Kudankulam plant must be governed by constitutional principles of absolute liability and ‘polluter pays’

The Supreme Court on Thursday issued notice to the Centre on a writ petition seeking a direction that the Kudankulam nuclear plant in Tamil Nadu not commissioned without resolving Russia’s liability in case of a nuclear accident.

A Bench of Justices K.S. Radhakrishnan and Dipak Misra granted the Centre three weeks to respond to the petition by the Centre for Public Interest Litigation, Common Cause, the former Union Power Secretary E.A.S. Sarma and social activist from Tamil Nadu G. Sundarrajan. The Bench asked that the earlier petition filed by Common Cause and other prominent citizens challenging the constitutional validity of the Nuclear Liability law itself be tagged with this plea and heard together.

The fresh petition sought a declaration that the Kudankulam plant be governed by the law of the land as laid down by the Supreme Court, i.e. the constitutional principles of absolute liability and the ‘polluter pays’ principle.

Appearing for the petitioners, senior counsel Jayant Bhushan argued that 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 the same at Rs. 1,500 crore.” He said the cap on liability would have a severe impact on the safety of nuclear installations in the country.

“Though the Act imposes very minimal liability on the reactor supplier/manufacturer (putting to grave risk the safety of the power plants) in violation of the ‘polluter pays’ and ‘absolute liability principles’, the Government of India has made [the] Russian company exempt from even this minimal liability for Kudankulam plants 1 and 2 by giving Russia an undertaking that the Indian public exchequer and taxpayers would foot the bill in case of an accident and that the Russians would be indemnified.”

When the Bench asked Attorney General G.E. Vahanvati whether Kudankulam reactors 3 & 4 would be covered by the liability law as recommended by the Law Ministry, Attorney General G.E. Vahanvati said such a suggestion had come to the government.

When Mr. Bhushan said Disaster Management guidelines had not been complied with, the Bench asked the government to file an affidavit on this aspect as well as on rehabilitation of people living within a 10-km zone of the Kudankulam plant.

Smaller exclusion zone

Mr. Bhushan also told that court that under the 1989 environmental clearance, the Ministry of Environment and Forests stipulated that the exclusion zone (where no person can reside) be two km. But the government unilaterally modified it to 1.6 km. He said violation of an essential condition would make the clearance void. Justice Radhakrishnan told counsel that the court would examine the environmental and safety aspects of the plant.

Solicitor General Rohinton Nariman drew the court’s attention to a 1998 amendment in the Regulation in which the exclusion zone criterion was taken care of.

When Justice Radhakrishnan asked whether local people had been given employment in the Kudankulam plant and if ‘yes’ how many, Additional Solicitor General Mohan Parasaran said he would furnish all details at the next hearing.

Arguments will continue on October 16.

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