Excerpt of the article “Through the Looking Glass: Placing India’s New Civil Liability Regime for Nuclear Damage in Context”, Nuclear Law Bulletin, No. 89, 2012/1*, by Robert J. Gruendel and Els Reynaers Kini.
Until India adopted the Civil Liability for Nuclear Damage Act, 2010 (Liability Act) and the Civil Liability for Nuclear Damage Rules, 2011 (Liability Rules), no specific legislation was in place to govern nuclear liability or to compensate victims for damages due to a nuclear incident in India.
Section 4(1) of the Liability Act does squarely state that the operator of the nuclear installation shall be liable for nuclear damage caused by a nuclear incident. Section 4(2) recognizes the principle of joint and several liability where there is more than one operator; Section 4(4) contains the principle of strict and no-fault liability of the operator. These principles are in line with the Paris and Vienna regimes, as well as the Convention on Supplementary Compensation (CSC).
Section 17 of the Liability Act states that the “operator of the nuclear installation, after paying the compensation for nuclear damage in accordance with Section 6, shall have a right of recourse where-
(a) such right is expressly provided for in a contract in writing;
(b) the nuclear incident has resulted as a consequence of an act of supplier or his employee, which includes supply of equipment or material with patent or latent defects or sub-standard services;
(c) the nuclear incident has resulted from an act of commission or omission of an individual done with the intent to cause nuclear damage.”
Sections 17(a) and (c) of the Liability Act are standard provisions, and can be compared directly with Article X of the Vienna Convention, Article 6(f) of the Paris Convention, and even Article 10 of the Annex to the CSC. Moreover, each of these international conventions restrict the right of recourse to the two instances outlined in Section 17(a) and 17(b) only. Therefore, Section 17(b) has caused much international consternation.
The original Civil Liability for Nuclear Damage Bill, 2010, contained a differently worded Section 17(b), targeting the situation in which “the nuclear incident has resulted from the willful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee”. During deliberations before the Parliamentary Standing Committee, various experts expressed the view that this provision needed to be redrafted in line with provisions from product liability laws that hold the supplier liable for product liability, faulty design, faulty manufacture, etc.
The Parliamentary Standing Committee was of the opinion that it would be impossible to establish the “willful act or gross negligence” on the part of the supplier. Moreover, the representative of the Ministry of Law and Justice confirmed that such mens rea language is typically only used in criminal and taxation laws and would be “grossly inadequate and misplaced” in the context of compensation cases. Therefore, the Standing Committee was of the view that “there should be a clear cut liability on the supplier of nuclear equipments/material in case they are found to be defective”. As a consequence, the Parliamentary Committee made various suggestions which reflect these concerns.
It is quite apparent that the discussions pertaining to the operator’s right of recourse did not take the existing international liability regime as a starting point. Rather, the Report of the Parliamentary Standing Committee states that it “has been the unanimous opinion of the Committee that the Bill being a domestic legislation should reflect Indian interests”. Although it does add that the Committee should also endeavour to take into account the CSC “so that as and when needed India can join it for availing of benefits flowing from” the CSC.
*Read more about the detailed discussions which took place prior to adopting the Liability Act, 2010, and Liability Rules, 2011, in No. 89 of the Nuclear Law Bulletin, Volume 1/ 2012, at: http://www.oecd-nea.org/law/nlb/
 Both the Liability Act and the Liability Rules entered into force on 11 November 2011. Copies of the Act and Rules can be found at: www.nlain.org/links; and Nuclear Law Bulletin, No. 88, Volume 2011/2, pp. 145-171.
 Section 2(m) of the Liability Act defines “operator” as: “in relation to a nuclear installation, means the Central Government or any authority or corporation established by it or a Government company who has been granted a licence pursuant to the Atomic Energy Act, 1962, for the operation of that installation”.
 Department-Related Parliamentary Standing Committee on Science & Technology, Environment & Forests, 212th Report on “The Civil Liability for Nuclear Damage Bill, 2010”, (18 August 2010), (Report Parliamentary Standing Committee), p. 5, available at: www.prsindia.org/billtrack/the-civil-liability-for-nuclear-damage-bill-2010-1042/ (accessed 22 March, 2012).
 It is interesting to note that South Korea expanded its right of recourse provision to precisely the situation of “willful act or gross negligence”. See more at: PLBS, (2010), “Addendum to a Briefing Document on the Civil Liability for Nuclear Damage Bill, 2010”, p. 11 , (PLBS Addendum), available at: http://plbs.in/Docs/PLBS_Addendum%20on%20Civil%20Nuclear%20Liability%20Bill.pdf (accessed 28 March 2012).
 Report Parliamentary Standing Committee, supra note 29, p. 16.
 Report Parliamentary Standing Committee, supra note 29, p. 13.
 Report Parliamentary Standing Committee, supra note 29, p. 14.