Legislative Framework in case of Nuclear Damage in India

The year 2010 is important in the legal history of the country as Civil Liability for Nuclear Damage Act, 2010 was enacted. The Act provides for the liability of both the operator of the nuclear plant and the government in case of nuclear damage. It further provides the mechanism for a claim of compensation in case of the damage. The various Allied Rules made under the Act provide in detail the various procedures etc. Civil Liability for Nuclear Damage Rules, 2011 and The Nuclear Liability Fund Rules, 2015 have been made by the Central Government in virtue of its powers under the Act.

The main objectives of the Civil Liability for Nuclear Damage Act, 2010 are to provide for –

  • civil liability for nuclear damage and
  • prompt compensation to the victims of a nuclear incident through a no-fault liability regime channeling liability to the operator, (Section 16)
  • appointment of Claims Commissioner, (Sections 9-12)
  • establishment of the Nuclear Damage Claims Commission (Sections 19-30).
  1. To whom the provisions of the Act shall apply – 
  • Section 1(4) provides that the Act applies only to the nuclear installation owned or controlled by the Central Government either by itself or through any authority or corporation established by it or a Government company.
  • Section 45 provides that the Central Government may, by
    notification, exempt any nuclear installation from the application of this Act where, having regard to the small quantity of nuclear material, it is of the opinion that the risk involved is insignificant.

2. Meaning of Nuclear Damage

Section 2(g) defines “nuclear damage” as follows-
(i) loss of life or personal injury (including immediate and long-term
health impact) 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
sub-clauses (i) or (ii) and not included in the claims made under those
sub-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
sub-clause (ii);
(v) loss of income derived 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 sub-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 sub-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.

3. Liability of Operator and exceptions –

Section 4(1)  provides that the operator of the nuclear installation shall be liable for nuclear damage caused by a nuclear incident. Section 4 (4) provides that the liability of the operator of the nuclear installation shall be strict and shall be based on the principle of no-fault liability. Section 5 provides that Operator shall not be liable in certain circumstances.

4. Limits of liability

Section 6 (1) provides that the maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights or such higher amount as the Central Government may specify by notification. Proviso to  Section 6 (1) provides that the Central Government may take additional measures, where necessary if the compensation to be awarded under this Act exceeds the amount specified under this subsection.

5. Duties/Liabilities of Central Government – 

  • Liability of Central Government in respect of certain nuclear incidents –

Section 7 (1) provides that the Central Government shall be liable for nuclear damage in respect of a nuclear incident, —
(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
sub-section (1) of section 5.
Proviso to Section 7 (1) provides  that the Central Government may, by notification, assume full liability for a nuclear installation not operated by it if it is of the opinion that it is necessary in the public
interest.

  • To establish the Nuclear Liability Fund (Section 7(2) & Rule 3, The Nuclear Liability Fund Rules, 2015)

Section 7 (2) provides that for the purpose of meeting part of its liability under clause (a) or clause (c) of sub-section (1), the Central Government may establish a fund to be called the Nuclear Liability Fund by charging such amount of levy from the operators, in such manner, as may be prescribed.

6. Persons entitled to make application for nuclear damage –

Section 14 provides that an application for compensation before the Claims Commissioner or the Commission, as the case may be, in respect of nuclear damage may be made by—
(a) a person who has sustained an injury; or
(b) the owner of the property to which damage has been caused; or
(c) the legal representatives of the deceased; or
(d) any agent duly authorized by such person or owner or legal representatives.

7. Duties of Nuclear Operator – 

  • To maintain insurance or financial securities (Section 8)

The operator shall, before he begins operation of his nuclear installation, take out an insurance policy or such other financial security or combination of both, covering his liability under section 6 (2), in such manner as may be prescribed. The operator shall from time to time renew the insurance policy or other financial security, before the expiry of the period of validity thereof.

  • To report the occurrence of a nuclear incident (Rule 4, Civil Liability for Nuclear Damage Rules, 2011)
  • To pay the requisite amount to the Nuclear Liability Fund (Rule 3, The Nuclear Liability Fund Rules, 2015)

The operator shall pay to the Fund, a levy at the rate of rupees 0.05 (five paise) or a levy at such rate between rupees 0.05 to 0.10 (five paise to ten paise) for every unit of electricity sold to its customers.
The levy shall be collected and paid to the Fund till the total amount reaches two thousand crore rupees, and thereafter, the process shall resume in the event of any withdrawals from the Fund so as to ensure that the Fund balance remains at two thousand crore rupees at any given time. The levy shall be payable on a quarterly basis and the levy amount for every quarter of the year shall be credited to the Fund within the 15th day of the month succeeding the quarter.

8. Rights available to the victims of the accidents

  • To make application for nuclear damage before the Claims Commissioner or the Commission (Section 14),
  • To make application for compensation before the Nuclear Damage Claims Commission (Section 31),
  • To have the disposal of the applications (submitted under Sections 14 & 31 ) within a period of three months from the date of its receipt by  the Claims Commissioner (Sections 16(1) and 32(6)),
  • To have copies of the award to the parties within a period of fifteen days from the date of the award (Section 16(4)),

Extinction of right to claim

Section 18 provides that the right to claim compensation for nuclear damage
shall extinguish, if such claim is not made within a period of—
(a) ten years, in the case of damage to property;
(b) twenty years, in the case of personal injury to any person,
from the date of occurrence of the incident notified under sub-section (1) of section 3.

9.  Supplier’s liability towards the Operator

Section 17 provides that the operator of the 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 employee, which includes a 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 omission of an individual done with the intent to cause nuclear damage.

Section 17 has an expansive concept of supplier liability and all entities, foreign or Indian, are subject to this law. Section 17(a), (b) and (c) are distinctive and separate.

10. Commissions

  • Claims Commissioner (Sections 9-12)

Section 9(2) provides that 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.

Section 13 provides that after the notification of nuclear incident under Section 3 (1), the Claims Commissioner, having jurisdiction over the area, shall cause wide publicity to be given, in such manner as he deems fit, for inviting applications for claiming compensation for nuclear damage

  • Nuclear Damage Claims Commission (Sections 19-30)

Section 19 provides that where the Central Government, having regard to the injury or damage caused by a nuclear incident, is of the opinion that it is expedient in public interest that such claims for such damage be adjudicated by the Commission instead of a Claims Commissioner, it may, by notification, establish a Commission for the purpose of this Act.

Section 34 provides that the Commission shall have original jurisdiction to adjudicate upon every application for compensation filed before it under Section 31 (1) or transferred to it under Section 33, as the case may be.

Suggested Readings –

http://iasscore.in/topical-analysis/civil-liability-for-nuclear-damage-debate

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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