UzmaNaseem analyses the recent ‘Kudankulam Judgment’ on the upcoming nuclear power plant at Kudankulam, Tamil Nadu. The basic objective is to find out whether it is the safety and security of citizens’ aspect, or the development of India that has been given primacy by the judges in the case of G Sundarrajan v. Union of India. The judgment shows the approach of the judges on the issue, and the due course taken by them to reach to the conclusion that adequate safety mechanisms have been implemented at the plant, and therefore do not violate the Right to Life guaranteed under Article 21 of the Constitution of India. However, a careful study of the judgment reflects that the judgment is not for the welfare of the people, as stated in the Preamble of the Atomic Energy Act, 1962 but it might have a negative implication of giving an assertion to regulatory bodies that their reports and recommendations are unquestionable and absolute, which in future might render the common citizens remediless, if a similar situation arises. There are also few unrequited and over looked aspects in the judgment.
Can the development of India be placed above the safety and security of theIndians? This was the backdrop of the recent judgment in the case of G Sundarrajan v. Union of India, popularly known as the ‘Kudankulam Judgment’. The fact that nuclear energy is a nonexhaustible form of energy when compared to coal, petroleum, natural gas etc., is safe and reliable, can be used for years to come, and is a sustainable form of energy, was the ground that was taken by the judges for permitting the commissioning of the nuclear power plant at Kudankulam. Possibly it might have been this fact that pursued the government of India to legislate the Atomic Energy Act, 1962, followed by the constitution of the Atomic Energy Commission (AEC) and the Department of Atomic Energy (DAE). The Act provides for the peaceful use of nuclear energy for the welfare of the people. The central government, under the power conferred by this Act, established the Atomic Energy Regulatory Board (AERB). By an amendment in 1987, the Act empowered the central government to use nuclear energy for producing electricity. The various regulatory bodies like the Nuclear Power Corporation of India Limited (NPCIL), AERB, DAE and AEC have set up around 20 power reactors in India. Themost recent one is being established in Kudankulam, Tamil Nadu, which is the subject matter of the hullabaloo. The Kudankulam plant was a result of the agreement between India and Russia in 1988. Under the agreement, the plant design, equipment and the parts are to be supplied by Russia.
The appellant primarily contended on the ground of safety of people and the safeguard mechanism at the plant. The regulatory bodies, however, presented before the court several reports of plant site examination including reports of experts, which went ahead to establish that adequate safety measures have been well implemented at the plant.
However, the preamble of the Act, which says that the plant is meant to be used for the ‘welfare of the people of India’, is itself contradictory. Though, quite early stated, the judgment went ahead to show that by ‘people’ here is meant only the well-off economic group of people.
Now the question is- whether the atomic energy, which the court has earlier stated to be a sensitive subject, was considered the same by the court in the present case as well? There are various arguments thatwere raised against the commissioning of the Kudankulam plant and then laid down the arguments submitted by the government authorities supportive of the plant at Kudankulam. The judgment by the two- judge-bench is then discussed followed by a discussion on the issues that continued to remain unresolved even after the judgment.
The appellant stood against the establishment of the nuclear power plant at Kudankulam. The concern is about the safety of the people at the plant site and the surrounding marine ecology. The arguments were all based upon the recent episode of the Fukushima mass disaster.
The principal contention raised was on the safety and security of the people, residing in and around the plant site and the violation of their Right to life guaranteed under Article 21 of the Constitution. He argued on the safeguard mechanism being inadequate and the emergency plans being insufficient. He also demanded for the strict implementation of all 17 recommendations given by the NPCIL task force.
The appellant further submitted that the government has failed to provide any reasonable response to the strong people’s resistance raised. The 15-member-expert group formed by the government of India and the expert committee by Tamil Nadu government have all failed in answering the queries of the people.
The appellant also raised voice against the 1998 Indo-Russia agreement, which has a marked diversion from the 1988 agreement. Under the original 1988 agreement, the Spent Nuclear Fuel (SNF) was to be sent back to Russia. This was later amended with the 1998 agreement under which the SNF was to be retained and re-used in India. The appellant’s concern was that India does not have adequate technology to re-cycle and re-use the SNF. The storage at the plant site will create excessive of radiation, which might prove to be hazardous to the marine eco system, as well as to the life of people living in the surrounding.
India does not even have a Deep Geological Repository (DGR) to store the SNF at the plant site temporarily. The repositories that were originally formed as temporary ones are getting converted into permanent ones, but then one cannot afford this practice, as this might prove to be hazardous in the long run. Further, this would also require an expansion of the plant for which no environmental clearance has yet been obtained, and even without getting a complete clearance for setting up the desalination plant, the work at the plant was started, in spite of the fact that it fell within the Costal Regulation Zone (CRZ) notification of 1991. No ‘No Objection Certificate’ (NOC) was obtained from the state pollution control board for violation of the CRZ. The appellant, therefore firmly stood against the establishment of the nuclear power plant.
The primary argument by the respondents,for the case, goes to claim that all adequate safety measures are being well implemented, including measures for disposal of radioactive wastes. The safety mechanisms are being followed in accordance with the safety guidelines issued in between 2000 to 2002 by AERB, for handling the emergency situation and fuel handling at the plant site. Apart from the AERB codes and guides, India being a signatory to a number of conventions dealing with nuclear energy and the associated activities- SNF management, radioactive waste regulation, and the transportation of SNF, etc., therefore adequate safety mechanism gets implemented by virtue of ratification of these conventions.
With regard to the SNF management, the NPCIL and DAE filed a counter affidavit contending that the decision to retain SNF in India is taken for the welfare of India. As a fact, 97 per cent of the SNF can be reused further. Considering the fact that India has a dearth of raw material for producing nuclear energy, therefore the decision to retain and re-use SNF is in favour of India. Further, the need for DGR will be felt only after few decades, and so absence of DGR is no ground for deciding against the re-use of SNF. The presence of SNF bay at the plant site adds more to the safety in storage of spent fuels.
The respondents claimed that the environmental clearance for the planned expanded unit of the plant has been duly obtained after thorough study by the Environmental Appraisal Committee (EAC). The NPCIL also submitted that due clearance was obtained from the Department of Environment and Forests, Government of Tamil Nadu, and later it was obtained even for the proposed expanded unit.
Over and above, out of the 17 recommendations of the NPCIL Task force, 12 had been implemented, along with steps towards fulfilling of their Corporate Social Responsibility (CSR) and duly following the concept of sustainable development. The respondents thus submitted concrete proofs in support of their arguments.
The judges took note of all the issues in the case and the various related codes and conventions, before coming to the conclusion. After due inquiry, the judges were of the view that adequate measures are being taken to implement safety guideline so as to protect the Right to life of people under Article 21. Further, they were of the view that the Kudankulam nuclear power plant is important for the economy, and therefore in setting up of this plant, the overall larger public interest should be considered rather than a ‘minorviolation’ of Right to life under Article 21.
The judges concurred with the arguments and evidences submitted by the respondents. They were of the view that the AERB Codes and Conventions are adequate to bring about the safe commissioning of the plant. They were satisfied with The National Disaster Management Act (NDMA) guidelines framed for carrying on-site and off-site emergency preparedness at the plant site, and recognised the regular drills being carried out by them to deal with the situation when a disaster strikes.
On the issue of popular people’s resistance, the court was of the view that Indian government has already formed the 15- member-expert group to answer the queries. They have submitted the report to the people’s representatives. Also, the state government of Tamil Nadu formed an expert committee, which has also submitted a report of the like nature. This is sufficient a step, already taken to answer the public queries.
The judges additionally held that The Manufacture, Storage and Import of Hazardous Chemical Rules 1989 under the Environmental (Protection) Act, 1986, have already been formed to regulate the disposal of radioactive material. The decision of retaining the SNF in India,taken in the year 1998 was also held to be ‘for-India’, in the judgment. The court however ordered to get a DGR established at the earliest, so as to ensure safe storage and minimum radiation at the plant site.
On the moot question with regard to the 3 per cent of waste which cannot be used, the court agreed with the expert opinion that the remaining 3 per cent can be burnt by fission in Fast Breed Reactor. A part of it cannot be recycled, and the judges remained silent on this point. However, they were satisfied with the close fuel cycle arrangement for re-processing of SNF, already being used at Tarapur. It was on this ground that they consented to having the SNF re-used and re-cycled in India.
The court duly observed all the notifications on environmental clearance and was of the view that environmental clearance has been duly obtained, even for the proposed expanded unit.
The court, however, abstained from going into the issue of whether the policy of using nuclear energy in India is in itself valid or not. According to the bench, unless legislation is capricious, unreasonable and arbitrary, the court would not go on deciding the merit of the legislation. The court also abstained from expressing its view on the Nuclear Liability Act, 2010 onthe ground that the validity of the act is itself in question.
The other member of the bench, although agreeing to the above views, went ahead to give his own views. The opinion given is based on the principle that public safety should be given the highest importance. While saying this, he stated convention’s on radioactive waste management, of which India is not a signatory. This convention shows the worldwide concern about the nuclear safety. While giving his views, he cited the case of CharancLalcSahu v. Union of India, and quoted the maxim of saluspopulisupremalex – which he called as the highest law of the land. He therefore directed the regulatory bodies to review the safety system at the plant site and ordered to make the plant operational only after obtaining final clearance from NPCIL, AERB and DAE. Further, he directed for a report to be submitted to the court on the safety equipment at plant, before commissioning the plant. He, in essence, focused his attention on balancing development with environmental safety.
There are several aspects of the judgment which raises question over the practicality of the judgment. The judgment is all based on the premise that AERB and AEC are the supreme authorities and all their reports are Bible for the current matter. The judges abstained from going into the enquiry of the manner in which these reports have been prepared and the inquiries have been conducted. The judgment blindly accepts the claim of NPCIL that electricity production will boom up to 63,000 MW by 2030, if nuclear installations are permitted, and fail to question the root for such a claim.
The judgment considers people’s response and their hue and cry as their ‘emotional reaction’. The judges decide to look over the larger public interest rather than individual apprehension of violation of human rights and right to life guaranteed under article of the constitution. While giving such judgment, the judges showed their biasedattitude towards the so called ‘economically well off’ class, whom they consider as ‘large public’ and their interest as superseding over the interest of the ‘individual’- comprising of farmers, workers, and all people living around the KKNPP.
A moot point in the judgment is the relaxation given with respect to the time limit given for the establishment of the DGR as the court did not give any time limit for the establishment of the DGR and even abstained from giving any reason for the relaxation so given.
The court even did not go into any detailed discussion over the compensation to be given in case of any accident. They avoided from going into any discussion on the Nuclear Liability Act, which is the only legislation in India that goes into the compensation issue of the victim. They restrained from commenting on it on the ground that the Act is itself under question. But alternatively, a responsible approach could have been to at least fix up some compensation limit for the people who would otherwise again have to go through the battle of demanding relief, if any accident strikes.
Further, the Prime Minister himself gave an exemption to the Kudankulam Nuclear Power Project from complying with the 500 metre Costal Regulation Zone limit. This exemption was subject to the Ministry of Environment and Forest’s compliance to all safety guidelines. However, this exemption reflects a relaxed attitude of the government towards the safety measures. Yet another unanswered and totally neglected question is that in spite of the arrest of machine building plant’s procurement, director Sergei Shutov, over supply of reactors with faulty equipment, the investigating agency in India continued to declare the plant and all its equipment safe and secure. On the contrary, Russian’s authority continued to raise hue and cry over the supply of faulty equipment all over the world, including India. Further, even the reported work of replacement ofthe four safety valves in the first reactor unit was given a total blind eye in the judgment. The judgment remained totally silent on this issue. The judges abstained from raising any question to the respondents over this issue, which if discussed, would have brought several facts to the limelight.
The study of the judgment shows that the judges primarily focused on the hard bound reports submitted by the authorities. However, they failed to go into the inquiry of the source of these reports. And even if they realised on few points that steps need to be taken immediately, they abstained from setting any deadlock for implementation of these. This makes the plant not safe and secure for operation, contrary to what has been declared in the judgment.
The judges placed the larger public interest over the interest of the smaller section of the society who would be directly affected by the operation of the nuclear plant, by virtue of living in and around the periphery of the plant site and deriving their livelihood from the surrounding.
The loopholes of the judgment clearly shows that the judges sailed aboard along with the authorities, by going into the factual details, without going into the substance of the inquiry and the safety of the plant. The plant will give electricity but might even become the reason of darkness in thousands of family, if Fukushima incident happens to repeat here. In the backdrop of the unending list of unresolved issues, one cannot say that nuclear energy has been considered as a ‘sensitive’ subject in the present case. The laxity on the part of the judges shows that their concerns are more towards the economic development of the country, not the safety of the citizens.
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