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India Passes Nuclear Liability Bill
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Eric Auner

The Indian parliament has approved a bill that sets up a mechanism to compensate victims and defines who is liable, and to what extent, in the case of a nuclear accident. The bill makes nuclear supplier firms, in addition to the nuclear facility operator, potentially liable for such an accident.

The Civil Liability for Nuclear Damage Bill passed the Rajya Sabha, the upper house of the Indian parliament, Aug. 30 amid intense debate.

The bill seeks to enable the entry of private firms into the Indian civil nuclear market. Private nuclear firms typically require a legal cap on liability in order to insure themselves against accidents in a given country, and India previously lacked a regime that assigned legal liability. Government-owned firms, such as those in France and Russia, are covered by their respective governments and are not as dependent on a liability cap. U.S. nuclear suppliers are privately owned.

The U.S.-India Business Council in Washington released a statement Aug. 30, saying India should not channel liability to suppliers. “The absence of an effective, CSC [Convention on Supplementary Compensation for Nuclear Damage]-compliant liability regime could preclude involvement by the private sector…and stymie India’s multi-year effort to develop civil nuclear power” the council said.

In 2005, President George W. Bush and Indian Prime Minister Manmohan Singh announced an approach to easing U.S. and international nuclear trade restrictions on India, which is not a party to the nuclear Nonproliferation Treaty (NPT) and conducted nuclear test explosions in 1974 and 1998. In return for access to the global nuclear market, India agreed to place some of its nuclear facilities under International Atomic Energy Agency (IAEA) safeguards. The Nuclear Suppliers Group (NSG) and the U.S. Congress approved the plan in 2008. (See ACT, October 2008.)

A critical part of the new approach to India was a nuclear cooperation agreement, signed in 2007, with the United States. In the United States, critics said the agreement and the new policy as a whole undermined the nonproliferation regime and U.S. law by providing benefits to an NPT nonsignatory without requiring sufficient nonproliferation and disarmament measures in return. Advocates said the pact would bring India into the nonproliferation “mainstream,” improve U.S.-Indian relations, and spur trade between the two countries, in part by giving U.S. firms access to the potentially lucrative Indian nuclear market.

Article 17(b) of the liability bill states that the operator of an Indian nuclear facility has a “right of recourse” from the “supplier of the material, equipment or services” in the event of a “nuclear incident” resulting from the supplier’s “willful act or gross negligence.” The government-owned Nuclear Power Corporation of India Ltd. (NPCIL) currently is the only operator of nuclear power plants in India.

The Congress Party-led coalition government had attempted to change the supplier liability language so the right of recourse would only apply if there was “intent to cause nuclear damage” on the part of the supplier, but opposition complaints led to the removal of that language. International conventions governing nuclear liability, including the CSC, channel liability exclusively to the operator.

The Indian government is not party to any of those conventions. In a 2008 letter to U.S. Undersecretary of State for Political Affairs William Burns, Indian Foreign Secretary Shivshankar Menon said New Delhi intended to “adhere to” the CSC prior to commencing nuclear trade with the United States.

The liability bill also intends to “ensure clarity of liability and the requirement to pay compensation” to those who suffer physical or economic harm “caused by or arising out of a nuclear incident,” according to the “Statement of Objects and Reasons” attached to the text of the bill. In the event of such an incident, compensation is to be awarded by a specially appointed commissioner or by a central government commission in special cases. Article 46 clarifies that additional “proceeding[s]” may be brought against the operator of a nuclear facility under existing Indian law. This article potentially exposes the NPCIL to additional liability, and it is unclear how it would affect foreign suppliers.

There was a heated parliamentary debate on the legislation, including accusations that the bill was intended to shield U.S. corporations at the expense of Indian interests. The debate was influenced by the recent sentencing in India of eight Union Carbide executives who were involved with the 1984 Bhopal industrial accident in which 15,000 people were killed. The sentences were widely seen as lenient, and they drew political attention to U.S. companies involved in potentially hazardous activities in India.

In Aug. 25 remarks before the Lok Sabha, the lower house of parliament, Singh argued that the bill “completes [India’s] journey to end nuclear apartheid, which the world had imposed on India.” The United States and others placed sanctions on India’s nuclear program following the county’s 1974 nuclear test. Singh referred to claims that the bill promoted U.S. interests as being “far from being the truth.”

Indian Atomic Energy Commission Chairman Srikumar Banerjee insisted that the bill is “India-centric” in an interview with India’s Frontline magazine. He also downplayed the possibility that the inclusion of Article 17(b) would discourage foreign suppliers. “I hope I will be able to convince [foreign suppliers] that this will not cause any difficulty” in conducting nuclear commerce with India, he said.

The opposition Bharatiya Janata Party (BJP) had been critical of the bill, with senior BJP member Jaswant Singh accusing the government of “hustling” the bill through parliament. The BJP initially complained that the bill was too lenient toward suppliers and that the liability cap for operators was too low. However, after the government made several changes to the bill, including a tripling of operator liability, the BJP supported the legislation. In a press release on the party’s Web site, senior BJP leaders accused the government of initially attempting to pass a “suppliers immunity law,” but expressed “satisfaction” with the changes.