"Any agreement in violation of statute or law is void," says Bench

The Supreme Court on Thursday asked the Union government to explain whether an agreement with Russia to waive the civil liability in case of an accident at the Kudankulam nuclear power plant would have an impact on the exchequer.

“Any agreement in violation of statute or law is void,” said a Bench of Justices K.S. Radhakrishnan and Dipak Misra hearing a batch of petitions filed by anti-nuclear activists for a stay on the commissioning of the plant.

Justice Misra observed: “When you [the government] are slapping the liability on the… exchequer, [we like to know] whether that would have an impact on the nation. We would ask the government for an explanation on all these issues.”

Earlier, Prashant Bhushan, appearing for the activists, pointed to an agreement India had signed with Russia to the effect that the Russian company would not be liable in case of an accident. “The government claims that the plant is 100 per cent safe, yet the Russian reactor manufacturer does not trust its own reactor and has refused to share any part of civil liability in case of an accident due to a defect in the reactor. The government… has signed an agreement with Russia stating that in case of an accident, the… exchequer or the taxpayers would foot the bill [that might run into lakhs of crores of rupees], while the Russians would be indemnified.”

Under the Civil Liability for Nuclear Damage Act, 2010, the liability to the nuclear operator (Nuclear Power Corporation of India Limited or NPCIL) was limited to Rs.1,500 crore, he said. But even this amount was waived and the liability burden shifted to the exchequer. Even if this minimal liability was removed, the supplier would have no incentive to equip the reactor with safety features.

“Both the Task Force and the Atomic Energy Regulatory Board (AERB) have categorically stated that the 17 safety measures have to be implemented. Though it was decided that these recommendations would be implemented before the commissioning, as it is clear from the earlier schedule of implementation finalised by NPCIL and the AERB, NPCIL has not made any progress…, but still wants to commission the… plant immediately,” Mr. Bhushan argued.


Explaining how the apprehensions of the people around the plant site were genuine, he said: “Besides the exclusion zone, there must be a ‘sterilised zone’ of at least 10 km where, at the most, 5,000 people can reside. But more than 40,000 people live within a 5-km radius of the plant, including the 20,000-plus population each of Kudankulam and Idinthakarai. Unfortunately, all this has been ignored by the government and the AERB. Lakhs of people living in the vicinity… are bound to be apprehensive in such a situation. Instead of addressing these issues and the concerns meaningfully, the government has launched a wave of repression and has slapped 8,000 sedition cases on the peaceful protesters.”

The environmental clearance obtained for the project in 1989 was not valid now, he contended, as it was covered by the 1994 Environment Impact Assessment notification, which required a fresh clearance. This apart, NPCIL decided to alter the seawater temperature increase without referring the matter to the Ministry of Environment and Forests.

“The only categorical condition in the 1989 clearance was that temperature change must not increase by 5 degrees Celsius since it will affect the marine life hugely. NPCIL unilaterally changed it to 7 degrees Celsius. Violation of an essential condition would ipso facto make the clearance void,” he said.

Arguments will continue on October 11.