'Autonomy' of Nuclear Regulator: The ideal and the reality

Guest Post by Prashanth Reddy

Sometime later this year, Parliament is going to have yet another debate on the degree of ‘independence’ of an Indian regulatory body. The regulator in question is the nuclear regulator that has been proposed under the Nuclear Safety Regulatory Authority of India Bill, 2011 (NSRAI). The debate on the ‘independence’ of the nuclear regulator in India has been one of several contradictions. Despite the nuclear establishment repeatedly claiming that its regulator – the Atomic Energy Regulatory Board (AERB) – was independent, Rural Development Minister Jairam Ramesh very obviously contradicted the entire establishment when he publicly called for the creation of an ‘independent’ AERB. 


In order to understand the differing versions of ‘independence’, it is necessary to understand the history of nuclear regulation in this country.   At the time of its inception, soon after independence, the Indian nuclear industry was regulated mainly by ad-hoc safety committees of the Department of Atomic Energy (DAE). In 1972 the DAE passed an office order creating the institutionalized mechanism - DAE-Safety Review Committee (SRC), which would now be responsible for safety of Indian nuclear plants. 


In 1979 the then Secretary of the DAE ordered the DAE-SRC to review its functioning and recommend any possible changes. This Committee was headed by M.V. Meckoni, Director BARC and its final report which was submitted in February 1981 came to be known as the Meckoni Committee Report and it is this report which formed the basis of the creation of the AERB. (The report can be downloaded over here.

A fatal error in this entire exercise was the composition of the Committee itself, which is not to say that the members of the Committee were incompetent but the fact that all seven of them were serving members of the nuclear establishment and would most likely not be capable of an objective assessment of independent regulatory requirements. 


The final recommendations of the Committee called for an ‘autonomous’ AERB staffed by members of BARC and the ‘DAE Family’ therefore in effect creating another ‘in-house’ body. Most of these suggestions were followed by the DAE when it created the AERB through an Executive Order of the President in 1983. In the process the only useful suggestion of the Meckoni Committee, which was to create the AERB through a legislation of Parliament was ignored. The problem with Executive Orders is that they can be modified by the DAE itself, something which it demonstrated in the year 2000 when it excluded BARC, India’s principal nuclear weapons establishment, from the purview of the AERB.

The AERB created by this Presidential Order was a system mired in severe ‘conflict of interest’. As per this Order the AERB was responsible to the Atomic Energy Commission (AEC). The AEC itself was responsible for promoting the use of nuclear energy in India and is in itself headed by the Secretary of the DAE. The DAE is the department which controls BARC, India’s primary nuclear weapons establishment and more importantly, the Nuclear Power Corporation of India Ltd. (NPCIL) – the government company which operates all of India’s nuclear reactors. The AERB’s mandate was to regulate the nuclear reactors operated by the DAE but at the same time made responsible to the AEC which was headed by the Secretary of the DAE. Further, the Executive Order also stated that the DAE would control the AERB’s budget and be responsible for it before Parliament.

Any objective assessment of the above setup would lead to the logical conclusion that the AERB was anything but ‘independent’ of the DAE. Surprisingly however, the AERB in its yearly reports to the IAEA under the ‘Convention on Nuclear Safety’ (CNS) has consistently claimed that it is an ‘independent’ body.

Section 8(2) of the CNS defines independence in the following terms: Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy. 


In its latest Report to the IAEA, the AERB has stated the following: “The position of AERB in the government set up ensures administrative and financial independence in its functioning. Technical support is drawn from various  national laboratories as well as from other national academic and research institutions. The Central Government provides the financial resource to AERB according to its proposed budget. There has never been shortage of finance towards fulfilling its mandate and responsibilities. The statutory and legal provision of the Act & various rules framed there under and the powers conferred by the gazette notification provides AERB with the authority for its independent and effective functioning. Hence, India complies with the intent and spirit of Article 8 of the Convention.”  

Obviously, the nuclear establishment and the political establishment have differing version of ‘independence’. The question for future debate is whether India’s latest attempt to create an independent nuclear regulator is compliant with its treaty obligations under the CNS? Ideally the government should have released a white paper on the status of the AERB before it proceeded to create a new regulator. However as always we put the cart before the horse.

[ Prashant Reddy T. is an Advocate, blogger at SpicyIP and a co-founder of the Pre-Legislative Briefing Service (PLBS).] 

An observer's account of public consultation on Lokpal Bill

By Arushi Garg

The fourth public hearing on the Jan Lokpal Bill was conducted on May 26.

As I first reached the venue, a park in the heart of a crowded residential colony in East Shalimar Bagh, New Delhi, I was struck at how deserted the park seemed to be, except for the people who were there to make the presentation, and the children who were mildly interested in finding out what had deprived them of playing space for the evening.

I had read newspaper reports about how the public has been shockingly uninterested in these public consultations, but nothing had prepared me for this. One of the organisers strolled over, smiled and said, “Well, it seems we have at least an audience of one.”

“What are they screening?” asked a lady from the balcony of her first floor apartment. “It’s a movie about Anna Hazare,” responded her friend on the ground. In the face of everything, the organisers did a brilliant job in getting people interested. There were patriotic songs and clips playing before the main presentation started, and one of the coordinators made it a point to keep reminding the people that this was about them, and their problems. People did start trickling in after that, and there was a crowd of about thirty people by the time the presentation ultimately started. This was mainly a documentary describing the flaws in the current legal regime dealing with corruption, the main highlights of the Jan Lokpal Bill, (prepared by the India Against Corruption, hereafter referred to as the Bill) its criticisms, and why the authors considered that these were unfounded. This movie is also available online.

The movie talks about the primary functions of the Lokpal which include primarily the responsibility of rooting out corruption from all public authorities, right “from the Panchayat to the Prime Minister.” All such proceedings are to be concluded within the year, even if this means hiring additional staff. More stringent and innovative penalties than the current ones have been proposed through the Bill. For instance, confiscating the assets of a person when they are acquired through corruption was presented.

In response to concerns surrounding the susceptibility of the Lokpal to corruption, the procedure for appointment of the Lokpal was gone into. Such a procedure includes people from different background, representing many diverse interests so that the selection does not swing in favor of a particular ideology or party. All meetings of both the Search Committee (that prepares nominations) and Selection Committee (that ultimately appoints the members) involved in the process will be recorded and broadcast for the sake of transparency.

Currently the CJI’s permission must be taken to lodge an FIR against any judge. The Bill proposes that a seven member bench of the members of the Lokpal will now make this decision following a public hearing. There are measures to ensure the protection of the complainants so that people can come fearlessly forward.

Today, if a company is accused of getting its work done through bribing government agencies, the investigating agency must collect proof that bribes were given and taken. Since no witnesses are present in such situations, this becomes hard to prove. Under the Bill, if some unlawful act is done for some company, then it will be assumed that a bribe was given.

The Bill also proposed to merge all other agencies investigating corruption under the Lokpal at the central level and the Lokayukta at the state level.
One of the most useful parts of the movie was the response given to the criticisms the Bill is facing now.

For instance, many people have suggested exclusion of the Prime Minister from the jurisdiction of the Lokpal, since this can taint his or her image at the international level. It was forcefully asserted that there can be no greater shame at the national or international level for a democracy to protect a corrupt Prime Minister. Along the same lines, giving the Lokpal the authority to decide on whether the prosecution of judges is to be continued was defended.

Secondly, the Bill has been sharply criticized for trying to cover too much in a single sweep. The critics have suggested that the Lokpal should confine itself to scams of a large scale magnitude and leave the institution of proceedings for every day matters to other agencies. This is primarily based on the fear that corruption is so pervasive that the Lokpal would be steeped in arrears if it tries dealing with everything.

This was countered at four levels. First, it was pointed out that the very point of the Bill was to reach out to the common man by recognizing the pervasiveness of corruption. Secondly, since any complaint has to travel through multiple levels (officer, head of department, vigilance officer and then the Lokpal),it is unlikely that the Lokpal will be overburdened. Third, the Bill provides for the appointment of additional staff in case the complaints are too many to deal with. Fourth, once the first few complaints have been received, this will surely have a deterrent effect and the incidence of corruption will decrease, gradually reducing the workload of the Lokpal over time.

Some have also worried about doing away with other bodies that deal with corruption, insisting that there is no harm in letting these bodies function in addition to the Lokpal. However, this criticism has not brought about a change in the Bill since empirically, none of these other bodies have proved that they are capable of functioning independently and efficiently. In such a scenario, they can only pose an unnecessary burden on our national resources.

These issues are important because they are still contentious, and forms were circulated at the end soliciting the opinion of the viewers on these criticisms to see if the public also regards them as unfounded. This seems to be a good way of making the process more democratic, but I’m not sure how many people ended up actually filling the forms. This attempt at spreading awareness was bolstered with the distribution of pamphlets and video CDs that summarized key features of the Bill. Questions were invited at the end, but none seemed forthcoming.

The organization was done well, but the low turnout was disconcerting. At the end, I was left with the haunting feeling that you can do very little to help a citizenry that doesn’t seem to want to help itself.

Guest Post: The Pre-Legislative Briefing Service (PLBS) – 'Building India one Bill at a time'

We are very pleased to publish the following guest post from Arghya Sengupta, member of the Pre-Legislative Briefing Service.

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Prashant, Sanhita, Shivprasad and I started The Pre-Legislative Briefing Service (PLBS) with a view to proactively engage with the law-making process, by ensuring that parliamentary legislation is constitutionally sound, and in harmony with judicial precedent, international best practices and prevailing statutes. We felt that legislative drafting in India would be benefited by intensively researched academic analyses, which could draw attention both to relevant international precedents and practice in this regard as well as municipal laws and practices which needed to be accounted for before legislation was passed. Such analyses, we hoped, would mitigate the possibility of complex international legal imbroglios from emerging subsequently, as well as lengthy domestic litigation which would be both cumbersome and wasteful. “A stitch in time” is what we intended to provide to appropriate legislations.

I am happy to report that our first “stitch” on the Civil Liability for Nuclear Damage Bill, 2010, to which Shamnad drew the attention of the readers of this blog earlier, was extremely well received by the Parliamentary Standing Committee on Science and Technology, Environment and Forests and PLBS was invited to depose before the Committee on 2 August 2010.

Legislative Design in India

We at PLBS, envision our services will have fundamental implications on legislative design in India, and will encourage and assist drafting agencies and Ministries to bring clarity to statutes that affect the entire country. As things stand today, multiple drafting errors and inconsistencies lead to years of delay in implementation of an enactment, since the judiciary has to resolve legal and constitutional challenges before anything else. For instance, the ‘Separation of Powers’ issue that delayed the National Company Law Tribunal and the Competition Commission of India has resurfaced in the Civil Liability for Nuclear Damages Bill, and threatens to derail execution and implementation here too. Interventions at an appropriate stage, as envisaged by PLBS, will not only ensure a clean statute, but will also allow the judiciary to focus on its true role of interpretation of statute, rather than spending years in disentangling ‘bad’ law.

PLBS’s first report on the Civil Liability for Nuclear Damage Bill, 2010

On submitting our very first report, titled 'A Briefing Document on the Civil Liability for Nuclear Damage Bill, 2010: Questions of Constitutionality and Legislative Options Open to Parliament' to the Secretariat of the Department Related Parliamentary Standing Committee on Science and Technology, Environment & Forests, PLBS was invited by the Committee for a deposition. Three of us appeared before the Parliamentary Standing committee on 2 August 2010.

In our report and subsequent deposition, we cautioned that the Bill still has several constitutional and legislative challenges to overcome, before it is worthy of enactment. Most importantly, if the legislation itself were to be challenged before the Supreme Court, it may disastrously affect and delay access to the rights that the law seeks to provide. Such delay would also affect the nuclear power sector and perhaps even dash hopes of cheap, affordable nuclear power.

The PLBS report on the Nuclear Liability Bill inter alia addressed three key factors, discussed in detail below:

1. Institutional independence of bodies executing pivotal functions under the Bill
2. Consistency of clauses with basic principles of legal drafting
3. Constitutionality and international compliance of provisions on compensation and recourse

1. Institutional Independence

Clause 3 of the Bill vests the entire power to notify a ‘nuclear incident’ in the Atomic Energy Regulation Board (AERB), a body under the complete control of the Department of Atomic Energy (DAE). The DAE also runs all the nuclear power plants in the country. Therefore, the report highlighted the concern that the Government, in order to escape liability, may not be inclined to notify smaller nuclear incidents.

Similar concerns were raised about the independence of the Claims Commissioner and the Nuclear Damages Claims Commission (NDCC) set up under the Bill. Both bodies are to award compensation against nuclear plants owned by the Central Government. Both are also controlled by the Central Government. PLBS contextualised this in view of Supreme Court rulings which say that under the constitutional doctrine of ‘Separation of Powers’, any tribunal taking over the functions of a Court has to be vested with adequate judicial independence. Such independence is essential if only to preclude any interference from the Executive, especially when the Executive is party to the dispute before the Judiciary.

2. Legal drafting Concerns

The definitions of ‘nuclear damage’, and 'nuclear incident' in Clause 2 of the Bill were circular and prone to confusion. A harmoniously drafted definition was recommended which avoided circularity and ensured clarity in interpretation. Clause 5, relating to exemptions for operators was found to be inconsistent with international treaties and Supreme Court jurisprudence, since it excluded the operator’s liability in accidents due to natural disasters of exceptional nature. Apart from international treaties which do not contain this exemption, the Supreme Court has clearly stated in multiple precedents that operators of hazardous incidents have to incur ‘absolute liability’ without any exceptions whatsoever. Thus it was recommended that this clause be deleted.

Clause 46 of the Bill, inter alia suggests that liability caps on operators do not prohibit State Pollution Control Boards from claiming unlimited damages from the plant operators under special purpose environmental legislations such as the Air Act, Water Act and the Environmental Protection Act. If this is true, then the entire aim of this legislation is vitiated since operators would have to pay expensive additional insurance premiums, in turn hiking the cost of electricity generated by these nuclear plants. The interface between the Bill and other legislations on the one hand, and general tort law on the other, was a key issue flagged by the PLBS submission. Keeping in mind the special nature of the legislation, it was recommended that the legislation override other legislations and general principles in the specific instance of a nuclear accident and claims for compensation be brought entirely under its legislative umbrella.

3. Constitutionality and international compliance of provisions on compensation and recourse

PLBS found that liability caps, as mentioned in Clause 6 of the Bill, the subject of much media and popular debate (see here and here), were neither unprecedented nor unconstitutional. However, while such caps may apply with regard to the operator of a nuclear establishment, it does not translate into a cap on the entire liability for the incident. In other words, even though one party need not pay, another party like the government would need to pay for the damage caused. This feeds off the Supreme Court's interpretation of Article 21 of the Constitution, according to which a victim deserves full compensation for damage suffered due to industrial pollution. Thus the underlying principle which needs to be adhered to is that victims must not remain uncompensated.

In this regard, provisions for recourse, in Clause 17 of the Bill are equally relevant. To ensure ease of access of compensation for victims, this Bill, as well as comparative legislations in other countries, channel liability, irrespective of fault on to the operator. Thus the victim can proceed against the operator of a nuclear plant in case of nuclear damage, irrespective of who or what caused it. In certain situations however, the damage may be caused by the negligence of the supplier of the nuclear fuel, materials or equipment. The key issue in such cases is whether the operator should continue to be exclusively liable or whether he should have recourse to the supplier who should bear liability. Though public policy would demand that those at fault be made liable, equally, foisting liability on the supplier in case of fault would lead to pyramiding insurance costs since both operators and suppliers would have to take out insurance for the loss thereby raising the cost of nuclear energy. Highlighting these factors forms a key part of the Report which recommended suitably nuanced positions which are both theoretically sound and practically efficacious.

More generally, with regard to the inter-relation between the Bill and international law, PLBS also expressed concerns about the extent to which the Bill was compliant with the Annex to the Convention on Supplementary Compensation for Nuclear Damage. The Statement of Objects and Reasons of the Bill in paragraph 7 states as follows: “It is, therefore, considered necessary to enact a legislation which provides for nuclear liability that might arise due to a nuclear incident and also on the necessity of joining an appropriate international liability regime”. As part of Article II of the CSC, the Convention may be signed by any nation whose national laws either implement the Paris Convention or Vienna Convention, or comply with the provisions of the Annex to the CSC. As India is not signatory to either of the mentioned conventions, it is key that the present Bill comply with the Annex if India seeks to sign the CSC in the future. PLBS noted that the Bill departs from the Annex in three key ways. First, the liability caps mentioned in clause 6 of the Bill are in parts much lower than the liability caps prescribed in Article 4 of the Annex. Secondly, the right of recourse as contained in the Bill is much wider than the right of recourse contained in Article 10 of the Annex thus making the scope for supplier liability wider. And finally, while Article 3 (3) of the
Annex clearly states that the operator shall be absolutely liable for any nuclear damage, the Bill contains no corresponding provision.

The response to the initial reports has been extremely encouraging for us at PLBS. Legislative interventions, such as the ones PLBS seeks, have for long been seen as outside the domain of mainstream lawyering in India. We started out with a desire to change this perception and use our legal education, skills and analytical ability to further the collective good, in the manner we best could. If our first experience is anything to go by, exciting law-making times lie ahead!

From the latest Frontline....

*My article on the making of the new mining law, the Draft Mines and Minerals (Development and Regulation) Bill, 2010, to replace the existing Act.

*Another article on the merits of the all India Bar Examination, draws from the posts on LAOT with due acknowledgments. One aspect of the controversy, which I wanted to discuss but didn't, is the correlation or the absence of correlation between an all India Bar Exam and the standards of legal practice. Most of us may assume that there is indeed a correlation, but I find the phrase 'standards of legal practice' too vague. Even the Law Commission has found it so in this Report with regard to the phrase "standards of legal education" and wanted it to be elaborated. Although the 2002 Law Commission report favoured both the all India examination and the training of advocates, I found the Commission's justification for the training much more convincing than the all India examination.

* Readers may find this article by S.Dorairaj on Justice K.Chandru of Madras High Court interesting.