Petition says plant should be governed by principle of ‘absolute liability, polluter pays’

A fresh writ petition has been filed in the Supreme Court, contending that the Kudankulam nuclear power plant could not be commissioned without resolving the issue of Russia’s liability in case of an accident.

The public interest litigation petition sought a declaration that the plant, in Tirunelveli district, would be governed by the law of the land, as laid down by the Supreme Court: the ‘absolute liability’ and ‘polluter pays’ principle.

“The Civil Liability for Nuclear Damage Act, 2010, channels the liability of a nuclear accident to the operator (government undertaking) of the said plant and then limits it to Rs.1, 500 crore. The cap on liability will have a severe impact on the safety of nuclear installations,” said the petition filed by the Centre for Public Interest Litigation; Common Cause; the former Power Secretary, E.A.S. Sarma; and G. Sundarrajan, a social activist from Tamil Nadu.

“Though the… Act imposes a very minimal liability on the nuclear reactor supplier/manufacturer [putting the safety of the plants to a grave risk] in violation of the ‘polluter pays’ and ‘absolute liability’ principle, the government of India has made the Russian company exempt from even this minimal liability by giving an undertaking that the Indian public exchequer and taxpayers would foot the bill in case of an accident, and Russians would be indemnified,” the petition contended. This undertaking had “dangerous implications.” Any action of the executive entailing expenditure from the exchequer (in the event of a nuclear accident, this would run into lakhs of crores) would need parliamentary approval.

“The government states it will commission the plant in the next two months, without… resolving the issue of liability. The government has steadfastly refused to make public the agreements with Russia regarding the plant.”

The petition raised questions of law of national importance: can the government underwrite the potential liability (in case of an accident) of a reactor supplier by having an agreement, shifting the burden to the exchequer and in violation of the ‘polluter pays’ and ‘absolute liability’ principle?; can the Indian government and Russia claim that the Liability Act would not apply to the Kudankulam plant on the plea that the agreement on the project was made before the law came into force?; can the government make a rule under the Act that the liability would be subject to the contract with the supplier and for a very short period, thus laying down limitations not envisaged in the parent Act?

Hence, the petitioners argued, the plea was to enforce and protect the right to health and safe and clean environment that the Right to Life enshrined in Article 21 of the Constitution encompasses. The petitioners sought a direction to set aside Rule 24 of the Civil Liability for Nuclear Damage Rules 2011 (limiting the liability) as ultra vires the Act and the Constitution.