Justice S Rajendra Babu*
India Islamic Cultural Centre, New Delhi. 18 Feb 2012
I have great pleasure in participating in this Annual conference organized by the Nuclear Law Association of India on Nuclear Energy Development: Role of Law and Legal Institutions.
India has an indigenous nuclear program and expects to have 20,000 MWe nuclear capacity by 2020 and 63,000 MWe by 2032 and is likely to supply 25% of electricity from nuclear power by 2050. Coal provides 68%, but reserves are limited. Gas provides 8%, hydro 14%. The per capita electricity consumption figure is expected to double by 2020, with 6.3 annual growth and reach 5 to 6 thousand KWh by 2050.
Nuclear power is the fourth largest source of electricity in India after thermal, hydroelectric and renewable sources of electricity. There are at least 20 nuclear reactors in operation generating 4780 MW. While seven other reactors are under construction and are expected to generate an additional 5300 MW. India has an ambitious plan to reach a nuclear power capacity of 63000 MW by 2032. Nuclear power is the cleanest form of energy which does not pollute the atmosphere in any manner.
In the year 1979, 3 mile island incident, in 1985 the Chernobyl accident and in March 2011 the Japanese Fukoshima nuclear disaster has alarmed everyone with the population around proposed Indian NPP Sites have launched protests and questions are raised about atomic energy as clean and safe alternative to fossil fuels. Post Fukoshima scenario, safety of nuclear plants are upper most in all circles. April 2010 Nuclear Summit set in motion a process of bringing high level of attention to nuclear safety and security. The lesson we have learnt in respect of the three accidents or incidents referred to by me is that an accident anywhere is an accident everywhere, because the threats are not merely consequences of accidents due to human frailty but of natural disasters and terrorism.
Any form of energy whether fire, thermal or hydro-electric can result in disasters of the kind referred to by me just now. That is why it is proverbially said we should not play with fire. The mythology refers to the creation of energy, its preservation and destruction. When a new projects are to be started either at Jaitapur or Koodankulam or in West Bengal, there is tremendous amount of resistance. In the context, therefore, different laws have been enacted like the Nuclear Safety Regulatory Authority Bill and different bodies have been established to oversee and review policies on radiation, safety, nuclear safety and other connected matters. Nuclear Safety Regulatory Authority is responsible for ensuring radiation safety and nuclear safety in all civilian secure activities. The Atomic Energy Act, 1962 does not say anything about liability or compensation in the event of an accident. The Civil Liability for Nuclear Damage Act relating to third party liability has been passed by both houses of Parliament in August 2010. There are many critical areas which are highly debatable in these laws. Therefore, in fitness of things this Conference has become necessary which will have to address as to a legal framework for conducting activities relating to nuclear energy and ionizing radiation in a manner which adequately protects individuals, property and environment. I may advert to some basic concepts in this regard:
(a) The safety principle;
(b) The security principle;
(c) The responsibility principle
(d) The permission principle;
(e) The continuous control principle;
(f) The compensation principle;
(g) The sustainable development principle;
(h) The compliance principle;
(i) The independence principle;
(j) The transparency principle;
(k) The international co-operation principle.
The national laws, international instruments, regulatory documents and views of experts have emphasized that safety is the primary concern requisite for nuclear energy and applications for ionizing radiation. There are many subsidiary principles in this regard like the prevention principle, the protection principle or precautionary principle. It is important to notice that the fundamental requirement is that both the risks and benefits of the nuclear energy are well understood and taken into account with a view to achieve a sensible balance in framing of regulatory measures. The legal restrictions will have to be proportionate to the various types or levels of risks.
In developing a legislative framework, it is necessary to bear in mind that the development of nuclear technology had its origin in military programs of several States just as the nuclear material and technology pose health and safety risks if diverted to non-peaceful ends and also pose risks to the security of persons and social institutions. The acquisition of radiation sources by terrorists or criminal groups could lead to radiation devices which may end up in malevolent acts. Hence special legal measures are required to protect and account for the types and quantities of nuclear material that may pose security risks.
The use of nuclear energy typically involves numerous parties such as research and development organization, processor of nuclear material, manufacturers of devices or sources of ionizing radiation and so on. With so many parties engaged in nuclear related activity it becomes necessary to fix the responsibility for ensuring safety.
In law what is not prohibited is deemed to be authorized but only if the activity poses an identifiable risk of injury to persons, property or the environment, it becomes appropriate for the law to declare prior permission to conduct such activity. In the context of nuclear law, this aspect becomes very significant and even in circumstances, in which authorization has been granted to conduct various activities the regulator must retain controlling ability to ensure safety and security with regularity of inspections of the premises, the material that is being used and stored. Depending upon various technical factors the use of nuclear energy may pose the risk or major damage to persons, property or the environment. As preventive measures cannot completely exclude the potential for such damages the law may require to adopt the measures to provide adequate compensation in the event of nuclear accident. Whether such liability is of state alone or any other parties will have to be settled. In all laws relating to environmental action, sustainable development principle is adopted so that the activity may not impose undue burden on future generations. Such activity becomes sustainable only if the environment is protected from degradation. Although the activities may take place relating to nuclear energy within territory of a State considering the risks of radiological contamination transcending national boundaries will be bound by international regimes in question. Therefore, national nuclear law must reflect the obligations in that regard. The nuclear law places particular emphasis on the establishment of a regulatory authority whose decisions on safety issues are not subject to interference from entities involved in the development and promotion of nuclear energy. The transparency principle requires that bodies involved in development, use and regulation of nuclear energy make available all relevant information concerning how nuclear energy is being used particularly concerning incidents and abnormal occurrences that could have an impact on public health, safety and environment.
The final principle is to maintain close relationships with other States and relevant international organisations in regard to the nuclear techniques. The international dimension of nuclear energy is based on several factors in the area of safety, the protection of the environment, potential for transboundary impacts and in a word to protect the global population and the planet as a whole which is vital to exchange the information because the terrorist acts and threats associated with nuclear trafficking in nuclear materials or explosives. For these reasons the national nuclear energy legislation should adequately provide for encouraging public participation in the relevant activities in the nuclear field. Nuclear energy cannot be sustainable without public support. These various aspects will be discussed in the course of deliberations of this Conference.
*Advisory Council Member, NLA; Former Chief Justice of India and Chairman of NHRC; NHRC Chair Professor -NLSIU