Non-governmental organisations (NGO) Greenpeace and others are seeking lawyers to support the opinion of former attorney general Soli Sorabjee that the Civil Nuclear Liability Bill is unconstitutional.
The Bill aims to limit the liability of nuclear power plant operators liability of the operator to Rs 2,385 crore in case of accidents or leaks.
Greenpeace climate and energy (nukes) campaigner Bhakti Nefertiti said: "The bill is unconstitutional. It goes against the polluter pays principle and the precautionary principle, and is therefore contrary to the provisions of Article 21 of the constitution."
Article 21 protects "life and personal liberty" and states that "no person shall be deprived of his life or personal liberty except according to procedure established by law".
The NGO is relying in part on an opinion it commissioned on the Bill from Sorabjee, in which he discussed precedents of the "polluter pays" principles and wrote: "In view of these Supreme Court judgments which are part of Indian jurisprudence and whose thrust is for the protection of victims of accidents as part of their fundamental rights under Article 21 of the Constitution, there is no warrant or justification for capping nuclear liability, as is sought to be done.
"Any such move will be in defiance of the aforesaid Supreme Court judgments and will be contrary to the interest of people of India and their fundamental rights under Article 21 of the Constitution."
Greenpeace's Nefertiti told Legally India: "There are various contentions with the bill and at least, the Government should put the Bill to a joint parliamentary committee."
"It's clearly unconstitutional and anybody who understands law can see that – and that's why want to get lawyers involved."
She said it would be helpful if members of the public and also lawyers particularly send letters to Law Minister Veerappa Moily expressing their legal opinions on the validity of the Bill by 11 March 2010.
What are your views?
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This nuclear liability bill is essential otherwise, the major US companies wont get insurance cover and thereby affecting both India's and US's interest. Its no doubt that everybody (especially the law firms) will benefit once the power giants of US makes their presence felt in India. But at the same time, its important that the basic structure of our constitution is not violated.
So we have to create a balance between prosperity and constitutionality.
Lawyers need to get more practical.. No hardl feelings please...!! This is just a view..
Response to #3. lawyers dont usually create a roadblock, its the uninformed salesmen who push harmful products. You almost sound like a Union Carbide supporter..
It is one thing to say that the Polluter Pays Principle is paramount under the Constitution of India, but quantification of damage and payment of compensation are completely different aspects. In the Bhopal Gas Tragedy, for instance, it was not established that UCC (as opposed to UCIL, its Indian subsidiary) was responsible for the accident, but it was still liable to pay in terms of the agreed settlement.
Absolute liability is not the same as unlimited liability.
That said, I think the Bill is nonetheless primarily for favouring a cap on the liability of nuclear plant operators simply because there is no rational nexus between capping the liability and the alleged reasons for capping the liability (to promote participation) since very clearly French and Russian operators have no objection to unlimited liability. It would be a clear Art.14 violation and one doesn't even need to go to Maneka Gandhi arbitrariness to hold thus.
With all due respect to my learned friends, my humble observations are some what
basic and simple.
1 The supremacy of the parliament is always supreme and unless any bill which is fundamentally contrary to the constitution of India there is hardly anything which could be said to be inconsistent with the interest of the people of India.
2 It is also highly questionable whether imposing a upper limit for indemnity could be regarded as inconsistent with any fundamental rights or human rights of the people of India. I say this because so far as I am aware notwithstanding any limit of indemnity there is nothing to preclude the plaintiff from bringing action and claiming further compensation from the defendant because as we all know that that the statutory liability for any civil wrong is independant from the liability at common law
3 As we all lawyers know about the strict liability and responsibility in the action for negligence the very classic principle of liability under Rylands v Flatcher case . i.e that things likely to escape and cause mischief such as gas, water , electricity ( and perhapes the nuclear radiation ) are strict liability matters and imposition of upper limit of indemnity comprised in any statute( or any treaty such as warsaw treaty for air accident) could prevent the plaitiff from recovering any additional compensation . However in all such cases the court will require special proof that the plantiffs has suffered more than any one else and in that cases the court will not be bound by the upper limit imposed by the Statute.
4 It is therefore suprising to see attempts to establish somehow a loose chain of causation between two independant seperate points that is to say an attempt to inpose upper limit for indemnity in a proposed statute for a potential accident and the fundamental rights of the people of India as specified in the constitution of India
5 I am also amazed and lost that so many foreign companies and multinationals could lobby our parliament and dictate their own terms to be incorporated in the statute.
6 I am also equally confused and lost that why there are so many so called NGOS who are always opposed to any development projects in india be it Namada irrigation project , reclamation project, electricity projects or railway projects or Nuclear project. Surely they are not elected by the people (here meaning the people affected by the projects )
7 Perhaps I may be forgiven for thinking whether they have any vested interests or whether they are being paid by Donation or otherwise by those who may be situated abroad and may be unhappy about the development of our country?
Warm Regards and Best wishes
Bhupendra K Vyas
Solicitor
London
(the views expressed herein are exclusively of the author and of no one else )
While 'development' is a necessity, so is rehabilitation and a thorough cost (including environmental and ecological costs) - benefit analysis of any 'project'. If nothing else, these 'so called NGOs' have done well in a lot of cases such as Narmada project to raise the voices of those whose livelihood was destroyed without them being rehabilitated.
It's time we rejected parochial definitions of development in favour of a more broad based outlook towards development.
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