M. P. Ram Mohan

Nuclear energy law and decision-making in India

Nuclear energy as a safe source of energy has been a subject of constant debate. The benefits of nuclear energy for power production and its allied applications on the one side and the risks posed by nuclear energy to public health and safety, and to the environment on the other side have been a source of concern. The Government of India has taken a policy view that nuclear energy is necessary to meet the growing energy needs of the country. In response to the historical Nuclear Suppliers Group Wavier subsequent to India-United States Civil Nuclear Agreement and International Atomic Energy Agency (IAEA) Safeguards Agreement, Government of India raised its nuclear capacity targets substantially. From the current capacity of 4GW, the target is to generate close to 60GW within next two to three decades. Such a drastic expansion in capacity has not been previously witnessed /fulfilled in India from any forms of energy. Government views the projected capacity as being essential for a power deficit country; the nuclear industry views this as a business opportunity while the public acceptance of nuclear power is polarised and divided. Unlike other energy forms, the risk debate on nuclear energy is due the fear of radiation consequences as a result of nuclear power plant operation and/or from an unfortunate event or an accident. Radiation, in fact, is present in many forms; be it natural radiation; be it the food one consumes; be it exposure during medical applications, etc. The perception or reality of fear of extreme radiation that exist today is the outcome of multiple events and accidents. The perception of nuclear power, even after five decades of operation, is linked to atomic bombings in Hiroshima and Nagasaki, Japan. The fear is further compounded by the accidents witnessed in Three Mile Island, USA; Chernobyl in the former USSR and Fukushima in Japan. Though the quantum of radiation exposure and resultant health hazards are still being debated, the reality is that accidents, even though extremely rare, are real and their outcomes largely are unquantifiable and unknown. The social, economic and environment restoration consequent to an accident is the major reason why many governments shy away from investing in nuclear. In the post-Fukushima environment, the negativity surrounding nuclear has only heightened. In the aftermath of accidents in Fukushima, countries all over the world have undertaken safety audits of nuclear facilities and have initiated the process of strengthening domestic technical safety features as well as institutional processes. IAEA organised a Ministerial Conference on Nuclear Safety in 2011 to deliberate how to further strengthen safety features in nuclear power plants and gain public confidence. The meeting concluded with the adoption of a Ministerial Declaration. Building on this exercise, the IAEA Action Plan on Nuclear Safety (September 2011) states IAEA and Member Countries to:Nuclear energy as a safe source of energy has been a subject of constant debate. The benefits of nuclear energy for power production and its allied applications on the one side and the risks posed by nuclear energy to public health and safety, and to the environment on the other side have been a source of concern. The Government of India has taken a policy view that nuclear energy is necessary to meet the growing energy needs of the country. In response to the historical Nuclear Suppliers Group Wavier subsequent to India-United States Civil Nuclear Agreement and International Atomic Energy Agency (IAEA) Safeguards Agreement, Government of India raised its nuclear capacity targets substantially. From the current capacity of 4GW, the target is to generate close to 60GW within next two to three decades. Such a drastic expansion in capacity has not been previously witnessed/fulfilled in India from any forms of energy. Government views the projected capacity as being essential for a power deficit country; the nuclear industry views this as a business opportunity while the public acceptance of nuclear power is polarised and divided. Unlike other energy forms, the risk debate on nuclear energy is due the fear of radiation consequences as a result of nuclear power plant operation and/or from an unfortunate event or an accident. Radiation, in fact, is present in many forms; be it natural radiation; be it the food one consumes; be it exposure during medical applications, etc. The perception or reality of fear of extreme radiation that exist today is the outcome of multiple events and accidents. The perception of nuclear power, even after five decades of operation, is linked to atomic bombings in Hiroshima and Nagasaki, Japan. The fear is further compounded by the accidents witnessed in Three Mile Island, USA; Chernobyl in the former USSR and Fukushima in Japan. Though the quantum of radiation exposure and resultant health hazards are still being debated, the reality is that accidents, even though extremely rare, are real and their outcomes largely are unquantifiable and unknown. The social, economic and environment restoration consequent to an accident is the major reason why many governments shy away from investing in nuclear.

Nuclear liability law of India: an appraisal of extent of liability, right of recourse and transboundary applicability

The making of the ‘Civil Liability for Nuclear Damage Act 2010’ was one of the finest legislative endeavours in the recent times. The exercise was significant because nuclear energy and the consequences of pursuing such an energy form were debated extensively in the Parliament for the first time. The result was a liability law that had an exceptional domestic political acceptability, but in many ways appeared to defy conventional international practice. The international nuclear community, led by supplier countries and vendors has argued that the law should be amended to be compatible with the established practice of international nuclear liability law. Examining through two specific examples – limitation of liability and right of recourse, the author argues, that though the Indian law gives the impression of defiance, the Parliament has only utilised the provisions of international nuclear law conventions – expanding boundaries of interpretation. Further, a section on transboundary applicability of the Indian law, and India’s commitment under Convention on Supplementary Compensation to its neighbours is analysed to see the operational difficulties.

A nuclear liability framework for South Asia: formation of South Asia Association for Regional Cooperation (SAARC) nuclear risk community

South Asia is one of the densely populated regions of the world. A disaster in the nature of nuclear accident in one country will have a significant impact on the life and livelihood of large population across the region. Currently, major economies in South Asia are expanding their nuclear energy programmes, and this poses a transboundary risk. The risk is aggravated by the fact that countries in South Asia are not a part of any common international nuclear liability framework, nor do they have reciprocal domestic law. This subjects the region to an uncertain liability and compensation regime. This paper explores the legal response mechanisms available in respect to state liability and compensation. The paper argues that the South Asian Association for Regional Cooperation (SAARC), a regional community of South Asian countries is the appropriate institutional mechanism available to form a regional nuclear risk community.

Nuclear energy and risk assessment by Indian courts: analysis of judicial intervention in the Kudankulam Nuclear Power Project

Judicial intervention on nuclear energy safety discourse in India is very recent. The debate on the Civil Nuclear Liability for Damage Act 2010 in the Parliament and the 2011 Fukushima nuclear accident in Japan provoked public apprehension about nuclear safety in India. The Kudankulam Nuclear Power Project (KNPP) in South India became the flash point. The localized agitation against the project consequently gained momentum and was taken up aggressively by civil society groups citing safety compromise on various technical parameters. Though the government constituted expert committees to assuage any misgivings, the matter, however, was challenged before the Madras High Court and as appeal before the Supreme Court of India. The former assured safety and legality of the project and the latter endorsed this view, with supplemental directions, determining the superiority of expert committees who unequivocally concluded that the project was safe. The Courts similarly converged on the issue that the project was of national importance. On the access to project information, though the Central Information Commission ordered to make public the KNPP site and safety evaluation reports, however, Nuclear Power Corporation appealed to the Delhi High Court arguing the information was proprietary and obtained a stay order.

Spent Fuel Management in India

The Indian nuclear story is different from the rest of the nuclear power producing countries largely due to the unique nuclear energy path the country has chosen. The issues regarding the resultant spent nuclear fuel are also accordingly different. Based on the ideology of self‐dependence, India adopted a three‐stage nuclear energy program which envisages reprocessing spent fuel aimed at the final utilization of the vast amount of thorium reserves in the country. The nuclear test of 1974 and the country’s subsequent nuclear isolation furthered this technology innovation. At present, nuclear energy contributes a mere 3% (approximately) of the total energy produced in the country. Since the program is very small, high level waste (HLW) after reprocessing is very minimal and its management at present does not pose any major concerns. But with India’s rapid economic growth, access to electricity is becoming crucial and nuclear energy is viewed as a promising source to meet future demand. The government is envisaging substantial raising of nuclear power production in the next couple of decades. With the objective of expanding nuclear energy production, India in 2008 came out of nuclear isolation through a special agreement with the International Atomic Energy Agency (IAEA), the USA, and Nuclear Suppliers Group (NSG) countries that allows members of the nuclear club to undertake nuclear trade with India. While we are not certain what shape India’s nuclear energy program will take, it is certain that the proposed expansion plan will lead to HLW becoming a concern in the future.

Indian Civil Nuclear Liability Law (CNLD Act): An Adventurism or Exceptionalism in International Legal Discourse

International law relating to nuclear liability has been on a continuous development over the last five decades. On the specific issHiroshima and Nagasaki bombings in Japanue of transboundary nuclear liability law and its applicability, the Chernobyl accident in 1986 steered the international community to address many of the gaps and inconsistencies. The 2011 Fukushima accident in Japan again highlighted the importance of a robust liability regime, both domestically and internationally. Though the effectiveness of these initiatives is still questionable on the issues of universal applicability, quantum of compensation and exceptions, however, countries accepted the basic founding principles as the foundation of the nuclear liability law. India, an established nuclear power country, while re-engaging with world nuclear community subsequent to the 2005 India–United States Nuclear Cooperation, enacted its own nuclear liability law. The Civil Nuclear Liability for Nuclear Damage Act 2010 which was passed after extensive discussion in the Parliament interestingly has both critiques and admirers. Many in India maintain that its liability law reflects Indian public interest and should be seen as a step toward modernizing the nuclear legal regime. Internationally, many argue that the law deviates from the established principles. The chapter undertakes historical evaluation of the development of hazardous liability law in India through tort jurisprudence, maps the civil nuclear liability law making process both at international level and in India and how Indian law stands today, and concludes with the observation that Indian law is an exceptional law.

Liability and Regulatory Aspects of Nuclear Energy Promotion in South Asia

South Asia (SAARC) represents an interesting region to anyone who follows nuclear energy development. Out of the four Non-“Nuclear Non-proliferation Treaty” States, two are in South Asia—India and Pakistan, both having civilian nuclear energy and weapons programmes. Apart from these two countries, Bangladesh has recently initiated setting up nuclear energy, and Sri Lanka is contemplating on the possible options. International Atomic Energy Agency has predicted that Asia will drive the nuclear energy growth worldwide, and in it South Asia remains an important element. South Asian countries are pursuing the civilian nuclear energy programme, even though it remains an option which is linked to international legal and regulatory scrutiny and compliance on security and safety, on the hope that in the long run nuclear power will be economically viable, less volatile than conventional fossil fuels which is currently imported draining massive foreign reserves, and above all environmentally friendly. The thrust towards nuclear power especially in SAARC has to be seen in this context. The chapter provides background of nuclear energy programmes in South Asia, tracks the legal, liability and regulatory regimes that are in compliance with international law, details individual countries liability and regulatory regime and concludes with a view that SAARC should work with a common approach with respect to nuclear safety and security.

Conclusion and Suggestions

This chapter summarises the findings and suggestions from the study. Some countries within SAARC have concrete nuclear energy plans, and this calls for a regional consultation on the possible risk mitigation efforts and emergency preparedness at the level of SAARC. Overall, on the question of universalisation of liability law, an argument can be made that regional approaches to transboundary liability law could help in universalising the liability regime. In the Indian context, the author argues that the domestic liability law should not be amended and proposes a national debate on the merits of being part of the Convention on Supplementary Compensation.

The Indian Civil Liability for Nuclear Damage Act, 2010: An Analysis

The making of the ‘Civil Liability for Nuclear Damage Act 2010’ was one of the finest legislative endeavours in the recent times. The exercise was significant because nuclear energy and the consequences of pursuing such an energy form were debated extensively in the Parliament for the first time. The result was a liability law that had an exceptional domestic political acceptability, but in many ways appeared to defy conventional international practice. The international nuclear community, led by supplier countries and vendors has argued that the law should be amended to be compatible with the established practice of international nuclear liability law. Examining through two specific examples—limitation of liability and right of recourse, the author argues, that though the Indian law gives the impression of defiance, the Parliament has only utilised the provisions of international nuclear law conventions—expanding boundaries of interpretation. Further, a section on transboundary applicability of the Indian law, and India’s commitment under Convention on Supplementary Compensation to its neighbours is analysed to identify the operational difficulties.

Establishing a South Asian Nuclear Risk Community: An Empirical Analysis

The establishment of SAARC is a significant political initiative within the politically diverse, but culturally linked South Asia. SAARC’s aim is to achieve South Asian regional integration through mutual trust, understanding and appreciation of each other through economic, technological, social and cultural cooperation, emphasising on collective self-reliance. This being the case, the expansion of the nuclear energy programme in South Asia represents an emerging area of cooperation. With this background, interviews were conducted with diplomatic missions of SAARC countries in Delhi, nuclear policy makers and officials from the SAARC institutions. The purpose of the study is to understand the risk perception of the nuclear energy programme in South Asia. This chapter presents the results of the empirical study and concludes that SAARC nations clearly are willing to explore regional approaches at the SAARC level.