Kerala HC upholds the Constitutional Validity of Civil Liability for Nuclear Damage Act, 2010 [Read Judgment]

A Public Interest Litigation (PIL) filed challenging the constitutional validity of Sections 3(1), 4(2) and proviso, 4(4), 5, 6, 9(2), 15(2),16(5), 18(b), 19, 20, 32(10), 35 and 38(1) of the Civil Liability for Nuclear Damage Act, 2010 has been dismissed by the Division Bench of Kerala High Court comprising of Chief Justice Ashok Bhushan and Justice A.M.Shafffique on not being satisfied that the enactment suffers from any infirmity, arbitrariness or violation of fundamental rights.The Civil Liability for Nuclear Damage Act has been promulgated to provide for civil liability for nuclear damage and prompt compensation to the victims of a nuclear incident through a no-fault liability regime channelling liability to the operator, appointment of Claims Commissioner, establishment of Nuclear Damage Claims Commission and for matters connected therewith or incidental thereto.Responding to the Judgment President of Nuclear Law Association Dr.M.P. Ram Mohan told LiveLaw that,“This ‘Kerala HC Judgement is significant in two ways. One, it reinforces India’s case on international compatibility of CNLD Act which was well articulated in the Ministry of External Affairs FAQs on Civil Nuclear Liability and second, domestically, the judgement makes it clear that the CNLD law not in any way deviates from the established decisions of SC on absolute liability; tribunal (claims tribunal, emphasis added) accepts the high technical competence of AERB etc.’The advocate-petitioners Yash Thomas Mannully and V.N.Haridas contended that the aforesaid provisions of the Act are ultra vires the Constitution of India as the same interfere with the right to life of the citizens guaranteed under Article 21 of the Constitution, violative of Article 14, being arbitrary and unreasonable and the provisions vest with the authorities unbridled powers without checks and balances.As per the scheme of the Act, duty of notifying a nuclear incident is vested with the Academic Energy Regulatory Board (AERB) which is constituted under the Atomic Energy Act, 1962. The petitioners alleged that the Board being the sole regulator and enforcement agency for the use of atomic energy in India and the agency for giving consent for siting, construction, commissioning, operation and the decommissioning of nuclear and radiation facilities, it does not have the required independence as it comes within the organisational framework of the Department of atomic energy. It was argued that since no parameters are laid down by the Act as to how the satisfaction is to be exercised, such vesting of powers is per se arbitrary and contrary to the settled principles of rule of law which is a basic structure of the Constitution.Section 4(2) by which liabilities of different operators are clubbed together in such a way that each offending operator need not pay to the highest extend of the limit fixed and all the operators together need only pay to the extent of the limit as fixed for a single operator was also alleged to be violative of the fundamental rights. Petitioners relied upon the judgment of the Supreme Court in M.C.Mehta v. Union of India in which the Supreme Court laid down the ‘absolute liability principle’ that when an enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost or any other expenditure arising on account of such a hazardous or inherently dangerous activities as appropriate item of its overheads.According to the petitioners, a claim for nuclear liability can be preferred by a person under the Act only in case of a nuclear damage arising out of nuclear incident and the Board is given power to notify nuclear incident, only when it is satisfied that the gravity of the threat and risk involved in a nuclear incident is significant. A time of limitation also has been prescribed which as pointed out by the petitioners would take away the rights of future generations to obtain compensation for damages caused from a nuclear incident as the impact on future generations will not be known immediately.Another contention was that there is no independence to Claims Commissioner and it is possible for the Central Government to appoint an officer of the Government having specified qualifications as a Claims Commissioner which will amount to arbitrariness and also violates the doctrine of judicial independence. It was also averred that the Act provides for untrammelled powers to Central Government for dissolving the Nuclear Damage Claims Commissioner. Another ground taken is regarding the finality to an award made by the Claims Commissioner and Nuclear Damage Claims Commissioner, excluding jurisdiction of the civil courts.The court after hearing the rival submissions observed that the Board being a statutory authority constituted under the Atomic Energy Act, to exercise such duties and powers as may be conferred on it; there is no reason to...

Kerala HC upholds the Constitutional Validity of Civil Liability for Nuclear Damage Act, 2010 [Read Judgment]

Anju Cletus

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