Serious flaws in India's Civil Nuclear Liability Bill
|
COMMENTS 
As radiation victims in Mayapuri reject relief, the Delhi High Court has decided to examine the need to put in place a legal regime for speedy relief and adequate compensation to victims of man-made disasters
The Delhi High Court has issued a notice to the Department of Atomic Energy (DAE), under the central government, and Delhi University (DU) stating that it proposed to examine issues raised in a writ petition filed on behalf of two scrap-dealers seriously affected by unsafe disposal of radioactive material by Delhi University, in New Delhi’s Mayapuri market.
Justice S Muralidhar said the “petition raised questions of law of importance and the court proposed to examine the issues”. The DAE and DU authorities must submit their responses by August 30. “It appears that at present there is no Act which recognises exposure to radioactive material, the strict liability principle, and provides for a remedy to the victim. Parliament is yet to enact into law the Nuclear Liability Damages Bill,” the court said.
The petitioners point out that there were no warnings about the hazardous nature of the radioactive substance that was being sold as scrap by Delhi University. Their lawyer submitted that the present legal regime for providing immediate relief and compensation to victims of ‘man-made’ disasters was weak.
This is because even the Public Liability Insurance Act 1991, which was enacted to provide interim relief to victims of industrial accidents, excludes nuclear and radiological accidents. The two petitioners experienced hair loss, blackening of the skin on the arms and tongue, nausea, fever, extreme pain and an alarming drop in platelet count.
The victims have refused compensation of Rs 2 lakh each as they consider it “meagre” given the medical expenses they have already incurred and are likely to incur in future. The court has directed the director general of health services to subject the victims to a thorough medical check-up by a team of five medical experts, within two weeks.
These developments come close on the heels of demands for a stronger compensation regime for industrial accident cases, after the Supreme Court’s judgment in the Bhopal gas tragedy case. One of the demands has been to amend the proposed Civil Nuclear Liability Bill that the government tabled in the Lok Sabha on May 7.
Many consider the Bill badly drafted and biased in favour of equipment suppliers who are mostly based in rich nations. The Bill has been under review with the Parliamentary Standing Committee on Science and Technology, Environment and Forests.
The Section 6 debate
Section 6 of the Bill, which quantifies liability, pegs the maximum liability with respect to each nuclear incident at 300 million special drawing rights (SDRs), or around Rs 2,100 crore. The liability of an operator in each nuclear incident has been capped at Rs 500 crore. The Centre has been under fire from all quarters on this issue, with Opposition parties saying the liability limits are too low by international standards.
While the operator’s liability could be raised, the overall national liability cap is unlikely to be tinkered with as the government wants to accede to the International Atomic Energy Agency’s Convention on Supplementary Compensation (CSC), which provides 300 million SDRs as the cap.
The Bill was introduced in Parliament in the last session and was referred to the parliamentary panel for discussion and recommended changes. While the suggestions are not binding on the Centre, some of them are likely to be incorporated considering the prevailing view that the draft does not adequately protect the interests of victims in the event of a mishap.
Inadequate compensation
At a maximum of Rs 500 crore for the operator, and about Rs 2,100 crore for the government, the amount is grossly inadequate in the event of a serious nuclear accident. Data compiled by PRS Legislative Research, an independent research organisation that tracks Indian Parliament, shows that among the top nuclear power producing countries, the US caps operator liability at a little over USD 11 billion (about Rs 51,500 crore), while the government’s liability is unlimited. Japan, Russia and Germany have unlimited liability for both operator and government. In comparison, France, which is the second largest producer of nuclear power in the world, caps the total liability at a mere USD 1.1 billion (about Rs 5,200 crore).
Taxpayers end up footing the bill
While in most advanced countries the private sector is actively involved in nuclear power generation, in India it is controlled entirely by the government. The State-owned Nuclear Power Corporation is the sole producer of nuclear power in India. Since the Bill seemingly does not provide for any liability on equipment suppliers, like France’s Areva or America’s Westinghouse, all the compensation will have to be borne by the Indian government. In short, the taxpayer will end up footing the entire bill in the event of a nuclear accident.
Against the Constitution
When Greenpeace sought an opinion from eminent lawyer Soli Sorabjee on where the Indian law stands on the issue of compensation for an industrial accident, he said compensation for accident victims was a fundamental right under Article 21. Citing previous Supreme Court judgments, Sorabjee said that there was no justification for capping nuclear liability as is being sought.
Can’t calculate damages
It is impossible to put a value on human life; it is equally impossible to correctly measure damage to the environment and livelihoods. Since the power of determining the damage will rest with the government, it may be tempted to value it lower to keep its liability low.
Future generations
Radiation affects subsequent generations of victims. The Bill in its current form limits claims to 10 years. Such a short limit to liability claims is unjust. In Germany, claims can go beyond 10 years but those filed before that period will have priority. For loss of life and injury, claims have to be filed within 30 years in South Korea, the Netherlands, and Romania.
Source: The Hindustan Times, July 26, 2010
The Hindu Businessline, July 26, 2010
http://www.moneycontrol.com, July 2010