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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