The debate on the Civil Liability for Nuclear Damage Bill 2010 is beginning to resemble the earlier public debates on the Indo-US nuclear deal in terms of being confusing and anachronistic. Once again, detractors seem to lack clarity on the evolution of nuclear liability regimes internationally and the imperatives that have fashioned them. The arguments also forget the context of India's re-engagement with the international nuclear order and its endeavour to harmonise nuclear governance structures with the rest of the world.
For one, harping on the point that liability should be 'joint and several' based on the 'well-established' law of torts is both misleading and outdated. It was understood in the 50s itself that ordinary tort law will be inadequate in dealing with the specificity of nuclear risks and the magnitude of damage likely to result from an accident. Instead, a regime of liability and financial cover was instituted that, while not creating an insuperable burden on the nuclear industry, ensured that potential victims got access to adequate and timely compensation — much as what India's proposed liability law intends to do today.
The principles of nuclear liability law as enshrined in Paris (1960), Vienna (1963) and the Convention on Supplementary Compensation (CSC, 1997), which takes the earlier conventions forward by seeking to address the transnational impact of accidents, represent a legal approach that focuses on compensating damage promptly with a minimum of litigation i.e. to specifically avoid compensation battles that ensued, say, in the aftermath of the Bhopal gas tragedy. After all, justice delayed is justice denied. The incorporation of these principles into national law, as India is seeking to do presently, eliminates the need to prove who is responsible for causing a nuclear incident, whether there is fault, negligence or intent, or whether there are any legal defences that might be raised. This means that instead of making liability 'joint and several', which inevitably leads to long-drawn litigation, it is made 'strict' and legally channelised 'exclusively' to the operator.
Limited liability in both time and scope seeks to ensure that a meaningful amount of compensation is made available to victims even as the nuclear power sector isn't excessively burdened. It's not hard to see that unlimited liability coverage is something that no business entity can handle, whether public or otherwise, and naturally one that no insurer will take up. Moreover, increasing the liability cap will ultimately be reflected in an increase in the cost of electricity thereby disincentivising nuclear power which is being seen the world over as a clean source of energy that can potentially help avoid the pitfalls of global warming while sustaining economic growth.
On the other hand, the insinuation is that limited liability is an incentive for operators to skimp on safety measures if the expense on the same is significantly more than the liability amount. This is both disingenuous and dangerous. No insurer will lend coverage to even a paisa of liability without due diligence and design review. Readers would note that Chernobyl Unit-4 had no insurance cover. Also, the global nuclear power community is characterised by the presence of 'best practices' and 'information sharing on safety' through bodies such as the World Association of Nuclear Operators, which, incidentally, has commended India's sole nuclear utility, the Nuclear Power Corporation of India Limited, for safety practices several times in the past.
The evolving global nuclear liability framework, as reflected by the CSC, also grants exclusive jurisdiction to the courts of the member country where a nuclear incident occurs. This brings all claims into a single forum and ensures that claimants do not have to take part in proceedings in two or more countries to ensure compensation — once again unlike what we have seen in the case of Bhopal.
As India re-integrates into the international nuclear order, it naturally has to also move towards putting in place a legal framework that facilitates the participation of foreign nuclear companies, which seek such a liability law. China, incidentally, has had such a law in place since 1986 and is well on its way to achieving over 60 GWe of nuclear power by 2022–25 through the import route. It is time the Indian democratic process is allowed to run its course to put in place a framework that promotes nuclear energy while assuaging the population about redressal for the first time, given that the Public Insurance Act 1981 is silent on the issue of compensation for nuclear damages.
Saurav Jha is the author of The Upside Down Book Of Nuclear Power. The views expressed by the author are personal.