The aftermath of the Union Carbide disaster in Bhopal in 1984 has vital lessons for India as it seeks to commercialise its nuclear industry without an adequate legal framework covering compensation and liability, V N Haridas and Yash Thomas Mannully write for openDemocracy.
By V N Haridas and Thomas Mannully for openDemocracy.net
The Indian government has plans for large-scale electricity generation projects, and is moving to allow an increased role for private companies, domestic and foreign, in the nuclear energy industry. But it is doing so without strengthening the legal framework covering compensation, liability, classaction and the ability to deal complex tort cases. The failure of litigation attempts properly to call Union Carbide to account for the gas tragedy at Bhopal suggests lessons that need to be learned if a legal framework is to be created which will be able to address the possible eventualities arising out of the use of nuclear energy.
India originally used nuclear energy for various social applications including energy generation through the framework provided by the Atomic Energy Act, 1962. Initially, the Atomic Energy Act provided exclusive government control. The concept of public participation was introduced later, and there are now plans gradually to open up the nuclear energy generation sector to full private participation.
Implementation of the Indo-US Joint Statement of July 18, 2005 ended India’s isolation over the peaceful use of nuclear energy. It also served to turn the spotlight away from major loopholes in the Indian legal system such as environmental protection, rehabilitation, liability and compensation and transparency.
Now the Indian government has decided to introduce in the Union Parliament’s Budget Session a piecemeal legislation called “Nuclear Liability Bill’ to cap the liability from potential accident. This article examines the legal issues raised by the Indo-US Nuclear Cooperation Agreement and the ability of the Indian legal system to address the issues associated with nuclear energy in the light of the experience gained from the Union Carbide (Dow Chemicals) Disaster at Bhopal.
Why legal framework?
A legal framework is important for the following reasons
1) Domestically a well developed legal framework covering the peaceful use of nuclear energy will foster development as well as address the problems raised by the industry especially those affecting the public.
2) Internationally it is a prerequisite for engaging in nuclear cooperation and technology transfer.
It will be beneficial to analyse the legal framework in United States and France with which India entered into Nuclear Co-operation Agreements. The gradual operationalisation of the agreements allows nuclear firms from these countries to operate without an adequate legal framework in India, while their activities are highly controlled in their home state. This brings about a situation akin to that which opened up for multinational corporations when the World Trade Organisation was established to exploit the availability of cheap labour, rich resources and inefficient legislative, legal, administrative and enforcement mechanisms. The impact of any potential hazard from the nuclear industry to the public and environment will be much higher. This in itself highlight the need to provide a legal framework covering all aspects of peaceful use of nuclear energy.
The legal framework in the US and France, unlike that in India, covers all aspects of the peaceful use of nuclear energy, especially through liability and compensation, public participation and transparency. The Price Anderson Act, for example, which was an amendment to the Atomic Energy Act, 1954 provides a unique system of nuclear liability coverage for power plants as well as for the transportation of nuclear materials to and from such facilities. It covers all losses of third party bodily injury and property damage off the site of the nuclear installations. Beyond the insurance cover and irrespective of fault, Congress, as insurer of last resort, can decide how compensation is provided in the event of a major accident. The 1966 Amendment to the Act provided for the establishment of an Extraordinary Nuclear Occurrence (ENO) for liability and also the concept of precautionary evacuation. The National Environment Policy Act (NEPA) and the Alien Torts Act further strengthens the legal framework.
The French Nuclear Programme, unlike that of the United States, is based on substantial involvement by the government in both the development and production of nuclear power. It has a liability cap and uses a single reactor system design for uniform safety systems. The liability constraints in France are based on a variety of international treaties. France adopted and modified both the Paris and Brussels Conventions in its Law on Third Party Liability in pursuant to the Paris Convention, Brussels Convention and Additional Protocols of 1964 and 1982. The major areas covered by the Act include summary procedure for getting compensation and a special tribunal with power given for emergency measures to the Public Prosecutors and the Examining Magistrates.
Another peculiar legislation is that concerning the democratisation of public enquiries and environmental protection to inform the public and obtain its comments, suggestions and counter proposals. The 1987 Act clarifies the pre-existing system of assistance, organisation plans and emergency plans to introduce more information about major risk with increased obligation to the operator for safety and risk. Article 1384.1 of the Code Civil provides an escape from liability only if the accident occurred due to force majeur or unforeseeable circumstances.
Legal framework for the use of nuclear energy in India
The Constitution of India includes the subject of atomic energy and its mineral resources in the Union List providing the Central Government exclusive control over nuclear energy. The Atomic Energy Act was enacted in 1948 and replaced in 1962 with an Act which empowers the Central Government and in turn to the Atomic Energy Commission, to do all things associated with the use of nuclear energy.
The Atomic Energy Act does not specifically deal with the question of compensating nuclear damage. Section 29 of the Atomic Energy Act of 1962 provides that; “No suit, prosecution or other legal proceeding shall lie against the Government or any person or authority in respect of anything done by it or him in good faith in pursuance of this Act or of any rule or order made under.”
This provision seems to confer immunity from legal action. In the case of a nuclear incident causing radiation exposure to the public and environment the Government will resist a claim of compensation and liability. With the approval of private firms in this area, the present legal framework’s ability to address these issues becomes yet more important.
Rhetorically it can be said that judicial activism in the field of Article 21, Constitution of India has expanded the concept of right to life and personal liberty. The Indian judiciary was able to develop compensatory jurisprudence based on Article 21 and principles like the absolute liability principle.
Developments related to Article 21 of the Constitution of India will limit the application of section 29 of the Atomic Energy Act conferring immunity on the government. But this must be considered in the light of the justice rendered to the victims of the Union Carbide Tragedy at Bhopal. This highlight the weakness of the present legal framework to provide liability, damages and even to bring those responsible for trial. Under the present legal framework, the impact of a major nuclear incident will be catastrophic. It will raise complex tort litigation which could take decades.
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