AUTHOR:

Mr. ANUGYA JAIN,
Student,
Institute of Law, Nirma University

CO-AUTHOR:

Introduction

Nuclear power is a major source of energy production in India and across the world. It constitutes approx 16% of the electricity source in the world.[1] There have been nuclear disasters like Chernobyl and Fukushima- that make us think more about the safety concerns involved in the process. Moreover, nuclear power can also be misused for making nuclear weapons which are a threat to the environment and humanity.

The recent incidence like the Vishakhapatnam gas leak reminds us to revisit the laws for the handling of hazardous substances. We have come a long way from the Bhopal gas tragedy, but there is still a long way to go. The issue of liability in such catastrophic incidents shall also be settled. 

Several international bodies are engaged in regulating the nuclear power sector. Policies made by these bodies have been criticized on several occasions especially after the Fukushima nuclear accident and thus, it is important to see whether these regulations are sufficient and effective enough to deal with the delicate matter of nuclear power.

India also has its own legislation and regulatory body Atomic Energy Act, 1962 and Atomic Energy Regulatory Board (AERB). Both the Act and the Board have been questioned and criticized from time to time, it is important to see whether it fulfils the international standards and principle of sustainable development.

Jurisprudence and Principles Involved

Nuclear power is one of the main sources of energy production but it has various disadvantages. It is not only harmful but can also cause serious damage to the environment. The events such as the Chernobyl disaster, Bhopal gas tragedy and Fukushima I nuclear accidents compel us to think about the actual cost we are paying for the use of nuclear power. This is a sector which must be regulated properly with no leniency or loophole. A small mistake can cause serious environmental damage which has to be suffered by the whole humanity and future generations.

Nuclear power causes less greenhouse gas emissions than other sources such as coal, oil and gas. It is an emission free source of energy and environmental friendly than any other source, but the risk involved in it is very high and can cause more harm than any other source.[2] Thus, using it as a solution to climate change may result in greater harm to the environment. Therefore this sector of energy shall be regulated properly.

The principle of sustainable development and precautionary principle shall be taken into consideration for the regulation of this sector. These principles are also enshrined in the Stockholm declaration of 1972[3] and Rio Declaration[4]. The Brundtland report defined sustainable development as “meets the needs of the present without compromising the ability of future generations to meet their own needs”.[5] The report emphasizes that development and environment are not contradictory and should not be treated separately as the cause and effect of both the aspects are related to each other.

While there is a threat to the environment, the development should not be hindered unless proper measures are taken. Strong precautionary principles shall be followed and any type of scientific uncertainty should not be there considering the effect of any accident if caused. Thus by following these principles there will be a balance between development and environment.

The victims have the Right to Compensation as was established in Bhopal gas tragedy and Shriram gas leak case[6]. The no fault liability provision has been included in the Public Insurance Act, 1991.[7] Due to such provisions, the victim need not prove that there was negligence. With this polluters pays principle is also followed for giving the compensation to the victims; the one who has caused the damage gives the damages, and is enshrined in the Rio declaration[8].

The principle of permission requires one to take licence, permission, authorization, certificate, permit and approval for the use of radioactive substances. This is necessary so as to know who is using the substances and for what purpose. Even after the installation and grant of various permits, a continuous regulation is required on the usage. For these the authorities must have enough power to investigate and take actions against non-compliance.

The international bodies and nation states must coordinate and cooperate with each other in sharing information about the usage and the new technological development. Without the cooperation there will be halt in technological development and moreover as it can be used as a weapon, two states can be at odds with each other for not sharing the information.

Article 21 of the constitution of India, as given the broad interpretation, also includes the right to a clean and healthy environment.[9] Given the potential harm which can be caused by the use of nuclear power; it is a responsibility of the state to regulate this sector. The states must allow full access to international bodies of the nuclear power installations so that they can regulate properly and in case of any disaster help of different nations and international bodies can be taken.

International Regulations

Nuclear power is one of the main concerns of international bodies like the United Nations (hereinafter referred as “UN”). With the increasing number of nuclear power countries in the world and the probability of its usage in war there are strong regulations on the usage of the same. The UN Charter also aims to reduce the armed forces to resort to international peace.[10]

The Paris Convention[11], The Vienna Convention of 1963[12] and the Convention on Supplementary Compensation for Nuclear Damage of 1997  provides for compensation for any damage caused or loss suffered pertaining to life of any person, or to any property, if caused by a nuclear accident in a nuclear installation or during the transport of nuclear substances to and from installation.[13] 

International Atomic Energy Agency is an international body concerned with the regulation of nuclear power worldwide.[14] The body has come up with various conventions such as Convention of Nuclear Safety 1994, Convention on the Physical Protection of Nuclear Material and Nuclear Facilities 1979, Convention on Assistance and Convention on Early Notification of Accident. Although the norms and guidelines given by this authority is only a soft law, it has been accepted and implemented by many countries.[15] In 1997, there was a Protocol adopted to amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage and a convention on Supplementary Compensation for Nuclear damage. [16]

The IAEA has incorporated various principles in its legislation. The principles include, safety principle, principles of prevention and protection, precautionary principle, responsibility principle, continuous control, independence principle, Transparency principle etc.

The provision also embeds sustainable development principles. Further the compliance principle mandates the nations to comply with the international law made by these bodies and the international co-operation principle tries to bring harmony among the states regarding the same.[17]

IAEA is an important organisation and its success can be seen by the fact that no nuclear weapon has been used after World War II. However for implementation of its policies and guidelines, the organisation must get more power.[18] However, there is always criticism about IAEA being enacted only by a few member countries which were chosen by the USA and thus inherently biased.[19]

There are certain grey areas in the statutes which serve as loopholes to the countries. For instance, there is no clear differentiation given between peaceful use of nuclear power and military purpose, which can be used as a loophole in the statutes by the countries.[20]     

 IAEA has been criticised for failure to detect the use of nuclear material by Iraq, Iran, Syria, and Libya for military purposes. Moreover, after the Fukushima disaster, the IAEA was highly criticised for not being able to perform the basic function of providing information with regard to accidents with promptness to the world at large.[21]  

As there has always been a tussle between developed countries and developing countries in international bodies, so is in the IAEA. The developed countries like the USA have dominated the position and legislations are made accordingly. While developing countries are still working on their technology in this field, the developed countries do not want to pass these technologies to them because of the obvious reasons of increase in military strength of developing countries.

As the laws made by IAEA are soft law and non binding, the countries cannot be forced to follow the same. However, that is not a concern as most of the countries are following and incorporating the same in their local statues.[22] After the Fukushima disaster, there has been a need for more transparency and control of these bodies in the country’s affairs. The countries have been supportive in doing so despite it diluting their sovereignty.

 Indian Legal Framework

There are several legislations in India which regulate the nuclear power sector in India. There are constitutional provisions which provide rights to citizens and grievance mechanisms through writ, there are also special statutes enacted for the sole purpose to regulate this sector and there are various guidelines and rules which come from time to time from the regulatory authorities. In India, the regulatory body for the nuclear energy sector in Atomic Energy Regulatory Board (AERB) which acts as a vigilant watch dag in this sector.

Constitutional Provisions

Article 21 of the Constitution gives right to life and personal liberty and as given the broader meaning includes right to clean and healthy environment. In the case of Subash Kumar v/s State of Bihar[23] and Virender Gaur v/s State of Haryana,[24]  the court included the right to a clean and healthy environment in right to life and personal liberty. Thus if this right is violated, one can move to the Supreme Court or High Court and effective steps can be taken by the court in this regard.

The entry 6 of list1 in schedule 7 of the constitution contains the subject matter of Atomic energy, thus authorising the central government to make laws on the same. There are mainly two statutes in India which deal specifically with nuclear power: (i) The Atomic Energy Act, 1962[25] and (ii) the Civil Liability for Nuclear Damage Act, 2010. 

Article 38 of the constitution states that “State shall strive to promote public welfare also empowers it to take action against those industries who release radioactive wastes” and Article 42 and Article 51A(g) also emphasize on protection and improvement of the environment.

Radioactive Material as Pollutant and its Scope

Environment (Protection) Act 1986 defines environmental pollution under section 2(c) as “presence of environmental pollutants in natural environment” and environmental pollutant under section 2(b) as “Any solid, liquid or gaseous substance accumulated in environment in such quality or concentration which may be injurious to environment”. It further defines hazardous substance under section 2(e) as “Any substance or preparation which may be chemical physio-chemical likely to cause harm to human beings or to the environment”. Considering the nature of radioactive material used in the generation of nuclear power, it does constitute a pollutant and hazardous substance under the given definition.

An Atomic Energy (Safe disposal of radioactive wastes) rule, 1987, defines radioactive waste as “Any waste material containing radio-nuclides in quantities or concentrations as prescribed by the competent authority by notification in the official gazette.”

There is a high risk involved in nuclear activity. From the extraction, process and disposal, a small mistake in handling the substance can cause huge damage.  There have been instances of the same like, Irish butter case. In those cases, the question that low level radioactive material constitutes pollutant remains unanswered by the court.

Also in M.K. Sharma v. Bharat Electronics,[26] the issue was regarding the radiation from X- ray machine, the Supreme court resorted to precautionary principle and polluters pays principle and held that the employer has to prove that there is no harm through those radiations, for which there must be regular check up of the employees the cost of which will be borne by the employer and their health insurance shall be done by the employer.[27] Thus the court followed the principles which are internationally recognised.

Atomic Energy Act, 1962

Under this Act, the Central Government has laid down norms to prevent radioactive hazards, guarantees safety of workers, public dealing with radioactive substances and ensures safe and proper disposal of radioactive wastes. Central government can make rules and give guidelines under this act for handling and transportation of the radioactive material.

The Act gives power to the Central government to regulate the sector. It provides guidelines and standards for the requisitioning, extraction, usage and disposal of radioactive material. It also gives powers to authority to inspect the establishments.

The Act also lays down the principle relating to the compensation in case of any accident under section 21. An arbitrator can be appointed by the Central government under this section, who can inspect and give award on the incident. The Act gives various powers to the Central Government so that it can have the effective control and regulation over the area.

Role of AERB

The AERB is the regulatory body in India, it aims to “ensure, use of ionizing radiations and nuclear energy in India does not cause nuclear risk to health and environment”. The board is responsible for various legislative and administrative works such as making guidelines and appointing officers. It also promotes research and development in the field to improve safety. The incident of Mayapuri raised various fingers upon the board and its activity.[28] 

Radiation Protection Rules, 1971 provides the mandate of licence and various requirements for the same. It also empowers the officers to investigate the whole process. Atomic Energy (Safe Disposal of Radioactive Waste) Rules, 1987 mandates a safety office for every establishment using radioactive material. It has been argued that the recent incident at Mayapuri was caused due to unauthorized disposal of Gamma cell irradiators by Delhi University as scrap in violation of the rules.

The Mayapuri case has been an alert for the regulatory body. It has shown that the AERB should be more vigilant in tracing the radioactive materials especially in the informal sector. The responsibilities of AERB do not limit to the establishments of nuclear power but also to control and regulate the use of radioactive material in totality, including the informal sectors.

AERB is not only responsible for the control and regulation of nuclear power but also to take steps in case of any accident. It has to publicize the event and takes preventive steps to mitigate the effect. It has to inform the people who are probably going to be affected by the event. The people can report any damage to this body and is responsible for initiating any process for compensation.

This body has been given several crucial decision making powers under the Civil Liability for Nuclear Damage Act, 2010. This should have been defined by the statute so as not to give this leverage to AERB or otherwise could hamper transparency and effectiveness.

Provisions for Compensation to the Victims

Compensation to the victims is an important concern in case of nuclear disasters considering the gravity and quantity of damage it causes. Huge number of people and property can get damaged seriously and the burden of the compensation for the same should be decided carefully. ‘Polluters pay’ is an internationally recognised principle of environmental law which puts the burden of compensation and restoration on the shoulders of the one who has polluted.

The Public Insurance Act, 1991[29] mandates the damages to the victim irrespective of the negligence. The matter can also be included in the law of torts under nuisance to ask for compensation and damages.[30] Under section 268 of Indian Penal Code, 1860,[31] acts which tend to affect the health, safety, comfort and convenience of the public at large are prohibited as public nuisance.

The Civil Liability for Nuclear Damage Act, 2010[32] sets out detailed procedure to deal with nuclear accident and liability pertaining to it, appointment of Claims Commissioner etc.  However both the Civil Liability for Nuclear Damage Act and Public Insurance Act were unable to provide compensation in case of Mayapuri scrap Market, as the Public Insurance Act excludes all nuclear accidents and radiological accidents. Nuclear material as defined in Bill does not include “radioisotopes which have reached the final stage of fabrication so as to be usable for any scientific medical, agriculture, commercial or industrial purpose”.

The liability limit given in the Act is lower than the international standard. The section 6 of the Act “quantifies liability, pegs the maximum liability with respect to each nuclear incident at 300 million special drawing rights or around Rs 2100 Core”. The amount is grossly inadequate as can cause serious harm and should be lowered according to the international standards. Section 3 of the Act also gives leverage to the AERB to decide what significant harm is and what is not.

Section 45 states that “The Central Government may by notification exempt any nuclear installation from application of this Act if having regard to small quantities of nuclear material”. This again gives the power in the hands of the Central government, which should not have been the discretion given the significance of the matter. This could be misused by the people in power and the victims in this situation would not get any remedy.[33]

A Nuclear Liability Fund is also created and maintained by the Central Government. For this fund amount is charged from the operators. There is also a mandatory insurance which operator has to do for the installation unit and shall be renewed timely. There is also a provision for the establishment of a Nuclear Damage Claims commission by the Central Government for the grievance redressal of the affected persons.

AERB also has the responsibility to widely publicize any event, so as to maintain transparency and one can take precautions for the same. The process of compensation is also started by AERB. Compensation can be claimed within three years of knowing about the nuclear damage. The act also provides for punishment which includes both imprisonment and fine.

Moreover, in the case of M.K. Sharma and ors vs. Bharat Electronics Ltd. and Ors[34] the court ordered the employer to bear the cost of insurance of the employees working in the sensitive zone of X-rays and ordered for their regular medical checkups. This judgment broadens the scope of liability which can be put on polluters.

The legislation does not leave operators handicapped but provides the right of resources. The rights to the operators shall be given in following circumstances “(a) Such right is expressly provided for in a contract in writing (b) the nuclear incident has resulted as a consequence of an act of supplier or his employee” and “(c) The nuclear incident has resulted from the act of commission or omission of an individual but done with an intention to cause a nuclear damage”.

Conclusion and Suggestions

Nuclear power is an important source of energy; it cannot be excluded altogether or otherwise would hamper development. Electricity is one of the major requirements of today’s society and cut down in its production will affect the people of low income strata. There must be balance between the environment and development. Principles like sustainable development, precautionary principle and polluters pay principle should be kept in mind while regulating.

The provisions of nuclear energy are according to the principles of environment regulation. The international standards are followed by India and the principles such as polluters’ pays and sustainable development are also incorporated in the statues.  However, there are some deviations from the same which should not have been there; suggestions to overcome those are given as follows.

  • The scope of radioactive waste is narrow and shall be expanded. The definition of radioactive waste in various statutes shall be revisited in light of various judgments discussed above.
  • Steps should be taken to make the working of international bodies like IAEA transparent and without any dominance of powerful countries.
  • There shall be clear demarcation between peaceful use and military use of nuclear
  • There shall be heavy sanctions on non compliance with the norms and transparency to the bodies so that they can control and regulate properly.
  • The difference between the requirements of developed countries and developing countries should be kept in mind while enacting the statutes.
  • The discretion given to AERB under section 3 of the Civil Liability for Nuclear Damage Act, 2010 in deciding what significant harm is shall be removed.
  • Power of the central government under section 45 of the Civil Liability for Nuclear Damage Act, 2010, shall not be unconditional and shall be restricted.

[1] Nuclear Energy in India and for Investment, India juris, http://www.indiajuris. com/nuclear.pdf, last accessed 09/02/2020 (2020).

[2] B.K. Sovaccol and C. Cooper, Nuclear Nonsense: Why Nuclear Power is No Answer to Climate Change and the World;s Post- Kyoto Energy Challenges,  Williamm & Mary Environmental Law and Policy Review,  33(1) (2008).

[3] 2256 UNTS 119; 40 ILM 532 (2001).

[4] UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992).

[5] World Commission on Environment and Development, Our Common Future, Oxford University Press, 1987.

[6] M.C. Mehta v. Union of India, 1987 SCR (1) 819.

[7] Public Liability Insurance Act, 1991 (Act no. 6 of 1991).

[8] UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992).

[9] India Const.

[10] Preamble, Charter of the United Nations.

[11] The (Paris) Convention on Third Party Liability in the field of Nuclear Energy, 1960.

[12] The (Vienna) Convention on Civil Liability for Nuclear Damages, 1963.

[13] Vienna Convention on Civil Liability for Nuclear Damage, International Atomic Energy Agency, http;;//www.iaea.rog/Publication/Doccuments/Conventions /liability, html last accessed 09/04/2019 (2019).

[14] E. Benz, Lessons from Fukushima: Strengthening the International Regulation of Nuclear Energy,  William. & Mary Environmental Law and Policy Review . 37 (2013).

[15] Baradei, et al. International Law and Nuclear Energy: Overview of the Legal Framework.

[16] Supra note 13.

[17]  Vishnu Konoorayar K. and Jaya V. S., Atomic Energy Law in India: An Analysis, KLRI Journal of Law and Legislation, Vol. 1 , 2011.

[18] Trevor Findlay,  Unleashing the Nuclear Watchdog: Strengthening and Reform of the IAEA, Harvard Kennedy school Belfer Center for science and international affairs, p. 43.  

[19] Trevor Findlay,  Unleashing the Nuclear Watchdog: Strengthening and Reform of the IAEA, Harvard Kennedy school Belfer Center for science and international affairs, p. 10.

[20] Ibid.

[21] Ibid.

[22] Usha Tandon, Energy Law and Policy, Oxford University Press, ed 1, p. 68.

[23] AIR 1991 SC 420.

[24] AIR 1995 SC 356.

[25] Act no. 33 of 1962.

[26] AIR 1987 SC 1792.

[27] 1981 3 SCR 518.

[28] K.S. Parthasarathy, When Chernobyl’s Radioactive Residues Were Thought to Be in Mumbai’s Butter, available at https://thewire.in/history/when-chernobyls-radioactive-residues-were-thought-to-be-in-mumbais-butter, html last accessed 08/04/2019 (2019).

[29] Act no. 6 of 1991.

[30] Anand Raut, Analysis of Laws Regulating Nuclear Science and Compensating Victims of Radiological accidents in India, Research Journal Management Science International Science Congress Association.

[31] Indian Penal Code Act, Act no. 45 of 1860, ¶ 268.

[32] Civil liability for Nuclear Damage Act, 2010, Act no. 38 of 2010.

[33] Gurmanpreet Kaur, Nuclear Energy Law in India : An Analysis of Environmental Perspective, JLJ 2016.

[34] AIR 1987 SC 1792.

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