Immunities in the Name of ‘Liability’: A Critique on Indian Nuclear Law

Abstract

This article examines the crucial questions raised by the Civil Liability for Nuclear Damage Act, 2010 regarding liability or immunity for suppliers of nuclear power plant equipments to India. While the west wanted immunity the opposition and civil society in India insisted on liability, because of disastrous experience from defective UCC pesticide plant in Bhopal killing thousands of people. Principles of product liability, strict liability and absolute liability were developed in courts of law, where the producers and operators of industrial machinery would be liable without any exception. The Parliament has codified this principle of absolute liability by enacting the Public Liability Insurance Act 1991. In contrast, the Civil Liability for Nuclear Damage Act, 2010 offers ‘immunity’ to suppliers or producers while the Government takes up responsibility of compensating the victims from public exchequer in their anxiety to invite foreign nuclear equipment suppliers. To convince resisting opposition and to get the Bill passed the UPA Coalition Government of India made some changes in law which still left some doubts and uncertainties. Another controversial provision of the Act was limiting the liability up to 300 million USD, which critics say is much less than what Indian victims got for Bhopal disaster. This is not in tune with accepted liability jurisprudence. None of the international nuclear liability conventions prescribed any cap on total liability, but only set a floor. Countries like South Korea and Sweden have set operator’s liability at 300 million SDRs, not total liability. The operator’s liability in the US is $ 11.9 billion. Agreeing for a cap on nuclear disaster from large nuclear power plants is not in the interest of nation. But the nuclear supplying nations are considering this Indian legislation as diluting immunity and impeding the transfer of nuclear power technology.