Cabinet Committee on Security Note, Attorney- General’s opinion in contempt of Parliament
US, Russian nuclear suppliers attempt to escape liability under Fukushima shadow
Scrap IAEA-WHO Agreement and Atomic Energy Act of 1962 in public interest
New Delhi: ToxicsWatch Alliance (TWA) disapproves of the “Sensational Cabinet Committee on Security (CCS) note” which “exposes the government’s plans to dodge nuke viability issues” ahead of Prime Minister, Dr Manmohan Singh’s meeting with USA’s President Barack Obama on September 27, 2013.
It may recollected that Parliament’s intent of Liability for Nuclear Damage Act, 2010 was undermined through the notification of Civil Liability for Nuclear Damage Rules, 2011 ahead of Prime Minister’s scheduled meeting with US President on November 18, 2011 at Bali, Indonesia. The relevant Rules and the Act are attached.
Under the influence of nuclear companies, Obama has compelled Dr Singh government to dilute key provisions of the India’s nuclear liability law to ensure that USA’s nuclear reactor suppliers are not held liable in the event of an accident caused by faulty or defective equipment.
CCS note must be seen together with yet another controversial opinion of Goolam Vahanvati, Attorney- General provided to the Department of Atomic Energy in response to a reference dated September 4, 2013 sent to him. In an exercise of his by now infamous sleight of hand Attorney- General has opined that it is for the operator of a nuclear plant in India to decide whether it wished to exercise the ‘right of recourse’ provided to it by section 17 of the Civil Liability for Nuclear Damage Act, 2010 in contempt of Section 17(b) of the Act meant to ensure that foreign suppliers are back traced to “equipment or material with patent or latent defects or sub standard services”. This exercise is an stark case of contempt towards Parliament in furtherance of the interests of USA’s nuclear companies like Westinghouse and GE.
Attorney- General had given similar opinion in the context of Inter-Governmental Agreement between India and Russia stating, “Section 17(a) provides for recourse if such right is expressly provided for in a contract in writing. If the operator chooses not to incorporate such a provision in the contract, it would be open for him to do so” in October 2012. DAE had sought confirmation “regarding the presumption that the existing provisions of section 17 of the Act facilitate the operator either to exercise his ‘right of recourse’ by incorporating a clause in the contract or to waive his right or to limit the liability on the part of the supplier.”
Notably, Ministry of External Affairs has held that “a right was given to the operator to have recourse against the supplier but there was no mandatory obligation or requirement for the operator to do so and that the operator could choose not to exercise that right”. Attorney- General has reportedly endorsed this view.
TWA endorses the statement of condemnation issued by Coalition for Nuclear Disarmament and Peace (CNDP) on the note of the Cabinet Committee on Security seeking exemption from civil liability for nuclear damage for US nuclear company, Westinghouse and others in order to seal a nuclear agreement with the US corporations during Dr Singh’s current visit to Washington, undermining all democratic and sovereign institutions of India.
Section 17 of the Act grants the operator the right of recourse under one of three conditions: (a) if the right is expressly provided for in writing; (b) if the accident is caused by faulty material or equipment provided by the supplier; or (c) the accident results from an act of commission or omission of an individual done with intent to cause nuclear damage. Section 17(b) suggests Parliament intended to hold suppliers responsible even if there is no contractual liability.
TWA strongly disproves of Prime Minister’s reported assurance that the Government of India will ensure that the operator (NPCIL) does not use its ‘right of recourse’ against suppliers of nuclear reactors.
TWA holds that International Atomic Energy Agency (IAEA), World Health Organisation (WHO) cannot be trusted with sharing truth about the nuclear catastrophe in general and about Japan in particular and such imminent disasters in India because of a 52 years old treaty between WHO and IAEA, which is heavily influenced by Nuclear Suppliers Group (NSG), established in 1975.
NSG comprises of 46 nuclear supplier states including China, Russia, and the US, that have voluntarily agreed to coordinate their export controls governing transfers of civilian nuclear material and nuclear-related equipment and technology to non-nuclear-weapon states. In 2008, the NSG agreed to exempt India from its requirement that recipient countries have in place comprehensive IAEA safeguards covering all nuclear activities. US got exemption from NSG for three years to undertake nuclear trade with India. India is pursuing its nuclear energy path under the overarching guidelines of this very IAEA.
It is quite distressing that world leaders like Manmohan Singh and Barack Obama continue to disregard the path shown by at least four key women political leaders namely- Ms Micheline Calmy-Rey, President of Switzerland, Dr Angela Merkel, Chancellor of Germany and Ms Mamata Banerjee, Chief Minister of West Bengal who have abandoned the nuclear energy path. Singh and Obama have adopted an ostrich like approach in the face of inevitable and unpredictable disasters like Cheronbyl and Fukushima.
The 2011 Rules insulates foreign nuclear suppliers in particular using Clause 9 of the Atomic Energy (Radiation Protection) Rules, 2004 which provides that the license for establishment or decommissioning of radiation installation will be valid for five years effectively denying Right of Recourse to Indian operators of nuclear reactors under clause 24 of the 2011 Rules.
If these Rules are seen along with clause 18 of the Nuclear Liability Act of 2010 which deals with the “Extinction of right to claim” wherein “right to claim compensation for nuclear damage extinguishes” if such claim is not made within a period of “ten years, in case of damage to property” and within “twenty years, in the case of personal injury to any person”, it is clear that Parliament and the citizens have been taken for a ride.
Clause 24 of the 2011 Rules provides that “right to recourse shall be for the duration of initial license” or “product liability period” whichever is longer. Product liability period is defined as “the period for which the supplier has undertaken liability for patent or latent defects or
sub-standard services under a contract”.
It is “inconsistent” as per clause 49 (1) read with Clause 17 (b) of the Liability for Nuclear Damage Act, 2010. This act of subordinate legislation is an act of contempt towards Parliament in order to pander to the demands of nuclear suppliers in general and US suppliers in particular.
Both the Liability Act and the Liability Rules refer to Atomic Energy Regulatory Board (AERB) even as Parliamentary Standing Committee on Science & Technology, Environment & Forests heard the Secretaries on The Nuclear Safety Regulatory Authority (NSRA) Bill, 2011 on 16/11/2011. NSRA is meant to replace AERB. The question is what made the central government act ahead of the enactment of NSRA Act in such tearing hurry except of the tremendous influence of foreign suppliers.
Earlier, in a Press Release, the Parliamentary Committee said, “Atomic Energy Regulatory Board-the present regulatory body was constituted in 1983 by a notification issued under the Atomic Energy Act, 1962. However, to further strengthen radiation and nuclear safety in the country, it is felt expedient to establish a legal framework…to ensure that the use of atomic
energy in all its applications is safe for the health of radiation workers, members of the public and the environment.”
It observed that “the Fukushima incident in Japan has led to worldwide concerns and apprehensions on safety issues relating to nuclear power.” The Parliamentary had noted in its report on Civil Liability on Nuclear Damage Bill that secretaries of 8 relevant ministries were not consulted during the drafting the Bill. It had recommended that in future they should be
consulted. The question is: Were these Secretaries consulted ahead of the notification of the 2011 Rules?
ToxicsWatch Alliance (TWA) and Occupational Health India (OHI) had submitted its comments/views/suggestions in the subject matter of the Bill in a letter dated 16/11/2011 along with the report of Ethics Commission for a Safe Energy Supply on behalf of Dr. Angela Merkel, Germany’s Chancellor following which aband