Cabinet Committee on Security Note, Attorney- General’s opinion in contempt of Parliament

New Delhi: ToxicsWatch Alliance (TWA) disapproves of the “Sensational Cabinet Committee on Security (CCS) note” which “exposes the government's plans to dodge nuke viability issues” ahead of Prime Minister, Dr Manmohan Singh’s meeting with USA’s President Barack Obama on September 27, 2013. 
It may recollected that Parliament’s intent of Liability for Nuclear Damage Act, 2010 was undermined through the notification of Civil Liability for Nuclear Damage Rules, 2011 ahead of Prime Minister's scheduled meeting with US President on November 18, 2011 at Bali, Indonesia. The relevant Rules and the Act are attached.

Under the influence of nuclear companies, Obama has compelled Dr Singh government to dilute key provisions of the India’s nuclear liability law to ensure that USA’s nuclear reactor suppliers are not held liable in the event of an accident caused by faulty or defective equipment.

CCS note must be seen together with yet another controversial opinion of Goolam Vahanvati, Attorney- General provided to the Department of Atomic Energy in response to a reference dated September 4, 2013 sent to him.  In an exercise of his by now infamous sleight of hand Attorney- General has opined that it is for the operator of a nuclear plant in India to decide whether it wished to exercise the ‘right of recourse’ provided to it by section 17 of the Civil Liability for Nuclear Damage Act, 2010 in contempt of Section 17(b) of the Act meant to ensure that foreign suppliers are back traced to “equipment or material with patent or latent defects or sub standard services”. This exercise is an stark case of contempt towards Parliament in furtherance of the interests of USA’s nuclear companies like Westinghouse and GE.

Attorney- General had given similar opinion in the context of Inter-Governmental Agreement between India and Russia stating, “Section 17(a) provides for recourse if such right is expressly provided for in a contract in writing. If the operator chooses not to incorporate such a provision in the contract, it would be open for him to do so” in October 2012.  DAE had sought confirmation “regarding the presumption that the existing provisions of section 17 of the Act facilitate the operator either to exercise his ‘right of recourse’ by incorporating a clause in the contract or to waive his right or to limit the liability on the part of the supplier.”

Notably, Ministry of External Affairs has held that “a right was given to the operator to have recourse against the supplier but there was no mandatory obligation or requirement for the operator to do so and that the operator could choose not to exercise that right”.  Attorney- General has reportedly endorsed this view. 
TWA endorses the statement of condemnation issued by Coalition for Nuclear Disarmament and Peace (CNDP) on the note of the Cabinet Committee on Security seeking exemption from civil liability for nuclear damage for US nuclear company, Westinghouse and others in order to seal a nuclear agreement with the US corporations during Dr Singh’s current visit to Washington, undermining all democratic and sovereign institutions of India. 
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Section 17 of the Act grants the operator the right of recourse under one of three conditions: (a) if the right is expressly provided for in writing; (b) if the accident is caused by faulty material or equipment provided by the supplier; or (c) the accident results from an act of commission or omission of an individual done with intent to cause nuclear damage. Section 17(b) suggests Parliament intended to hold suppliers responsible even if there is no contractual liability.
TWA strongly disproves of Prime Minister’s reported assurance that the Government of India will ensure that the operator (NPCIL) does not use its ‘right of recourse’ against suppliers of nuclear reactors. 
TWA holds that International Atomic Energy Agency (IAEA), World Health Organisation (WHO) cannot be trusted with sharing truth about the nuclear catastrophe in general and about Japan in particular and such imminent disasters in India because of a 52 years old treaty between WHO and IAEA, which is heavily influenced by Nuclear Suppliers Group (NSG), established in 1975.

NSG comprises of 46 nuclear supplier states including China, Russia, and the US, that have voluntarily agreed to coordinate their export controls governing transfers of civilian nuclear material and nuclear-related equipment and technology to non-nuclear-weapon states. In 2008, the NSG agreed to exempt India from its requirement that recipient countries have in place comprehensive IAEA safeguards covering all nuclear activities. US got exemption from NSG for three years to undertake nuclear trade with India. India is pursuing its nuclear energy path under the overarching guidelines of this very IAEA.

It is quite distressing that world leaders like Manmohan Singh and Barack Obama continue to disregard the path shown by at least four key women political leaders namely- Ms Micheline Calmy-Rey, President of Switzerland, Dr Angela Merkel, Chancellor of Germany and Ms Mamata Banerjee, Chief Minister of West Bengal who have abandoned the nuclear energy path. Singh and Obama have adopted an ostrich like approach in the face of inevitable and unpredictable disasters like Cheronbyl and Fukushima.

The 2011 Rules insulates foreign nuclear suppliers in particular using Clause 9 of the Atomic Energy (Radiation Protection) Rules, 2004 which provides that the license for establishment or decommissioning of radiation installation will be valid for five years effectively denying Right of Recourse to Indian operators of nuclear reactors under clause 24 of the 2011 Rules.

If these Rules are seen along with clause 18 of the Nuclear Liability Act of 2010 which deals with the “Extinction of right to claim” wherein “right to claim compensation for nuclear damage extinguishes” if such claim is not made within a period of “ten years, in case of damage to property” and within “twenty years, in the case of personal injury to any person”, it is clear that Parliament and the citizens have been taken for a ride.

Clause 24 of the 2011 Rules provides that “right to recourse shall be for the duration of initial license” or “product liability period” whichever is longer. Product liability period is defined as “the period for which the supplier has undertaken liability for patent or latent defects or
sub-standard services under a contract”.

It is “inconsistent” as per clause 49 (1) read with Clause 17 (b) of the Liability for Nuclear Damage Act, 2010. This act of subordinate legislation is an act of contempt towards Parliament in order to pander to the demands of nuclear suppliers in general and US suppliers in particular.

Both the Liability Act and the Liability Rules refer to Atomic Energy Regulatory Board (AERB) even as Parliamentary Standing Committee on Science & Technology, Environment & Forests heard the Secretaries on The Nuclear Safety Regulatory Authority (NSRA) Bill, 2011 on 16/11/2011. NSRA is meant to replace AERB. The question is what made the central government act ahead of the enactment of NSRA Act in such tearing hurry except of the tremendous influence of foreign suppliers.

Earlier, in a Press Release, the Parliamentary Committee said, “Atomic Energy Regulatory Board-the present regulatory body was constituted in 1983 by a notification issued under the Atomic Energy Act, 1962. However, to further strengthen radiation and nuclear safety in the country, it is felt expedient to establish a legal framework…to ensure that the use of atomic
energy in all its applications is safe for the health of radiation workers, members of the public and the environment.” 

It observed that “the Fukushima incident in Japan has led to worldwide concerns and apprehensions on safety issues relating to nuclear power.” The Parliamentary had noted in its report on Civil Liability on Nuclear Damage Bill that secretaries of 8 relevant ministries were not consulted during the drafting the Bill. It had recommended that in future they should be
consulted. The question is: Were these Secretaries consulted ahead of the notification of the 2011 Rules?

ToxicsWatch Alliance (TWA) and Occupational Health India (OHI) had submitted its comments/views/suggestions in the subject matter of the Bill in a letter dated 16/11/2011 along with the report of Ethics Commission for a Safe Energy Supply on behalf of Dr. Angela Merkel, Germany’s Chancellor following which abandoned nuclear energy. 

In the post-Fukushima disaster world, the adoption of Civil Liability for Nuclear Damage Rules, 2011 is a declaration that nuclear energy is not safe. There is no other plausible reason for the enactment of these Rules by citing 2004 Rules framed under the Atomic Energy Act of 1962 to save foreign suppliers. 

TWA and OHI demand that in pursuance of the clause 48 (3), 49 (1) and (2), the Rules must be placed before the upcoming winter session of Parliament that is scheduled to start from November 22 and conclude on December 21. As of now there will be 21 working days in the session but in order to deal with the Bill which requires that the Parliament should be in session for a total of 30 days, this session should be extended on a priority basis to ensure “modification or annulment” of these Rules which have a resonance of the bad judgment of Justice A M Ahmadi in the matter of Bhopal’s industrial disaster.

Wikileaks expose has already revealed that India's nuclear program is not in the interest of Indian citizens even as the government has been compelled by the transnational nuclear companies to unleash propaganda about how no disaster will ever happen in India. 

Indian government remains callous towards the recent recommendations of a fact finding team led by former Union Finance Secretary which says, "There are plenty of credible and scientific studies by pioneering institutions and experts who have developed convincing models of a comprehensive "carbon- free, nuclear- free" energy policy with a mix of energy conservation, efficiency, R & D on renewable sources, and larger social social-political changes ensuring greater community and public use of resources" referring to report of Union of Concerned Scientists.

TWA opposes nuclear energy and weaponisation plans and programmes in the light of what happened in Three Mile Island, Chernobyl, Fukushima, Hiroshima and Nagasaki. 

In such a context, Indian Prime Minister, Dr Manmohan Singh's "statement in Parliament on the Earthquake and Tsunami in Japan" on March 14, 2011 reads: As Honourable Members are aware, the north eastern part of Japan was hit by a massive earthquake and tsunami on the 11th of March." He underplayed the nuclear catastrophe saying, "The disaster has affected some of the nuclear power plants in Japan. The Government of India is in constant touch with the International Atomic Energy Agency, the Japanese Atomic Industrial Forum, and the World Association of Nuclear Operators. In India, we are currently operating 20 nuclear power reactors. 18 of these are the indigenous Pressurised Heavy Water Reactors. Two reactors at Tarapur, TAPS-1& TAPS-2 are Boiling Water Reactors of the type being operated in Japan. A safety audit of these reactors has been completed recently. Indian nuclear plants have in the past met their safety standards. Following the earthquake in Bhuj on 26 January 2002 the Kakrapar Atomic Power Station continued to operate safely without interruption. Following the 2004 tsunami, the Madras Atomic Power Station was safely shutdown without any radiological consequences. It was possible to restart the plant in a few days after regulatory review." 

TWA demands that such claims of Prime Minister must be verified and cross-checked by a high powered committee of Independent experts given the fact that Mamohan Singh who is in-charge of Department of Atomic Energy appears to be guilty of dereliction of duty because he chose to ignore what Union Secretary, Ministry of Health and Family Welfare testified while deposing before the Parliamentary Standing Committee on Science & Technology, Environment & Forests. The Committee's report mentioned that “while drafting the 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." 

Union Health Secretary, Sujata Rao had mentioned that in the entire Civil Liability for Nuclear Damage Bill, there is not a single clause which speaks about taking health care during radiological emergencies. It reflects only about payment of compensation due to health impacts of such radiation. She suggested while setting up nuclear plants consideration may also be given to the fact that there should be hospital having trained doctors near such establishments and arrangements should also be made for free treatment of people who are affected by serious nuclear fallout.” Union Health Secretary confessed that her Ministry is nowhere to meet an eventuality that may arise out of nuclear and radiological emergencies. 

Observations of G K Pillai, then Secretary, Ministry of Home Affairs illustrate how Department of Atomic Energy has not been rigorous in the drafting of the Bill. While commenting on the conditions in which the operator of a nuclear power plant, who could be made liable for nuclear damage, Pillai stated that the Bill contains such terms as armed conflict, hostilities, civil war, insurrection or an act of terrorism that have wide meanings but have not been defined in the present Bill. Therefore there is a need for inserting meanings of these terms from other laws, in Section 2 of this Bill. Such vagueness in connotations can make the operators negligent in observing security procedures and can create situations of disputes between the operator and the central government. 

Dr Singh must be deemed responsible for unpardonable negligence for having ignored the suggestions of Union Secretary, Ministry of Labour and Employment who pointed out that grave natural disaster should not include earthquakes or floods while referring to Clause 5 (1) (i) which provided for non-liability of operator for any nuclear damage arising out of a grave natural disaster of an exceptional character.

Dr Singh pretended ignorance about the preventive actions taken by French and German Governments and averred, "I would like to assure Honourable Members of the House that the Government attaches the highest importance to nuclear safety. The Department of Atomic Energy and its agencies including the Nuclear Power Corporation of India have been instructed to undertake an immediate technical review of all safety systems of our nuclear power plants particularly with a view to ensuring that they would be able to withstand the impact of large natural disasters such as tsunamis and earthquakes. I would also like to inform the House that work is underway in the Department of Atomic Energy towards further strengthening India’s national nuclear safety regulatory authority."

Prime Minister's statement and assurance feigns ignorance about how testimony after testimony before the Parliamentary Committee had asked for deletion of the word terrorism from the Bill but the same is not reflected in the Committee’s report despite the fact that Union Defence Secretary, who also appeared before the Committee categorically stated, “under different layers of protection, nuclear assets including nuclear installations are being protected through Defence. However he admitted that absolute and fool proof protection cannot be guaranteed for any nuclear or other assets in the country during peace or war.” Exceptions for acts of terrorism and natural disasters can easily be used by the supplier and the operator to wash their hands off any nuclear disaster. 

Its high time Indian government gave up its Ostrich policy and the nuclear energy path for energy security. 

Notably, on 28th May 1959, the WHO 's assembly voted into force an obscure but important agreement with the IAEA founded just two years before in 1957. This agreement has given the IAEA an effective veto on any actions by the WHO that relate in any way to nuclear energy. This prevents the WHO from playing its proper role. 

The WHO's objective is to promote "the attainment by all peoples of the highest possible level of health".  The IAEA's mission is to "accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world". 

Efforts are on to persuade the WHO to abandon its WHO-IAEA Agreement. The protest has continued through the WHO's 62nd World Health Assembly. 

The scientific case against the agreement is building up, most recently when the European Committee on Radiation Risk (ECRR) called for its abandonment at its conference held in May 2009 in Lesvos, Greece.

The question which remains unanswered is: Isn't India's Department of Atomic Energy (DAE) both the promoter and regulator of nuclear energy facilities on the lines of IAEA? Is it sane to ask the possible perpetrators of acts of omission and commission to regulate themselves? This is what both DAE and IAEA do. 

TWA seeks abandonment of proposed nuclear plants at Koodankulam, Tamil Nadu, Jaitapur, Maharastra, Chutka in Madhya Pradesh, Fatehabad in Haryana, Mithivirdi in Gujarat, Kovvada and Kadapa in Andhra Pradesh and Haripur in West Bengal.  It alsoseeks cancellation of new uranium mining sites proposed in Domiasiat in Meghalaya and Nalgonda in Andhra Pradesh. NNEF seeks a white paper from an independent team on existing nuclear power plants and uranium mining sites like the one in Jadugoda in Jharkhand. Bihar Government should desist from pursuing the nuclear path which is planned by proposing a nuclear power plant of 1400 MW in Nawada district of Bihar.