UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

2016 -17 SEMINAR PAPER

CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT 2010

SUBMITTED TO SUBMITTED BY

Ms Supreet Gill Deepinder Singh

UILS, Roll No 1554

Panjab University LLM

ACKNOWLEDGEMENT

I express my gratitude to Ms Supreet Gill under whose supervision and guidance I was able to explore,
assimilate and understand the nuances of the laws relating to environment protection and in particular the
given topic – ‘CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT 2010.'

1
I would also like to express a deep sense of gratitude to the teaching staff of UILS, Panjab University for
their valuable information, inputs and cordial support which helped me immensely in completing this
seminar paper. .

Chandigarh Deepinder Singh

April 2017

CONTENTS

INTRODUCTION Page 4
NUCLEAR LIABILITY – GENERAL PRINCIPLES Page 6

2
THE CIVIL LIABILITY NUCLEAR DAMAGE (CLND) ACT 2010 Page 9
INTERNATIONAL CIVIL NUCLEAR LIABILITY AND INDIA
– CRITICAL ANALYSIS Page 12
CONCLUSION Page 14
BIBLIOGRAPHY Page 16
WEBLIOGRAPHY Page 17

INTRODUCTION

With the advent of mankind’s potential to harness nuclear substances for peaceful purposes,
arose the need to regulate the functioning of the facilities established for the peaceful purposes of
power generation. Following the wide scale production of clean nuclear energy, the international
community which had developed firm roots by then under the auspices of United Nations set
down to the task of formulating laws which will help deal with the aspects of nuclear energy as

3
in the case of any other industry. The outcome of the efforts of the global parties shaped into
international conventions which provided for an international common nuclear regime for third
party liability. These Conventions have been successful in setting down the questions of operator
liability and claims arising in case of a nuclear accident.
The Chernobyl Disaster was an example of the threat which humankind can be subjected to as a
result of negligent handling of nuclear substances. These conventions, therefore, distinctly deal
with the issue of after disaster situation when the affected persons approach the courts of the states
where they reside for the damage suffered, which in most cases, as has been deduced from past
instances, mainly life and physical injury. To eliminate the embarrassing last minute hassles, states
define the liability which might arise in the case of a nuclear accident, regardless of the fault of
the operator. The special nuclear liability regimes were pointed out as vital and necessary in the
Brookhaven Report of 1957. The report had dealt with the long and far reaching affects of nuclear
substances and the risks which were associated with civilian nuclear power. This can be considered
as the first chapter in the history of nuclear liability regime.
To put it very briefly, the CLND Act, 2010 was passed by the Parliament in August 2010. This
Act limits the liability of the operator in case of nuclear accident and secures the operator the right
to recourse under certain circumstances and provides a mechanism to compensate victims of
nuclear damage. In November 2011 under the parent Act, Civil Liability for Nuclear Damage
Rules were notified. These Rules stipulate certain mandatory clauses for contracts that secure the
operator the right to recourse. It also prescribe the procedure to provide compensation to victims
in case of nuclear incidents.

NUCLEAR LIABILITY – GENERAL PRINCIPLES

Before we go into the details of various existing international protocols and treaties governing
liability for nuclear damage, it is important to understand the generally accepted principles of
international and civil law which govern, or should govern liability from nuclear damage.
Most international conventions and laws regarding nuclear third party liability have at their heart
the following principles1:
 Strict liability of the nuclear operator
 Exclusive liability of the operator of a nuclear installation
 Compensation without discrimination based on nationality, domicile or residence
 Mandatory financial coverage of the operator's liability

1
''Liability for Nuclear Damage'', World Nuclear Association, retrieved from http://www.world-
nuclear.org/information-library/safety-and-security/safety-of-plants/liability-for-nuclear-damage.aspx, visited on 17
March 2017 at 1 PM.

4
  Exclusive jurisdiction (only courts of the State in which the nuclear accident occurs have
jurisdiction)
 Limitation of liability in amount and in time
Strict liability means that the victim is relieved from proving fault. In the case of an accident the
operator (power plant, enrichment/fuel facility, reprocessing facility) is liable whether or not any
fault or negligence can be proven. This simplifies the litigation process, removing any obstacles,
especially such as might exist with the burden of proof, given the complexity of nuclear science.
In layman’s terms: strict liability means a claimant does not need to prove how an accident
occurred.
Exclusive liability of the operator means that in the case of an accident, all claims are to be
brought against the nuclear operator. This legal channeling is regardless of the accident's cause.
By inference suppliers or builders of the plant are protected from public litigation in the case of
an accident. Again this simplifies the process because claimants do not have to figure out who is
responsible – under law it will be the nuclear operator
Mandatory financial coverage means that the operator must maintain insurance cover, and it
ensures that funds will be made available by the operator or their insurers to pay for damages.
The minimum amount of protection required is set by national laws which in turn often depend
on international treaty obligations. Over time the amount of this mandatory protection has
increased, partially adjusting for inflation and partially allowing for an increased burden of
responsibility to be passed on to nuclear operators.
Exclusive jurisdiction means that only the courts of the country in which the accident occurs has
jurisdiction over damages claims. This has two effects; firstly it prevents what is known as
jurisdiction shopping, whereby claimants try and find courts and national legislation more
friendly to their claims, thus offering nuclear operators a degree of certainty and protection.
Secondly it locates the competent court close to the source of damage meaning that victims do
not have to travel far in order to lodge claims. This combined with exclusive liability ensures that
relevant courts are accessible, even when the accident is transport-related and the relevant
company based far away.
Limitation of liability protects individual nuclear operators and thus is often controversial. By
limiting the amount that operators would have to pay, the risks of an accident are effectively
socialized. Beyond a certain level of damage, responsibility is passed from the individual
operator either on to the State or a mutual collective of nuclear operators, or indeed both. In
essence this limitation recognizes the benefits of nuclear power and the tacit acceptance of the
risks a State takes by permitting power plant construction and operation, as with other major
infrastructure.

EVOLUTION OF THE INTERNATIONAL NUCLEAR LIABILITY

REGIMES

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As mentioned earlier, during the 1950s there was a progress towards generation of nuclear energy
for peaceful purpose. Clean energy was accorded top most priority. However, a peaceful nuclear
programme would be confronted with the problem of dual use of nuclear material and the issue of
nuclear accident with a nuclear reactor leading to fatality and injury of a high magnitude.
The Brookhaven report which was published by the Atomic Energy Commission of the USA in
March 1957 addressed similar issues of a nuclear accident or catastrophe. It provided probable
estimates of damage that is caused by a nuclear accident like fatalities, injuries and so on. This
report propelled the establishment of an international nuclear regime in order to compensate the
losses and damages.
International Nuclear Liability laws can be grouped broadly in to the OECD (Organization for
Economic Cooperation And Development) Paris Convention, 1960 and the IAEA’s Vienna
convention on Civil Liability for Nuclear Damage 1963 which was revised by a protocol in 1997.
The Vienna convention comprises mostly of Eastern European nations where as, Western
European countries are a party to the Paris Convention.
Vienna Convention was drafted by International Atomic Energy Agency (IAEA) and entry is open
for all states to accept the convention. Along with the Vienna Convention, other Conventions
which have been framed by IAEA, therefore with open access for world-wide states to conform
to, are Convention of Supplementary Compensation for Nuclear Damage, 1997 (not yet in force)
and Joint Protocol Relating to Application of Vienna Convention and Paris Convention, 1988.
Vienna Convention stands amended by the protocol for the amendment of Vienna Convention in
1997 which had assumed force since then2.
On the other hand, Paris Convention governs only the Organisation for Economic Cooperation and
Development (OECD) states and thus is concluded at a regional level encompassing only the
OECD members. The Paris Convention has very limited scope that is, it is only limited to territory
of the contracting party according to Article 2 of the convention, except if mentioned in the
legislation of the state of the contracting party. The convention allows very limited time of ten
years for the victim of nuclear damage to claim compensation. The Liability amount in the Paris
convention is limited, to five to fifteen million Special Drawing Rights (SDR). SDR refers to the
asset or the account of the International monetary fund which is used by member countries. Paris
Convention allows for carriage of material through maritime international laws which allows
innocent passage in time of distress which is not so in the case of the Vienna Convention.
The other Convention which governs the OECD states, provided that they have entered into it, is
the Brussels Convention,supplementary to Paris Convention,1963.The Protocol to amend the Paris
and Brussels Convention was motioned in 2004. However, the Revised Paris and Brussels
Conventions have not been enforced till now. The Vienna convention has been amended once in
1997, while the Paris convention and associated Brussels convention have been amended three

2
Apurv Jain, NUALS, ''Civil Nuclear Liability'' , Academike, December 19, 2014, (ISSN: 2349-9796).

6
times; in 1964, 1982 and 2004, though the latest amendment has not yet been ratified by enough
countries to pass into force . As of 2015, the Paris Convention’s liability regime applied to 113
reactors in operation located in nine states. Once the 2004 Paris Protocol enters into force, five
Swiss nuclear reactors will also fall within the scope of the Paris regime. The Vienna regime in
2015 covered 75 nuclear reactors in operation.The Vienna Convention has by far the widest
participation, with 33 Parties compared to 15 parties to the Paris Convention.
Until 1988, the international framework for liability laws in nuclear industry therefore stood on
the dual footing provided by Vienna Convention drafted by International Atomic Energy Agency
and Paris Convention set down by Organisation for Economic Cooperation and Development. The
installation state would follow the Convention to which it has been a signatory to. Until recently,
the position regarding the application of the law and jurisdiction were not settled. The 1986
Chernobyl accident led to release of radioactive material into the atmosphere and its spread
regardless of geographical boundaries. The incident impacted surrounding countries like Belarus,
Ukraine and the United Kingdom. Former Soviet Union was not a party to any of the international
Civil Nuclear Liability Conventions and had not notified its neighbouring states about the mishap.
Therefore, it could not benefit from the compensation arrangements of the liability regimes. The
Chernobyl accident stood a testimony to the fact that a nuclear accident does not recognise
geographical boundaries and would affect non-contracting states as well3.
Post the Chernobyl incident, there was need felt for a regime that was viable to bring about a
balance between the two regimes that is the Paris convention (1960) and the Vienna convention
(1963). As not all the countries were a party to either of the conventions. It was essential to amend
these laws in order to increase the liability compensation, the scope of damage and unite the nations
under an umbrella of a single liability regime. As a result there was a Joint Protocol signed in 1988.
The 1988 Joint protocol provided a link between the two conventions so that the parties to both
the conventions have a benefit of compensation. The joint Protocol after it came in to force in 1992
and enabled those members who were a party to it benefit from both the conventions. Consequently
the Vienna convention was amended in 1997 and Paris convention in 2004.
With the passing of Joint Protocol in 1988, the two conventions now work in conformity with each
other thereby, expanding the scope of the Conventions and avoid any circumstances in which relief
cannot be provided due to the lack of jurisdiction.
 Liability is channeled exclusively to the operators of the nuclear installations (legal
channelling means exclusive liability of operator, and protects suppliers);
 Liability of the operator is absolute, i.e. the operator is held liable irrespective of fault,
except for "acts of armed conflict, hostilities, civil war or insurrection";
 Liability of the operator is limited in amount. Under the Vienna Convention the upper
ceiling for operator liability is not fixed**; but it may be limited by legislation in each
State. The lower limit may not be less than US$ 5 million. Under the 1960 Paris convention,

3
Summaiya Khan,'International Civil Nuclear Liability Regime and India: A Comparative Assessment',International
Strategic and Security Studies Programme (ISSSP), National Institute of Advanced Studies, Bangalore, India, ISSSP
Reflections No. 28, July 13, 2015.

7
 liability is limited to not more than 15 million Special Drawing Rights*** (SDRs – about
US$ 23 million) and not less than SDR 5 million.
 Liability is limited in time. Generally, compensation rights are extinguished under both
Conventions if an action is not brought within ten years. Additionally, States may not limit
the operator’s liability to less than two years under the 1960 Paris convention, or three
years under 1960 Vienna convention, from the time when the damage is discovered.
 The operator must maintain insurance or other financial security for an amount
corresponding to his liability or the limit set by the Installation State, beyond this level the
Installation State can provide public funds but can also have recourse to the operator;
 Jurisdiction over actions lies exclusively with the courts of the Contracting Party in whose
territory the nuclear incident occurred;
 Non-discrimination of victims on the grounds of nationality, domicile or residence.
 Definition of nuclear damage covers property, health and loss of life but does not make
provision for environmental damage, preventative measures and economic loss. This
greatly reduces the total number of possible claimants, but increases the level of
compensation available to the remainder.
The Convention on Supplementary Compensation (CSC) was adopted in the year 1997 at a
diplomatic conference at Vienna with a view to provide a worldwide liability regime and to
supplement as the name suggests the fund for liability. Any state not a party to either the Paris
Convention, 1960 or the Vienna Convention, 1963 can also accede to this convention. Ratification
or acceptance to this convention is on the condition that a state is party to either the Vienna or
Paris convention(s) or the state’s national law must comply with the provisions of the convention.
The CSC adheres with both the provision of the Paris and the Vienna convention with an aim to
increase the amount of compensation. It requires the state to make available 300 million SDRs or
above by making available requisite public funds. The CSC provides for equitable distribution of
the available fund. It prescribes a formula for the contribution of public funds by the contracting
parties is the amount which shall be the product of the installed nuclear capacity of that
Contracting Party multiplied by 300 SDRs per unit of installed capacity.
The amount determined by applying the ratio between the United Nations rate of assessment for
that Contracting Party as assessed for the year preceding the year in which the nuclear incident
occurs, and the total of such rates for all Contracting Parties to 10% of the sum of the amounts
calculated for all Contracting Parties in conclusion the CSC is an amalgam of the Paris and the
Vienna convention that extends the scope of damage it provides for a well-organized distribution
of funds with prior notice to the contracting parties of a nuclear incident. The operator is required
to furnish a list of nuclear reactors with the depository that holds the operator liable and provide a
fund of insurance to supplement the compensation amount that is to be borne by the operator. All
these conventions hold the operator severally and jointly liable4.

4
Summaiya Khan,'International Civil Nuclear Liability Regime and India: A Comparative Assessment',International
Strategic and Security Studies Programme (ISSSP), National Institute of Advanced Studies, Bangalore, India, ISSSP
Reflections No. 28, July 13, 2015.

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In 1999, an International Symposium on the Reform of Civil Nuclear Liability, organised by the
OECD Nuclear Energy Agency in co-operation with the International Atomic Energy Agency
and the European Commission, was held in Budapest, Hungary from 31 May to 3 June . The
event attracted over 200 participants from 50 countries, with a view to examining nuclear
liability and compensation issues in the context of the revision of the Vienna Convention on
Civil Liability for Nuclear Damage, the adoption of the Convention on Supplementary
Compensation for Nuclear Damage.

THE CIVIL LIABILITY NUCLEAR DAMAGE (CLND) ACT 2010

The Civil Liability for Nuclear Damage Act, 2010 or Nuclear Liability Act is a highly debated
and controversial Act which was passed by both houses of Indian parliament. The Act aims to
provide a civil liability for nuclear damage and prompt compensation to the victims of a nuclear
incident through a no fault liability to the operator, appointment of Claims Commissioner,
establishment of Nuclear Damage Claims Commission and for matters connected therewith or
incidental thereto5.
This was one of the last steps needed to activate the 2008 Indo-U.S. civilian nuclear agreement
as the United state nuclear reactor manufacturing companies will require the liability bill to get
insurance in their home state. The Act made amendments in the Atomic Energy Act, 1962,
allowing private investment in India's nuclear power program. After this Act was passed, India
became a member of the international convention on liability in the civil nuclear arena. The Act
essentially created a mechanism for compensating victims from damage caused by a nuclear
accident, allocating liability and specifying procedures for compensation.
The government had encountered fierce opposition when trying to push this bill through
parliament on several occasions. This is because it contains several controversial clauses that the
opposition parties claim to be 'unconstitutional'. The opposition believes the bill is being pushed
through due to US pressure though this is denied by the government.
Section 4(1) provides that the Operator of the nuclear installation shall be liable for nuclear
damage caused by nuclear incident. Further, Section 4(4) provides that the liability of the

5
"Rajya Sabha clears nuclear liability Bill", New Delhi: The Hindu Business Line,
https://en.wikipedia.org/wiki/Nuclear_Liability_ActRetrieved 8 December 2010.

9
Operator of the nuclear installation shall be strict and shall be based on the principle of no fault
liability.
Section 6(1) of the CLND Act presently prescribes that the maximum amount of liability in
respect of each nuclear incident shall be the rupee equivalent of three hundred million Special
Drawing Rights (SDRs). As the current value of 1 SDR is about Rs 87, three hundred million
SDRs are equivalent to about Rs 2610 crores. Section 6(2) of the Act lays down that the
operator’s maximum liability shall be Rs 1500 crore. In case the total liability exceeds Rs 1500
crores, as per Section 7 (1) (a) of the CLND Act, this gap of Rs 1110 crores will be bridged by
the Central Government. Beyond Rs 2610 crores, India will be able to access international funds
under the CSC once it is a party to that Convention.

Section 7 (2) of the CLND Act provides that the Central Government may establish a "Nuclear
Liability Fund” by charging such amount of levy from the operators, in such manner, as may be
prescribed. The constitution of a Nuclear Liability Fund has been under consideration for some
time. Such a Fund is proposed to be built up over 10 years by levying a small charge on the
operators based on the power generated from existing and new nuclear plants. This is not
expected to affect the consumer’s interests.In simple words, the Act effectively caps the
maximum amount of liability in case of each nuclear accident at ₹5 billion (US$74 million) to be
paid by the operator of the nuclear plant, and if the cost of the damages exceeds this amount,
special drawing rights up to 300 million will be paid by the Central Government. While the
license to run the plant will be given for 40 years, the supplier is absolved of all liabilities after
10 years of functioning. The victims of a nuclear disaster are disallowed from directly filing a
law suit claiming damages against the manufacturer.
Section 8(1) provides that the Operator shall before he begins operation of his nuclear installation,
take out insurance policy or such further financial security covering his liability. All these
provisions along with the long title of the Act are clear and ensure that the liability is strict, and
channeled to the Operator through a no fault liability regime.

Section 17 of the Act provides that the operator of the nuclear installation, after paying the
compensation for nuclear damage in accordance with section 6, shall have the right to recourse
where6-
 Such right is expressly provided for in a contract in writing;
 The nuclear incident has resulted as a consequence of an act of supplier or his employee,
which includes supply of equipment or material with patent or latent defects or sub-
standard services;

6
''Frequently Asked Questions and Answers on Civil Liability for Nuclear Damage Act 2010 and related issues,''
Ministry of External Affairs, Government of India, reteived from http://www.mea.gov.in/press-
releases.htm?dtl/24766/Frequently_Asked_Questions_and_Answers_on_Civil_Liability_for_Nuclear_Damage_Act
_2010_and_related_issues, visited on 20 March 2017, at 3 PM.

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  The nuclear incident has resulted from the act of commission or omission of an individual
done with the intent to cause nuclear damage.
The issue of an accident is sensitive in India, where a gas leak in a US company's Union Carbide
factory in Bhopal city killed about 20,000 people in 1984 in one of the world's worst industrial
disasters. The Act came into force from 11 November 2011. Important provisions are
enumerated as follows-
 The Act is in consonance with the Polluter Pays Principle. The Polluter Pays Principle
mandates that polluter should bear the cost of measures to reduce pollution according to
the extent of either the damage done to society or the exceeding of an acceptable level of
pollution”.In the last few decades, international and national environmental liability laws
are invariably based on strict liability which goes hand in hand with the Polluter Pays
Principle mandating the cost internalization principle. In view of the above, it can be said
that the polluter pays principle is being upheld in the present act because firstly, the Act
clearly provides for compensation in case of damage.Secondly, the Proviso to section 6
(2) of the Act clearly lays down that the government can review the amount of operator’s
liability from time to time and specify, by notification, a higher amount. Therefore, the
act does not put a cap on the liability of the operator. Thirdly, the Act also ensures
channeling of the liability to the supplier in case of a nuclear accident by providing
recourse to the operator.
 Exceptions to the liability are justified. By indemnifying the operator in certain cases, the
Act highlights the genuine inability to take action in inevitable situations though it had
acted with diligence and carefulness in maintaining its safety standards which renders the
procedure laid down by the Act as reasonable. The Act lay down that in case of grave
natural disaster of an ‘exceptional character’, the operator is not liable. By doing so, it
does not try to blanket the liability of the operator rather tries to provide a reasonable
situation where the operator would not be forced to pay compensation, i.e., the situation
of grave need where the operator, which is government in the present matter, anyway
would be trying to provide solace to the victims of the said natural disaster. Forcing it to
pay additional compensation would be not reasonable. Also, the phrase “grave natural
disaster of exceptional character” has to be construed taking into consideration facts and
circumstances in each and every case and judiciary is there to play its role.
 Force Majeure as exception is also a reasonable ground to exempt the operator’s liability.
Force majeure has long been accepted as precluding wrongfulness in the international
liability regime followed by European Union and says that compensation cannot be
claimed when damage is caused by war. The Atomic Act of UK also excludes war from
the liability of the operator along with the Convention on Supplementary Compensation.
Hence the Act by providing civil war, hostility, insurrection, terrorism etc creates nothing
which could be said as unjustified. Furthermore, the liability of the operator should not be
imposed considering the inevitability of these exceptions which have become sine qua
non to the existence of the human society.

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 INTERNATIONAL CIVIL NUCLEAR LIABILITY AND INDIA–
CRITICAL ANALYSIS

The United States, in particular, has always preferred the CSC over other conventions addressing
nuclear liability, such as the Paris Convention of 1960 or the Vienna Convention of 1963. This is
because CSC has a grandfather clause in its annexure 2 that provides an exemption for American
domestic laws to supersede in case of an accident on its soil. As a result, in the US, criminal
liability lawsuits can be initiated against nuclear corporations. The same CSC, however, requires
its other signatories to enact domestic laws as per its annexure and strictly limit it to civil
liability. Though eminent jurist Soli Sorabjee has maintained that India’s domestic law would
prevail over CSC, it is certain that, in a conflict, foreign suppliers would try their best to walk
away without paying damages.
Objectionable Clauses and Sections. Certain clauses which are contradictory or appear
contradictory are as mentioned below.
 Clause 6. Clause 6 defines the share of financial liability. It states that the liability of an
operator for each nuclear incident shall be Rs. 1,500 crores (i.e. Rupees 15 billion) for
nuclear reactors having power equal to 10 MW or above. In respect of spent fuel
reprocessing plants, rupees three hundred crores. In respect of the research reactors
having thermal power below ten MW, fuel facilities other than spent fuel reprocessing
plants and transportation of nuclear materials, Rupees one hundred crores (Rupees 1
billion). However, the Central government may review the operator's liability from time
to time and specify a higher amount. and the remaining amount will be paid by the Indian
government. If written into the contract, the operator can claim the liabilities from the
manufacturer and supplier. But the maximum amount payable by the foreign companies
will be limited to a meagre sum of Rs.1500 crore. This is considered as a moot point as
the operator will be the Nuclear Power Corporation of India Ltd. (NPCIL) which itself is
a government owned facility. In other words, the government may have to foot the entire
bill thereby exonerating the manufacturer/supplier.

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  Clause 17. This clause deals with the legal binding of the culpable groups in case of a
nuclear accident. It allows only the operator (NPCIL) to sue the manufacturers and
suppliers. Victims will not be able to sue anyone. In reality, no one will be considered
legally liable because the recourse taken by the operator will yield only₹15 billion
(US$220 million).
 Clause 18. Clause 18 of the nuclear liability bill limits the time to make a claim within 10
years. This is considered to be too short as there may be long term damage due to a
nuclear accident.
 Clause 35. 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 proceed under the US courts.

Constitutionality of this Act. A Public Interest Litigation (PIL) had also been filed against the
Act at the Supreme Court of India in 2011, examining the constitutionality of the Act regarding
the Right to Life as enshrined in the Constitution of India.
Environmental impact and liability. The Bhopal Gas tragedy was another accident where an
inherently dangerous substance was leaked and caused havoc. Despite this, low liability and
compensation resulted, after several delays. Victims were not sufficiently or effectively
compensated and rehabilitated. Additionally, the environmental impact of nuclear activity is far
reaching. A nuclear accident is disastrous for the environment. A nuclear accident is equally, if
not more, harmful. The Act does not properly address liability in the face of an accident or even
day to day risks.
Violation of Absolute Liability Principle. The Civil Liability For Nuclear Damage Act, 2010
by laying down exceptions to operator’s liability; by capping the financial liability of operators
and by making suppliers not liable violates the ‘absolute liability’ principle and the ‘polluter
pays’ principle which have become recognized as part of the law of the land under Article 21
patently violates the Constitutional mandates under Article 21 of the Constitution and hence is
unconstitutional.
Violation as to Non Compliance of Procedure Established by Law
Right to life includes right to decent7 and healthy environment. Any disturbance of the basic
environmental elements would be hazardous to life within the meaning of Article 21 and thus
violative of the same8.Furthermore, it is an obligation on the State to protect and improve the
environment with the fundamental right to live in a healthy environment which could be only
taken away by procedure established by law. ‘Procedure established by law’ in Article 21 means

7
Shantisar v. Narayan, AIR 1990 SC 630; In re: Bhavani River-Sakthi Sugars Ltd., (1998) 2 SCC 601; M. C. Mehta
v. UOI, (1998) 6 SCC 60; M.C. Mehta v. UOI, (1999) 6 SCC 12.
8
Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch, (2000) 3 SCC 29; T. N. Godavarman Thirumalpad v.
UOI, AIR 2003 SC 724; Andhra Pradesh Pollution Control Board v. M V Nayudu, (1999) 2 SCC 718

13
the procedure prescribed by the law of the State which should not be arbitrary, unfair or
unreasonable9. On a complaint of deprivation, courts, in exercise of its power judicial review, has
to decide whether the procedure prescribed by that law is reasonable, fair, just, and not arbitrary,
whimsical and fanciful.
The present Act, by creating exceptions for liability of the operator in case of a nuclear accident,
violates the said rule. In process of carrying out an ultra- hazardous work, the level of
accountability shall be much higher than in general cases. It has been well recognized that those
who indulge in inherently dangerous activity should bear cost of all consequences of accidents,
without availing any defences recognized for ‘strict liability’10. In case an accident happens, if
the operator is exempted from liability to make good all the losses without any exception to it,
would not be the proper procedure established by law.
An enterprise which is engaged in a hazardous or inherently dangerous industry owes an
absolute and non-delegable duty to the community to ensure that no harm results to anyone on
account of the activity which it has undertaken, and if harm results to anyone on account of such
activity, the enterprise is strictly and absolutely liable to compensate all those who are affected
by the accident.This liability is not subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability. The said principle was followed in plethora of judgments and
subsequently by getting Statutory Recognition, has become the law of the land.The impugned
Act by laying exceptions to the principle makes clear departure from what otherwise is a settled
law.

CONCLUSION

The making of the ‘Civil Liability for Nuclear Damage Act 2010’ was one of the finest
legislative endeavours in the recent times. The exercise was significant because nuclear energy
and the consequences of pursuing such an energy form were debated extensively in the
Parliament for the first time. The result was a liability law that had an exceptional domestic
political acceptability, but in many ways appeared to defy conventional international practice.
The international nuclear community, led by supplier countries and vendors has argued that the
law should be amended to be compatible with the established practice of international nuclear
liability law. The Act, in its present form may give the impression of defiance, but the Parliament
has only utilised the provisions of international nuclear law conventions—expanding boundaries
of interpretation11.

9
Maneka Gandhi v. UOI, AIR 1978 SC 597; Inderjeet v. State of UP, AIR 1979 SC 1867; Francis Corallie Mullin
v. Union Territory, AIR 1981 SC 746, M. Nagraj v. UOI, (2006) 8 SCC 212
10
M.C. Mehta v. UOI, AIR 1987 SC 1086
11
M. P. Ram Mohan,The Indian Civil Liability for Nuclear Damage Act, 2010: An Analysis, (Springer India-2015),
ISBN 978-81-322-2342-9

14
Rights to life, liberty, and the pursuit of happiness can only be taken away by due process of law,
or the procedure established by law. ‘Procedure established by law’ in Article 21 means the
procedure prescribed by the law of the State which should not be arbitrary, unfair or
unreasonable. The procedure established by law is proper since the exceptions so laid are
reasonable, fair and not arbitrary. The Act in question is passed by the Parliament with the
objective to provide for civil liability for nuclear damage and prompt compensation to the
victims of a nuclear incident, and even though it lays down certain exceptions for the liability of
the operator,remains the toughest piece of legislation on the subject anywhere in the world. The
provisions of the CLND Act are broadly in conformity with the CSC and its Annex in terms of
channeling the strict/absolute legal liability to the operator, the limitations of the liability in
amount and time, liability cover by insurance or financial security, definitions of nuclear
installation, damage, etc.

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 BIBLOGRAPHY

Apurv Jain, NUALS, ''Civil Nuclear Liability'' , Academike, December 19, 2014, (ISSN: 2349-
9796).
Summaiya Khan,'International Civil Nuclear Liability Regime and India: A Comparative
Assessment',International Strategic and Security Studies Programme (ISSSP), National Institute
of Advanced Studies, Bangalore, India, ISSSP Reflections No. 28, July 13, 2015.

Shantisar v. Narayan, AIR 1990 SC 630; In re: Bhavani River-Sakthi Sugars Ltd., (1998) 2 SCC
601; M. C. Mehta v. UOI, (1998) 6 SCC 60; M.C. Mehta v. UOI, (1999) 6 SCC 12.

Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch, (2000) 3 SCC 29; T. N. Godavarman
Thirumalpad v. UOI, AIR 2003 SC 724; Andhra Pradesh Pollution Control Board v. M V
Nayudu, (1999) 2 SCC 718.

Maneka Gandhi v. UOI, AIR 1978 SC 597; Inderjeet v. State of UP, AIR 1979 SC 1867; Francis
Corallie Mullin v. Union Territory, AIR 1981 SC 746, M. Nagraj v. UOI, (2006) 8 SCC 212).

Principle 16, Rio Declaration on Environment and Development, United Nations Conference on
Environment and Development, U.N. Doc. A/CONF. 151/5/Rev.1 (1992), reprinted in 31 I.L.M.
874 (1992).
Environment and Economics: Guiding Principles Concerning International Economic Aspects of
Environmental Policies, Annex 1, OECD Doc. C(72)128, (May 26, 1972), 1972 WL 24710.
M. P. Ram Mohan,The Indian Civil Liability for Nuclear Damage Act, 2010: An Analysis,
(Springer India-2015), ISBN 978-81-322-2342-9.

Principle 16, Rio Declaration on Environment and Development, UNCED, June 3-14, 1992,
U.N. Doc. /CONF.151/5/Rev. 1.
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Setting” The Swedish Journal of Economics, Vol. 77, No. 1, Public Finance: Allocation and
Distribution, (March 1975), 56-68.
M.C. Mehta v. UOI, AIR 1987 SC 1086.

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 WEBLIOGRAPHY
''Liability for Nuclear Damage'', World Nuclear Association, retrieved from http://www.world-
nuclear.org/information-library/safety-and-security/safety-of-plants/liability-for-nuclear-
damage.aspx, visited on 17 March 2017 at 1 PM.

"Rajya Sabha clears nuclear liability Bill", New Delhi: The Hindu Business Line,
https://en.wikipedia.org/wiki/Nuclear_Liability_ActRetrieved 8 December 2010.

Bergkamp Lucas, “Liability and Environment Private and Public Law Aspects of Civil liability
for Environmental Harm in an International Context” Draft 10, April 2001 available at:
http://papers.ssrn.com/paper.taf?abstract_id=266365 on Feb 5 2012 (Visited on Oct. 19, 2012).
Dr. A Gopalakrishnan, “Nuclear Liability Bill Must Cover Nuclear Submarine Too” New Indian
Express, available at: http://www.countercurrents.org/gkrishnan240810.htm (Visited on Oct.
6th, 2012).
Shruti Rajagopalan, “The Polluter Does Not Pay Model For Environmental Protection In India”
Emle Master Thesis 2007-08 available at:
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ronmental_Protection_in_India.pdf (Visited on Oct. 6, 2012).

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 CASE LAWS
Shantisar v. Narayan, AIR 1990 SC 630; In re: Bhavani River-Sakthi Sugars Ltd., (1998) 2 SCC
601; M. C. Mehta v. UOI, (1998) 6 SCC 60; M.C. Mehta v. UOI, (1999) 6 SCC 12.
Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.
Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch, (2000) 3 SCC 29; T. N. Godavarman
Thirumalpad v. UOI, AIR 2003 SC 724; Andhra Pradesh Pollution Control Board v. M V
Nayudu, (1999) 2 SCC 718.
Municipal Corporation Ratlam v. Vardichand, AIR 1980 SC 1622.
Charan Lal Sahu v. UOI, (1990) 1 SCC 613; Rajiv Ranjan Singh v. State of Bihar, AIR 1992
Pat. 86; Vellore Citizens Welfare Forum v. UOI, (1996) 2 SCC 594.
Gopalan, A.K. v. State of Madras, 1950 SCR 88.
Maneka Gandhi v. UOI, AIR 1978 SC 597; Inderjeet v. State of UP, AIR 1979 SC 1867; Francis
Corallie Mullin v. Union Territory, AIR 1981 SC 746, M. Nagraj v. UOI, (2006) 8 SCC 212.
Narinderjeet Singh v. UOI, (2002) 2 SCC 210.
Section 5, The Civil Liability For Nuclear Damage Act, 2010.
M.C. Mehta v. UOI, AIR 1987 SC 1086.

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