Mohit Abraham*

In the first case of its kind, a Public Interest Litigation (“PIL”) has been filed under Article 32 of the Constitution by prominent NGO’s (Common Cause and the Centre for Public Interest Litigation) and individuals (former bureaucrats, a former Chief Election Commissioner and university professors), wherein a challenge has been made to the constitutional validity of the Civil Liability for Nuclear Damage Act, 2010 (the “Act”). A safety reassessment of all nuclear facilities in India and a comprehensive long-term cost-benefit analysis of the nuclear plants in India by an independent expert body has also been sought for in this PIL. In the interim, the petition prays for a stay on the operation of all proposed nuclear plants till the safety and cost-benefit analysis is carried out.

The PIL also raises sensitive points where it seeks to show that the Government, under 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. It also alleges that India has a virtually “non-existent” nuclear regulatory regime. To this end the PIL seeks changes in the liability threshold prevailing in the Act to make the same unlimited and to make nuclear operators and suppliers jointly and severally liable, as well as absolutely liable for civil damages.

Additionally, the constitutional validity of the Act is being assailed on the ground that it violates the ‘polluter pays’ and ‘absolute liability’ principles that are part of Article 21 of the Constitution and jeopardizes the right to a safe, healthy and clean environment of the people of India. The PIL also prays for cancellation of all clearances given to nuclear power plants and a declaration that all agreements signed between the Government and private suppliers be void ab initio.

The PIL is one end of the spectrum, the other end of which consists of foreign countries and suppliers who believe that India’s nuclear regulatory regime exposes them to unacceptable liability thresh-holds.

A glance at the PIL shows that the petitioners have a primary grievance against utilization of nuclear energy as a power source. They believe that nuclear energy is inherently dangerous, not economically viable and is being propagated to further the interests of a few. They have also submitted that the government has not taken any action on representations made by them seeking changes in the policy and the law surrounding the use of nuclear energy in India.

In a preliminary hearing on November 14, 2011, the Supreme Court indicated that it may not have the expertise to examine highly technical matters as those raised in the writ petition. The Supreme Court however, also indicated that the issue of an adequate regulatory mechanism could be something that it can consider. Having said that, I must state that none of these observations were made in any formal order and these appear to be oral observations of the court. Relying on oral observations by any court as conclusive is neither proper nor advisable.

In any event, the Supreme Court has now adjourned the matter by two weeks in order to enable the petitioners to produce the representations that have been made to the government.

While this is the first such case where the validity of the Act is being called into question and serious issues have been raised about the nuclear power sector in India in a judicial forum, in dealing with past public interest litigations, the Supreme Court has consistently held that in matters of scientific and technical expertise, it would be reluctant to interfere and impose its own views. Further, the Supreme Court has also held in numerous cases that it would not interfere with policy decisions taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The courts observations in the PIL that it cannot examine the technical matters pertaining to nuclear energy and the safeguards that are required in each nuclear plant, is consistent with this approach.

However, the PIL does raise some serious questions on whether or not a cost benefit analysis has actually been undertaken by the Government. While one may assume that such an exercise has indeed been conducted by the Government, no such details appear to have been provided to the public. Further, while an Environmental Impact Assessment would typically precede each specific nuclear project, the level of information shared with the public on these matters is negligible. The PIL thereby has put the Government in a position where it may have to answer to certain uncomfortable questions.

While this matter is sub judice and one cannot predict the approach the Supreme Court may take, the PIL has undoubtedly set the stage for a fresh tug of war between the Government and the judiciary on what is largely a policy matter. If the Supreme Court decides to set aside the Act or impose a specific independent regulator for the nuclear energy industry or grant any of the other prayers in the writ petition, it would have wide spread ramifications on India’s energy and foreign policy.

One way or the other, the Supreme Court should consider deciding this PIL at the earliest. An atmosphere of uncertainty over the future of nuclear energy use in the country would not serve anyone’s interests. This PIL has all the ingredients to set the tone of how the nuclear energy sector will evolve in India. All stake holders – foreign countries, nuclear suppliers, nuclear operators, the Government of India and the people of India – will be watching it closely.

*Mohit Abraham is a Member of Governing Board of the Nuclear Law Association (NLA) and Chairs the Working Group on Nuclear Liability at NLA. He is a Partner with PXV Law Partners.