The other side of the 'profit motive' coin

That 21st century India needs alternate sources of energy from hydrocarbons to power its headlong rush to 'superpower consumer' status is undeniable. That nuclear energy is one viable option on the table is also undisputable.

To that end, the wise Cabinet members of the Government of India have even cleared a Civil Liability for Nuclear Damage Bill for introduction to parliament. Among other things, the Bill seeks to put a cap on compensation liability in case of an accident to a maximum limit of $450 million.

This amount is less than the $470 million that Union Carbide agreed to pay in an out-of-court settlement reached in 1989, for the 1984 disaster in Bhopal.

But the level of compensation is not the matter I want to consider. It is what happens to the money afterwards. In 2005, the Indian Supreme Court extended to 2006, its deadline for the Indian government to release any remaining settlement funds to victims. The fund were believed to have ballooned to $500 million after accumulating interest!

But it was 24 years after the accident, in 2008, that the clean-up operations begin. And a quarter century later, in 2009, a report in The New York Times examines Bhopal's continuing struggle with chronic health issues, high levels of chemicals in the groundwater, and toxic sludge in the soil.

No amount of compensation after an event can bring back normalcy. The truth is that the local community first becomes victims of a tragedy, and later pawns in the 'compensation lottery'. Someone's always finds a way to profit from them!

Perhaps the real answer is in setting aside a fraction of the mega-millions to ensure: 1.) Rigorous safety checks, 2.) Independent expert monitoring, 3.) Air-tight contingency plans to tackle any eventuality.

However, the fiesty folk over at Greenpeace are right... No one should get to walk away from proportionate accountability.

Here, I reproduce the open letter from Greenpeace to the luminaries in the Indian Parliament...


Respected MP,

I write this letter to you because the Civil Liability for Nuclear Damage Bill is slated to be tabled in the current session of the parliament. It is a call to not let that unconstitutional bill through. The bill has been cleared by the cabinet for introduction in the parliament. The government proposes to introduce this bill to appease foreign investors. Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability will be in blatant defiance of Supreme Court judgments and should be struck down.

We had queried Mr. Soli Sorabjee on his opinion on the implications of this bill and in his opinion he has stated that, “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.” His opinion is attached for your perusal.

Our Constitution evinces great concern for environment. Article 48-A of the Directive Principle mandates that the state shall endeavour to protect and improve the environment. One of the fundamental duties prescribed in Article 51-A is, inter alia, to protect and improve the natural environment.

It is claimed that foreign companies are reluctant to invest in India as they do not want to run the risk of having to compensate without a cap for a nuclear accident on account of imposition of absolute liability. It is understood that the government to appease the foreign investors proposes to introduce a Civil Nuclear Liability Bill whereby inter alia the compensation payable in case of a nuclear accident is capped at $450 million.

In effect, this means that in case the actual damage and the cost of remedying environmental degradation exceeds the proposed ridiculously low cap of $450 million or any other sum, the government would have to bear the remaining burden. This would be directly contrary to the Supreme Court’s ruling that it is not the role of the government to meet the costs involved. The effect of a cap in reality would be to shift the financial burden of the consequences of the accident to the taxpayer. According to the Polluter Pays Principle that has been embedded in our jurisprudence, the liability and responsibility for compensating the victims of accident and remedying the environmental damage caused is that of the offending industry alone. No part of the liability can be limited nor passed on to the government.

There can be two views about the advantages or disadvantages of foreign investment in India in the nuclear energy sector. But there can be only one view: health well-being and protection of our people are paramount and must override dollar considerations. Foreign multinationals are not solicitors of the fundamental rights of our people. The Bhopal Gas case is a burning reminder.

Any legislation that attempts to dilute the Polluter Pays and Precautionary Principle and imposes a cap on liability is likely to be struck down as it would be in blatant defiance of the Supreme Court judgments. Moreover, it would be against the interests and the cherished fundamental right to life of the people of India whose protection should be the primary concern of any civilized democratic government.

Karuna Raina
Nuclear Campaigner, Greenpeace

08th March 2010
New Delhi