Wednesday, September 8, 2010

The Nuclear Bill - Confounding Confusion

The Nuclear Bill
Confounding Confusion

The Indian Parliament’s most popular method of passing legislation is with sparse, or no, discussion. Democratic voices have to be media shrill and strong to register. In the case of the Civil Nuclear Bill (CNL Bill) the voices were strong.

The basic objection of the protestors was that having surrendered sovereignty to America under the Nuclear Deal, the Nuclear Bill played to the interest of foreign suppliers and Indian operators and others to cheat the people of India from just recompense. Remember Hiroshima. Remember Chernobyl. Remember Bhopal. The hue and cry led to referring the Bill to the Dr. Subbarami Reddy Committee on 13 May 2010 whom Vice-President Hamid Ansari accused of interpolation. It reported on 18 August 2010 with a dissent from Dr. Barun Mukherjee who pointed out that “many countries are not members of any liability convention and only 4 out of 30 members having ratified the 1997 convention.” He found the suggested changes to the present provisions “absurdly low”. Salman Pathak’s other dissenting view was that the Committee had failed to “keep the interests of the Indian people … as its core concern” and “unduly favour(ed) foreign suppliers”. The Committee heard the government Departments, visited Nuclear plants, was satisfied with the safety measures and heard some NGOs, Trade Unions, Business Associations and the Insurance Industry.

Passing this Bill was critical to show India’s good faith to America and other supplier nations. Compromises were worked out with the BJP, when they could not be forced on the Left. The CNL Bill broadly contains (i) liability and (ii) machinery provisions. Some 18 amendments were tabled, seven were accepted mostly over the liability provisions.

After the amendment, the Bill fails to exude a complete and comprehensive responsibility for accidents, victims, loss and livelihood. In the Bichri case (1995), following Oleum Gas (1986), the Supreme Court has laid down absolute liability (whether negligent or intentional or otherwise) for any and all damage due to escape from a hazardous unit. This is still good law; and woe-betide a Parliament that destroys this umbrella protection.
Liability Provisions

The Bill continues to shortchange liability and therefore responsibility. Some provisions are unoriginally salutary; some inadequate. (i) By making the Bill applicable to government owned or controlled by government (new Section 3A), private operators are excluded from the operation of the Act. It is an improvement only because present operators are government controlled and owned. But, with this and also the changed meaning of “operator”, the Bill vitally excludes future private operators from the Act. One problem is solved; another imbedded. (ii) Changes were made by the Committee in the definition clauses. The Health Secretary had wisely recommended that nuclear damage should include loss of life, injury and “immediate and long term health impact (Clause 2(f)(i)). Likewise ‘environment’ was to do be given a wider meaning (iii) The big change is in Clause 6 of the Bill is to empower the government to increase the liability from 300 SDR (Special Drawing Rights (SDR) equal to about Rs.2100 crores) if it wants. Then a graded and lesser responsibility is now introduced for different kinds of reactors and plants. Why this mambo-jambo? The Committee had suggested tripling the liability. Why not an absolute liability clause which simply says that the maximum liability shall be the actual damage caused. Why should the tax payer pay the amount in excess beyond the maximum? Further, the new change requires that, if necessary, the government will assume the liability of private operator, if in the public interest. Clearly, issues have been fudged. (iv) Suppliers liability was, and remains guarded. The Committee wanted the Indian operator (mind you, not the victim) to have the “right to recourse” against the supplier for any connected damage, but left the operator with the defence that if the damage was not intentional the supplier would not be liable. The BJP wanted this ‘intent’ defence dropped. However, the Lok Sabha passed the Bill with the ‘intent’ clause intact! What is not clear is what a “right to recourse” means? 10 years of litigation? Arbitration? In other words, the liability amendments short change peoples’ concerns, make a farce of the operators’ liability, deny absolute liability and let off the supplier for connected but not intentional loss.

Machinery Provisions

Some changes were also made in the machinery provisions (i) Most cases would go to a Claims Commissioner unless the government wants to send it to a Claim Commission. Good grief! Why? (ii) As for the composition of the Claims Commission is concerned, only the composition of the selection committee to appoint Commissioners is now stated (clause 20). But we are still left with the possibility of either a sitting judge being appointed or an advocate of 10 years standing (including a party hack!) as chairperson. For the other members, with the minimum age at 55 years, the posts are ripe for retired bureaucrats. These are cosmetic changes. (iii) The Lok Sabha rightly accepted a possible extension in the limitation (time to claim) to 20 years. But, it should have been left to the Commission or Commissioners to go beyond the twenty years if necessary (clause 18). (iv) There is nothing grand in the changes allowing compensation cases going to the writ or special jurisdiction of the High Court or Supreme Court (clause 35). The reason is simple. These jurisdictions cannot be ousted by Parliament even through a constitutional amendment! (L. Chandra’s case (1999)). These provisions are part of the unalterable basic structure of the Constitution. So, no big deal!

The parliamentary process is besieged with compromise. That is understandable. But to what extent? The government’s major concerns are those of the suppliers and insurers to the extent they impact on the supply of technology – fuel and so on. It fears that stringent provisions will dry out supply; and it must conform to international conventions even though these have been written by supplier nations, without attracting requisite signatures. We do live in a global world. Even with India advancing economically, it needs technology. To some extent, principles will be compromised. But that is not the issue. A sovereign parliament has sovereign responsibilities to its own peoples. The question is whether this Bill meets the measure of responsibility due to Indian victims? Or have these responsibilities been short changed. In this, Parliament has failed in achieving the right balance and sold its sovereignty for a song.

The liability provisions have been increased overall, but do not encompass recompense for the total effect. The graded changes for some nuclear operations mean that the limit has gone down in some cases rather than up. The residuary responsibility (which can be huge) is left to the government and the tax payer. The machinery provisions are unchanged. Dual optional machinery is created. The adjudicating incumbents could be anybody. The provisions are tailored for favoured lawyers and administrators. The judicial review to the High Court and Supreme Court already exists. The hype is meaningless.

The Nuclear Liability Bill is a bad compromise. All of the Committee’s suggestions have not been accepted. Parliament has been mesmerized by cosmetic changes. Even though, the supplier, operators and insurers have won, the American suppliers are not happy with this statutory mess. God forbid catastrophe; but should it come, we are as legally unprepared as we were for Bhopal.

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