Lots of loopholes in India’s proposed nuclear liabilities bill

Many anomalies in n-liabilities Bill: Lawyers, activists, Business Standard, Kanika Datta / New Delhi April 20, 2010, Getting the requisite numbers to pass the Civil Liability for Nuclear Damage Bill 2010 in the Lok Sabha may be the least of the United Progressive Alliance’s problems. Lawyers and legal experts, including those who support the legislation, say there are many instances of poor drafting and anomalies that have the potential to generate more controversy if the Bill is passed in its current form.“There is no denying that we need this Bill but it urgently needs drafting changes,” said former Minister for Law and Justice Ram Jethmalani at a recent seminar.
“The text of the statute has left a number of loopholes that can be exploited skillfully to dodge paying compensation to the victims and may end up in a legal minefield,” added Nilendra Kumar, director, Amity Law School and former Judge Advocate General of the army (September 2001 to November 2008).
The issue of who is entitled to make a claim is a case in point. Clause 14 of the Bill lists four categories of people: (a) the person who has sustained injury; or (b) the owner of the property to which damage has been caused; or (c) the legal representative of the deceased; or (d) any agent duly authorised by such person or owner of legal representatives.

Clause 31(2), however, expects the “person suffering such damage” to make the application. “Legally, this leaves room for ambiguity,” Kumar said.

He also raised the issue of what would happen if an entire family were, say, wiped out by a nuclear incident. “Who will make the claim in this case?” he asked.

Then again, Clauses 16 (5) and 33(10) of the Bill say the claims decided by a claims commissioner or a commission would be final, provisions that effectively remove the scope for appeal. Given that the magnitude of damage from a nuclear incident is potentially huge, lawyers have questioned whether the adjudication of a right affecting the life or property of individuals can be allowed to be made final in this way.

The issue of who is liable for a nuclear incident is another point of contention. Section 4(1) stipulates that “the operator of the nuclear installation shall be liable for nuclear damage caused by a nuclear incident.” Samit Aich, executive director of Greenpeace India, said this provision conforms to the concept of “legal channelling” under which the operator is the only party that victims can hold responsible for a nuclear accident. This, however, effectively provides immunity to the supplier, designer and so on. Such a provision would, for instance, let foreign suppliers of such vital equipment as reactors, like Westinghouse of the US or Areva of France, off the hook in the case of a nuclear incident. On the other hand, countries that follow systems of “economic channelling” enable victims to initiate lawsuits against any of the parties involved.

Many anomalies in n-liabilities Bill: Lawyers, activists