Kudankulam case: A Daniel's judgment

Last Updated: Sun, May 12, 2013 20:31 hrs

Nuclear energy as an alternative source of energy is and remains a controversial topic, notwithstanding that it is a clear, safe, reliable source, which does not undergo depletion, unlike coal, oil and natural gas resources. Yet due to historical and other reasons, it has not been easy to introduce nuclear energy as a substitute, though it is the only solution to India's power crisis.

In 2005, the Prime Minister took the initiative to open up the nuclear sector. A national policy for this purpose was already in place being Atomic Energy Act, 1962, along with various ancillary rules, of which the Atomic Energy Safe Disposal of Radio Active Waste Rules, 1987, the Radiation Surveillance Procedure for Medical Application 1989, specifically sought to address risks. Over the years, the Nuclear Power Corporation of India (NPCIL) has been setting up nuclear reactors in the country, under the administrative control of the Department of Atomic Energy (DAE). The Kudankulam project, which is the subject matter of this column and on the feasibility of which the Indian Supreme Court recently passed its ruling, is a part of the national policy.

At the outset, the Presiding Judge's ruling makes it abundantly clear that unless a policy is capricious, unreasonable and arbitrary, the Court's interference would be unwarranted, and therefore refused to sit in judgment over the decision of the Government for setting up of the Kudankulam plant, for which they had entered into an agreement with the Russian government in 1988. But the appeals were nonetheless entertained in view of various other issues raised, particularly pertaining to safeguards and safety.

The arguments against the project expectedly cited the instances of Three Mile Island, Chernobyl and the more recent Fukushima, the consequences of which are incapable of being remedied. More specifically, a contention was raised that the Kudankulam project did not have adequate safety mechanisms and the Court should ensure that all the 17 recommendations of the task force appointed by NPCIL, post Fukushima, should be implemented. There was an expansion contemplated which envisaged adding two more units which faced some environmental road blocks, but these were resolved in the course of the hearing, though the other issues had to be addressed. The Court noted that out of the 17 recommendations, 12 had already been implemented, but the others would be implemented at the appropriate stages.

The appellants further alleged that sufficient safeguards and a proven site for disposal of radioactive waste were yet to be identified. Radioactive waste and its disposal is a sensitive issue. Under the initial original Indo-Russia agreement in 1988, the spent nuclear fuel was to be shipped back to Russia. However, under the subsequent 1998 agreement, it was agreed that the entire nuclear waste would be retained in India. This decision of retaining the spent fuel was objected to on the apprehension that there was no developed technology and process to deal with the radioactive waste and it could potentially lead to contamination in the ecosystem.

The Court also affirmed the view of the NPCIL that 97 per cent of the waste could be re-used under the 'close fuel cycle' process and therefore, should be retained in India. This process is effectively being followed at Tarapur and there was no reason why that could not be achieved at Kudankulam. NPCIL provided the Court the Safety Manual on off-site Emergency Prepared Plans and also the ongoing compliance statutory requirements to which the project was subjected to, such as, the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989, the Safety Code of 2000 and Safety Guide of 2002, issued by Atomic Energy Regulatory Board (AERB). Submissions were made at length on the advance safety features dealing with external events, such as, fire, cyclones, earthquakes. The Court perused all the Safety Codes and Standards evolved by AERB overtime, and directed NPCIL to establish a Deep Geological Repository (DGR) system for storing Spent Nuclear Fuel (SNF), as storing SNF at the plant site would prove to be
hazardous in the long run. The Judges, at all points, relied on expert views to arrive at these conclusions.

Other than the technical issues, the Court also had to consider and respond to the popular resistance and movements concerning the project. On which, the Court arrived at a conclusion that since the Indian Government had already formed a 15-member expert committee to provide answers to the queries of the agitators and had held several public hearings, and submitted its report to Government nominees and to the people's representatives in December, 2011. This issue was therefore adequately addressed. A similar report was submitted by a committee formed by the state government, and also by a Russian nuclear safety authority. But the Court has not given any direction on continuing advocacy.

Unfortunately, there is an erroneous impression that the Court has taken a position that larger public interest is more important than smaller violations of right to life. This is incorrect and contumacious. The Second Member of the Bench, while agreeing with all views of the Presiding Member's, has passed a brief separate ruling which takes into account the various international conventions and bilateral pacts that India is party to, and the binding obligations there under, to protect nuclear facilities and waste material. Additionally, he directed that the plant be made operational subject to the final clearances accorded by AERB, NPCIL and DAE. The said Judge has also asked for a report on the safety, its impact on the environment and the quality of various components and systems in the plant to be submitted to the Court. While expressing his views, he has referred to the "Charan Lal Sahu vs Union of India, 1990, decision and quoted the maxim of Salus populi suprema lex - which is the highest law of the land. It is this single line which should be kept in mind by the State and detractors to keep both the aspects of development and safety on balance, as one cannot entirely overlook that, India has a history of industrial mass disaster. Finally, the growth of this sector also depends on the decision, on the Nuclear Liability Act, 2010, on which the Court's decision is still awaited.
Kumkum Sen is a partner at Bharucha & Partners Delhi Office and can be reached at kumkum.sen@bharucha.in

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