The reported move of dropping the Cl. 17 (b) is utterly objectionable, as explained above (at entry 1).
Operator’s “right of recourse”
(Chapter IV, Cl. 17 (a), (b) and ( c))
|The limit of 10 years is too short.
To be made 20 years at least.
This would, however, be a departure from the norms of the CSC.
While no civil court must have any right to intervene in the conduct of proceedings by the claims commission and ready implementation/enforcement of its award/order, much as in case of the Election Commission; there must be provision to for appeal to an appellate authority – High Court or Supreme Court, without prejudicing the immediate implementation/enforcement of the award/order by the claims commission.
Otherwise, it would be violation of natural justice.
Extinction of right to claim
(Chapter IV, Cl. 18)
Exclusion of jurisdiction of civil courts (Chapter V, Cl. 35)
|The provision for penalty for not complying with the award, Cl. 36 (1) (b) for example, is too paltry.
The provision for maximum imprisonment for 5 years be raised to 10 years at least. In any case, this is only maximum.
Offences and penalties (Chapter VI, Cl. 39 (1))
|This has got to be deleted in entirety as it violates the principle of command responsibility and thereby would ensure that minions are punished in case of violations and senior officers go scott free.|
Offences by companies (Chapter VI, Cl. 40 (1), para 2)
|Under “Definitions” (ref. Chapter I, Cl. 2 (f) (iv), “nuclear damage” covers “impaired environment”.
It is, however, not provided who can lodge claims for “costs of measures of reinstatement” as mentioned therein.
Compensation for environmental damage
|Any public spirited group or citizen, apart from public bodies like Gram Sabha, panchayat, municipality etc. and affected persons, must be entitled to raise such claims.
There must be a clear provision towards that.
And, also who will receive such amount?
In view of above, we would strongly urge you to arrange for wide consultations with all the stakeholders before you finally formulate your views and recommendations.
You would agree that in the wake of huge outpourings of public outrage over the recent court judgement on the Bhopal Gas Disaster case this would be the only prudent and right course of action.
We would also earnestly request you to give us an opportunity to present our case before the Committee with all the relevant details
Admiral (rtd.) L Ramdas
J. Sri Raman
N D Jayaprakash
For the Coalition for Nuclear Disarmament and Peace (CNDP)
Date: 18 06 2010
Cc.: Members of the Standing Committee:
Members from the Rajya Sabha:
1. Shri S S Ahluwalia
2. Shri Rajiv Pratap Rudy
3. Shri Anil H. Lad
4. Shri Ramachandra Khuntia
5. Prof. Ram Gopal Yadav
6. Dr. Ejaz Ali
7. Dr. Barun Mukherjee
8. Shri Saman Pathak
9. Shri Jabir Husain
Members from the Lok Sabha:
1. Dr. Rajan Sushant
2. Shri D.V. Sadananda Gowda
3. Shri C. R. Patil
4. Smt. Kamla Devi Patle
5. Shri Yashwant Sinha
6. Shri Mansukhbhai D. Vasava
7. Kaisar Jahan
8. Shri Bibhu Prasad Tarai
9. Shri S.S. Ramasubbu
10. Shri Pradeep Tamta
11. Shri Francisco Sardinha
12. Shri Ninong Ering
13. Dr. Charan Das Mahant
14. Shri Gajendra Singh Rajukhedi
15. Shri Akhilesh Yadav
16. Dr. Ranjan Prasad Yadav
17. Shri Udyanraje Bhonsle
18. Shri Jayaram Pangi
19. Shri A. Ganeshamurthi
20. Dr. Mirza Mehboob Beg
21. Shri K.C. Singh Baba
22. Mr. JP Sharma, Secretary to the Standing Committee.
SEE ORIGINAL LETTER WITH PROPER FORMATTING