Civil Liability For Nuclear Damage Bill, 2010: An Ideological
Twin Of Indian Atomic Energy Establishment
By Yash Thomas Mannully & V.N. Haridas
25 August, 2010
Countercurrents.org
The passing of Civil Liability for Nuclear Damage Bill, 2010 (Nuclear Bill) by the Lok Sabha after the high drama over supplier’s liability has proved the political acumenship of the government. The unnecessary debate over the supplier’s liability in the Nuclear Bill has limited the discussion over crucial aspects like deviation from principles of Convention on Supplementary Compensation (CSC); regulatory independence of Atomic Energy Regulatory Board (AERB); judicial review and independence and fixity of tenure of the authorities under the Nuclear Bill. The provisions of the Nuclear Bill further continue the ideology supported by the Indian Atomic Energy Establishment; an ideology based on secrecy, individual centralism and personality cult and bureaucratic dominance.
The Nuclear Bill has raised several issues related to the third party liability even though the discussions in the political and media circles have been largely confined to supplier’s liability and US interests. The renewed focus on the drawbacks of the Nuclear Bill is largely attributed to the decision of the Bhopal Chief Judicial Magistrate’s Court in the criminal charges related to the gas leakage occurred at the Union Carbide India Limited pesticide factory at Bhopal. The changes suggested by the Parliamentary Standing Committee on Science and Technology and Forests and the changes introduced in the initial Nuclear Bill has turned a blind eye towards crucial areas like transparency, public participation, good governance and the role of Indian multinational corporations. Moreover the controversies associated with the initial clauses and subsequent changes in the Nuclear Bill raises the genuine doubt that “whose interest the Indian government is trying to protect through the Nuclear Bill?”
The Indian media and the persons opposing the Nuclear Bill have linked the controversies and secrecy associated with the Nuclear Bill right from its inception to the pressure from US Administration and US based nuclear suppliers. But a close examination of the Indian Nuclear Establishment clearly shows that the Nuclear Bill is a continuation of the policies and practices of the Indian Atomic Energy Establishment. This article tries to examine the Nuclear Bill in the light of Indian Atomic Energy Establishment’s historical evolution and also highlights the extent to which the ideology followed in the Indian Atomic Energy Establishment gets reflected in the Nuclear Bill.
The introduction of the Nuclear Bill in the Parliament in the midst of the uproar created by the Women’s Reservation Bill and the subsequent events underlines the mystery and secrecy surrounding the various provisions of the Nuclear Bill. If the events related to the Nuclear Bill are examined in its historical context, it is a continuation of the conflicts witnessed in the Indian Atomic Energy Establishment. The history of Indian Atomic Energy Establishment has always been 1) a conflict against individual centrism and personality cult for multi-centrism and democratisation; 2) a conflict against secrecy for transparency and 3) a conflict against monopolisation of knowledge for scientific and free thinking. In this aspect the various concept of the Nuclear Bill is examined in this historical context of conflicts.
The personality cult and personification of the official history of Indian Atomic Energy Establishment starts with Jawaharlal Nehru and extends to Manmohan Singh. The official version of the development of atomic energy in India by focusing on the personalities of Jawaharlal Nehru and Homi J. Bhabha intentionally forgets the scientists who laid the foundation for developing atomic energy in India. The principles supported by these scientists, which are closely related to the Indian freedom struggle is also buried deep in the annals of history.
India has entered the field of nuclear research much before Homi J. Bhabha became a nuclear scientist and there were several landmark contributions during the 1930s and 1940s. In the period between 1930 and 1940 distinguished scientists namely C.V. Raman, Meghnad Saha and J.C. Bose laid the foundation for atomic energy research in India. This period also witnessed C.V. Raman establishing the Indian Institute of Science and Meghnad Saha establishing the first nuclear institute, the Indian Institute of Nuclear Physics in Calcutta. Meghnad Saha has presented several essays in nuclear physics during this period and was instrumental in bringing the first cyclotron to India in 1942 from United States through his student Dr. B.G. Nag passing the Pacific front of the Second World War. In 1939 under the initiative of Meghnad Saha the Scientific Advisory Committee was formed in the Indian National Congress with the help of Netaji Subash Chandra Bose and Jawaharlal Nehru was also a member in it.
The nuclear research in India changed with the returning of Homi J. Bhabha from United Kingdom after higher studies. It also caused the allocation of funds by industrialist Dorabji Tata to nuclear research activities under Homi J. Bhabha and Tata Institute of Fundamental Research which was earlier allotted for research in the Indian Institute of Nuclear Physics. It was J.R.D. Tata who sent and financed Homi J. Bhabha for higher studies in United Kingdom and after returning to India, Bhabha became the architect of the present Indian Atomic Energy Establishment. Moreover the returning of Homi J. Bhabha witnessed the shifting of the main centre of nuclear research activities from Calcutta to Bombay together with gradual taking away of nuclear research from universities. This also marked the beginning of a Nehru-Bhabha era in Indian nuclear history which resulted in individual centralism, secrecy and lack of public participation and good governance in the Indian Atomic Energy Establishment.
The history of the Indian Atomic Energy Establishment always shows the existence of a conflict between two ideologies; one based on individual centralism and secrecy under Bhabha and the other for transparency, democratisation and free scientific research under Meghnad Saha. The ideology represented by Bhabha got prominence over time as a result of the support it obtained from the ruling elites and also due to the protection it, afforded to the interest of the ruling government.
The first Atomic Energy Act of 1948 highlighted the need for supporting and strengthening the nuclear research in universities- a continuation of the concept of free scientific thinking and popularisation of science part of the Indian freedom struggle. Later the non-separation of military and civilian military programme has enwrapped the Indian Atomic Energy Establishment in secrecy, favouritism an individual centrism. After independence the Indian nuclear Establishment became a by-product of the personality cult witnessed in the Indian society as a large rather than a programme supporting the main ideology of the Indian freedom struggle; scientific and free thinking.
The creation of Department of Atomic Energy took away the nuclear research initiatives from the various Indian Universities and made nuclear research a government sponsored and controlled subject. Moreover the concentration of several crucial posts namely Chairman, Atomic Energy Commission; Secretary Department of Atomic Energy and Director, Atomic Energy Establishment, Trombay with Homi J. Bhabha caused the shrinking of the Indian nuclear research activities under control of a single person. The lack of funds and proper infrastructure prevented the Universities from initiating nuclear research which resulted in the gradual monopolisation of nuclear research and knowledge in India by the Department of Atomic Energy.
The ideology and culture supported by Bhabha which favoured centralisation, secrecy and personalisation, the hallmark of the Indian Nuclear Establishment is reflected in it full vigour in the Nuclear Bill. During the time of Bhabha, itself there was a counter ideology supporting the concepts of free scientific research; transparency and decentralised power centres. Meghnad Saha was the main advocate of this ideology in India and he was also the apostolate of the Pugwash principles. The Pugwash principles were supported by Einstein, Russel and Bernard and it opposed in the international level the use of scientific knowledge for destructive purposes by national governments. Meghnad Saha always feared that the separation of nuclear research from the national scientific research area and placing it under government mechanism will result in the misuse of nuclear research knowledge for destructive purposes and also adversely affects the free exchange of scientific knowledge. Due to this Meghnad Saha did not co-operated with the official establishments for atomic energy under the Department of Atomic Energy.
Meghnad Saha was selected to the Parliament in 1952 from Calcutta North-East consistency and was a strong voice in the Parliament against the secrecy of the Indian nuclear policy. It was him who highlighted the need for calling a conference of Indian nuclear experts for preparing a logical reply to the proposal of “Atoms for Peace” by then US President Eisenhower in 1954. But in the conference the need for a transparent and free nuclear policy put forward by Meghnad Saha was rejected and the policy supported Bhabha which favoured secrecy and also person and government centric approach obtained more acceptance. This ideology later obtained legislative backing through the Atomic Energy Act of 1962 which provided complete control to the Chairman, Atomic Energy Department. The Atomic Energy Act 1962 was passed at a period when India was facing increased threats from China and Pakistan in its borders and as a result there are several provisions which provided blanket power to the government. The 1962 Act also reflected the prevalent concept of undisputed power of the sovereign government.
The need for transparency, free scientific research and democratisation of decision making in the Indian Atomic Energy Establishment is best highlighted by the experience of Capt. B. K. Subha Rao. Capt. Subha Rao was one of the prominent scientist in the namely and was invited by then Prime Minister Rajiv Gandhi to head the Nuclear Sub-marine Project. He was arrested on suspicion of espionage and it took him 5 years to clear from the alleged offence for which he had approached 3 Magistrates, 5 Session’s Judges, 23 High Court Judges and 13 Supreme Courts Judges. The colonial legacy followed through Official Secrecy Act together with the Indian Evidence Act allowed the authorities to present Capt. Subha Rao’s Ph.D Thesis as an evidentiary material without actually going into its content at any stage. It is widely believed that the arrest of Capt. Subha Rao from Bombay airport on the way to attend an international conference and subsequent framing of the espionage charges was due to the enmity arised from the rejection of the first and second draft design for nuclear submarine project from the scientist of BARC, Trombay due to technical reasons. If this is the experience faced by reputed armed service personnel, then in this period of international terrorism; the centralisation of power together with secrecy as continued in the Nuclear Bill will be detrimental to the society.
The hallmark of Indian Atomic Energy Establishment like secrecy, individual centrism, lack of free scientific thinking and collective decision making and bureaucratic dominance are all reflected in the Nuclear Bill. The controversies surrounding the use of “and” between clause 17(a) and 17(b) and later use of “intent” clearly demonstrate this aspect. The political strategy as well as the timing used in introducing the Nuclear Bill by the government has created parallels to the political strategies in Machiavelli’s The Prince. The fate of Nuclear Bill’s counterpart in the Budget session of the Indian Parliament, Women’s Reservation Bill still not decided due to the lack of commercial interests.
The Nuclear Bill is introduced as a piecemeal legislation without introducing any reforms to the Atomic Energy Act 1962 or taking into account the need for a comprehensive law covering the various aspect of peaceful use of nuclear energy. The Nuclear Bill is silent on the application of Section 29 of the Atomic Energy Act 1962 which provides blanket indemnity to the government for all actions done in good faith under the said Act. Even though the government is claiming that the introduction of the Nuclear Bill is essential for becoming a party to the Convention on Supplementary Compensation, 1997 (CSC); a close reading of the Nuclear Bill shows that it does not acknowledge the basic principles under CSC. The Nuclear Bill deviates from the CSC’s basic principles with regard to the declaration of nuclear incident by AERB and also due to the discrimination between national and international victims.
The provisions of the Nuclear Bill especially regarding declaration of nuclear incident; judicial review and independence and fixity of tenure of claims commissioner and claims commission are drafted as a continuation to the ideology followed in the Indian Atomic Energy Establishment rather than for the sole purpose of protecting the interest of the US and foreign suppliers. The importance given to the US interest and foreign suppliers in relation to the Nuclear Bill has limited the discussion on the existing and possible role of Indian multinational corporations like Tata, Reliance, L&T, etc in the Indian nuclear energy programme. As conclusion we do not negate the allegation that there is outside pressure either foreign or Indian on the government to pass the Nuclear Bill but we tried to identify the outside pressure and interests in correlation with Indian Atomic Energy Establishment’s ideology to work against the national interest.
Yash Thomas Mannully graduated in law in 2003 from Mahatma Gandhi University and has taken LL.M. Degree from Cochin University (2005) and Wales University (2008). He has obtained diploma in International Nuclear Law from International School of Nuclear Law at the University of Montpellier (2008). Currently practicing as an advocate before the High Court of Kerala, India and is also in the Guest Lecture panel for teaching International Trade Law at Cochin University of Science and Technology. Area of specialisation includes Nuclear Law, Constitutional Law and Environmental Law. He has published a number of articles in the area of nuclear law in India. He can be reached at [email protected]
V N Haridas graduated in law in 2007 from Mahatma Gandhi University and has taken LL.M. Degree from Southampton University, London. He is currently practicing as a lawyer before the High Court of Kerala. The Specialisation areas include constitutional law, nuclear law, maritime law and environment law. He can be reached as [email protected].
