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Liable to waffle

columns Updated: Aug 29, 2010 01:28 IST
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Of the many qualities one looks for in a government among the most essential is a clear idea of what it’s seeking to do and a sensible strategy for achieving it. However, when you review this government’s handling of the Nuclear Liability Bill you cannot but conclude that both were missing. If you then recall Prithviraj Chavan’s claim that the Bill is “five years late”, this becomes almost inexplicable.

When you ask what’s the aim of the Bill, the government insists it’s to provide immediate compensation to victims of a nuclear accident. But why then did the government spend so much time and energy seeking to protect suppliers from liability? In the first instance it was misleading and created suspicion, but, more importantly, it was unnecessary.

Reflect on how GoI responded to Clause 17(b), which touches on supplier liability, and you’ll see why suspicion arose. First, at the Parliamentary Committee stage, the government tried to delete it. When the committee objected and, in fact, made 17(b) stronger, the government sought to undo this. Initially it inserted the word ‘and’ between 17(a) and 17(b), thus making the latter conditional on the former, which, in effect, nullified 17(b). When this was seen through, the government sneaked the concept of intentionality into the body of 17(b). This meant that for a supplier to be liable the intention to deliberately cause an accident had first to be proven. Since this is close to impossible, liability was effectively circumvented.

Not surprisingly, the government’s motives were questioned. Was it seeking to protect suppliers of equipment rather than victims of an accident? Was this being done because, under American law, US suppliers require such protection? Finally, was the Obama administration exerting pressure because it wanted the matter wrapped up before the American president’s November visit?

In the end the government opted for the committee’s original recommendation. This, for all practical purposes, is identical to what South Korea has in its liability law. If the Americans have accepted that they can hardly balk at this. Yet the fact the government ended up where it started makes the journey in between all the more questionable.

But the truly bizarre part is that Clause 17(b) is actually unnecessary and not worth the time spent on it. This is because all it does is re-enforce the supplier’s criminal liability under the law of torts. But that liability exists whether it’s spelt out in the Nuclear Liability Bill or not. It cannot be extinguished, diluted or wished away.

Even if not the victims, the operator of a nuclear plant can sue a supplier if defective equipment or negligence is the cause of an accident. The case will be even stronger if it can allege this was intentional. But ultimately, a court has to accept the argument for liability to be enforced. All 17(b) does is repeat this. But the repetition is neither necessary nor does it strengthen any future plaintiff’s hand.

So, as you look back on this week’s shenanigans, does it seem as if the government had a clear idea of what it wanted to achieve and a sensible strategy for doing so? Or was it, at best, confused, and, at worst, crafty if not duplicitous? The fact that its strategy was seen through and the government ended up accepting a version of 17(b) it wanted to amend is sufficient answer. Now, let the government save its face behind its sheepish smiles.

The views expressed by the author are personal.