CIVIL NUCLEAR LIABILITY IN INDIA An assessment of the judicial intervention. Pijush Sarkar, Advocate. LL.B (C.U), M.B.L. (N.L.S.I.U), LL.M (ADR & CYBER LAWS), C.C.L. (NUJS), Ph.D SCHOLAR (KSOL) Background of the study: This study aspires to enlighten individuals and dexterous practice in the field of civil nuclear law and its scope and ambit of liability under statutory law in India in the reflections of judicial views and pronouncements. It is elementary to be receptive of the co-relation that exists between Law & Technology. Law has a lot to accord with technology, i.e. with individual demeanour and benefits. The liability for nuclear damage has in current epoch been the heart of consideration owing to the Tsunami attack in the Japan in 2011 and its brunt on the nuclear power plants of Fukushima. On the other hand, in October 2012, India drew up ‘an ambitious plan to reach a nuclear power capacity of 63,000 MW by 2032. The populations around the projected Indian nuclear power plant sites have augmented question about atomic energy as a clean and safe choice to fossil fuels. There have been accumulated protest against the French backed 9900 MW Jaitpur Nuclear Power Project in Maharashtra and Russian backed 2000 MW Kundakulam Nuclear Power Plant in Tamil Nadu. The state government of West Bengal has repudiated acquiescence to a wished-for 6000 MW facility near the town of Haripur that intended to host six Russian reactors. India eyeing 63,000 MW Nuclear power capacity by 2032: NPCIL: PTI Oct. 11, 2010 & The Economics Times, Oct 11, 2010. A large number of Indian masses are tentative, pertaining to the consequences of the exposure to the nuclear radiation and its damaging effects on the environment and humans. There is howling demand to toughen the quantum of liability and compensatory jurisprudence for the present as well as future generations in case of any forthcoming nuclear disaster. The Union Government had passed ‘The Civil Liability for Nuclear Damage Act, 2010 and Rules 2011. Prior to this Act there are certain other legislations and judicial decisions in India which would be helpful in redressing cases on environmental issues, and the principles laid down by precedents incase of any civil nuclear damage. The Liability Act, 2010 is a special statute on civil nuclear damage in India. A Public Interest Litigation (PIL) has been filed against the Union Government’s civil nuclear programme and challenging the constitutional validity of Liability Act, 2010 by Common Cause (NGO), India through its Director & Ors before the Apex Court in India, which still waits for a final verdict by the Hon’ble Court www.toxicwatch.org/2011/10/civil-liability-for-nuclear-damage-bill.html [WP (Civil) No. 464 of 2011]. Another Public Interest Litigation is pending before the Supreme Court of India - WP (Civil) No. 407 of 2012 filed jointly by Centre for Public Interest Litigation, Common Cause and Ors against Union of India and Ors. A case was filed in the High Court of Kerala at Erakulam before the Hon’ble Chief Justice Mr. Ashok Bhusan and the Hon’ble Justice A. M. Shaffique by Yash Thomas Mannully & Anr. against Union of India & Ors. [WP(C) No. 27960 of 2011]. And the case was decided on 21st day of August 2015. This study would analyses The Civil Liability for Nuclear Damage Act, 2010 and its Rules, 2011, in the light of judicial views and interpretations. Dating back from the edifice of the foremost nuclear power plant in India, there has been apprehension about the likely effects of an unrelenting nuclear accident, together with the query of who would be legally responsible for third-party consequences and the quantum of injure and liability of the operator and the supplier of machinery in the nuclear plant. To understand the issues, concerns and problems we first need to know a few of the legal provisions and its basic principles which are associated with the subject matter. The Constitution of India envisages for socio-economic and political justice for its citizens, being the welfare state it has to carry out certain measures for the advancement of the living of the people but at the same time being the guardian of the people it has to take care of the community by providing compensatory relief for the people in case of any accidental hazards which take place due to the activities conducted by the state. The theory of compensatory jurisprudence had been evolved by the Supreme Court of India by giving liberal interpretation to Article 21 of the Constitution of India and had included almost every facet of life. The aim and objectives of the Environmental Protection Act, 1986 provides that the Act was brought into force in order to execute the decisions taken in the Stockholm Conference in 1972. It says that the aim of the law is to fill the gaps in the existing laws and to provide control mechanisms against slow insidious build up of hazardous substance. The Atomic Energy Act, 1962 and the Rules, 1983 as of now, permit only the Central Government to do certain acts relating to the use of radioactive substances and their production and the production of atomic energy. The purpose of ‘The Civil Liability for Nuclear Damage Act, 2010 is to provide for civil liability for nuclear damage, appointment of Claims Commissioner, and establishment of Nuclear Damage Claims Commission and for maters connected therewith or incidental thereof. Until India adopted the Civil Liability for Nuclear Damage Act, 2010 and then Civil Liability for Nuclear Damage Rules, 2011, no specific legislation was in place to govern nuclear liability or to compensate victims for damages due to a nuclear incident in India. As the primary challenge before India is to meet the requisite electricity and get the common man free from the crutches of load shading, India has a determined aspiration to increase 5-fold the amount of electricity produced from nuclear power plants to 20,000 Mwe by 2020. This will be further increased to 63,000 Mwe by 2032. In this way, India will produce 25 percent of its electricity from nuclear power plants by 2050. India’s present production of electricity through nuclear power is 4780 Mwe. To increase the share of nuclear power, foreign companies would need to be involved in the manufacture and supply of nuclear reactors. However, global nuclear disasters and Bhopal gas leak disaster must be taken into account while framing any present or future course of action. The recompense itself cannot be the true justice, but steps must be taken in such a way that the chances of any nuclear incident be absolutely rare. Though the remedial setup framed by the government of India as well as by the international community and Indian judiciary is comprehensive however it should not remain on the papers only, but its vigorous implementation should be advocated by every responsible agency. The Liability Act seeks to bypass certain provisions and limit the liability of the operator and prevent the victims from getting adequate compensation for the damage caused to them. It is clear that the Constitution imposes a duty on the State not only to protect the environment but also to improve it as a clean and healthy environment is necessary for the dignified existence of man. Any such derogation would result in violation of Article 21 of the Constitution of India. The Indian Courts is mostly unenthusiastic to impede with the legislative decisions of the parliament and the view of the experts. When the principles of natural justice and public policy are not followed or issues of environmental hazards and right to live with human dignity are overlooked by the government, then the position taken by the judiciary in regard to nuclear liability principles and laws needs to be reviewed and altered as and where necessary. There should be a balance between the merits of technological developments and its benefits with the interest of the general masses. At the onset, an in brief study of the Act of 2010 and its Rules on civil nuclear damage in India will be prepared. And followed by work on the judicial position in India and the principles of liability that evolved in order to protect the environment from the scientific and technological developments accomplished by the human beings. For this study, the pollster will aim at critically analyzing the compensatory jurisprudence in India with regards to nuclear incident and consequential damages. And would scrutinize the immediate legal issues that are being faced, discussed and debated for and against ‘The Civil Liability of Nuclear Damage Act, 2010 and Rules 2011 in Indian courts through Public Interest Litigations, especially in the Apex Court and the Kereala High Court through ublic Interest Litigations. And the view of the Hon’ble Courts pertaining to the issues. INTRODUCTION The foremost challenge before India is to meet up the required electricity and get the ‘Aam Aadmi’ i.e. the common man free from the crutches of load shading. India has a determine aspiration to boost 5-fold up the sum of electricity produced from nuclear power plants to 20,000 MWe within 2020. This will be further augmented to 63,000 Mwe by 2032. In that way, India will produce 23 percent of its electricity from nuclear power plants by 2050. India’s current production of electricity through nuclear power is 4780 Mwe. To strengthen the contribution of nuclear power, foreign companies are required to be drawn in the production and make available of nuclear reactors. http:/in.reuters.com/Articles/idiNIndia retrieved on 11.0.2015. Indo-US Nuclear agreement has brought expectation for nuclear development in India for peaceful purpose. Nuclear energy is to offer in due course maximum contribution of the electric energy necessary in the country, demand for which will be diverse in upcoming two decades. It will trim down pollution in India as well as diminish global warming which is a menace to our planet. Hydo-electricity power, wind energy as well as solar energy can meet up the demand a little bit though its uses have much inconvenience like heavy cost of construction and less output compared to nuclear power plants. On the other hand, Nuclear power stations will incur heavy maintenance cost for safeguarding against incidents, radio activity and disposal of nuclear waste. As a Civil Nuclear Deal was going to take place between India and USA, there was great stipulation from the general public as well as legal fraternity that Parliament must legislate a specific Act with regards to the liability of the entities which owe the nuclear installations. There were people demanding for an Act for the people, which would protect the rights of the people, award with speedy trial and adequate recompense to the victims if any accident occurs so that there might not be repetition of post-Bhopal tragedy period. Under insistence and pressure from various groups in and outside India, a Bill was introduced in this regard titled ‘The Civil Liability for Nuclear Damage Bill, 2010’ in Parliament by the Government. The contents of the bill became subject matter of great debate and criticism. The government favoured the passage of the Indo-US Nuclear Bill, as of high priority. Article 2 - 4 of Indo-US agreement gives India freedom to use nuclear material available in India that has not been supplied under the Indo-US agreement. BJP the main opposition party had strongly opposed the nuclear Bill. BJP’s Yashwant Singh, a former Union Minister, had even gone far to say that BJP will never accept the bill as it favours USA and transfers a large part of liability to the government in other words to the ‘Aam Aadmi’ who pays the tax out of his pocket. Mr. Sinha further elucidated that the Bill violates Article 21 of the Indian Constitution – right to protect life and personal liberty along with Article 14 – ‘Right to Equality’ as the liability under Price Anderson Act of US is 12.5 billion Dollars (Rs. 50,000 Crore approximately), while that of India is Rs 2,142 crore, which is 23 times higher than the liability fixed for an Indian operator. That means an American life is valued 23 times more than that of an Indian. The main proponents of the Bill advocated that some form of liability laws specific to nuclear accidents is necessary. Currently, neither the Indian Atomic Energy Act nor the Environmental Protection Act or Public Liability Insurance Act, 1991 has jurisdiction over accidents due to radioactivity. It will be easier to reconcile India’s stance on nuclear technology with the global Convention on Supplementary Compensation for Nuclear damage once there is national legislation in place “Nuke Establishment Backs Nuclear Liability Bill India", Outlook, India, July 2010. CPM, CPI, Forward Bloc and RSP – the left parties, in a joint statement had condemned haste to pass the Bill with unjust liability to the government of India and Indian operator. They were vocal with their concern and doubted the rationality of the government to put a cap on liability where in Rs. 1,642 crore would be borne by the government out of Rs. 2,142 crore and rest by the nuclear operator. Even after strong opposition, the ‘Liability Bill’ has been voted for by both Houses of the legislative body and got the assent of the President of India on 21st September, 2010. This will put the operation of the India-USA civilian nuclear agreement into motion and will unbolt the floodgates for nuclear reactor companies to set up new-fangled amenities in India. The Act has clauses that are of noteworthy anxiety; at present it institutes an indefinite scheme that scantily protects India and its populace in case of nuclear incident. Both the past and present understanding of the in progress litigation surrounding the Bhopal gas leak has uncovered the shortcomings on the remedy and recompense process. The Act inadequately addresses issues raised from past accidents such as Bhopal Gas Leak case and current situations such as BP Gulf of Mexico spill. The objective of the Act is to impart for civil liability for nuclear damage, selection of Claims Commissioner, and founding of Nuclear Damage Claims Commission and for matters coupled therewith or accompanying thereof. Section 3 empowers to the Atomic Regulatory Board under the Atomic Energy Act, 1962 to notify the nuclear incident within 15 days from the date of occurrence of a nuclear incident with exceptions in cases where it is satisfied that the threat and risk involved is insignificant. There is no reasonable explanation behind giving the commission such a power to hide the incident if it is small, there must have been a provision which would have provided for compulsory notification of every nuclear incident so that there would be awareness among the general public. Section 4 states that the operator of the nuclear installation shall be liable for nuclear damage caused in the nuclear installation or involving nuclear installation. And where more than one operator is liable for nuclear damage, the liability of the operators so involved shall, in so far as the damage attributable to each operator is not separable, be joint and several. But no authority has been created to conduct regular inspection of the safety standards applied in a nuclear incident to prevent the occurrence of a disaster. No powers are prescribed to be given to the Claims Commissioner in this regard. In future when new reactors would be opened under the Civil Liability Deal, and they would be operated by the Corporate Units, there would be great need of inspection of safety standards applied by them. Section 5 provides certain exceptions in which operators are not liable for nuclear damages such as natural disaster of an exceptional character, or an act of armed conflict, hostility, civil war, mutiny or terrorism, this clause contradict the basic principle evolved by the Indian Supreme Court i.e. principle of absolute liability. Section 6 is the most controversial provision in the Act; it states that the maximum financial liability of each nuclear incident is rupee equivalent of 300 million Special Drawing Rights (SDR). One incentive to set the amount of financial liability at the minimum is because any insurance premium paid by the supplier or the operator will add to the overall cost of business. This in turn means that it will cost the government more money to set up the plant as well as cost the public more to buy the electricity Pilid Lao,”The Civil Nuclear Liability Bill: Its Rationale and Related issues”, On Centre Right India, July 2010.. A second incentive is that following the Convention on Supplementary Compensation (CSC) for Nuclear Damage a country is eligible for international funding in the case of an accident – but only if its cap sits at 300 million SDR and costs of an accident end up exceeding that amount. This cap is inadequate for a nuclear disaster. Beyond this amount the victims will receive no compensation. The Indian Government being the operator in India will be liable for damages exceeding Rs. 500 Crore according to the provision of Section 7 of the Act, because liability lies with the operator according to the UN-adopted Convention on Supplementary Compensation. It makes the operator of the nuclear installation – and not the suppliers – liable in the event of accident. This clause is a prerequisite for India to become a part of CSC. As the operator is government owned facility, all payments will come entirely from the government. That means that it will come from Indian taxpayers. Additional resources is needed for compensation in case that the total compensation exceeds maximum liability amounts covered in the Act. The proponents of this provision says that it is to protect private companies that may be deterred from entering the Indian nuclear market over the possibility that in the event of an accident, liquidation of all assets would still prove insufficient at covering the amount required for compensation. Section 14 provides for locus standi, that the person who has been injured or whose property has been damaged or their legal representatives or their duly authorised agent may make an application. Here there is no provision for the Govt. to make an application on behalf of the victims. Section 15 provides that the application should be made in the prescribed form and within three years of discovering the damage caused, subject to the limitation under Section 18. Section 31 of the Act makes similar provision for the procedure before the Nuclear Damage Claims Commissioner. Section 16(5) provides for finality of the orders of the Claim Commissioner. Section 17 allows only the operator to sue the manufacturers and suppliers for negligence in case of nuclear incident “Nuclear Liability Bill: DAE views ignored?” NDTV, July 2010. Victims can only sue the operator, and not the manufacturers and suppliers. In India the operator will be a government owned facility. Therefore if victims sue the government and receive monetary compensation, the money will come from fellow taxpayers. The Russian Federal Act on Atomic Energy does not entail a perimeter upon the operator’s right of remedy. Germany allows persons other than the operator to be liable for the damage, and allows victims to sue suppliers for fault-liability and receive compensation beyond what the operator pays. A clause needs to be added in the Act detailing suppliers’ liability, or victims should be allowed to sue both suppliers and operators depending on where the issue of negligence lies. Section 18 limits the right to claim compensation for nuclear damage at 10 years from the date the accident is notified. Using past accidents as indication, 10 years is too limited frame to assess the full extent of damages from a nuclear accident. The long term health effects of an accident may not be known until after 10 years, and research and studies on long-term damage and illnesses can take more than 10 years to be conducted. In comparison to other nuclear conventions, the Vienna and Paris conventions allow for a 30-year claim period. A period of 20-30 years would be a more adequate time frame. The 10 year limit should be increased so that people are given the opportunity to ask for compensation once post-accident studies had an opportunity to be conducted. According to Section 35, civil courts have no authority on nuclear accident claims. Trials will go to the Nuclear Damage Claims Commissions, and be adjudicated by the Claims Commissioner appointed to each prescribed ‘zone’. Decision of the Claim Commissioner on compensation for victims cannot be appealed; even at the High Court and Supreme Court (Except under Art. 226 and 227 of the Constitution). The Judiciary should have authority to these cases rather than a 6-person commission. In comparison, in U.S. the Price Anderson Act allows lawsuits and criminal proceedings to go under the U.S. Civil Courts. According to an expert, the U.S. system allows tort claims in addition to an unconstrained right of remedy for the operator, giving the operator a chance to sue the supplier for the mishap. A more comprehensive system giving victims the right of recourse should be established. Victims should also be allowed to sue in civil courts, rather than make claims to a commission, which under Section 38 is permitted to be dissolved even in the event that there exist pending cases. Section 38 permits to dissolve the Claim Commission in the event that the Govt. is satisfied that the purpose for which the Commission established has served its purpose, or where the number of cases pending is so less that it would not justify the cost of its continued function, or where it considers necessary or expedient so to do. Section 45 empowers the Central Government to exempt any nuclear installation from the application of this Act, if having regard to the quality of the nuclear material it is of the opinion that the risk is insignificant. According to a meticulous revise on the human race’s nuclear commerce conducted in recent times by distinguished intercontinental organization ‘Worldwatch Institute’, nuclear industry is a staid decline as a good number of countries have realized that it is both unprofitable and treacherous. This Act is making a mockery of the ‘absolute liability’ and ‘polluter pays’ principle as laid down by the Hon’ble Apex Court while interpreting Article 21 of the Constitution and as laid down in M.C.Mehta v UOI (Oleum Gas leak case). Appreciating the demand of escalating liability, in the Oleum case the Apex Court strictly followed the principle of strict liability as laid down in Rylands v Fletcher to formulate the theory of Absolute liability. This was a rung to the fore as the court preferred to do away with the drawbacks of the strict liability rule and convey superior responsibility, thus the strict liability principle was made more unyielding. The Apex Court in the said case (1987) 1 SCC 395. apprehended that if a endeavor engages in an intrinsically perilous and unsafe bustle and some impairment is caused as a consequence of that activity subsequently the liability is absolute and not subjected to any exceptions as avowed in Rylands v Fletcher. The raison d'être of the court for impending to this pronouncement was for the reason that adherence in mind the revolutionisation in industrial culture that was precisely sophisticated and consisted of loads of unsafe industries. The court furthermore held that solitary the industry had the wherewithal to ascertain, sentinel and presage aligned with the hazards and dangers. The piece of information need to be agreed that the diligence is in best position to soak up the outlay of the catastrophe and in court’s judgment the industry should swallow the expenditure of the after effects of calamity irrespective of what the foundation of the accident was. As far as the purveyor is concerned, the Act goes even further and grants chock-full imperviousness. Thus in effect, daunting the exercise of safe practices, the Act puts the populace of India at enormous jeopardy of massive dent that any nuclear accident can source and consequently it violates the right under Article 21 of the Constitution. The Supreme Court, India in A.P.Pollution Control Board vs M.V.Nayudu (1999) 2 SCC 718 held that precautionary principle is applicable to India. The principle mandates that when a new technology or process can cause serious and irreversible harm to human health and the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context, the proponent of the uncertain activity rather than the public has to bear the burden of proof. In Vellore Citizens’ Welfare Forum v. UOI (1996) 5 SCC 647 held that “precautionary principle”, “polluter pays principle”, “shift of burden of proof”, are part of the law of the land derived from Article 21, 47, 48A and 51A(g) of the Constitution of India and customary international law. In spite of all these lacunae, Section 46 of the Act provides us some reliefs when it provides that provisions of this Act are in addition to and not in derogation of any other law for the time being in force, nothing would exempt under this Act the operator from liability which may arise from the provisions of any other law in force. But generally speaking the other liability of the operator may arise under the civil proceedings for tort, which is very expensive as well as lengthy, hence unaffordable by a common man especially when he is fighting against big multinational corporations. Despite having 17 nuclear reactors, India does not have a Nuclear Safety Commission that is independently constituted with powers to enforce information disclosure, frame safety rules, risk assessment, methodologies and protocols, issue periodic risk assessment reports and conduct safety audits and put it all in public domain. A Nuclear Safety Commission should have been setup that should have powers to give safety directives, including shutdown of plants. It should include, besides credible independent experts, elected representatives of workers, scientists and professionals working in the industry and all other stakeholders of affected communities. It is not prudent for the government to issue licenses for new nuclear plants until such processes are put into place. Amendments should be made in the Act to increase its effectiveness. The scope of the liability of the operator should be increased to a great extent; even the total amount of the liability should also be increased. An authority must be created under the Act which must take care of all the security measures in a nuclear installation. There must also be some specific guidelines regarding the compulsory security measures, which are required to be followed in every nuclear installation. Moreover, the Act must apply to all nuclear installations so that there must not be another Bhopal Gas leak like tragedy. Only the aspect of civil liability is provided by the ‘Civil Liability for Nuclear Damage Act 2010’ and there is no clarity regarding the approach towards criminal liability of the operators and suppliers in case of their negligence. This becomes extremely relevant in the light of the treatment of the criminal charges for causing gas leak at the Union Carbide factory at Bhopal. Moreover in cases of multinational companies due to the lack of clear approach regarding the jurisdiction as well as liability of the parent company in India and internationally the lack of legislative approach is detrimental to the interest of India. It can be concluded that by passing the Nuclear Liability Act, the Indian government had failed to utilize the golden opportunity for acknowledging the aspects of transparency, regulatory independence and also developing a liability principle suited for India in case of a Nuclear incident. The urgency for nuclear energy is yet another example of an urbanised shadow by which overheads are being transferred to the environment and the local people – Indian citizens, without their understanding and complete partaking in the process of deciding development parameters and to privatising proceeds and socialising the perils and expenses. Under the present state of affairs, the very issue of spreading out of nuclear power merits further and translucent debate. CIVIL LIABILITY FOR NUCLEAR DAMAGE IN INDIA In January, 2016, India and the United States had shorted the differences and reached to a mutual acceptance on the trade liability of suppliers for nuclear industrial accidents in India. Now the operators of nuclear installations in India will persist to go on with the principal liability for a nuclear unpleasant incident and additional enduring liability of suppliers for injure resultant from a nuclear accident will be taken care of by an insurance pool, co-funded by Indian insurers and the Government of India.  http://www.newindianexpress.com/nation/Nuclear-Insurance-Pool-Dilutes-Risk-for-Indian-US-Suppliers/2015/02/09/article2660017.ece. India's Civil Liability for Nuclear Damage Act, 2010 (the "Act") fundamentally shaped and formulated for recompense fatalities from injury caused by a nuclear incident, share out accountability and stipulate measures for damages. US operators necessitated the Act to be positioned in so that they can be insurable in the US. On the other hand, a lot of people have viewed that the Act has stalled the implementation of the Indo-US Civilian Nuclear Agreement, 2008 for having no pre-determined limit of recourse against suppliers and unknown liabilities. As a consequence, suppliers are incapable to insure against the jeopardy that are tentative and for that reason, are not capable to venture into the Indian market The Act is unambiguous on the subject of the provisions of accountability for nuclear damage. The operator in harmony with the universal principle international law is strictly liable for nuclear damage resulting out of a nuclear incident Section 4 of the Act with the exception of in the case of a force majeure incident, in which case the central government takes responsibility of the peril with respect to the compensation. Section 5 of the Act. The liability of the operator is to all intents and purposes capped at Rs. 15 billion (USD 238 million) Section 5 of the Act. and the by and large liability of the central government with respect to any nuclear incident is capped at an equivalent of 300 million Special Drawing Rights Section 6(2) of the Act.  which is equivalent to roughly USD 415 million as of January 2016. The operator is strictly liable for a sum up to USD 238 million and the central government is liable for a sum beyond this but falling lower than USD 415 million. The government of late declared to set up a Rs. 15 billion insurance pool equivalent top USD 238 million to be financed by Indian insurers and the government is projected to take the edge off the liability of the operator. The operator in India is the Nuclear Power Corporation of India Limited (NPCIL), which is State owned, so the whole liability of the operator is in actual fact a public liability and will be borne by the Indian taxpayer in actual practice. Section 17 of the Act basically endow with that an operator, after paying recompense shall have the right of recourse against a supplier if a right subsist under the terms of contract and if the nuclear incident transpires as a outcome of the operation of a supplier including that of his workers, together with the contribution of paraphernalia or bits and pieces with patent or latent flaws, or the prerequisite of services which are below par. The operator will be held liable through the principle of strict liability under the Act for up to the maximum amount of USD 238 million. On shelling out that liability, in case that the accident was rooted by a latent or patent defect, designed or constructed by the supplier or the slack act of services, then the supplier would be contractually indebted to indemnify the operator for his damages. Rule 24 of the Rules states that a contract involving an operator and a supplier referred to in Section 17 of the Act shall incorporate a rider for the right of recourse against the supplier for not less than the amount of the operator's liability under the Act, or the value of the contract, whichever is take away. Any contract between an operator and a supplier must comprise a liability clause, though it seems that the liability of the supplier would, in such case, be capped at USD 238 million. Section 46 of the Act explains that its provisions are in addition to and not in derogation of any other law for the time being in force and not anything specific in the Act shall let off the operator from any legal proceedings, which might, apart from the Act, be instituted against the operator. The apprehension for suppliers is that the Act shields them from liability in tort before the Indian courts. The answer by the supporters of the nuclear deal is that Section 46 of the Act relates to claims against the operator and hence inevitably rules out the capacity of an action in tort against a supplier. It's hard to envisage how a court would interpret this provision. The Act clearly assigns the liability for nuclear damage to the operator, yet, simultaneously gives the operator the right of recourse against a supplier in certain circumstances. The Act does not explicitly bar an action against a supplier in tort, in cases of negligence resulting death, personal injury or damage to property. The objective of India’s Ministry of External Affairs seems to be that the Act frustrates claims in tort against a supplier before an Indian court. Amendments motivated at some point in the passage of the bill through parliament, integrated the wished-for addition of a supplier to this provision, which was outmoded. It is a well-settled rule of law that all statutes are to be construe in harmony with the object of the legislature; the constitutionality of Section 46 has not been tested.7 India's Ministry of External Affairs seems to suggest that victims of a nuclear incident in India cannot move to foreign courts in relation to claims for damages against a foreign supplier, nevertheless it remains to be observe whether a court in a foreign jurisdiction would accept a claim by victims for damages resulting from the negligence of a foreign supplier. In this regard, it should be pointed out that Article XIII of the Convention on Supplementary Compensation for Nuclear Damage (CSCND) states that jurisdiction over claims as to nuclear damage arising from a nuclear incident shall lie only with the courts of the contracting party within which the nuclear incident occurs. Therefore, it is likely that a foreign court will rule that an action in tort by an Indian victim in the courts of the jurisdiction of the supplier will probably be inadmissible on the basis of Article XIII of the CSCND. CONSTITUTION OF INDIA AND ENVIRONMENTAL PROTECTION PRINCIPLES.             The Constitution of India is both rigid and flexible, not a static but a living document which widens its extent and grows with the requirement of era. This embryonic nature and the urge for impending development is the basis of a sturdy protection of environment under of the Constitution of India. Right to life with human dignity and pollution free environment is inherent principle of the Constitution. The Environment (Protection) Act, 1986 defines environment as “environment includes water, air and land and the interrelationship which exists among and between air, water and land and human beings, other living creatures, plants, micro-organism and property”. The chapter on fundamental duties of the Indian Constitution enforces obligation on all citizens to protect environment. Article 51-A (g) states that “It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.” The Directive principles under the Indian constitution intended for the philosophy of the structure of a welfare state.  Article 47 endow with the development of public health, which includes the safety and development of environment.               The Constitution of India under Part III guarantees fundamental rights, which are indispensable for the progress of every individual and to which a person is intrinsically at liberty by virtue of being human alone. Right to environment is also a fundamental right. Rights conferred under Articles 21, 14 and 19 of this part have been used for environmental protection in numerous court cases and writ petitions in High Courts and Supreme Court of India. Article 21 of the Constitution states, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court in Maneka Gandhi vs. Union of India AIR 1978 SC 597 has liberally interpreted Article 21, which guarantees fundamental right to life. In this case the Apex Court of India stated that right to healthy environment is inherent in it and is a significant characteristic of right to live with human dignity. The right to live in a healthy environment as a fundamental part of Article 21 of the Constitution was primary accepted in the case of Dehradun Quarrying Case Rural Litigation and Entitlement Kendra vs. State, AIR 1988 SC 2187.. In M.C. Mehta v. Union of India, AIR 1987 SC 1086 the Supreme Court interpreted the right to live in pollution free environment as an ingredient of fundamental right to life in libretto under Article 21 of the Constitution.   Under Article 19 (1) (g) of the Indian constitution every citizen of India has the fundamental right to practice any profession or to carry on any occupation, trade or business, subject to reasonable precincts. Safeguards for environment protection are inherent under Article 19(1) so if a trade is having health risks beyond certain limits and are a peril for the masses then such trade activities are restricted.  The Supreme Court in Cooverjee B. Bharucha  v Excise Commissioner, Ajmer 1954, SC 220 observed that, if there is disagreement between  environmental protection and right to freedom of trade and occupation, then the courts have to decide on a reasonable equilibrium of environmental wellbeing with the fundamental rights conferred under the Indian Constitution. The principles of ‘the Precautionary Principle’, ‘the Polluter Pays Principle’ and ‘Absolute Liability’ are fundamental characteristics of ‘Sustainable Development’, which evolved through numerous decisions by the Indian judiciary in Public Interest Litigations under Article 32 and 226 of the Indian Constitution.                 JUDICIAL REFLECTIONS PRIOR TO CIVIL LIABILITY REGIME FOR INDIA The Indian Constitution through the directive principles of state policy and the fundamental duties chapters explicitly articulate the State’s pledge to protect and progress the environment. Judicial elucidation has toughened this constitutional directive. The Supreme Court of India has develop an extensive environmental jurisprudence, amongst the fundamental norms recognised by the court are: Government agencies may not supplicate non-availability of funds, scantiness of staff or other insufficiencies to justify the non-performance of their obligations under the environmental laws. Delhi Garbage Case, AIR 1996 SC 2969, 2976. Enforcement agencies are under a commitment to strictly enforce environmental laws. CRZ Notification Case, 1996(5) SCC 281, 294,301. Every person enjoys the right to a wholesome environment, which is an aspect of the right to life guaranteed under Article 12 of the Constitution of India. AIR The ‘polluter pays’ principle which is a part of the basic environmental law of the land requires that a polluter bear the remedial or clean up costs as well as the amounts payable to compensate the victims of pollution. Bichhri Case, AIR 1996 SC 2715, 2721 Stringent action ought to be taken against contumacious defaulters and persons who carry on industrial or development activity for profit without regard to environmental laws. AIR 1991 SC 1453. The ‘precautionary principle’ requires government authorities to anticipate, prevent and attack the cause of environmental pollution. This principle also imposes the onus of proof on the developer or industrialist to show that his or her action is environmentally benign. Shrimp Culturre Case, AIR 1997 SC 811. The power conferred under an environmental statute may be exercised only to advance environmental protection and not for a purpose that would defect the object of the law. CRZ Noification Case, 1996(5) SCC 281, 299, 302. The State is the trustee of all natural recourses which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the sea-shore, running waters, air, forests and ecologically fragile lands. These resources cannot be converted into private ownership. Span Motels Case, 1997(1) SCC 388. Government development agencies charged with decision making ought to give due regard to ecological factors including (a) the environmental policy of the Central and the State Government; (b) the sustainable development and utilization of natural recourses and pass on to future generations an environment as intact as the one we inherited from the previous generation. M.I.Builders v Rdhey Shyam Sahu AIR 1999 SC 2468, 2505. In M.C.Mehta v Union of India, AIR 1987 SC 1086, the Supreme Court implicitly observed that Article 21 of the Constitution of India guarantees the fundamental right to life and personal liberty to include the right to a wholesome environment. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In Rural Litigation and Entitlement Kendra v. State of U.P.., AIR 1985 S.C. 652, the Supreme Court ordered for closure of certain lime stone quarries being worked out in Dehradun on the ground that there were serious deficiencies regarding safety about hazards in them and the work to as likely to affect the ecology of the area. Large scale pollution was found to have been caused by the quarries adversely affecting the safety and health of the people in the region. In M.C.Mehta v. Union of India, (1988) 1 SCC 471, the Supreme Court directed the company to take all necessary safety measures before starting the operation as the company was using hadrons and lethal chemicals and gases which were posing danger to the health and life of workmen and the people living in its neighbourhood. The court also directed the management to deposit a sum of Rs. 20 lakhs by way of security for payment of compensation claims of the victims of oleum gas leak and a sum of Rs. 15 lakhs as bank guarantee to ensure compliance of the order of the court. Hon’ble Bhagwati P.N., C.J., clarified the position of damages when harm results from the hazardous or inherently dangerous nature of the activity. In such cases, the Court held that “compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a different effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it” The Court laid down other principles as follows: For progress and development, setting up of chemical and hazardous industries is essential. In order to minimise hazards such industries be located in such areas where population is search and steps be taken to prevent the growth of population in such areas. A green belt of 1 to 5 km width around such industries be provided. In order to assess environmental pollution an Ecological Sciences Research Group (ESRG) consisting of independent professionally competent experts in different branches of Science and Technology be set up who would act as an information bank. An Environmental Court be set up on regional basis with one professional Judge and two experts drawn from ESRG to assist the Judge to decide the cases relating to environmental pollution. This recommendation has been accepted by the Government of India, and the National Environmental Tribunal Act, 1995 has been enacted to deal with the cases of environmental pollution. In another case filed by M.C.Mehta against the Union of India, the Supreme Court ordered for the closure of the tanneries of Jajman near Kanpur polluting the Ganga. In Bangalore Medical Trust v. B.S.Mudappa (1994) 4 SCC 54, the Supreme Court held that a park is necessity and is not a mere amenity. For maintaining ecology in urban areas open space and park is necessary. An action under the law of Tort to abate nuisances is the oldest remedy. Most of the cases relating to pollution are covered by the heads of nuisance, negligence or strict liability. The remedy is available either as damages or injunction. In the law of Tort primary remedy is a claim for unliquidated damages. However, where it is not an appropriate remedy the prevention of the portions act is essential for which remedy of injunction with or without damages may be granted. Strict liability arises where the person who brings and keeps a dangerous thing on his property, he is held to be answerable for damage done by not keeping it secure subject to the extent to the exception of Act of God; or vis major or the plaintiff’s own default. Rylands v. Fletcher is a leading case on this theory. It was taken support of in the Bhopal gas Leak case. Absolute liability arises without any exception for any defence. The owner of the dangerous thing is held absolutely liable for the consequences of the hazards he keeps. In Ratlam Municipality v. Virdhi Chand, AIR 1980, S.C. 1622, the Supreme Court has evolved the principle of judicial dynamism in matters of environmental pollution. The Apex Court held that the order of the Magistrate and issued supplementary directions. “Specially enjoying upon the Municipal Authority and the State Government to carry out certain directions which included that the Municipal Council and the State Government shall take steps to stop the pollution caused by the alcohol plant,” and the Sub-Divisional Magistrate will use his power under Section 133 of the Criminal Procedure Code to abate the nuisance so caused. PUBLIC INTEREST LITIGATION: AN ANALYSIS ON THE CIVIL NUCLEAR LIABILITY. In the matter of Centre for Public Interest Litigation & Ors v. Union of India (Kudankulam Case): Writ Petition (Civil) No. 407 of 2012: The case is connected to W.P. (Civil) 464 of 2011. (Supreme Court of India) Common Cause & Ors. challenged the vires of the Civil Liability for Nuclear Damages Act 2010 (CLNDA). Centre for Public Interest Litigation and others filed a writ petition (Public Interest Litigation) in the Supreme Court praying that the suppliers of the Kudankulam nuclear plant in Tamil Nadu should be subject to the `Polluter Pays' and the `Absolute Liability' principles, and if an unfortunate industrial accident ever occurs then the victims should be able to personally indict the suppliers of the nuclear reactor for compensation, even if the Government and the plant operator choose not to sue. The petitioners’ prayed for a further affirmation that the suppliers be bound by CLNDA, irrespective of any mutual agreement opposing such an act and prays that the rule codified by the Government to level down the liability of nuclear suppliers be set aside as unconstitutional and ultra vires the CLNDA. Grounds of the petition: (As stated in the original petition) That the Government's undertaking to or agreement with Russia that indemnifies the Russian supplier is void ab initio as it violates the polluter pays and absolute liability principle. That this Hon'ble Court has held that "The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer." (Council for Environ-Legal Action v. Union of India, (1996) 3 SCC 212.) In M.C. Mehta v UoI (Oleum Gas leak case) (1987 1 SCC 395) held that if an enterprise engages in an inherently dangerous and hazardous activity and if some harm is caused as a result of this activity then the liability is absolute and not subjected to any exceptions as stated in Rylands v Fletcher. This Hon'ble Court also held that only the industry had the resources to discover, guard and warn against the hazards and dangers. Supreme Court held that the industry is in the best position to absorb the cost of the accident and it should bear the cost of the accident irrespective of what the cause of the accident was. That noted constitutional expert Shri Soli Sorabjee has given a categorical opinion that suppliers must be made absolutely liable to the victims in accordance with the law of the land as laid down by this Hon'ble Court. He has also stated that Rule 24 is ultra-vires the parent Liability Act. That by limiting the financial liability and by indemnifying the supplier the Government is facilitating an environment where operators and suppliers would prefer to invest and develop cheaper nuclear reactor rather than safer reactors, which is the need of the hour and in the best interest of the people. The fact that the liability cap is much less compared to the cost of a reactor, which would be Rs. 30,000 crores or more, means that cost of even small repairs on the reactor may easily exceed the maximum liability. Hence this provides a huge incentive to the supplier and operator to take risks with safety. That the Rule 24 make the right of recourse provided under the Liability Act completely subject to contract signed between government operator and the nuclear supplier, over which the citizens and the potential victims have no role. They also restrict the financial extent and time limit of suppliers' limited liability that was provided in the law. That the Parliamentary Committee on Subordinate Legislation has also found Rule 24 to be ultra-vires. It has recommended: "Rule 24 of the CLND Rules has the effect of diluting the stringent liability provided in section 17 of the CLND Act by imposing limitations in terms of the amount which can be claimed by exercising right to recourse (limiting to the extent of operator's liability or the value of the contract whichever is less) and also the duration for which a supplier can be held liable, not contemplated under the CLND Act. The Committee hold that delegated legislation (viz. rules made by the Executive) should be consistent with the substantial provisions of the Act and should not contain any limitations or excesses which are not contemplated under the Act. The Committee are of the firm view that rule 24 has inserted limitations not mandated by the CLND Act as brought out above. The Committee, therefore, exhort DAE to amend rule 24 suitably to remove the limitations imposed on liability as well as the duration of the liability period." That in a large number of cases, like in Commissioner of Income Tax Bombay v Gwalior Rayon Silk Manufacturing Company Ltd., AIR 1992 SC 1782 this Hon'ble Court has held: "The rules are meant only to carry out the provisions of the Act and cannot take away what is conferred by the Act or whittle down its effect." That in the interest of safety, it is absolutely essential to clear the wrong impression held by the Russian Government and Russian supplier company that it is not bound by the law of the land in India. That the actions of the Government in seeking to indemnify the nuclear supplier at Kudankulam plant in Tamil Nadu put to grave risk the life and health of millions of people living in the vicinity of the plant, resulting in violation of their rights under Article 21 of the Constitution which guarantees right to clean, safe, healthy environment free from radiation. Prayer by the Petitioners’ The Petitioners’ most respectfully prayed that the Hon’ble Supreme Court of India may be pleased to: - To issue appropriate writ declaring that the nuclear suppliers of the Kudankulam nuclear plant in Tamil Nadu would be bound by the principles of polluter pays and absolute liability in case of an accident and that the victims of the said accident would be able to file case(s) for damages against the reactor supplier even if the Government or its undertaking chooses not to file for the same. OR To issue appropriate writ declaring that the nuclear suppliers of the Kudankulam nuclear plant in Tamil Nadu would be bound by the Civil Liability for Nuclear Damage Act, 2010, irrespective of any agreement or undertaking to the contrary. To issue appropriate writ setting aside the Rule 24 of the Civil Liability for Nuclear Damage Rules 2011 as ultra vires the CNLD Act, 2010 and/or Constitution. To issue or pass any writ, direction or order, which the Hon'ble Court may deem proper in the interest of nuclear safety and rule of law. At the hearing on November 20, 2012, the Court criticized the Tamil Nadu administration for taking nuclear safety lightly and failing to take effectual actions to put into practice the pertinent disaster management guiding principles. The Hon’ble Court also enquired the Atomic Energy Regulatory Board and the plant operator on the steps they have taken to put into operation the prescribed safety measures, the Court point out that the Government could be directed to abide by the Convention on Nuclear Safety, which commands an independent safety regulator. The Court has reserved its judgment and the case is pending as on 27th February, 2016. In the matter of Common Cause and Ors. v. Union of India, Writ Petition (Civil) No. 464 of 2011, Supreme Court of India. The petitioners had filed the writ petition in public interest challenging the Constitutional validity of the Civil Liability for Nuclear Damage Act, 2010, seeking a safety re-evaluation of all nuclear facilities all over in India. The petitioners had seeked relief in the interest of right to life, right to clean environment and right to healthy & safe enjoyment of life guaranteed under the provisions of fundamental rights conferred in the Indian Constitution. They have also brought to the notice of the Apex Court that a nuclear incident or seep out of radiation can be root of devastating effects on human life and environment in India. This petitioners’ had alleged that under the demands of overseas nuclear industries and foreign governments, the Central Government is determined to operate a pricey and hazardous nuclear power installations without necessary safety measures. It is also alleged that the nuclear reactor and the paraphernalia traded in are of tremendously doubtful reputation and of poor safety standards. This petitioner uses the projected Jaitapur nuclear power plant as a case study to underline the superfluous assessments in recent times. Grounds of the petition: (As stated in the original petition) The Government’s plans for expansion of nuclear power programme and construction of newer and huge nuclear power plants without undertaking a thorough safety and comparative cost-benefit analysis, clearly made under the influence of foreign countries and multi-billion dollar nuclear industry, shows arbitrary decision-making, based on extraneous considerations and non-application of mind. The same is in violation of Article 14 and Article 21 of the Constitution of India. The non-existence of an independent nuclear safety authority or regulator puts public safety to extreme risk public safety and is therefore violative of Article 21 of the Constitution which guarantees the rights to life, clean environment, health and safety. The expression ‘clean environment’ includes an environment free from radiation. Right to a radiation-free environment is part of the rights guaranteed under Article 21 of the Constitution of India. The Government plans to construct mega nuclear power plants without any assessment of the safety risks of new technology, seismic risks, risk of uranium mining and the risks of radiation, using imported reactors of extremely dubious quality and safety standard, violates the precautionary principle and right to safety and clean environment guaranteed under Article 21 of the Constitution and are a result of non-application of mind. Public hearings, that are mandatory under law before an environment clearance is given, have not been properly conducted and the strong opposition of large local populations has been ignored. The same is arbitrary, defeats the objective of mandatory public hearings and violates Article 14, 19 and 21 of the Constitution of India. EIAs are funded by project developers creating a situation of clear conflict of interest. This Hon’ble Court has abhorred such practice in the Lafarge case. The Government plans to order imports of nuclear plants and material of billions of dollars from select foreign companies through private negotiations, without proper technical and safety evaluation and without any competitive bidding/auction, are arbitrary and violate Article 14 of the Constitution. This Hon’ble Court has repeatedly held that contracts by the State must be made after public auction/tender and with requisite transparency. This Hon’ble Court has held (2004 3 SCC 214) that “In all actions, even in the field of contracts, an instrumentality of the State must be governed by Article 14. It cannot afford to act with arbitrariness or capriciousness…In the field of contracts, the State and its instrumentalities ought to design their activities as would ensure fair competition and non-discrimination.” Not only has the Government entered into agreements with foreign nuclear suppliers without any competitive process, without any transparency and without a public notification, the Government has also not evaluated the technical specifics of the various nuclear reactors of different manufacturers/suppliers and has ignored the safety aspects as is now clear about the lack of safety of French and Russian nuclear reactors that are being imported. The Government’s plans to construct newer mega nuclear power plants with each one costing tens of thousands of crores of rupees without any proper comparative cost-benefit analysis of nuclear power per se and in comparison with other alternative sources of energy is arbitrary and violates Article 14 of the Constitution. Therefore, without a thorough calculation and determination of the true risks & costs of nuclear energy and without carrying out a comparative cost-benefit analysis, the Government plants to promote nuclear energy at a massive unmanageable scale are therefore made without proper application of mind, by ignoring relevant considerations, by taking into account irrelevant considerations and are arbitrary. The same, therefore, violate the mandate of Article 14 of the Constitution of India. The Civil Liability for Nuclear Damage Act, 2010 by capping the financial liability of operators and by making suppliers not liable violates the ‘polluter pays’ principle and the ‘absolute liability’ principle which have become recognized as part of the law of the land under Article 21 of the Constitution, and puts to grave and imminent risk the right to safety, health, clean environment and life of the people of India guaranteed under Article 21 of the Constitution. The non-transparent, non-accountable functioning of the nuclear facilities and the complete secrecy over the safety audits and other information regarding radioactivity, accidents and costs violates Article 19(1)(a) of the Constitution which guarantees the right to information, and the same being arbitrary is violative of Article 14 of the Constitution. I. This Hon’ble Court in A. P. Pollution Control Board vs. M V Nayudu (1999 (2) SCC 718) held that precautionary principle is applicable to India. The principle mandates that when a new technology or process can cause serious and irreversible harm to human health and the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context, the proponent of the uncertain activity rather than the public has to bear the burden of proof. This Hon’ble Court in Vellore Citizens’ Welfare Forum v. Union of India (1966) 5 SCC 647 held that “precautionary principle”, “polluter pays principle”, shift of burden of proof, are part of the law of the land derived from Article 21, 47, 48A and 51A(g) of the Constitution of India and customary international law. Prayer by the Petitioner: The Petitioners’ most respectfully prayed that the Hon’ble Supreme Court of India may be pleased to: - Direct that an expert body, which is independent of the government and the nuclear establishment, conduct a thorough safety reassessment of all existing and proposed nuclear facilities in the country and of all the mining facilities of uranium and other nuclear fuel in the country. Direct such an expert independent body to conduct a thorough health and safety review of the uranium mining regions in the country. Direct an independent expert body to conduct a thorough cost-benefit analysis of all proposed nuclear facilities and a thorough comparative cost benefit analysis vis-à-vis other sources of energy. Direct the Union of India to set-up an expert nuclear regulator, independent of the government. Declare the Civil Liability for Nuclear Damage Act, 2010 as unconstitutional and void ab initio. Declare that in the case of a nuclear accident, all nuclear operators and nuclear suppliers, would be jointly & severally, and absolutely liable for civil damages, and their financial liability would be unlimited. Issue an appropriate writ cancelling clearances given to proposed nuclear power plants and staying all proposed nuclear power plants till requisite safety assessment studies, thorough comparative cost-benefit analysis and meaningful public hearings are carried out by or under the supervision of an independent expert body. Declare all the agreements signed between the Government and private companies, for supply of nuclear reactors & equipment, based on private negotiations, without any competitive process/bidding/tender, without proper technical & safety evaluation, without transparency as void ab initio. Declare that in future all agreement for purchase of nuclear reactors and equipment would only be made only after proper technical & safety evaluation, with competitive process/bidding and with full transparency. Direct that all information regarding previous safety audits, radiation, past accidents & near accidents, costs in all forms, power generation, fuel spent, all agreements signed between Government & nuclear suppliers and all other information concerning public safety and interest, of all existing & proposed nuclear facilities be put in the public domain & on the website of Department of Atomic Energy. Issue or pass any writ, direction or order, which this Hon’ble court may deem proper in the interest of nuclear safety and clean environment. It stands tagged with W.P. (Civil) No. 407 of 2012, Supreme Court, India, the PIL to bring Nuclear suppliers of Kudankulam nuclear plant under ‘polluter pays’ and ‘absolute liability’ principles in which judgment has been reserved since 2012. The case is pending before the Apex Court of India. In the matter of Yash Thomas Mannually & Anr v. Union of India & Ors. WP(C).No. 27960 of 2011 (S), In the High Court of Kerala at Ernakulam, Decided on: Friday, The 21st Day of August 2015. Even prior to Thomas Mannully, the constitutional validity of the Civil Liability for Nuclear Damage Act, 2010 (The Act) has been challenged. The matter is still waiting for a final verdict from the Apex Court. As on date, the Kerala High Court’s decision is the foremost verdict on the validity of the CLND Act, 2010. The major arguments while challenging the validity of the Act in Thomas Mannully case was with regards to the autonomy of the Claims Commissioner and the Nuclear Damage Claims Commission. The petitioners’ challenged the constitutional validity of Sections 3(1), 4(2), 4(4), 5, 6, 9(2), 15(2),16(5), 18(b), 19, 20, 32(10), 35 and 38(1) of the Civil Liability for Nuclear Damage Act, 2010. Petitioners submitted before the Apex Court that the provisions are ultra vires the Constitution of India as the same hinder with the fundamental right to life guaranteed under the Constitution through Article 21, also violates Article 14. The petitioners argued the Act is compromising on the independence of the judiciary and it violates the basic structure of the Constitution by giving unrestricted power to the Central government to appoint the adjudicatory authorities like the Claim Commissioner and the Nuclear Damage Claims Commission. As a matter of fact the petitioner questioned or doubted that the Nuclear Claims Commission and the Claim Commissioner might be bias towards the Central Government as they will be appointed by the Central government itself, and in India the operator of the nuclear installation are either the government or its undertakings. But the Hon’ble High Court dismissed the petitioners’ argument, it simply stated that “when a person is appointed as a Claims Commissioner he performs a statutory function and is expected to carry out the statutory duty in accordance with law and it cannot be stated that he might be acting to the dictates of the Central government.” The validity of the provision of Section 35 was challenged; the petitioners argued that the bar on the jurisdiction of civil courts infringe the lawful right to approach the judiciary. The provision for adjudication under the Act is misinterpreted by the petitioners, section 35 of the Act, only excludes civil courts from entertaining a suit in respect of any matter which the Claims Commissioner or the Nuclear Damage Claims Commission is having power to pass judgment the Act. Therefore, civil courts power to exercise jurisdiction over private claims under tort law or any other laws of the land are not violated by the Act. In L. Chandra Kumar v. Union of India (1997), Supreme Court of India has stated that an adjudicatory authority has to firmly apply principles of judicial impartiality and autonomy only in cases where such authority surrogates the judiciary as a substitute mechanism. Section 46 of the Act sheds light on this provision by explicitly giving opportunity for claims under other laws. The International Atomic Energy Agency (IAEA) had expressed their apprehension with regard to the autonomy of the Indian regulator – Atomic Energy Regulatory Board (AERB), and offered suggestions for upholding its sovereignty from the government. The petitioner in this case also raised question over the independency of AERB over the Government. That is a valid and legitimate concern as AERB works directly under the Atomic Energy Commission (AEC), which functions under the Department of Atomic Energy (DAE), Government of India. So there might at times be a convict of interest. Section 17 of the CLND Act i.e operator’s right of recourse against suppliers, has been a very strong concern in the petition. The Act states that the right of recourse against suppliers are under three definite conditions, where such a right is expressly provided for in a contract in writing; where the nuclear incident is the consequence of an act of the supplier or his employee, which includes supply of equipment with patent or latent defects or sub-standard services; and when the nuclear incident has resulted from the commission or omission of an individual with the intent of causing nuclear damage. It is obvious from its wordings that Section 17 neither puts a cap on the total sum that an operator can recuperate from a supplier nor puts a limitation period during which such a right of recourse manage to survive. It is on the operator’s right of recourse that Rule 24 of the CLND Rules enforces two noteworthy restrictions – the right would extend to the amount of the operator’s own liability under Section 6(2) or to the value of the contract, whichever is less; and that the operator’s right would be limited in time to the duration of initial license issued under the Atomic Energy (Radiation Protection) Rules, 2004 - a period of a ceiling of five years or the product liability period, i.e. the period for which the supplier has agree to accept liability for patent or latent faults or sub-standard services under a contract, whichever is longer. Hon’ble Mr. Ashok Bhushan, Chief Justice and Hon’ble Mr. A.M. Shaffique, Judge in this case were not satisfied with the petitioners arguments that the validity of the Act bear any weakness, uncertainty or that it violates Part III of the Constitution as contended in the petition. They found no merits in the writ petition and dismissed it upholding the constitutionality of the controversial nuclear liability law. CONCLUSION India's voracious demand for development means that it has to look at unconventional ways of producing vast quantity of energy that the nation will necessitate all through this century and also after that if possible. On the other hand, the penalty of a nuclear accident cannot be cleanly brushed off. The recent Fukushima nuclear disaster in Japan has made apparent, that the expenditure is definitely mammoth. India has its own experience of industrial adversity on a hefty extent. The Bhopal disaster in 1984 resulted in more than 15,000 deaths and multifarious legal complexities for compensation and jurisdictions of filling claims that followed are still spanking new in memory. And its effects are still felt both in respect of personal injuries and financial debacle. Eventually, warranting an outline to uphold nuclear energy production and wider public policy objectives simultaneously is a very vigorous. Only time and experience can tell whether the Act and the Rules codified can have an even-handed framework, heartening suppliers to venture into the Indian nuclear energy market, nevertheless shielding the justifiable safety and security apprehensions of the public and compensating them in the event of a nuclear accident. Bibliography: H.M. Seervai. Constitutional Law of India. Universal. P.K.Tripathi. Some Insights into Fundamental Rights. N. M. Tripathi. M.P. Singh. The Constitution of India. A.R. Blackshield. “Fundamental Rights” and the Institutional Viability of the Indian Supreme Court. 8 JILI 139 (1966). A.R. Blackshield. “Fundamental Rights” and the Economic viability of the Indian Nation. 10 JILI 1 (1968). U.R.Rai. Reach of Fundamental Rights. 36 JILI 292(1994). B.B. Pande. “The Constitutionality of Basic Human Needs: An Ignored Area of Legal Discourse. (1989) 4 SCC (J) 1. D. D. Basu: Constitutional Law. Kamal, Calcutta. Salmond and Heuston - On the Law of Torts (2000) Universal, Delhi. Ratanlal & Dhirajlal, The Law of Torts (1997), Universal, Delhi.Law 38 Winfield and Jolowiz on Tort (1999), Sweet and Maxwell, London. P.S.Achuthan Pillai, The law of Tort (1994) Eastern, Lucknow. D.D.Basu, The Law of Torts (1982), Kamal, Calcutta. Philipa Thomas & John Knowles: Effective Legal Research, Thomson, Sweet & Maxwell. C. R. Kothari: Research Methology: Methods & Techniques, New Age International Publishers. Shyam Divan & Armin Rosencranz: Environmental Law and Policy in India, Oxford. IAEA: Handbook on Nuclear Law – Implementing Legislation. Nuclear Energy Agency Organization for economic Co-operation and Development: International Nuclear Law: History, Evolution and Outlook. Pace Environmental Review: Volume 26, Issue 2, Summer 2009. Websites: www.nlain.org www.hcsingh.com www.cpim.org www.centreright.in www.countercurrents.org www.toxicwatch.org www.opendemocracy.net www.nuclearlaw.wordpress.com www.commondreams.org www.resilence.org www.dianuke.org www.ips-dc.org www.scientificamerican.com www.theguardian.com www.sfgate.com www.scmp.com www.intellectualtakeout.org www.thehindu.com www.wanttoknow.info/nuclear_powernewsarticle-20-20. 34