Spreading the light of humanity & freedom
Before enacting the law on “Nuclear Accident Liability Bill” , Government of India should consider the following issues
Neither our MPs , Cabinet ministers nor IAS babus have the right to decide the fate of common people & fix a rate for lives of Indians. They are not experts in this field , they should not conclude any deals , decisions in a hush hush manner . Many scams have come out of hush hush deals . Nobody , no MP , no minister , no IAS officer has paid from his personal pocket to the victims of industrial disasters , etc. After all MPs , Ministers , IAS babus are public servants , they must just represent the voices of people , we people don’t want their personal expertise & opinions. Our Policy makers must heed to the public advice of senior scientists , experts in the field of nuclear power generation .
Ofcourse , as a result unit price of electricity will get front loaded , we may not get cheap electricity . but the lives of Indians are much valuable than Electricty. The person who benefits from cheap electricity – Industrialists does not pay from his pocket to the victims of disasters . Development not at the cost of safety & lives. This must dawn on our ill informed policy makers at the earliest . Jai Hind. Vande Matarm.
What if a nuclear accident happens
- BILL LIMITS LIABILITY OF OPERATOR TO RS 5OO CRORE, ANYTHING ABOVE WILL BE GOVT RESPONSIBILITY
Answers to questions on the nuclear damage bill the Centre withdrew from the Lok Sabha on Monday
What is the bill’s purpose?
The Civil Liability for Nuclear Damage Bill seeks to set down mechanisms and rules for liability claims and payments that might arise because of a nuclear incident and to pave the way for
What kind of nuclear liability regime does
All of India’s nuclear power reactors and nuclear facilities are owned by the central government, or by the Nuclear Power Corporation and Bharatiya Nabhikiya Vidyut Nigam (Bhavini) — both public sector enterprises. Any liability issues that emerge from incidents become the responsibility of the central government. The inter-government agreements between
Why has the bill become necessary now?
The Indo-US civilian nuclear agreement allows US suppliers to sell nuclear power reactors to
What does the bill propose?
A leaked version of the proposed bill circulated by environmental groups indicates that the government plans to cap the maximum liability for each nuclear incident to 300 million Special Drawing Rights ($460 million or Rs 2,100 crore). This is lower than the $470 million settlement in the
If the claims for compensation for nuclear damage exceed SDR 300 million, an additional 300 million SDR may be available through an international convention.
The liability of a nuclear power operator (so far only the NPC and Bhavini) for each nuclear incident will be Rs 500 crore. The limit will also apply to private companies if they are allowed entry into the sector.
The central government will be liable for nuclear damage if the liability exceeds the operator’s limit.
Why has this generated controversy?
The bill has generated the widespread perception that it will allow US companies to go scot-free in the event of a nuclear accident and saddle the Indian government with the liability — in other words, Indian taxpayers will have to pay for damages. Some environmental activists are contrasting the proposed Indian cap of $460 million with the much larger $10 billion pool of funds available in the
Will the bill really allow foreign companies to go scot-free?
A clause in the bill appears to allow the nuclear operator to have “a right to recourse” —which would mean the operator could seek assistance — when the nuclear incident has resulted from negligence on the part of a foreign supplier of a material, equipment or service. However, this would have to be reflected in written contracts between the Indian operator (the NPC, for now) and the foreign suppliers. Environmental groups are sceptical, and fear that this will not emerge in actual contracts.
How is the bill linked to the international nuclear liability regime?
The Convention on Supplementary Compensation under the International Atomic Energy Agency provides for an international fund to compensate for nuclear damage in the event of an accident. The convention envisages a two-tier system — the state will ensure availability of at least 300 million SDR, and an international fund for which all participating nations are obliged to contribute. Any country that plans to join will have to ensure its national legislation is consistent with the convention’s provisions. By enacting domestic legislation,
How is nuclear liability covered in the
The Price-Anderson Act enacted in 1957 ensures the availability of a large pool of funds — about $10 billion — to provide compensation to people who incur damages from a nuclear accident — no matter who is liable.
Have nuclear liability claims been paid in the
The American Nuclear Society estimates that the nuclear insurance pools have paid a total of $151 million in the past 43 years. The
What kind of liability regimes do other countries have?
They vary from country to country.
Around 22,000 dead. More than 1,20,000 injured. Rs 1 lakh for each
body. Rs 25,000 for every poisoned lung and damaged heart and blinded
eyes. 26 years of long wait. And just 2 years in jail for the men who
committed the worst crime against the people of this country. And this
mockery of justice after such a long wait. Twenty six years after 40
tonnes of lethal gas seeped into the lungs of
17,000 men, women and children are still waiting for the so-called
compensation. Thousands more are still waiting to be accepted as
victims. People of
Union Carbide in December 1984. And the main culprit is living life
kingsize in a mansion in
No country sells its people so cheap.
No country sells its poor so cheap.
No country sells its dead so cheap.
Today – on the day of
state in the world, it’s
ridiculous amount of $450 million dollars for the people killed and
maimed by methyl isocyanate leaked from the Union Carbide factory in
the heart of
victims have done everything they could to get justice and
compensation. They have cried and died on streets, sat hungry and
faced police lathis on roads and filed court cases in the hope that
one day they will get justice.
Today, they were denied justice. Today, they were told that they
should be happy with the peanuts thrown at them by Union Carbide.
Today, it was proved all over again that those who do politics in the
name of poor in this country, always rule for the rich.
What justification does CBI have for not being able to produce Warren
Anderson in court. The chairman of UC at the time of the gas attack
(it was not an accident, the gas leak was caused because of cost-
cutting steps taken by him) on the people of
arrested and later released on bail. He ran off to US in 1986 and we
have not been able to find him or ask the
What a lie. What a shame.
Last year, on a balmy July day, a bunch of victims danced on the
streets after hearing news that the Chief Judicial Magistrate of
the court without delay. The court also asked the CBI to explain what
steps it had taken since 2002 to enforce the warrant and extradition
of Anderson, who was declared an absconder in 1992. Though the CBI and
traced him to the elite
2003, Greenpeace activists paid
handed him an arrest warrant.
Today’s ridiculous judgment in
as he is a “proclaimed offender”. This status suits him fine because
he doesn’t have to bother about coming to
*Why did Union Carbide not apply the same safety standards at its
*On the night of the disaster, why did the six safety measures
designed to prevent a gas leak fail to function?
*Why was the safety siren, intended to alert the people living close
to the factory, turned off?
The victims have always alleged that
negligence by the Union Carbide and that was caused by cost-cutting
measures taken by
has been 'hiding' in the
A criminal has a reason to hide, but what reason does our government
have to let a mass murderer like
he is an American? Can an American come to
country and run away with no consequences? That seems to be the case.
We are still struggling to get a chance to question David Headley
Coleman, an American citizen responsible for the worst terror attack
on an Indian city in 2008. Will we succeed in getting Headley
particularly if they have been slaughtered by powerful people from the
most powerful nation in the world. Instead of taking on
fighting for justice for its poor,
its dead cheap.
Rs 1 lakh for every body. Rs 25,000 for every blinded eye. This is the
cost of poor life in a failed state.
Even in developed countries like
materials takes place now & then, which in itself constitute nuclear
on small scale. Refer the Deccan Herald (
years back, there were media reports about certain containers with
materials dumped in the open in
power project a doom collapsed. In
mal-handling of radio
active materials have taken place ? No public knowledge . In the back
corrupt ,negligent hush-hush, buck passing work culture in most of the
government service, I do want to know from the union Health Minister &
Karnataka State Health Minister, how safe are we from the processing &
of radio active materials at M/s REMP, Mysore M/s REMP Kerala, & M/s
Jadaguda Jharkhand ? How the spent fuel is disposed off in nuclear
radiation on the employees & peoples of adjacent villages near the
site of M/s Uranium Corporation of India Ltd. Jadaguda Jharkhand &
Operations site of M/s REMP in Kerala.
In tsunami waves onslaught of december 2004 , the vital facilities of
nuclear reserch station in tamilnadu were damaged . just last week
earth quake were felt in kaiga nuclear power plant in kaiga ,
karnataka . if
anything untoward happens as a result of natural calamities or human
etc , what sort of contigency plans the government has got ready for
of public ?
Even some of the insurance companies like M/s Met Life India Insurance
cover the risk of physical / mental disabilities or death caused due
hazards . In such an event who will bear the cost of compensation ?
quantum of compensation is calculated ? will you take into
insurance policies brought by individuals ? Give me information about
measures taken by M/s REMP, M/s UCIL & other related agencies at all
operation sites / nuclear sites.
Severe accident risk at
’s fast breeder nuclear reactor India
The safety inadequacies of
’s fast breeder reactor India ’s Department of Atomic Energy plans to build a large fleet of fast breeder nuclear reactors in the coming years. India
- However, many other countries that have experimented with fast reactors have shut down their programs due to technical and safety difficulties.
- The Indian prototype is similarly flawed, inadequately protected against the possibility of a severe accident.
Deputy National Security Advisor Froman reveals administration’s double standards on corporate accountability for victims of Bhopal Gas Disaster
At a time when the world is focused on corporate accountability in the wake of the BP's Gulf Oil Spill, a leaked email from the Obama administration shows that it values profit over people, when the profit benefits American corporations. The victims of the world’s worst industrial disaster were disappointed to see today that the White House is not pursuing the same levels of accountability from American Dow Chemical as it has from BP. When Dow purchased Union Carbide in 2001, the corporation acquired outstanding liability for the ongoing disaster in
Today, Mumbai-based Times Now published an email chain between White House Deputy National Security Advisor Michael Froman, and Indian Deputy Chairman of the Planning Commission, Montek Singh Ahluwalia. In response to an Ahluwalia’s email requesting assistance as
"We are aware of this issue and we will look into it. We are hearing a lot of noise about the Dow Chemical issue. I trust that you are monitoring it carefully. I am not familiar with all the details, but I think we want to avoid developments which put a chilling effect on our investment relationship."
Here Obama’s Deputy NSA apparently tied potential development aid to
Following months of safety cuts, on
The Indian Government has been forced to address the
The International Campaign for Justice for Bhopal (ICJB) is a coalition led by four survivor organizations along with environmental, social justice, progressive Indian, and human rights groups around the world. ICJB works to hold the Indian Government and Dow Chemical Corporation (the current owner of Union Carbide) accountable for the ongoing chemical disaster in
NEW DELHI: Government has brought some fresh amendments to the Nuclear Liability Bill that are likely to trigger a fresh controversy as these could be seen as diluting the right of recourse of operator to seek damages from supplier in the event of an accident.
One of the 18 amendments cleared by the Union Cabinet yesterday suggests that an accident in a nuclear plant should have occurred as a consequence of an act done with an "intent" if an operator has to claim damages from supplier.
The amended Clause 17 says "the operator of a nuclear installation, after paying the compensation for nuclear damage in accordance with Section 6, shall have a right of recourse where --
(a) such right is expressly provided for in a contract in writing;
(b) the nuclear incident has resulted as a consequence of an act of supplier or his employees, done with the intent to cause nuclear damage, and such act includes supply of equipment or material with patent or latent defects or sub-standard services;
(c) the nuclear incident has resulted from the act of commission or ommission of an individual done with intent to cause nuclear damage."
Experts feel that the mention of "intent" in the sub-clauses (b) and (c) regarding an accident may give a route to suppliers to escape responsibility because it would be difficult to prove intent in any such mishap.
This amendment in the Civil Liability for Nuclear Damage Bill, 2010 will be moved along with 17 other amendments in the Lok Sabha on August 25.
Significantly, neither the original bill nor the recommendations of Parliamentary Standing Committee which examined it had contained such a proposal.
Only earlier this week, the government had to beat a hasty retreat when a controversy arose over inclusion of a word "And" between sub-clauses (a) and (b) in Clause 17 which the BJP and Left parties feared diluted the supplier's liability in case of an accident.
The government then dropped the controversial word but reworked the language of the Clause 17 in which the word "intent" has been included.
CPI leader D Raja reacted strongly to the fresh changes made by the government, saying these would dilute the supplier's liability drastically.
"I don't understand what they say. Disaster is a disaster. Who will agree that this was done willfully or deliberately. It is irrational and ridiculous," he said.
The Left parties would look at the amendments carefully when these are brought to Parliament and decide their strategy.
Read more: Fresh changes in N-bill may trigger a new row - India - The Times of India http://timesofindia.indiatimes.com/india/Fresh-changes-in-N-bill-may-trigger-a-new-row/articleshow/6388939.cms#ixzz0xJX0utbm
Soli J. Sorabjee
The government proposes to introduce a Civil Nuclear Liability Bill to appease foreign investors. Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability will be in blatant defiance of Supreme Court judgments and is likely to be struck down.
One of the vital guarantees in our Constitution is the protection of the Right to Life enshrined in Article 21. Our Supreme Court by creative interpretation ruled that the expression ‘life’ does not connote merely physical existence but embraces the right to live with “human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head.” Thereafter it further expanded the concept of the right to live with human dignity to encompass within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water.
Our Constitution evinces great concern for environment. Article 48-A of the Directive Principle mandates that the state shall endeavour to protect and improve the environment. One of the fundamental duties prescribed in Article 51-A is, inter alia, to protect and improve the natural environment.
Despite these constitutional provisions, pollution continues unabated. The river
In its landmark judgment in the Oleum Gas Leak case, the Supreme Court laid down certain important principles. A five-judge bench unanimously ruled that “an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.” The court further held that “it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.”
At first blush, this may appear unduly harsh. However the rationale for this rule as explained by the court is that “such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such activity indemnifies all those who suffer on account of the carrying on of such activity regardless of whether it is carried on carefully or not.” Therefore in a case of escape of toxic gas, “the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions.”
In 1996 in the case of Indian Council for Enviro-Legal Action Justice Jeevan Reddy speaking for the court pointed out that the rule of absolute liability is premised on the very nature of the activity carried on and “it is the enterprise carrying on the hazardous or inherently dangerous activity alone has the resource to discover and guard against hazards or dangers.” The court further introduced the Polluter Pays Principle, which according to it requires that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings that cause the pollution. Under this principle, it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The responsibility for repairing the damage is that of the offending industry. It is noteworthy that the Polluter Pays Principle has been incorporated into the European Community Treaty as part of the new articles on environment that were introduced by the Single European Act of 1986.
In its subsequent judgment in Vellore Citizens Forum, Justice Kuldip Singh speaking for the court held that “the Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development.” This is a milestone judgment in our environmental jurisprudence. The court reaffirmed the Polluter Pays Principle laid down in its previous judgments to mean that “the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable Development and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.” The seminal significance of this judgment lies in the court’s holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country and the court’s pointed reference to Articles 21, 47, 48-A, and 51-A (g) of the Constitution in this connection.
The thrust of these Supreme Court judgments is for compensating and protecting the victims of accidents as part of their fundamental right to life under Article 21 of the Constitution. Under our Constitution, Supreme Court judgments constitute the law of the land and are binding on all courts, authorities and persons.
It is claimed that foreign companies are reluctant to invest in
In effect, this means that in case the actual damage and the cost of remedying environmental degradation exceeds the proposed ridiculously low cap of $450 million or any other sum, the government would have to bear the remaining burden. This would be directly contrary to the Supreme Court’s ruling that it is not the role of the government to meet the costs involved. The effect of a cap in reality would be to shift the financial burden of the consequences of the accident to the taxpayer. According to the Polluter Pays Principle that has been embedded in our jurisprudence, the liability and responsibility for compensating the victims of accident and remedying the environmental damage caused is that of the offending industry alone. No part of the liability can be limited nor passed on to the government.
There can be two views about the advantages or disadvantages of foreign investment in
Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability is likely to be struck down as it would be in blatant defiance of the Supreme Court judgments. Moreover, it would be against the interests and the cherished fundamental right to life of the people of
Passage of the bill is considered important for the full implementation of the landmark Indo-US nuclear deal that was signed in December 2008. It may also result in contracts worth US$10 billion for the moribund American nuclear industry from the two reactor sites allotted to Westinghouse Electric (a unit of Toshiba) and GE Hitachi by the Indian government. Indian planners consider nuclear power to be an important part of the energy mix and aim to increase nuclear capacity from the current 4560MW (3% of total capacity) to 20,000MW by 2020 and 63,000MW by 2032.
Bitter memories of past industrial accidents and pricing controversies over major power projects among India’s political and intellectual class has cast a shadow over the nuclear liability debate.
Since all civil nuclear facilities are owned by the Central Government (Nuclear Power Corporation of India Limited and the Bharat Navbhikiya Vidyut Nigam, both public sector enterprises), the liability issues arising from these installations are its responsibility. Under existing Indian legislation, foreign suppliers may face absolute, unlimited and non-delegable liability, something that prevents them from taking insurance cover. Private American firms are more affected than their government backed French and Russian counterparts. There is no clarity over trans-boundary liability issues and liability during transport of nuclear material.
The provisions in the bill that deal with total compensation in case of a nuclear accident and limits on the liability of the nuclear operator are the most controversial. Clause 6 caps the maximum amount of liability in case of a nuclear accident at 300 million Special Drawing Rights (SDR’s- around US$460 million or Rs2100 crore) while the liability of the operator for each nuclear incident has been capped at Rs500 crore. The government will be responsible for liability over Rs500 crore.
In a move that is likely to strengthen the government’s case, the country’s atomic energy establishment including Srikumar Banerjee, Chairman of the Atomic Energy Commission, Anil Kakodkar and MR Srinivasan- both former Chairmen of the Atomic Energy Commission have come out in support of the deal. They have pointed out that India needs a well defined liability framework and claim that the liability bill will pave the way for India to join an international liability regime and access additional funds (if compensation claims exceed the overall cap specified in the liability bill, an additional 300 million SDR can be made available through the Convention on Supplementary Compensation).
Clause 3 of the bill requires the Atomic Energy Regulatory Board to notify the nuclear incident within fifteen days. Clause 9 empowers the Central Government to appoint a Claims Commissioner (or a Nuclear Damages Claims Commission if the liability exceeds Rs500 crore) for adjudicating claims for compensation and deciding awards.
Opponents like anti-nuclear activist Praful Bidwai and leading strategic expert Brahma Chellaney argue that the government, by channeling the legal and financial liability to the operator is exempting foreign suppliers from the legal and financial fallout of negligence at the cost of the Indian taxpayer.
Former Attorney General Soli Sorabjee has termed the US$460 million cap as ‘ridiculously low’ and has argued that the legislation “attempts to dilute the Polluter Pays and the Precautionary Principle,” in “blatant defiance of Supreme Court judgments.” He reckons that the legislation “would be against the interests and the cherished fundamental right to life of the people of
Critics have also questioned the ten year time limit to claim compensation for any nuclear damage (Clause 18) and argue that the effects of radiation extend across generations. They are strongly opposed to Clause 35 of the bill that prevents Civil Courts from exercising any jurisdiction over the proceedings of the Nuclear Damages Claims Commission and its final award; which according to them, is tantamount to preventing victims from suing foreign suppliers in Indian courts.
By Madhur Singh
As BP struggles to contain the damage the Deepwater Horizon oil spill has caused to the Gulf of Mexico and to the people whose livelihoods depend on its waters, a legal judgment in the worst industrial catastrophe in history highlights how wrong the aftermath of such disasters can go — not just in terms of a cleanup but in the matter of justice. It is a terrifying lesson in how a corporation can evade full responsibility for one of the most heinous accidents in human history.
On Monday, more than 25 years after 40 tons of highly toxic methyl isocyanate (MIC) was released from a Union Carbide plant in the central Indian city of
The judgments are likely to be appealed. Given the speed of the wheels of justice in
The outcome of the case has ignited outrage and disbelief across
The letdowns have been serious and repeated — and apparently preordained because of decisions that facilitated the disaster itself. Investigations over the years have shown that the
The Indian government seemed to go out of its way to cushion the experience for Union Carbide. After first suing the company for $3.3 billion in 1985,
The various governments that have ruled
Although environmental legislation was ramped up in the wake of the
There is still outrage that the
Indians point at the way the U.S. government is now confronting BP — holding it squarely responsible for the oil spill and accountable for all cleanup costs — as a stark contrast to the way their own government has dealt with Union Carbide. The hope in India is that U.S. courts will be more amenable to the requests of Bhopal's victims now that America has a huge environmental disaster in its own backyard. The Bhopal activists say the Indian government must join the case in the U.S. as a plaintiff (indeed, it owns the land on which the Union Carbide factory was located). "Prime Minister Manmohan Singh should be inspired by President Obama's recent commitment toward making BP pay every cent for its oil spill," says Satinath Sarangi of the Bhopal Group for Information and Action. "And the U.S. government must follow the same standards on corporate liability for U.S. corporations operating in India as it expects for corporations operating in the U.S."
See the world's top 10 environmental disasters.
See pictures of critters caught in the Gulf oil spill.
Corporate Responsibility or Corporate Liability
by Mukesh Williams
Two momentous events separate in time and location have seared our consciousness—the British (Beyond) Petroleum Gulf Coast oil spill on April 20, 2010 and the American Union Carbide Bhopal Gas Tragedy in December 3, 1984. Twenty five years separate these two environmental and human disasters but the greed of big multinational corporations in connivance with state and central agencies still remains insatiable. With a keen eye on profit, big companies compromise safety standards, falsify data, overstate their strength, underestimate their drawbacks, bribe officials, lobby for protection and misinform the public. It is rather difficult to fuse ethical economic standards with ravenous profit-making schemes. Though oil and gas stink most multinational corporations love it.
The neo-classical model of economics has reduced our land and environment to a mere abstraction that can be exploited in terms of supply and demand without compunction. Big companies continue to wreck havoc on our human and natural systems devastating our lives in the name of human progress and development. At such moments we often wonder where is the fashionable concept called social corporate responsibility that is often taught as a philanthropic and ethical tool in business management departments to unsuspecting students. Corporate greed like all other forms of human greed need to be kept under strict check by international pay czars or up-to-date legislation based on global standards with teeth for swift punishment. Also the rhetoric of corporate companies must be separated from what they actually do, how long they do what they do, and what they hide. A constant monitoring system both on the part of governments and private groups must be effectively installed in collaboration with the media to thwart their nefarious activities and ulterior motives.
Union Carbide Bhopal Gas Tragedy 1984
Early this month the Indian Supreme Court passed a verdict indicting the American CEO of Union Carbide Warren Anderson who was allowed to escape to the United States twenty five years ago possibly with the connivance of either the state or central agencies in India. Now both the Congress government and state ministries are trying to escape their involvement in the murky plot. Who wanted the truth then? And who wants the truth now? The declassified CIA report of December 8, 1984 and recent revelations by the principal secretary of Rajiv Gandhi, P. C. Alexander, point to political intrigue involving both state and center in releasing Anderson. Now some leaders claim that the worsening law and order situation in Bhopal in the wake of the accident forced Chief Minister Arjun Singh to provide a safe corridor to Anderson out of the country. Some like Rajinder Puri even see the direct hand of Rajeev Gandhi himself. It seems that US President Ronald Reagan phoned Rajeev Gandhi to release Anderson. The media would like us to believe that even P. Chidambaram and Kamal Nath were campaigning for Dow Chemical to get special concessions so it could invest in India. The chief minister of Gujarat Narendra Modi criticized Sonia Gandhi for the complicity of the Congress Party in the murky affair but it has come to light that he had signed an MOU between state public sector company Gujarat Alkalies and Chemicals Ltd and Dow Chemicals in April 2008. This is the case of the pot calling the kettle black.
Seemingly neither the American nor the Indian establishments saw the industrial disaster as the responsibility of the MNC Union Carbide. The company was bought by Dow Chemical Company in 1999 further camouflaging accountability. Dow Chemical was the second biggest Texas polluting company in 2009 and paid 1.14 million USD on eight counts of pollution. Now it is investing again in India with the syrupy connivance of people in power.
Even after 25 years the public would like to know if it was Arjun Singh the chief minister of Madhya Pradesh or influential persons in Rajiv Gandhi’s government at the center or the prime minister himself responsible for giving a free passage to Anderson to fly back to the U.S. India has an extradition treaty with the United States and under changed circumstances today when America itself is suffering from another MNC BP, there might be possibility of bringing the fugitive CEO back to justice if India can put together enough evidence. Greenpeace believes that in the 1982 safety audit of the Bhopal factory in the US addressed thirty safety hazards. Anderson knew about them and compromised safety standards causing the death of 20,000 people and affecting 578,000 to date. To make the tragedy reprehensible the out of court settlement made Union Carbide pay a sum of 470 million USD instead of 3.5 billion initially demanded, with each victim getting a measly sum of 550 USD in 1989. In the same year Exxon oil spill in Prince William Sound Alaska forced the company to pay 5 billion USD of which it paid half. Even today there is 425 tons of hazardous waste in Bhopal left by Union Carbide that needs to be cleaned. Who will do it—Dow Chemical or the Indian state government?
Anderson now 90 years lives in a luxury home worth 900,000 USD at 929 Ocean Road, Bridgehampton, Long Island, New York. He is now less of a fugitive and more of a monarch (Sonnenfeld, 1991). It is obvious that in many cases justice delayed is justice denied. Should we stop big companies from doing business? Should we impose heavy penalty on erring foreign companies? Or should we reform the slow and cumbrous judicial system? Jeremy Kahn writing in The Faster Times calls for judicial reform rather than protectionism (Kahn, 2010). The Indian Parliament is debating a law capping liability for foreign nuclear power companies involved in disasters to pay 100 million USD a pittance when compared to the US demand of 100 billion USD from BP. Then Indian law capping liability lacks teeth and may not cover non-nuclear companies. So they can pollute as of before.
British or Beyond Petroleum
The British are desperate to save BP from going down by bringing silly arguments like BP has been a part of America since it merged with American energy Amoco in 1998 and acquired the Gulf of Mexico drilling rights (The Independent, “Cameron Warns Obama over Criticizing BP” 13 June 2010). The new British Prime Minister David Cameron has also chipped in underscoring the sustained “economic importance” of BP to both Britain and America. American President Barrack Obama however is needled by US senators, whose states have been ravaged by oil spills, to push for 100 billion USD compensation, which if realized would force BP to go bankrupt. The British media believes that Obama’s anti-British rhetoric is testing Anglo-American relations. Obama claims that American relation with Britain has not been affected. The environmental disaster caused by a British multinational company should have nothing to do with national identity but corporate liability. Obama has called BP the Swedish Chairman Carl-Henric Svanberg, who earns a fat cat salary of 3.8 million USD, to the White House for consultations.
The British are cut up with Obama’s off the cuff remark that he would have fired BP’s chief executive Tony Hayward if the latter had worked for him. With US pressure rising BP may not pay its quarterly dividends which are essential to maintain equilibrium for UK pension funds. The 6.7% shares lunge in the FTSE has adversely affected pension funds in the UK. If the status quo is not altered by American pressure groups BP might only have to pay 20 to 37 billion USD provided it can be proved that BP failed to meet safety regulations in the deep sea oil drilling.
Now BP is using two kinds of dispersants manufactured by Nalco—Corexit 9500 and Corexit EC 9527A. Corexit (deodorized kerosene) is banned in the United Kingdom as even 2.61 ppm can kill 50% of fish in 96 hours. The dispersants turn the oil slick into small particulates which settle on the sea bed and make things look clean on the surface, but they destroy marine life below. Corexit however is on the approved list of dispersants by the US Environmental Protection Agency though the EPA has advised BP to use less toxic dispersants. BP however refused citing lack of availability. The toxicity of the present dispersants increase when they get mixed with oil. BP has links with Nalco. BPs has poured 1,621,000 gallons of dispersants in the Gulf of Mexico to contain the oil spill and has ordered for an additional 805,000 gallons. The ill effects of the dispersant on humans can result in various diseases, reduced growth, kidney failure and death.
The British rely on BP as the national icon and savior of British deficit. Last year BP paid 1.4 billion dollars in taxes on its profits. The oil spill in the Gulf of Mexico is too far away for the ordinary Britons but the pension funds and BP dividends are closer home.
It stands to logic that a “large, wealthy company” which is eager to pay 1.8 billion quarterly dividends to its shareholders and whose last year’s sales and operating revenues were 239 billion USD, should pay 100 billion USD in damages. Since the oil spill began on April 22, 2010 till June 15, 2010, 55 days have gone by. And if we estimate the oil spill at 50,000 barrels a day it comes to 27500000 gallons. If each gallon spill is fined 4300 USD as the US is suggesting the actual fine would come to 118,250,000,000 that is about 118 billion USD. These figures may not be exact and are vigorously contested by BP which would like to work with half the numbers. However the end is not in sight. According to BP officials it would not be before August that the spill can be contained. If this is true then the figure could be doubled and BP would have to pay damages amounting to all the revenue it earned through sales last year.
Both the American government and public are hopeful that since earlier erring companies like Texaco was forced into bankruptcy in 1987 after paying 10.53 billion USD claim, BP too would have to cough up huge sums. And BP’s reputation does not help a wee bit whatever they claim to the contrary in those daily briefings on the Internet. BP is known as one of the “ten worst corporations” in the world when evaluated on their environmental pollution and infringement of their human rights record. It also has the dubious distinction of being the most polluting company in the United States vis-à-vis EPA toxic release data of 1991. It has been fined 1.7 million USD for burning polluted gases at its Ohio refinery. It also paid 10 million USD fine to the EPA in July 2000 for mismanaging the US oil refineries. The US Public Interest Research Group or PIRG claims that between Jan 1997 and March 1998, BP was involved in 104 oil spills. Obviously a lot of wealthy shareholders, 37% on the British and 31 % on the American side do not want this to happen.
BP’s propaganda regarding its CSR is highly effective as it tries to highlight only the positive aspects of what it has done. In the past BP has invested some money in alternate fuel and green technologies but it has been criticized for proving private funds to public universities of the California Bay Area and closing down its green technology office in London. Its critics call its green technology projects as green washing projects. BP is also a leading producer of solar panels and holds 20% of the global market in this area and it uses this fact to great advantage for image building. It operates the ampm convenience store chain in the US and other countries and is the leading producer of wind power. It is also involved in funding local and international politics. It gave 5 million USD to democrats and republicans in 1990 and spent 16 million USD in lobbing at the US Congress. The moral of the story is that it is not as clean as it claims, nor concerned with the lives of common people unless it serves its purpose or national interest.
BP in its regional spill plan for the Gulf of Mexico and site plan for the Deepwater Horizon rig understated the dangers and overstated its preparedness in the eventuality of a leak. Louisiana governor Bobby Jindal criticized BP for being ‘reactive’ and not ‘proactive’ from the very beginning. Now BP’s report is examined quite critically and it has been discovered that an expert professor listed in its 2009 response plan died in 2005. It lists walruses, sea otters, sea lions and seals as “sensitive biological resources” when none inhabit the Gulf of Mexico. Also names and phone numbers of marine specialists and marine network officers in Louisiana and Florida are not correct. The Justice Department has to find evidence that BP destroyed key documents or lied to the government (The Daily Yomiuri, June 11, 2010).
Corporate Social Responsibility
Corporate social responsibility is one of the modern movements like environmental or tribal movements that have become the buzz word in both business and academic circles. Both businessmen and academics are cashing upon the divine benefits of CSR making more money for their companies and jobs for their departments. Middle level managers and professors have extolled about the virtues of CSR with other buzz words such as people friendly, eco friendly and sustainable. We have come to hear about the unselfishly egalitarian aspects of CSR. It is really a wondrous transformation of the greed-driven capitalist economy of which the corporate system is a byproduct.
Most critics of CSR are not against it per se but against the recent hype associated with it as a panacea of all corporate evils. It is hard to believe that companies are out there not to make profit. We are not talking of basket cases but any company worth its salt aggressively markets itself to make real profit. And what’s wrong in it. Companies are floated for this very purpose both by the shareholders and managers. But in a changed climate of political advocacy of human rights against corporate greed, CSR seems to a new combative tool for companies to be both politically correct and make money as usual. The problem however is that if business corporations give an inch they take a mile.
Definitions and Objections to CSR
In the United States CSR is seen as philanthropy while others see it as improving society, workforce and government. There are arguments in favor of CSR where it is believed that it can support the social fabric of society and promote responsible business practices. But CSR is usually presented as a marketing strategy that articulates business performance rather than encompass social and ethical standards. The recent collapse of American business and manufacturing sectors has revealed the gap between CSR and actual self-regulation. Some CSR models take the company beyond the law into providing public benefits, increase sales, market shares, brand position, retain employees, reduce operating costs and increase investments (Baron, 2001 7-45). There are models of CSR that take into account competitive advantage, positioning, commitment, organizational integration, shareholder’s cooperation and self-correction. CSR helps to create a positive image of a company and brings it rich dividends. Though there are many definitions of CSR we must see CSR as the way business companies conduct their core business not the sops they give to society.
A common objection leveled against CSR comes from the advocates of the laissez faire system who complain that CSR infringes upon the human rights of company shareholders as company managers unilaterally divert company resources to society in the name of better management (Sternberg, 1999). Detractors of CSR complain that there should be a stakeholder claim in CSR as to how it is done. A business corporation should be fair and honest to both the shareholders and customers. CSR therefore depends on the model a company chooses and the reasons for its choice. If a company uses CSR for image building through philanthropy it leads to both ethical and human rights problems. You cannot give away money which ultimately belongs to someone else. On the flipside it also follows that if stakeholders possess sole rights they also should bear full responsibility when there are environmental or social disasters. However if a CSR model seeks a consensus of both stakeholders and company managers then it must become more open to the public. CSR must concentrate upon building customer relationships, attracting talented people, conducting risk management and building the company’s reputation.
Corporate Reputation and CSR
Corporate business companies such as BP or Coca Cola cannot ignore their reputation as about 90 to 95 percent of their assets are intangibles and the remainder immovable property. Big companies such as General Electric, IBM or Motorola use the rhetoric of CSR to show public responsibility and environmental concerns but while conducting hard-nosed bullying business practices are not so transparent in their dealings. A few years ago Sir John Browne of BP was praised for his aggressive promotion of BP while providing environmental leadership but now we come to know that all along BP compromised on safety costs in oil drilling. This is happening in a powerful country like the United States where both politics and laws are strong. Had it happened in a developing or a poor country, things would have been quite different. BP would have gotten away cheaply and Union Carbide once did.
CSR invariably works for companies and countries with resources and political clout. It is not for companies which are small and weak. Small companies fight for survival, cut costs to make ends meet and do not possess precious resources to waste on CSR. Nor can they follow up on legal battles if they come under the scanner. They function in a world of poverty, deprivation and loss.
It is no longer tenable to follow neo-classical economics of Smith, Mill and Bacon that the world is made for us and for us alone. We must eschew the economic theories of Pareto and Hayek as we can no longer treat nature as a mere variable and commodity. Depreciation of ecological assets has taken place at an increasing fast rate. Economics should no longer be about inflation, economic value of goods or maximization of income. It should take into account our natural world as property that belongs to every one of us (McNeill, Padua, Rangarajan, 2010 1-3). We must learn new lessons from ecological economics and environmental history and change the way we do business. We must rein in corporate greed by modifying corporate social responsibility (CSR) to corporate legal liability (CLL) and connect it to governmental deterrence, legal action and international treaties to scare the hell out of the merchants of greed and death who have many supporters in different parts of the world.
In his analytical article, Mr. Sukla Sen says that India is paying back for the generosity of US and explained US pressure behind the bill:
This Bill is generally being looked upon as a continuum of that process, allegedly, in order to ensure a “level playing field” for the American enterprises – to let them have a significant share of the cake – the Indian nuclear market – a part payback for the American generosity bestowed upon India, for its very own reasons though. The move had, however, been first conceived by the then NDA government way back in 1999. When the US Secretary Of State, Hillary Clinton, visited India in July 2009, there were talks of the Bill getting passed by the Indian Parliament. But nothing of that sort happened. Again in late November 2009, when Singh was to meet Obama in Washington DC, there was talk of getting the Bill enacted. Even then, it did not happen. The Union Cabinet had dutifully approved the Bill just on the eve of the visit though. With Manmohan Singh to visit the US to attend the Nuclear Security Summit, called by President Barack Obama, slated to be held on April 12-13 the government was again trying to push it through. Never mind the considerable cooling off of Indo-US relations in the meanwhile as compared to the George Bush days.
Exclusion of Courts jurisdiction: Clause 35 extends the legal binding that the responsible groups may have to face. The operator or the responsible persons in case of a nuclear accident will undergo the trial under Nuclear Damage Claims Commissions and no civil court is given the authority. The country will be divided into zones with each zone having a Claims Commissioner. This is in contrast to the US counterpart – the Price Anderson Act, in which lawsuits and criminal proceedings are taken up under the US courts.
Openings to Private Operators: After reading the serious apprehensions as introduction and brief outline of the killer bill let us study the impact of this defective law on this nation. Today we have a law called Environment Protection Act, 1985 which makes the polluter to pay and imposes on polluter a legal obligation to take precaution. This was strengthened by the most imaginative judicial legislation principle of Absolute Liability laid down by Supreme Court in 1986. These two legal instruments were not available to tackle the Bhopal gas leak tragedy in 1984. Now the situation is different, liabilities are fixed. The Public Liability Insurance Act, 1991 made it mandatory to the hazardous industry to insure the possible damage to people and environment. For people of India, there is no need for any law to make the hazardous nuclear industrialists liable today. But big energy corporate sector in United States of America and Union of India Government needs to limit the liability or exempt totally wherever possible.
The Bhopal case is regarded as a proof of international corporate ‘immunity’, instead of liability, where corporations use the laws of one nation to evade responsibility in another. With all this experience, the leaders of this country proposed under this nuclear liability bill to immune a nuclear equipment supplier from any victim-initiated civil suit or criminal proceedings in an Indian court or in the home country.
The Damage Bill 2010
To remove the Damage by the Bill
S 1(3) Bill extends to Territorial Waters, Continental shelf, Maritime Zones, on board Ships and Aircrafts and artificial islands.
With various limitations on liability provided in other sections, this extension becomes meaningless.
s 2(f) defines nuclear damage in extensive terms. Covers human, property, economic, environmental losses and costs of preventive measures too.
2 (f) “nuclear damage” means—
(i) loss of life or personal injury to a person; or
(ii) loss of, or damage to, property, caused by or arising out of a nuclear incident, and includes each of the following to the extent notified by the Central Government;
(iii) any economic loss, arising from the loss or damage referred to in clauses (i) or (ii) and not included in the claims made under those clauses, if incurred by a person entitled to claim such loss or damage;
(iv) costs of measures of reinstatement of impaired environment caused by a nuclear incident, unless such impairment is insignificant, if such measures are actually taken or to be taken and not included in the claims made under clause (ii);
(v) loss of income deriving from an economic interest in any use or enjoyment of the environment, incurred as a result of a significant impairment of that environment caused by a nuclear incident, and not included in the claims under clause (ii);
(vi) the costs of preventive measures, and further loss or damage caused by such measures;
(vii) any other economic loss, other than the one caused by impairment of the environment referred to in clauses (iv) and
(v), in so far as it is permitted by the general law on civil liability in force in India and not claimed under any such law, in the case of sub-clauses (i) to (v) and (vii) above, to the extent the loss or damage arises out of, or results from, ionizing radiation emitted by any source of radiation inside a nuclear installation, or emitted from nuclear fuel or radioactive products or waste in, or of, nuclear material coming from, originating in, or sent to, a nuclear installation, whether so arising from the radioactive properties of such matter, or from a combination of radioactive properties with toxic, explosive or other hazardous properties of such matter;
Because this definition covers almost all imaginable losses, it leaves no scope for any body to claim a relief or compensation. Good definition, but because of limitations and exemptions provided in other sections does not serve purpose.
Limitations should be removed and every element of nuclear damage has to be compensated.
Definition of “nuclear damage” covers “impaired environment”.
There is no provision as to who can lodge claims for “costs of measures of reinstatement” as mentioned therein.
Any public spirited group or citizen, apart from public bodies like Gram Sabha, panchayat, municipality etc. and affected persons, must be entitled to raise such claims.
S 3: Atomic Energy Regulatory Board shall notify nuclear incident.
3. (1) The Atomic Energy Regulatory Board constituted under the Atomic Energy Act, 1962 shall, within a period of fifteen days from the date of occurrence of a nuclear incident, notify such nuclear incident:
Provided that where the Atomic Energy Regulatory Board is satisfied that the gravity of threat and risk involved in a nuclear incident is insignificant, it shall not be required to notify such nuclear incident.
It shall notify every incident causing damage and accident causing serious damage. Whether damage is substantial or not, there is a duty to compensate every loss. Word ‘Accident’ be added and Proviso be removed. Non-notification shall be considered as dereliction of duty and penal consequence should be prescribed
Any private citizen, or group, should have the right to draw the attention of the AERB to an alleged “incident’ in case it is not notified by the AERB suo moto. The AERB shall duly examine and respond to such request.
S 4. Liability of operator.
4. (1) The operator of the nuclear installation shall be liable for nuclear damage caused by a nuclear incident —
(a) in that nuclear installation; or
(b) involving nuclear material coming from, or originating in, that nuclear installation and occurring before —
(i) the liability for nuclear incident involving such nuclear material has been assumed, pursuant to a written agreement, by another operator; or
(ii) another operator has taken charge of such nuclear material; or
(iii) the person duly authorized to operate a nuclear reactor has taken charge of the nuclear material intended to be used in that reactor with which means of transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose; or
(iv) such nuclear material has been unloaded from the means of transport by which it was sent to a person within the territory of a foreign State; or
(c) involving nuclear material sent to that nuclear installation and occurring after—
(i) the liability for nuclear incident involving such nuclear material has been transferred to that operator, pursuant to a written agreement, by the operator of another nuclear installation; or
(ii) that operator has taken charge of such nuclear material; or
(iii) that operator has taken charge of such nuclear material from a person operating a nuclear reactor with which a means of transport is equipped for use as a source of power, whether for propulsion thereof or for any other purpose; or
(iv) such nuclear material has been loaded, with the written consent of that operator, on the means of transport by which it is to be carried from the territory of a foreign State.
This section explains various kinds of situations wherein liability arises but proviso states that liability is limited as prescribed by section 6.
Liability of operator should be joint and several along with makers and suppliers including principal companies.
To be further added:
The operator shall deposit a sum of 300 million SDR in an escrow account for each nuclear reactor to be operated before start of operation.
S 4(2) Joint liability of all operators.
Section 4 (2) Where more than one operator is liable for nuclear damage, the liability of the operators so involved shall, in so far as the damage attributable to each operator is not separable, be joint and several: Provided that the total liability of such operators shall not exceed the extent of liability specified under sub-section (2) of section 6.
(3) Where several nuclear installations of one and the same operator are involved in a nuclear incident, such operator shall, in respect of each such nuclear installation, be liable to the extent of liability specified under sub-section (2) of section 6.
Explanation.— For the purposes of this section,—
(a) where nuclear damage is caused by a nuclear incident occurring in a nuclear installation on account of temporary storage of material-in-transit in such installation, the person responsible for transit of such material shall be deemed to be the operator;
(b) where a nuclear damage is caused as a result of nuclear incident during the transportation of nuclear material, the consignor shall be deemed to be the operator;
(c) where any written agreement has been entered into between the consignor and the consignee or, as the case may be, the consignor and the carrier of nuclear material, the person liable for any nuclear damage under such agreement shall be deemed to be the operator;
(d) where both nuclear damage and damage other than nuclear damage have been caused by a nuclear incident or, jointly by a nuclear incident and one or more other occurrences, such other damage shall, to the extent it is not separable from the nuclear damage, be deemed to be a nuclear damage caused by such nuclear incident.
It explains in detail the liability of the operator and discusses in minute aspects the liability of separate operators, and says where separation is not possible the liability is joint and several. Again it is limited by a cap in section 6.
Makers and suppliers should be added for imposing liability.
S 5. Liability and immunity of operators.
5. (1) An operator shall not be liable for any nuclear damage where such damage is caused by a nuclear incident directly due to—
(i) a grave natural disaster of an exceptional character; or
(ii) an act of armed conflict, hostility, civil war, insurrection or terrorism.
(2) An operator shall not be liable for any nuclear damage caused to—
(i) the nuclear installation itself and any other nuclear installation including a nuclear installation under construction, on the site where such installation is located; and
(ii) to any property on the same site which is used or to be used in connection with any such installation; or
(iii) to the means of transport upon which the nuclear material involved was carried at the time of nuclear incident:
5 (1)(ii) should be removed. This should be absolute liability. Only possible exception is grave natural disaster.
Immunity under 5(2) is meaningless, why should installation suffer from the acts of operator, without any remedy of compensation?
This immunity should be removed.
The corresponding CSC clause – Annex, Article 3, 5. b. – provides that national law may have provision to drop such circumstances from the list of exceptions. Cl 591)(ii) does not figure in the corresponding CSC clause: Annex, Article 3, 5. a.
The concept of “strict liability” being the foundational concept, such exceptions, and consequent transfer of liability for damage under such circumstances to the “Central Government”, and thereby to the Indian taxpayers, in case of a private operator, is wholly undesirable and unjustified.
Proviso to Section 5 Liability
Provided that any compensation liable to be paid by an operator for a nuclear damage shall not have the effect of reducing the amount of his liability in respect of any other claim for damage under any other law for the time being in force.
Securing liability under other law is good. But how many proceedings that law will allow for claiming damages. Because of rule that one cause of action arises out of one wrong,, this provision may not help the victims. This law prohibited other actions for claiming damages other than under this law.
Section 5 (3) Where any nuclear damage is suffered by a person on account of his own negligence or from his own acts of commission or omission, the operator shall not be liable to such person.
This is against the norms and principles of compensation as prescribed under Workmen’’ Compensation Act, 1923.
This has to be removed.
S 6. Capping liability
6. (1) The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights.
(2) The liability of an operator for each nuclear incident shall be rupees five hundred crores:
Provided that the Central Government may, having regard to the extent of risk involved in a nuclear installation, by notification, either increase or decrease the amount of liability of the operator:
Provided further that where the amount of liability is decreased, it shall not be less than rupees one hundred crore:
Provided also that the amount of liability shall not include any interest or cost of proceedings.
Most unlawful and unreasonable provision of this Bill, and should be deleted outright.Liability should commensurate the damage and compensate every loss. Penalty in proportion to guilt and compensation to wipe out the loss are basic and universal norms. A government elected for five years has no authority to sacrifice this right of future generations for benefit of a business company. Remove all limits on liability. Do not deny the rights of people by passing a new law. It is unconstitutional, against the norms of Environmental law, International Law, etc.
How can the Government deny the interest and cost of proceedings if the victim is otherwise entitled to?
The Convention for Supplementary Compensation (CSC) does not obligate the GoI to go in for such differentiated liabilities, one for private operator and another for the state affiliated operator.
This provision has to go.
In case of Bhopal gas disaster, the compensation amount settled (to be paid by the UCC) back in 1989 was 470 million US $. That was pretty much inadequate.
In case, of oil spill in the Gulf of Mexico, the BP has committed an initial amount of US $ 20 billion. And there will be no cap. In the US, in case of a nuclear accident, the first 300 million US $ to come from the respective insurance cover, then up to US $ 10 billion from a common pool of funds maintained by the nuclear industry. Beyond that, the Federal Government, without any cap. (Ref.: P. 2/4 of ‘The Price-Anderson Act: Background Information: November 2005’ at <http://www.ans. org/pi/ps/ docs/ps54- bi.pdf>.)
S 7. Liability of Central Government
7. The Central Government shall be liable for nuclear damage in respect of a nuclear
(a) where the liability exceeds the amount of liability of an operator specified under sub-section (2) of section 6, to the extent such liability exceeds such liability of the operator;
(b) occurring in a nuclear installation owned by it; and (c) occurring on account of causes specified in clauses (i) and (ii) of subsection (1) of section 5.
If a government, who is not supplier, operator, or investor can be made liable for the damage caused by accident, it can be called absolute liability which stricter than absolute liability recognized, where even Act of God or Civil war is no defence. Then why not this liability be extended to maker/supplier and operator? Why should Government spend people’s money to pay people’s loss caused by MNC?
S 8 Insurance cover to limited liability
8. (1) The operator shall, before he begins operation of his nuclear installation, take out insurance policy or such other financial security, covering his liability under sub-section
(2) of section 6, in such manner as may be prescribed.
(2) The operator shall from time to time renew the insurance policy or other financial security referred to in sub-section (1), before the expiry of the period of validity thereof.
(3) The provisions of sub-sections (1) and (2) shall not apply to a nuclear installation owned by the Central Government.
When even Motor Vehicle Act imposes a statutory obligation on owners of vehicles to insure their ‘unlimited’ liability towards third parties, how can insurance of nuclear operator be limited?
“Under Sub-section (2) of S 6” should be removed.
S 9: Claim Commissioners
9. (1) Whoever suffers nuclear damage shall be entitled to claim compensation in accordance with the provisions of this Act.
(2) For the purposes of adjudicating upon claims for compensation in respect of nuclear damage, the Central Government shall, by notification, appoint one or more Claims Commissioners for such area, as may be specified in that notification.
It should be called special nuclear claims courts and be made independent in function so that they decide liability and do justice. But the hands of these commissioners are tightened with limitations. Remove these limitations.
The Claims Commission must include member(s) of the medical profession with an established track record of engaging with people’s health issues to ensure the proper assessment of the health impact of an “incident”.
S 15 Procedure for claims
15. (1) Every application for compensation before the Claims Commissioner for nuclear damage shall be made in such form, containing such particulars and accompanied by such documents, as may be prescribed.
(2) Subject to the provisions of section 18, every application under sub-section (1) shall be made within a period of three years from the date of knowledge of nuclear damage by the person suffering such damage.
Prescribing such forms as mandatory will limit the rights of the victims.
These forms should not be made compulsory though advised to be used.
S 16(3) Order to restrain the operator who is likely to remove the property.
(3) Where an operator is likely to remove or dispose of his property with the object of evading payment by him of the amount of the award, the Claims Commissioner may, in accordance with the provisions of rules 1 to 4 of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908, grant a temporary injunction to restrain such act.
It is good but not enough; it should be empowered to attach the property also.
S 17 Right to recourse when contract is there.
17. The operator of a nuclear installation shall have a right of recourse where —
(a) such right is expressly provided for in a contract in writing;
(b) the nuclear incident has resulted from the willful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee;
(c) the nuclear incident has resulted from the act of commission or omission of a person done with the intent to cause nuclear damage.
Right to recourse is available whether there is contract or not. This provision limits the right unreasonably.
The right under (b) should extend against manufacturer also.
The contract between any and every operator and its supplier(s) (of equipment, material or services, as the case may be) must include in writing a provision to the effect that the operator shall have the right of recourse in case of an “incident” without any exception, including as regards the damage to the equipment/plant/ site.
S 18: Right to claim extinguishes in 10 years.
18. The right to claim compensation for any nuclear damage caused by a nuclear incident shall extinguish if such claim is not made within a period of ten years from the date of incident notified under sub-section (1) of section 3:
Provided that where a nuclear damage is caused by a nuclear incident involving nuclear material which, prior to such nuclear incident, had been stolen, lost, jettisoned or abandoned, the said period of ten years shall be computed from the date of such nuclear incident, but, in no case, it shall exceed a period of twenty years from the date of such theft, loss, jettison or abandonment.
There should not be such limit at all.
S 20 Nuclear Damage Claims Commission
19. Where the Central Government, having regard to the injury or damage caused by a nuclear incident, is of the opinion that—
(a) the amount of compensation may exceed the limit specified under sub-section (2) of section 6; or
(b) it is expedient and necessary that claims for such damage be adjudicated by the Commission instead of Claims Commissioner; or
(c) it is necessary in the public interest to provide special measures for speedy adjudication of claims for compensation, the Central Government may, by notification, establish a Nuclear Damage Claims Commission, for the purposes of this Act.
It totally depends on Govt. opinion.
If Govt. thinks compensation is sufficient there will be no commission.
Only bureaucrats cannot decide independently. It should consist of independent members from judiciary and people’s agencies without bureaucrats because they are not trained to assess the claims.
S 35 no injunction can be given by courts.
35. No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Claims Commissioner or the Commission, as the case may be, is empowered to adjudicate under this Act and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Section 5 Proviso says the choice of claiming damages under other laws is available. That is denied here in s 35.
S 39 Offences and Penalties, 5 yrs imprisonment
39. (1) Whoever—
(a) contravenes any rule made or any direction issued under this Act; or
(b) fails to comply with the provisions of section 8; or
(c) fails to deposit the amount under section 36, shall be punishable with imprisonment for a term which may extend to five years or with fine or with both.
These offences are breach of order by Commission, not taking insurance cover for limited liability and not depositing amount in advance.
Here criminal liability provision should be made: If the act leads to death of human being, operator shall be prosecuted for murder.
S 40 Offences by Companies
Principal company should be made liable jointly along with subsidiary company.
It is against the principle of command responsibility and thereby would ensure that minions are punished in case of violations and senior officers go scot free.
This has to be amended as:Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act, if he proves he exercised all due diligence to prevent the commission of such offence. “that offence was committed without his knowledge or”: to be deleted.
S 47 Protection for action taken in good faith
No such immunity in operating a nuclear plant/installation is called for. Such immunity will only engender criminal negligence and worse.
Instead of this or along with this there should be a provision to impose liability for action taken not in good faith, or done without due care or caution, or negligently done.
 AIR 1987 SC 965
 [1996 (5) SCC 647]
 Rylands v. Fletcher  (19) LT
 http://beta.thehindu.com/opinion/lead/ article64688.ece?homepage=true,
 Indian Council of Enviro-Legal Action vs. Union of India [1996 (3) SCC 212] which was reaffirmed in Vellore Citizens’ Welfare Forum vs. Union of India [1996 (5) SCC 647]
 [1996 (3) SCC 212]
 [ibid, see page 246 para 65]
 [ibid, see page 248]
 [ibid, see page 247 para 67]
 [1996 (5) SCC 647]
 [ibid, see page 659]
 [ibid, see page 658 para 11]
 Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
 Bhopal CJM court punished officials of Indian company UCIL, leaving out chief of UCC, on June 7, 2010.
 See the Hindu news papers dated March 8 and April 1, 2010
 Sidhartha Varadarajan, Government dilute nuclear Bill under US pressure, The Hindu, 10th June 2010.
 The bill lets nuclear equipment suppliers and designers off the hook, from The great nuclear folly by Praful Bidwai at
 The bill was approved by Union Cabinet on November 20, 2009
 See revised bill at http://www.cndpindia.org/download.php?view.36> and earlier version given in Nuclear Liability Law in Developing Countries – Indian Case by B. B. Singh at
 Prakash Nanda is a journalist and editorial consultant for Indian Defense Review, Right Angle column, published on March 30, 2010
 News Report by Anil Sasi, Businessline, April 5, 2010
Praful Bidwai, A Flawed Bill, Frontline, March 27, April 9, 2010, http://www.flonnet.com/stories/20100409270709500.htm
 Views From Abroad, http://pakobserver.net/detailnews.asp?id=32103, by Shobhan Saxena
 Report on Civil Liability for Nuclear Damage Bill by Ajay Goyal, Anand Misra, Bikas Mohanty, Shaunak Kashyap, for Greenpeace, 2010, at page 37
 Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
 See: <http://www.iaea.org/Publications/Documents/Conventions/supcomp.htmll
 Praful Bidwai, A Flawed Bill, Frontline, March 27, April 9, 2010, http://www.flonnet.com/stories/20100409270709500.htm
 Sukla Sen’s article: http://environmentpress.in/2010/04/02/the-civil-liability-for-nuclear-damage-bill-2010-some-tentative-observations/
 Praful Bidwai, A Flawed Bill, Frontline, March 27, April 9, 2010
 The Convention on Supplementary Compensation for Nuclear Damage: Catalyst for a Global Nuclear Liability Regime by Ben McRae at
 Sidhartha Varadarajan, The Hindu, 1 April 2010
These are some of the findings of the four-member N C Saxena committee, which on Monday recommended that the company not be allowed to mine in the hills that are the abode of the Dongaria Kondh and Kutia Kondh tribes in Orissa.
The no-holds-barred indictment of the state and private sector in the $1.7billion project brings out the short shrift given to concerns about tribal rights and environmental protection. It is significant also because it underlines the changed sensibilities of the government towards the issues against the backdrop of Left-wing extremism and why Naxalites are finding it easy to influence alienated tribal belts.
The stern report of the environment and forests ministry panel signalled that tribal rights and environmental isssues have finally muscled their way onto the governance agenda, forcing the authorities to take action against corporates who may have shown disregard for rules. The Saxena committee report, which could lead to shutting down of the Vedanta smelters in Orissa, comes after the MoEF moved to stop or stall several high-profile, heavy-investment projects, including the Posco Integrated Steel project in Orissa, which, at Rs 56,000 crore is the single-largest foreign direct investment in India, the Jindal thermal power plant in Chhattisgarh (Rs 10,000 crore), hydroelectric projects on Bhagirathi in Uttarakhand and the Navi Mumbai airport in Maharashtra (Rs 7,972 crore).
The panel was set up by the ministry of environment and forests to investigate if the state government and the aluminium giant had complied with the Forest Rights Act and Forest Conservation Act while mining for bauxite.
The report reveals exhaustive evidence to nail the complicity of the state government in permitting Vedanta to flagrantly violate the laws.
But the committee, even as it recommended that the mining project be disallowed, stopped short of asking for prosecution of the officials involved in what seems to be a blatant fraud that went unchecked for years.
"The question of whom to prosecute is secondary. First, we have to consider the clearance," said Union minister for enviroment and forests Jairam Ramesh. Asked if the violations could be set right now, the minister said, "Without prejudice to the existing case, it would be a tragedy that one violates laws and still has a window of opportunity to just pay a penalty and get away with it later."
The report will now be reviewed by the statutory Forest Advisory Committee, which will then give its recommendations to the ministry to take a final call on the forest clearance.
The report says, "This committee is of the firm view that allowing mining in the proposed mining lease area by depriving two primitive tribal groups of their rights over the proposed mining area in order to benefit a private company would shake the faith of tribal people in the laws of the land which may have serious consequences for the security and well-being of the entire country."
The report records how the state government falsified documents and concealed information from the central government to facilitate the aluminium refinery in mining bauxite while the company encroached upon government and tribal lands with impunity.
The aluminium czar Anil Aggarwal's company has illegally -- despite legal notices from the Orissa State Pollution Control Board -- begun building a refinery to produce 6 million tonnes of aluminium per annum instead of the 1 million tonnes per annum plant that it had got the green clearance for.
The committee -- that included S Parasuraman, director of Tata Institute of Social Sciences; Promode Kant, retired forest official; and Amita Baviskar, professor at the Institute of Economic Growth -- pointed out how right from the beginning, the firm had furnished falsified reports to the Centre to seek clearance, and how the state officials ranging from the highest bureaucrats to the collectors of two districts either refused to enforce existing laws or simply colluded with the company to deny the tribals right over their lands.
Read more: Vedanta mines illegal, must be shut down: Green panel - India Business - Business - The Times of India http://timesofindia.indiatimes.com/business/india-business/Vedanta-mines-illegal-must-be-shut-down-Green-panel/articleshow/6321872.cms#ixzz0xJfQXrtF
Uranium Corporation of India Limited: Wasting Away Tribal Lands
by Moushumi Basu, Special to CorpWatch
October 7th, 2009
“I have had three miscarriages and lost five children within a week of
their births,” says Hira Hansda, a miner’s wife. “Even after 20 years
of marriage we have no children today.” Now in her late forties, she
sits outside her mud hut in Jadugoda Township, site of one of the
oldest uranium mines in India.
The Uranium Corporation of India Limited (UCIL) operates that mine,
part of a cluster of four underground and one open cast mines and two
processing plants, in East Singbhum district in the Eastern Indian
state of Jharkhand. The deepest plunges almost one kilometer into the
Incorporated as a public sector enterprise under the Department of
Atomic Energy (DAE) in 1967, UCIL has sole responsibility for mining
and processing all of India's uranium. And since the strength of the
Jadugoda region's uraninite ore is extremely low, it takes many tons
of earth as well as complex metallurgical processes to yield even a
small amount of useable uranium ore—along with tons of radioactive
waste, disposed of in unlined tailing dams.
UCIL processes the ore into yellowcake and sends it to the Nuclear
Fuel Complex in Hyderabad, where it is officially designated for use
in nuclear reactors. But it is an open secret that some of the nuclear
material becomes the key ingredient in India's nuclear arsenal. (India
is one of only three states—along with Israel and Pakistan—that are
not signatories to the Treaty on the Non-Proliferation of Nuclear
Weapons. North Korea withdrew from the Treaty in 2003.)
Radiation and health experts across the world charge that toxic
materials and radioactivity released by the mining and processing
operations are causing widespread infertility, birth defects and
cancers. A 2008 health survey by the Indian chapter of International
Physicians for Prevention of Nuclear War (IPPNW), found that “primary
sterility was found to be more common in the people residing near
uranium mining operations area.”
Jadugoda residents Kaderam Tudu and his wife, Munia, considered
themselves fortunate when their infant was born alive, until, “I found
that my baby son did not have his right ear and instead in its place
was a blob of flesh,” says Tudu, a day worker in his late thirties.
Their son, Shyam Tudu, now eight, has a severe hearing impairment.
Even children who appear healthy are impacted. "The youths from our
villages have become victims of social ostracism," says Parvati
Manjhi, and cannot find spouses. "And a number of our girls have been
abandoned by their husbands, when they failed to give birth,” Now
middle-aged, Parvati and her husband, Dhuwa Manjhi, who used to work
for UCIL, are childless.
Harrowing tales fill the region around the mines, and add irony to the
area's name, Jharkhand, which in the local tribal language means
“forest endowed with nature’s bounties.” If the lush land was the
indigenous population's boon for centuries, its rich mineral reserves
have become their bane. Six decades of industrialization has depleted
the forest cover, degraded the environment, displaced tribal peoples—
who along with Dalit ("untouchables") form an oppressed underclass—and
devastated a way of life deeply interwoven with nature.
Despite India's economic boom and proximity to one of the country's
richest mineral reserves, the villages in Jharkhand are now among the
poorest in the country, according to the Center For Science &
Environment’s (New Delhi) 2008 report “Rich Lands Poor People.”
Uranium Corporation of India Limited in Jharkhand
UCIL’s underground mines in Jadugoda, Bhatin, Turamdhih, Narwapahar,
and its open cast mine at Banduhurang extract 1,000 tons per day (TPD)
of uranium ore. Two underground mines in the pipeline at Baghjata and
Mahuldih will boost that amount. The ore is processed at the Jadugoda
and Turamdih mills with a combined capacity of 5,000 TDP. The company
earned $64 million in 2007-08, and made a $3 million profit.
The 20-year lease for UCIL's mines was up in 2007, and a new
application is being processed. Under it, the company wants to add
6.37 hectares to tailing dam capacity and expand production, according
to UCIL Chairman and Managing Director Ramendra Gupta. This move
requires an Environmental Impact Assessment (EIA) and Environmental
Management Plan (EMP) drawn up by the Central Institute of Mining &
Fuel Research (CIMFR), along with a public hearing.
Addressing the affected community at the May public hearing in
Jadugoda, the company represented the local plans as “a marginal
expansion.” But the UCIL website promises “a quantum leap in UCIL’s
activities” that includes plans to "deepen the existing mines, expand
its processing facilities,” and “not only opening new mines, but also
the development of the community around its operations.”
While the company has created local schools and provides jobs and
social services, villagers who attended the hearing argued that these
provisions do not compensate for the health effects and destruction of
their way of life.
“Why are we being made to pay such a heavy price, for so many
decades”? Asks Hira Hansda, speaking of her three miscarriages and
birth to five infants that quickly died. Her husband Sonaram worked at
the tailing dam as a casual employee between 1984-87, and like many
villagers, he links the deterioration in local health conditions to
the arrival of the uranium mines. The last three surveys conducted in
the area found increased radiation levels.
Heavy Security at UCIL’s Public Hearing Keeps Villagers Out
The public hearing on UCIL's new application took place at the heavily
fortified camp of the Central India Security Force (CISF) within the
UCIL colony at Jadugoda. Conducted by the Jharkhand State Pollution
Control Board, the proceedings were marked by restrictions on personal
liberties under sections of a law applying to situations with the
potential to cause civil unrest.
Leaving little room for the public or protesters, the hall was packed
with hundreds of UCIL workers and other company beneficiaries who held
placards reading: “When compared to hunger, pollution is a small
issue," and "Save UCIL.”
Those who had lost their lands and health to the mines were physically
barred from the tent. Outside the proceedings, protesters shouted: “Do
not destroy our land," “No uranium, no uranium waste, no weapons, care
for the future." Many indigenous villagers waved the banner of the
Jharkhandi Organization Against Radiation (JOAR), winner of the
Germany-based Nuclear Free Future Award for its long crusade against
the hazards of uranium mining in Jadugoda. The protesters denounced
the hearing as "a farce" and demanded that it be immediately stopped.
Villager and JOAR president, Ghanashyam Biruli, issued the demands:
no new uranium mines, bring the existing mine under international
safety guidelines, return unused tribal land, provide livelihood and
rehabilitation to displaced people, clean up the contamination,
commission an independent study of environmental contamination and
health effects, and monitor water bodies to ensure that the
radionuclides do not seep into the aquifer that is the lifeline of
more than 100,000 people. The activists also argued that since the
country can buy uranium on the international market, there is no
compelling need to expand UCIL's capacity.
The real compelling need, they asserted, was protecting health and the
environment. The 2008 health survey by the Indian chapter of
International Physicians for Prevention of Nuclear War (IPPNW)
provided clear evidence, finding that:
* Couples living near the mines were "1.58 times more vulnerable to
primary sterility" with 9.6 percent of couples in study villages
unable to conceive after three years of marriage, compared with 6.27
percent in a reference (control) group.
* Birth defects followed a similar pattern with 1.84 times higher
incidence: “[B]abies from mothers, who lived near uranium mining
operation area, suffered a significant increase in congenital
deformities,” according to the report. While 4.49 percent of mothers
living in the study villages reported bearing children with congenital
deformities, only 2.49 percent of mothers in reference villages fell
under this category." The national rate for people with disabilities
(including congenital deformities) is 3 percent, according to official
* Deformed babies near the mining operations are almost 6 times more
likely to die, with 9.25 percent mothers in the study villages
reporting congenital deformities as the cause of death of their
children. In the reference village, mothers reported 1.70 percent of
babies died of deformities.
* Cancer deaths were also higher: 2.87 percent of households in study
villages attributed the cause of death to be cancer, compared to 1.89
percent in the reference village.
These factors contributed to a lowered life expectancy. In the study
villages 68.33 percent of the population died before reaching the
state's average life expectancy: 62 years old.
UCIL Denies Contamination
Despite such alarming reports, radiation data are not made public
because they fall under the purview of the Atomic Energy Act of 1962.
UCIL / DAE (Department of Atomic Energy) also cites security concerns
for refusing to release data on health of the workers. But Buddha
Weeps in Jadugoda, a 1999 award-winning film by Shri Prakash
documented that, despite a law mandating regular monitoring, in the
last five- to ten-year period few workers underwent blood and urine
tests to assess the impact of radiation.
Independent scientists have confirmed the danger. Professor Hiroaki
Koide, from the Research Reactor Institute, Kyoto University, Japan,
sampled soil and air in the surrounding villages and documented that
“The circumference of tailing ponds is impacted with uranium
radiation. The strength of the radiation is of 10 to 100 times high in
comparison to places without contamination. ...There are places where
uranium concentration is high in the road or the riverside, and it is
thought that tailings are used for construction material,” including
on villagers' houses." Tailings are production waste material that,
according to critics are unsafely stored, dumped, and used for
landfills, roads and construction.
UCIL Technical Director D Acharya denied that the company was
responsible for radiological contamination. “UCIL’s safety and
pollution control measures are at par with the international
standards, comparable at any point of time,” he said. The company is
dealing with naturally occurring materials, he noted, the very low
grade ore extracted is a minimal environmental hazard, and the company
is not enriching the ore in Jadugoda.
But tacitly acknowledging the risks, UCIL head, Gupta, noted in the
2008 Annual Report that "External gamma radiation, Radon
concentration, suspended particulate matters, airborne long lived
Alpha activity and concentration of radio nuclides- uranium and Radium
in surface and ground water, in soil and food items etc are monitored
Although he presented no evidence, UCIL Technical Director Acharya
said that allegations of health problems are canards spread by anti-
uranium lobbies, and that the physical fitness of the employees can be
gauged the UCIL football team's success in winning the DAE tournaments
for the past five years.
“From time to time we have also conducted structured health surveys
and examinations, by independent sources," said Acharya. "One was done
by the erstwhile Bihar Assembly, about ten years ago, but the findings
are absolutely normal.” (The area was part of Bihar at the time.) "The
effects of radiation are being constantly monitored by independent
watchdogs, and there are health physics experts who are always with
us, for round-the clock-vigil of the situation. Hence, there is really
no cause of concern,” he added.
That is not the experience of many villagers, who link serious health
problems to the mines. Like many of the women in the surrounding
areas, Hansda's pregnancies were a time of terror. “It fills within us
fear and apprehensions of the possible ordeal that may be in store.
Who knows what would be the fate of the baby,” she said.
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