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How Civil Liability for Nuclear Damage (CNLD) Rules, 2011 under the Civil Liability for Nuclear Damage Act, 2010 undermines Parliament

Written By Gopal Krishna on Tuesday, February 03, 2015 | 12:52 AM

ToxicsWatch Alliance (TWA)

To

Hon'ble Chairman        
Dr Ashwani Kumar
Parliamentary Standing Committee (PSC) on Science & Technology, Environment & Forests
Parliament of India
New Delhi
Date: February 2, 2015
Through Shri M.K. Khan, Joint Secretary, Parliamentary Standing Committee (PSC) on Science & Technology, Environment & Forests

Subject- How Civil Liability for Nuclear Damage (CNLD) Rules, 2011 under the Civil Liability for Nuclear Damage Act, 2010 undermines Parliament

Sir,

With reference to the report of the PSC on Science & Technology, Environment & Forests on The Civil Liability for Nuclear Damage Bill, 2010, Civil Liability for Nuclear Damage (CNLD) Rules, 2011 under the Civil Liability for Nuclear Damage Act, 2010, this is to draw your attention towards the reports of the Parliamentary Standing Committee on Subordinate Legislation on the subject that shows how Parliament is being undermined.

I submit that the report on action taken by government on the observations/recommendations contained in the 27th report of the Parliamentary Standing Committee (PSC) on Subordinate Legislation on the Civil Liability for Nuclear Damage Rules, 2011 which was presented to the 16th Lok Sabha on December 19th, 2014 merits your urgent attention.

I submit that this PSC on Subordinate Legislation in the 16th Lok Sabha is headed by Shri Dilipkumar Mansukhlal Gandhi, a Member of Parliament from Maharashtra. The 27th report was presented in the 15th Lok Sabha in August 2012 by Shri P. Karunakaran headed PSC on Subordinate Legislation on August 28, 2012. Shri Karunakaran is a Member of Parliament from Kerala. Both reports are attached for your perusal and consideration. The former report is deeply flawed and is in manifest contempt towards Parliament as it callously subordinates itself to the whims and fancies of the government which has made subordinate legislation superior to legislation passed by Parliament. It sets a very unhealthy precedent that merits your prompt intervention to set it right.    

I submit that PSC’s report has observed that it does not wish to pursue its own recommendation with the government in the matter of “Interim Relief to the victims of Nuclear Damage”. This is quite bizarre because PSC report is manifestly self contradictory in its reasoning and inference.

The relevant part of the report reads: “The recommendation of the Committee was aimed at incorporating a suitable enabling provision either in the Civil Liability for Nuclear Damage (CLND) Act or the Rules for treating the amount awarded as compensation by the Claims Commissioner/ Nuclear Damage Control Commission (NDCC) as interim relief and disbursing the same in the event of an applicant seeking judicial review of the award….The Committee are dismayed to note that Chapter IV of the CLND Rules, 2011 deals with various issues viz., application of compensation, notice to opposite parties, supply of copies of documents, examination of applicant, appearance and examination of the parties etc. which are not connected with treating the compensation awarded as interim relief and disbursing the same pending verdict of the court. The Committee are of the opinion that the Department (of Atomic Energy) has digressed the issue and have not considered the aspect of inherent wider public interest in the right perspective. The Committee, therefore, once again reiterate that suitable enabling provision be incorporated either in the CLND Act or the Rules to take care of the interests of the applicant seeking judicial review of the award. The Committee would also like to be apprised of conclusive action taken in this regard.” But later it concluded that it has decided not to pursue it.

I submit that the report presented to the 16th Lok Sabha also observes that it has decided not to pursue its own recommendation with the government dealing with “Right of Recourse”. This is quite strange as well because PSC report is manifestly inconsistent its approach.

On the issue of “Right of Recourse”, the report of PSC states, “The Committee are perplexed to note that on the one hand, the Department (of Atomic Energy) has concurred with the observations made by the Committee that victims of nuclear incident will keep filing claims as and when a damage is noticed by them and on the other hand, the Department has curtly linked this aspect with Explanation 2 of Rule 24 which stipulates that the operator’s claim shall in no case exceed the actual amount of  compensation paid by him to the date of filing such claim. The moot question, therefore, still remains unanswered as to whether the operator can make successive claims from the supplier irrespective of time limit prescribed under Section 15(2) and 18 of the CLND Act. The Committee are of the firm belief that any ambiguity in the Act/ Rules cannot be wiped out by way of clarifications which are especially not part of relevant Act/ Rules and such types of situations often pave way for avoidable litigations before the already burdened courts. The Committee would, therefore, reiterate their earlier recommendation that CLND Act or Rules thereunder should be suitably amended to provide necessary clarity on this aspect. The Committee would await further development on follow-up exercise in this direction.”

I submit that instead of waiting to follow up, the committee states that it has decided not to pursue the matter with the government.  

I submit that on the issue of Rule 24 of the CLND Rules that violates the stringent liability mandate provided in Section 17 of the CLND Act by delegated legislation, the PSC states that it does “not desire to pursue in view of the replies received from the government” contrary to its own contention against government’s stance.

The PSC’s report rightly observes, “The Committee are of the view that reply of the Department is devoid of specific mechanism as well as remedial measures to ensure that delegated legislation 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 and the Department (of Atomic Energy) seems to be happy to go with the existing provisions of excessive delegation mechanically. In the process they have tried to justify the status quo by stating that specifying a minimum amount for the operator’s right of recourse and the corresponding time period as specified in Rule 24 is intended to secure the interest of the Indian Operator. The Department has failed to appreciate that Rule 24 is restrictive and may encourage Supplier at the cost of Indian Operator. Though the existing provision may not prohibit the Operator and the Supplier from entering into a larger right of recourse, yet the Committee are apprehensive that there may not be any propensity for the Supplier to agree for a recourse higher than the minimum amount and the time period prescribed. The Committee, therefore, expect the Department to re-visit the related provisions of the CLND Rules which appear to be in conflict with the relevant Sections of the Act and work out modalities to provide an effective prescription for delegated legislation consistent with the provisions of the Act.”

But PSC has chosen to surrender parliament’s prerogative to defend its legislation before the DEA due to some invisible hand when it offers its recommendation.

In this way it is evident that although government’s reply is so unsatisfactory, the PSC of the 16th Lok Sabha felt “dismayed”, “perplexed” and noted that DAE “digressed” the issue. Unmindful of this Shri Dilipkumar Mansukhlal Gandhi headed Parliamentary Committee does “not desire to pursue (affront to parliament) in view of the replies received from the government.”

This is inexplicable and enigmatic given the agreement of PSC of the 16th Lok Sabha with the recommendations of its predecessor Shri P. Karunakaran headed PSC presented to the 15th Lok Sabha on August 28, 2012.

I submit that the Civil Liability for Nuclear Damage Rules, 2011 under the Act was notified on 11th November, 2011 ahead of the November 18th,  2011  meeting between US President and our Prime Minister. There was a delay of about thirteen months in enforcing the Act in violation of the provisions of the legislation, it is apparent that this provided nuclear companies ample time to influence subordinate legislation. 

This gives a sense of déjà vu in the 30th year of the Bhopal disaster. On February 20, 1985 Bhopal Gas Disaster (Processing of Claims) Ordinance, 1985 promulgated whereby Government of India appoints itself as sole representative of victims in any legal dealings with Union Carbide Corporation (UCC). On March 29th, 1985, the Parliament had enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. In violation of Act, government of India accepted $ 470 million (RS 750 crore) after demanding $ 3.3 billion as compensation, as settlement money with UCC for the victims of the disaster without consulting the victims. In 2010, government filed a curative petition seeking Rs 7,844 crores as damages although survivors demanded $8.1 billion ((Rs 37,000 crores)) as compensation for the disaster.

I submit that its relevance can be understood from the 57 page report of Federation of Indian Chambers of Commerce and Industry's (FICCI) Working Group on Civil Nuclear Energy that repeatedly cited the Supreme Court’s order in the Charan Lal Sahu Vs. Union of India, case in which the validity of the doctrine of parens patriae (government’s guardianship of citizens) invoked through Bhopal Act, 1985, was upheld. This excluded the victims from filing their own cases. The consent of the victims was never sought at any stage. The FICCI’s report formed the basis for the legislation on civil liability for nuclear damage.

I submit that the reports of the PSC underlines what has been changing under the influence of nuclear companies like Westinghouse and GE-Hitachi articulated through joint statements. 

I wish to submit that it is being argued that government is following the Canadian example with regard to liability for nuclear disaster; the fact is Canada’s Nuclear Liability and Compensation Act that was passed by its legislature on November 7th, 2014 provides for preservation of principle of absolute liability even if a nuclear incident is caused by “terrorist activity. In India’s CNLD Act, terrorist activity is not covered although Shri G K Pillai, then Secretary, Ministry of Home Affairs had argued for it as per parliamentary records. The Canadian Act provides for a progressive increase in the operator’s liability from $650 million if the nuclear incident arises within one year after the Act comes into force and $1 billion if the nuclear incident arises after the third year after the Act comes into force. In India, the operator’s liability is fixed at $250 million (Rs 1,500 crore). In the case of oil spill disaster by BP, Government of USA got a compensation of $ 20 billion (Rs 1,240,177,208,223 crores). 

I wish to draw your attention towards what Ms K Sujata Rao, as Secretary, Ministry of Health and Family Welfare while deposed before the Parliamentary Standing Committee on Science & Technology, Environment & Forests mentioned in its report tabled in Lok Sabha on August 18, 2010. She said, “while drafting the (CLND) Bill the Dept. of Atomic Energy did not consult them. Since the response system to deal with any kind of emergency of such type, the hospitals are not well-equipped, it is natural that mortality and morbidity due to multiple burn, blasts, radiation injuries and psycho-social impact could be on very high scale and medical tackling of such a large emergency could have enough repercussions in the nearby areas of radioactive fallout.” She was not alone. Parliamentary Committee noted in its report on Civil Liability on Nuclear Damage Bill that secretaries of eight relevant ministries were not consulted during the drafting the Bill and recommended that they should be consulted in future. This consultation never happened. 
 
I submit that PSC report of December 2014 appears to have been influenced by US nuclear lobbies. It seems that it was tailor made to facilitate the joint statement of US Present and Prime Minister of India on January 25th, 2015 as a follow up their joint statement of September 30th, 2014.

On behalf of ToxicsWatch Alliance (TWA), I had appeared before the PSC on Science & Technology, Environment & Forests to give testimony on The Civil Liability for Nuclear Damage Bill, 2010.

In view of the above, I wish to request you to examine how the unfolding of negotiations on civil liability nuclear damage are undermining the existing parliamentary institutions and cold shouldering them for a bear hug with the foreign nuclear companies. Having rigorously studied the legislative proceedings on the matter of industrial disaster of Bhopal, it is evident that government’s promotion and insulation of hazardous chemical companies from liabilities resulted in catastrophic consequences.  Kindly intervene promptly in national interest and in the interest of present and future generations to ensure that similar indulgence towards nuclear companies do not lead to subversion of Parliament.
 
 Thanking You
Yours faithfully
Gopal Krishna
ToxicsWatch Alliance (TWA)
 Mb: 08227816731, 09818089660
E-mail:gopalkrishna1715@gmail.com
Web: www.toxicswatch.org

Cc
Hon'ble Chairman, Rajya Sabha
Shri Shumsher K. Sheriff, Secretary-General, Rajya  Sabha
Smt. Vandana Garg, Additional Secretary, Committee Co-ordination Section, Secretariat, Rajya Sabha
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