Tuesday, February 9, 2016

Kumar Sundaram - The dilution of nuclear liability by the Modi government that nobody is talking about

The BJP-led government has ratified a global regime which, unlike the Indian law, puts the onus of compensating victims of nuclear accidents on the operator.

Once in power, opposition parties rarely retain their dogmas. When the Bharatiya Janata Party occupied the opposition benches in the Parliament, it agitated bitterly on the issue of nuclear liability, maintaining that the United Progressive Alliance's position on compensation in case of a nuclear accident placed all the burden on the taxpayer. Now that it is in power, it exhibits none of that resolve.

The international convention requires that in case of a nuclear accident, the liability of paying compensation to the victims falls on the operator of the facility. In India’s case, this is the government-owned Nuclear Power Corporation of India Ltd. 

But on February 4, Narendra Modi’s government ratified a global regime called the Convention on Supplementary Compensation for Nuclear Damage, giving a free pass to nuclear suppliers in India.

The previous Congress-led Central government had removed all references to the Convention on Supplementary Compensation from the draft of the Civil Liability for Nuclear Damage Act, 2010, after it met with resistance from the opposition parties, including the BJP. The 2010 Act simultaneously included a provision to hold suppliers (both domestic and foreign vendors of reactor equipment) indirectly liable – its clause 17(b) specifically allowed the operator a “right of recourse” against the suppliers. But within weeks of this, the Congress-led United Progressive Alliance government hastily signed the CSC, withprovisions contrary to the domestic law.

Since then, the US and other nuclear suppliers have been insisting that India harmonises its domestic law with the global convention, and do away with suppliers’ liability. The Indian government and its nuclear establishment have also been citing CSC as a reason to amend the liability law. Their arguments have been a farce.

American exceptions
The Convention on Supplementary Compensation did not come into force in 2010 when India signed it. Indeed, at that time, India had an opening to press for progressive changes in the CSC to ensure suppliers’ liability – since India is among the few countries in the post-Fukushima world still importing nuclear reactors, it could have used its attractive market to affect pro-people revisions in the CSC template. Obviously, it did not, and India’s unconditional accession ended up enhancing CSC’s standing. The regime finally entered into force in 2015 following Japan’s accession. But all this didn’t stop foreign suppliers from asking India to do away with its liability clause beginning 2010.

The United States, in particular, has always preferred the CSC over other conventions addressing nuclear liability, such as the Paris Convention of 1960 or the Vienna Convention of 1963. This is because CSC has a grandfather clause in its annexure 2 that provides an exemption for American domestic laws to supersede in case of an accident on its soil. As a result, in the US, criminal liability lawsuits can be initiated against nuclear corporations. The same CSC, however, requires its other signatories to enact domestic laws as per its annexure and strictly limit it to civil liability.

Though eminent jurist Soli Sorabjee has maintained that India’s domestic law would prevail over CSC, it is certain that, in a conflict, foreign suppliers would try their best to walk away without paying damages.

The Modi government had an opportunity to refuse ratifying the CSC, especially since a case is pending in the Supreme Court on the issue of nuclear liability. Senior lawyer Prashant Bhushan, eminent scientist PM Bhargava, Former Navy Chief Admiral L Ramdas, Former Union Power Secretary EAS Sarma and other eminent Indians are party in this case, which urges strengthening of the provisions of the 2010 Act and removal of the liability cap. Ratifying an international convention on an issue which is sub judice is also an attempt to influence the Supreme Court by turning the matter into a fait accompli.

BJP’s U-turn:  While in opposition, the BJP was fiercely opposed to any dilution of nuclear liability. Noting the shortcomings of the bill presented by the UPA government, it alleged that “the bill was being brought under US pressure mainly to keep the two American multinationals – Westinghouse and General Electric – from paying any liability and making the Indian government liable to pay in case of an accident”.

Senior BJP leader Yashwant Sinha had said at the time: “Clearly, the life of an Indian is only worth a dime compared to the life of an American.” His colleague Sushma Swaraj had called for an India-specific liability law, while likening the Indo-US nuclear deal to Jehangir who allowed the British East India Company to do business in India. Swaraj is now the External Affairs Minister in the Modi government.

Despite the previous government being a coalition and despite its willingness to serve the interests of the US nuclear lobby, it was the strength of Indian democracy that public pressure ensured enactment of a law safeguarding the interests of citizens. The BJP government, failing Indian interests, has resorted to a perverted twist to effectively undermine a law passed by India’s sovereign parliament.
Kumar Sundaram is Senior Researcher with the Coalition for Nuclear Disarmament and Peace and can be contacted on pksundaram@gmail.com.


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