Even before being tabled in Parliament, the Civil Nuclear Liability Bill has run into opposition with a former Attorney-General, Soli Sorabjee, describing as a violation of fundamental rights the proposed attempt to cap the level of compensation victims of a nuclear accident will be entitled to.

“In view of several Supreme Court judgments, which are part of Indian jurisprudence and whose thrust is on the protection of victims of accidents as part of their fundamental rights under Article 21 of the Constitution, there is no warrant or justification for capping nuclear liability,” he said in a written opinion to the environmental NGO, Greenpeace India.

According to U.S. law, passage of the Bill limiting liability is a necessary condition for American nuclear vendors to export to and install plant and equipment in India. The Bill, which was cleared by the Cabinet just before Prime Minister Manmohan Singh’s visit to Washington last month, is likely to be tabled in the ongoing session of Parliament.

Though the draft text has not yet been made public, the provisions of the Bill reportedly cap the level of compensation at $450 million in the event of an accident at a facility. It will also be the operators’ liability to seek insurance cover for a maximum of $450 million.

Any compensation over and above this amount would be borne by the Indian government. More importantly, the responsibility for paying compensation would rest on the operator (likely to be the Nuclear Power Corporation of India), and not the private supplier or foreign company setting up reactors in the country.

“Can be challenged”

Sharing Mr. Sorabjee’s view, senior Supreme Court lawyer and constitutional expert P.P. Rao said: “This [Bill] can be challenged in a court of law as it may not stand judicial scrutiny. It is vulnerable, arbitrary and unfair.” He wondered how the government could legally deprive a victim of fair and just compensation. Any such move would be violative of the right to life.

According to Mr. Sorabjee, Supreme Court judgments have clearly laid down that in case of accidents in plants engaged in a hazardous or inherently dangerous activity that poses a potential threat to the health and safety of persons, such enterprises, applying the ‘polluter pays principle’ owe an absolute and non-delegable duty to ensure that no harm results to anyone.

Lesson from Bhopal

Pointing out that the main lesson from the Bhopal gas tragedy was that foreign companies engaged in hazardous industries must be made strictly and absolutely liable for any damage caused by their units, Supreme Court lawyer Prashant Bhushan said “the proposed Bill, instead, seeks to limit the liability, which is absurd.

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