The Civil Liability for Nuclear Damage Act’s most problematic provisions involve the right of recourse? Think again.

After the Indo-US nuclear agreement was signed in 2008, the Liability Act’s right of recourse provisions were highlighted as potential deal-breakers. In my previous post, I discussed how the right of recourse itself does not seem to be problematic, but is definitely problematic in its current form. In any case, the relevant provisions have not only played a role in hampering international participating in India’s nuclear power industry, but have also (arguably) shifted the focus away from some of the other provisions of the Liability Act (Civil Liability for Nuclear Damage Act, 2010).

The decision to provide a wide definition of “nuclear damage” under S. 2(g) was appreciated across the board. Considering the events which followed the Bhopal Gas Tragedy, the decision to expand the definition of damage to include loss of life or property, personal injury, economic loss, loss of income, costs of preventive measures and even costs of measures of reinstatement of impaired environment, was received well. This was also largely in line with the definition provided under Article I (k) of the Vienna Convention on Civil Liability for Nuclear Damage (1997). Taken together with the wide definition of “nuclear incident” under S. 2(f), which included cases wherein there was a threat of damage as well, the framework in this regard seemed comprehensive.

So far, so good. What was added to the Liability Act, however, seemed to substantially affect the impact the Act would have on the public. S. 3 of the Act deals with the duty of the Atomic Energy Regulatory Board (AERB) to notify a nuclear accident. The use of the term “shall” indicates that the AERB is under an obligation to notify such an incident within 15 days. However, the proviso to this provision gives the AERB the power to avoid such notification if the “gravity of threat and risk involved” is found to be “insignificant”. S. 3(2) of the Act further allows the AERB to publicize such a notified incident “in such manner as it may deem fit”.

It is obvious, that while considering legislation such as this one, some room discretion has to be provided in light of specialized and technical nature of the activities involved. However, any possible concerns with provisions such as S. 3(2) can be laid to rest by providing an illustration laying down some of the means by which such an incident may be publicized.

S. 3(1), however, seems to be more problematic. First, because of the time period of 15 days provided for under the provision. The Committee on Subordinate Legislation had considered this question and came to the conclusion that such a time-frame may be required in view of complex nature of operations. While this in itself should not be problematic, the manner in which the government has dealt with public disasters in the past does not instill confidence. Second, the provision does not seem to have in-built safeguards or provisions to challenge decisions of the AERB, in case it arrives at the conclusion that a particular incident does not qualify as a nuclear incident under the Act. What does a resident from Kudankulam do when he is convinced that a radiation leak has affected him, his family or his property? The Rules under the Act (Civil Liability for Nuclear Damage Rules, 2011) also fail to remedy the situation. Rule 4 in fact further provides that the AERB itself will act on the operator’s report relating to the “occurrence of a nuclear incident” – such a report, under the Rule, has to be submitted “immediately” after any such incident.

Even if the notification itself could be glossed over as a formality by arguing that emergency and medical services would be supplied in any case, this issue can pose problems when it comes to the crucial issue of compensation. S. 13 of the Act deals with “Inviting application for claims by Claims Commissioner”. Any such application can be invited only “after the notification of nuclear incident under” S.3(1) of the Act. In short, if an incident has not been notified, you cannot put forth a claim for compensation even with clear signs of something as serious as radiation poisoning, under the Act. Considering how the object of the Act itself seems to include provision of “prompt compensation to the victims of a nuclear incident”, the manner in which this provision may impact citizens raises concerns.

Together with other provisions which I will highlight subsequently, these provisions make a strong case for a comprehensive review of the Act not restricted to the right of recourse provisions alone. Unfortunately, the right of recourse seems to be on the top of everyone’s agenda, relegating these equally (if not more) important issues to the background.

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