By, Roshni Rajiv*
India had an early head start into nuclear sector soon after independence. The Nuclear Power Programme was devised in 1954 with a vision of building India as one of the major nuclear powers in the world by developing thorium nuclear reactors. However, the growth of the nuclear sector was stalled many times in the past six decades.
The initial impediment was faced when world recognised India as a nuclear power in 1974 after its first nuclear test. India refused to sign the Non-Proliferation Treaty and Comprehensive Nuclear Test Ban Treaty. The consequence of the refusal was exclusion from Nuclear Supplier’s Group (NSG) for almost three decades till 2008.
Indo-US Nuclear Deal
In 2008, with US recommendation, India was granted the waiver from NSG which gave India the power to trade in nuclear technologies and material. Around the same time, the Indo-US nuclear deal was also signed which prompted many other nuclear powers such as France (2008), Russia (2009), Argentina (2009), Canada (2010),United Kingdom (2010), South Korea (2011) and such to enter into civil nuclear co-operation agreements with India to trade nuclear technology or minerals. However, except for Russia and France, the Indo-US deal or other civil nuclear agreements have not been implemented. This article addresses the impediments India is facing in implementing the nuclear deals, specially the Indo-US deal in light of the upcoming visit by US President to India.
At the time of signing of the Indo-US deal, India was asked to fulfil certain requirements. Firstly, India was to sign and ratify the Convention on Supplementary Compensation on Nuclear Damage (CSC) at the earliest. Secondly, India was to adopt a domestic law in consonance with CSC. In contrary to this, India signed the CSC only in 2010 and assured to ratify it by 2011. However, India has not yet ratified it.
Civil Liability of Nuclear Damage Act, 2010 (CLNDA)
India enacted a domestic law i.e. Civil Liability of Nuclear Damage Act, 2010 (CLNDA) which goes against the letter and spirit of the CSC and other international conventions such as Paris and Vienna Conventions. The CLNDA introduces the concept of nuclear supplier liability which has not been envisaged in any other legal enactments or conventions around the world.
Such a unique nuclear supplier liability clause found its place in CLNDA due to the vociferous debates by the current ruling party (BJP) which was in opposition at the time of enactment of the CLNDA. The party suggested this clause keeping in mind the compensation issues which arose in the Bhopal gas tragedy case. The intention was to enhance the safety and security of nuclear plants and to ensure adequate compensation and protection to people in case of a nuclear incident due to defective services or supplies from suppliers.
The Special Case of Kudankulam Nuclear Plant
As luck would have it, the supplier liability clause is now one of the biggest deadlock in implementing nuclear deal with US and other nuclear powers. No country is ready to trade with India unless they are exempted from such liability.
For instance, Russia agreed to supply nuclear reactors for Kudankulum nuclear plant at Tamil Nadu when an agreement explicitly absolving the Russian supplier of any liability whatsoever in case of a nuclear incident was signed. The Kudankulam plant was already delayed for nearly two decades and may be because of this reason, UPA government agreed to exempt Russia from nuclear supplier liability clause. This action literally was in contradiction to CLNDA. This has further led other nuclear powers such as France to seek for exemption from the supplier liability clause in order to implement the civil nuclear agreements signed with them. If this practice continues, the intention of introducing such a clause would become redundant.
The Way forward
Prime Minister Modi has been very keen to operationalise Indo-US nuclear deal. During his last visit to US, he suggested to institute an Indo-US Contact group consisting of representatives of both countries to resolve on a range of implementation issues, including supplier liability, administrative, technical and licensing matters. The Contact group met in December 2014 but no issues were resolved. Next meeting is scheduled in January 2015 prior to Mr. Obama’s visit to India to be a part of the Republic day celebrations.
US have made its stand very clear during media interactions that it requires India to modify CLNDA and adopt a domestic law in consonance with CSC. On the other hand, supplier liability clause was added solely due to the demand by BJP and Ms. Sushma Swaraj, the External Affairs Minister, has clarified that there will be no modification of CLNDA and India will take a strong stand with Mr. Obama. It is unlikely that a middle-way would be found even during the second meeting of Contact group. Ultimately, it will trickle down to the two national leaders to negotiate across the table the acceptability of nuclear supplier liability in modern nuclear contracts.
The question arises whether India has a good bargaining power to persuade US to accept such a clause? The inclusion of nuclear supplier liability clause in CLNDA was with a good intention to ensure protection of public and to increase safety of nuclear plants which is a trend-setting step taken to revolutionize the way the world presently looks at nuclear liability and compensation.
However, the fact remains that India is not a major nuclear power today. It has not progressed with its Nuclear Power Programme as envisaged and is hugely depended on other countries for nuclear material and technology to keep the present nuclear plants running and also to develop nuclear plants for next 2-3 decades.
The major nuclear powers in the world are also the major nuclear suppliers to India and thus India will continue to face their reluctance in accepting the nuclear supplier liability clause. Though, India wants to retain the nuclear supplier liability clause in CLNDA, the hard reality is that it is forced to compromise the supplier liability clause while entering into back-door agreements with nuclear powers due to its high dependence on them. This elucidates the poor bargaining power of India. With the absence of such a strong-hold, it will be a herculean task for Mr. Modi to persuade Mr. Obama to accept the nuclear supplier liability clause.
Suggestions to solve our ‘Nuclear Dilemma’
In order to implement the Indo-US deal, Modi government may have to traverse back the way it travelled and amend CLNDA in consonance with CSC. Nevertheless, government can still secure the underlying objectives of the nuclear supplier liability clause. It can look out for alternatives internally at the domestic level without leaning on foreign suppliers to ensure safety and security of nuclear plants and compensation to public.
Some suggestions in this regard are given below:
i. Safety and security of nuclear plants can be enhanced by installing latest technology in tracking and monitoring radiation exposure pattern. For instance, The Indian Point Energy Centre, a nuclear power plant in USA have analysed the radiation exposure pattern of its nuclear reactors in case of a nuclear incident. Such information is available for the public living in the vicinity of the nuclear plants to understand areas to be affected, pattern and direction on how and when radiological waves will travel and where to relocate in case of a nuclear incident. In India, we lack such transparency and the Atomic Energy Regulatory Board (AERB) fail to provide such information to the public for any of the 21 nuclear reactors in India.
ii. As per Section 3 of CLNDA, in case of a nuclear incident, AERB need to notify such incident within a period of 15 days from the date of occurrence of the incident. Only after such a notification, it will provide wide publicity of such an incident. That means, for a period of 15 days, the public would be completely unaware about the radioactive exposure. It shows the lack of preparedness by AERB for disaster management and for immediate evacuation of people from the nuclear incident site. This calls for more efficient and effective disaster management system in case of a nuclear incident.
iii. To set up an autonomous Regulatory authority headed by an expert panel consisting of scientists, environmentalists, researchers and such to have growth based discussions and to make the functioning more transparent for public interest.
iv. To ensure adequate compensation for people affected by nuclear incidents, Government has to set up an insurance pool for people living in the vicinity of nuclear plants who are prone to risk of a nuclear incident. The insurance premium could be paid by beneficiaries of the nuclear power.
The Modi government is expected to come up with an alternative proposal to solve this nuclear dilemma for discussions with President Obama during his visit to India on Republic Day. It needs to be seen if anything materialises.
*The author is a research intern at CPPR
Disclaimer: The views expressed here are solely those of the author in her private capacity and do not necessarily represent the views of Centre for Public Policy Research.