THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar XI
(31.03.10)
10:00 am-12:15 pm
The Civil Liability For Nuclear Damage Bill ,2010
Moderator : Jupi Gogoi Presenter : Amandeep Kaur Sandhu
Discussants : Devendra Singh and M. Ramesh
Rapporteur : Shantanu Singh
I Background
The Indo-U.S. Civilian Nuclear Agreement was enacted successfully in October 2008. The agreement was to facilitate civilian nuclear partnership between United States and India along with many other mutual benefits on the condition that India will differentiate between its civilian and military nuclear facilities and put civilian facilities under the International Atomic Energy Agency (IAEA) inspection. In order to facilitate nuclear commerce and attract U.S. private companies involved in nuclear commerce, the UPA government prepared The Civil Liability for Nuclear Damage Bill, 2010. The cabinet ministerial meeting approved the Bill on November 19, 2009. The passage of the bill is crucial to operationalise the India-US civil nuclear agreement as the Bill will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage 1997, without which the US private companies will not be able to sell nuclear equipments to India. In absence of such law, US firms will not get insurance cover for their projects in India.
II Overview of the Bill
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to give compensation to persons if they suffer nuclear damage as a result of a nuclear incident. Clause 4, inter alia, provides that the operator shall be liable for nuclear damage caused by a nuclear incident in that nuclear installation. However, the total liability of such operator is limited. Further the Bill provides that where a nuclear damage is caused by nuclear incident directly due to a grave natural disaster of an exceptional character or by acts of armed conflicts etc, the operator shall not be liable. Clause 6 specifies that the maximum amount of liability in respect of nuclear incident shall be the rupee equivalent of 300 million Special Drawing Rights and the liability of an operator for each nuclear incident shall be Rs. 500 crore. Clause 7 specifies that central government shall be liable where the liability exceeds the amount of liability of an operator. Under the Bill, the foreign supplier, however culpable it may be for a nuclear accident will enjoy legal immunity because the Bill channels all legal liability on the central government. The Bill further provides that the operator, through a contract, can make the foreign supplier responsible to pay compensation for an accident. But such amount can only be up to the operator’s own liability ceiling. According to Clause 35 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of which the Claim Commissioner or the Nuclear Damage Claim Commission is empowered to adjudicate under the Bill. Another contentious clause is period of limitation to claim damages. It provides that the right to claim compensation for any nuclear damage shall extinguish if such claim is not made within a period of ten years from the date of notification of nuclear incident.
III Issues
1. How far the Parliament is justified in limiting the maximum liability at the rupee equivalent of 300 million Special Drawing Rights, which is not in accordance with internationally adhered benchmarks?
2. Is the Parliament justified in not making the supplier/operator directly and fully liable and shifting the liability to the Indian taxpayer?
3. Whether the limitation on the right to claim damages merely to 10 years after the happening of a nuclear incident is justified, since its effects on health, environment, etc take a long time to manifest?
Suggested Readings:
1. Brahma Chellaney, ”A Radioactive Bill Fraught With Big Risks”, The Hindu 13 March 2010.
2. Gopal Krishna, “Nuclear Liability Bill, US Senate, and Indian Parliament”, available at http://canarytrap.in/2010/03/17/nuclear-liability-bill-us-senate-and-indian-parliament/
3. Convention on Supplementary Compensation for Nuclear Damage,1997.
4. Brahma Chellaney, “Ignoring Lessons of Bhopal & Chernobyl”, The Hindu 16 February 2010.
5. Chernobyl- A continuing Catastrophe, UN Office for the Coordination of Humanitarian Affairs available at http://www.reliefweb.int/ocha_ol/programs/response/cherno/qms.pdf
