The Constitutional Validity of Civil Liability for Nuclear Damage Act, 2010

Background

India is gearing up its nuclear strength and is ambitious about increasing the amount of electricity produced from nuclear power plants by 5 folds to 20,000 MWe by 2020. This will then be increased to 27000 MWe by 2032. If this continues, it will be able to produce about 25 percent of its electricity from nuclear power plants by 2050. At present, its production is 5780 MW. In order to increase its share in nuclear power production, it needs to attract foreign companies to contribute and get involved in manufacturing and supplying of nuclear reactors. Now in order to attract foreign countries it is imperative to have a bill that fixes liability in case of any mishaps and further also helps these private companies getting insurance in their home state.

Hence, this Act was enacted in with an aim to provide a civil liability for nuclear damage and prompt compensation to the victims of a nuclear incident through a no fault liability to the operator, appointment of Claims Commissioner, and establishment of Nuclear Damage Claims Commission and for matters connected therewith or incidental thereto. [1] It is seen as a final step in actuating the U.S.–India Civil Nuclear Agreement signed in 2008 under which India conceded at separating its civil nuclear facilities from military nuclear facilities under the International Atomic Energy Agency and in return the US agreed to provide complete nuclear cooperation to India. To activate the Indo-US deal as well as the Nuclear Supplier’s Group (NSG) waiver, it was necessary for India to become a member of one of the international conventions. India made the choice of Convention on Supplementary Compensation which in turn necessitated the framing of CLNDA.

Constitutionality of the Act

The Act has received a lot of opposition even in the Parliament from the opposition on the ground that it contains several provisions that are unconstitutional.  A PIL has also been filed in the Supreme Court challenging the vires if the act. The PIL, apart from the challenging the constitutional validity has also highlighted that the Government owing to the pressure of foreign countries and the multi-billion dollar nuclear industry, has been pushing towards an “expensive, unviable and dangerous nuclear power programme” without a proper safety assessment.[2]

This article strives at highlighting the 3 major grounds on which the constitutionality of the Act is constitutionality is questioned viz.-

  1. It seeks to impose ‘Strict’ or ‘No-fault’ Liability instead of ‘Absolute’ Liability

 It was in the famous case of Rylands v. Fletcher[3] that the doctrine of Strict or No-fault Liability was evolved for the very first time.  Strict liability or No-fault liability is a liability without a fault such as negligence or tortuous intent. All the claimant needs to prove is that the tort has occurred and the defendant is responsible. This rule had various exceptions and hence was not capable of making an individual strictly liable for his negligence and hence the Hon’ble Supreme Court evolved the concept of Absolute Liability in the case of MC Metha v UOI[4]. Further, in K Nagireddi v UOI[5], the Court emphasized on the need to modify the rule of Strict Liability. As per section 5 of the act, the operator of the nuclear installation is governed by No-fault or strict liability instead of Absolute Liability which is one reason why this act needs reconsideration. It is very well known that Nuclear Industries are prone to a number of dangers that may lead to a Nuclear Incident; hence the enterprise must be bound by Absolute Liability. Since this provision is contrary to the principles derived by the Supreme Court, it is void.

  1. It Violates the ‘Polluters Pays Principle’

Polluter Pays Principle is a settled principle of Environmental Jurisprudence according to which those who produce pollution should bear the cost and pay the damage done to the natural environment. Hence, the perpetrator must remedy the losses caused as a result of the pollution produced by him. This principle has been accepted as a part of Article 21 of the Constitution as has been iterated by the Supreme Court in Vellore Citizens Welfare Forum v UOI[6] where it was held that “It is unnecessary to multiply the authorities on the principle of strict liability, precautionary principle and polluter pays principle… which find their expression in Articles 21, 47, 48-A, 51-A(g) of the Indian Constitution.” As per Section 7 of the Act, the central government will be responsible for providing compensation if it exceeds the operator’s liability. Since the Central Government will make compensations from the exchequer, the victims of the incident are made to compensate for their own losses and the entities that caused such pollution are left free with a limited liability. Hence, this scheme is utterly unconstitutional.

  1. The Act Prescribes an arbitrary liability limit to the Operators

Article 14 of the Constitution, besides talking about the Right to Equality also talks about the principle of reasonableness and non-arbitrariness. It strikes at arbitrariness in State Action, ensuring fairness and equality of treatment. Hence, if a law made by the parliament is arbitrary, it is violative of Article 14. Coming down to the act in hand, section 6 of the act prescribes a liability limit of Rs. 1500 on the operator of a nuclear installation. This liability is sans any rational reason behind this limit. In M.C. Mehta Case, it was held that 2 grounds must be taken into consideration before fixing the liability viz. -the financial capacity of the operator and the impact of the damaged caused, but the liability cap that the act prescribes is arbitrary since it is quite obvious that the nuclear operator would be financially capable of compensating more than the prescribed limit. Hence, this provision is clearly violative of Article 14 of the Constitution.

 [1]Statement of Objects and reasons, The Civil Liability For Nuclear Damage Act, 2010.

[2]Mohit Abraham, Challenge to the Constitutional Validity of the Civil Liability for Nuclear Damage Act, https://nuclearlaw.wordpress.com/2011/11/18/challenge-to-the-constitutional-validity-of-the-civil-liability-for-nuclear-damage-act/ (Last Visited-March 03, 2017)

[3] 1868) L.R. 3 H.L. 330.

[4] AIR 1982 SC 248.

[5] AIR 1982 AP 119.

[6] 1996 5 SCC 647.

Authored by Nomita Mishra | Edited by Radhika Goyal.

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