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How to count nuclear installations November 10, 2010

Posted by southasiamasala in : India, Kumar, Vikas , trackback

Vikas Kumar

India’s civil nuclear liability legislation (The Civil Liability for Nuclear Damage Act, 2010) has been controversial ever since the draft Bill was introduced to the Parliament in May 2010. In a hurry to get the Bill passed in the Parliament before the US President’s visit to India, the government did not even check if it dovetailed with existing legislation and case law. In fact, the Act abounds in internal inconsistencies. For instance, the Act caps the total liability in respect of a nuclear accident in terms of Special Drawing Rights whereas the cap on the operator’s liability is expressed in Rupees. Since the residual liability rests with the state it has to bear the cost of currency fluctuations. Thanks to this inconsistency the state is expected to take care of its nuclear liabilities at the cost of its fiscal responsibilities and development commitments. Between December 2007 and August 2010, when the Bill was passed, SDR appreciated by 15 per cent in comparison to the Rupee. A similar currency fluctuation in future would raise the public share of the total liability for each nuclear accident by Rupees 3182 million, equivalent to the annual budget allocation for smaller provinces under the Education for All program.

Map showing India’s nuclear power plants – Source, Official Indian map as at mapsofindia.com.

Here we will discuss a more serious inconsistency in the Act regarding the total civil liability of operators in case of nuclear accidents involving multiple nuclear installations. A nuclear installation and incident are defined in Sections 2 (j) and 2 (i), the conditions under which an operator is liable are specified in Section 4 (3), and the extent of liability is given in Section 6 (2) of the Act. Regrettably, these clauses are mutually inconsistent.

According to Section 2 (j), “several nuclear installations of one operator which are located at the same site shall be considered as a single nuclear installation”. This clause is a verbatim copy of Art I (b) of the Annexure to the Convention on Supplementary Compensation for Nuclear Damage, 1997 (CSC). However, CSC suggests this as one of the ways of counting nuclear installations without making it mandatory.

In any case, the method of counting based on Section 2 (j) is in conflict with Section 4 (3), where liability in case of accidents involving several installations is defined on a per installation basis and the phrase “several nuclear installations” is used in a different sense: “Where several nuclear installations of one and the same operator are involved in a nuclear incident, such operator shall, in respect of each such nuclear installation, be liable to the extent of liability specified under sub-section (2) of section 6”.

Section 6 (2) of the Act adds to the confusion:  “The liability of an operator in each nuclear incident shall be…,” where a nuclear incident, as per Section 2 (i), is “any occurrence or series of occurrences having the same origin which causes nuclear damage”.

The Notes on Clauses to the Bill introduced to the Parliament are silent with regard to how to apply these (counting) clauses. In principle, these clauses should apply to the following cases: (A) an installation at Site X suffers an accident, which also damages a nearby installation of the same operator at Site X, (B) simultaneous but independent accidents affecting two installations of the same operator at Site X, (C) simultaneous accidents affecting installations of the same operator at Sites X and Y, and (D) installations of different operators suffer accidents. We do not discuss the case of simultaneous damage to multiple installations at the same site due to natural calamities because rightly or wrongly the Act waives operators’ liabilities in such cases.

Cases C and D are straightforward because the installations will count as two irrespective of the clause invoked. The confusion arises in the first two cases. In Cases A and B we are concerned with an operator having two nuclear installations at the same site. As per Section 2 (j), in these cases the nuclear installations affected by accident will be counted as one. But as per Section 4 (3), in Cases A and B the installations involved in accidents will be counted as two for the purpose of assigning liability. But if we follow Section 6 (2) then the installations will count as one in Case A whereas in Case B they will count as two because this clause treats accidents having different origins as different incidents.

This inconsistency, which was not addressed before the Act was enacted, is a symptom of a deeper malaise. Few, if any, legislators, even at the central level, are competent to engage meaningfully with technically involved legislation. Add to that the linguistic barrier. A large majority of legislators is not conversant with English, the de facto language of administration. Even otherwise there is no incentive to engage with legislations because of two reasons. First, legislators in majoritarian democracies like India are bound by party whips. Second, an Indian legislator’s re-electability is independent of her contribution to parliamentary debates. A candidate’s prospects in elections are largely determined by her party and ascriptive affiliations and money power. So, it is up to the civil society to subject legislations to public scrutiny and add to the substance of the Indian democracy.

Vikas Kumar is an independent researcher based in Bangalore.

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