11 May 2013

National Interest Trumps Human Safety - The Supreme Court's decision on Koodankulam fails to address concerns about nuclear energy.

The decision by the Supreme Court (SC) to allow commissioning of the Koodankulam nuclear power plants might have been expected but is still disappointing. The disappointment comes not from the decision in and of itself, but in the logic that has been used to justify it. Nevertheless, it is worth noting some good points in the judgment. While the Court’s decision has been widely seen as a blanket endorsement of the project, the Court laid down 15 directions as conditions to be fulfilled as part of operating the plant. Specifically, it has asked the Nuclear Power Corporation of India Limited (NPCIL), the Atomic Energy Regulatory Board (AERB), the Ministry of Environment and Forests, and the Tamil Nadu Pollution Control Board to file a report pertaining to safety and environmental impact before commissioning the reactor. The Court also called for the withdrawal of all criminal cases filed against those protesting the plant, albeit in a guarded fashion. The Court directed NPCIL, AERB and the government to take steps “at the earliest” to comply with all the 17 recommendations made by the AERB following the Fukushima accidents.

However, even in the case of good points made by the Court, it has not been forceful in insisting on these. For example, it points out that to deal with radioactive nuclear waste, “NPCIL does not seem to have a long term plan, other than, stating and hoping that in the near future, it would establish a DGR (Deep Geologic Repository)”. Its directive that “DGR has to be set up at the earliest” does not specify a date nor make it a necessary condition before NPCIL embarks on new nuclear reactor construction.

In doing so, the SC is forgetting its own history, in particular, the first prominent legal challenge involving nuclear power that it came to examine. This case concerned the Kaiga nuclear reactors and resulted from a public interest litigation case filed in 1990 by the Samaj Parivartana Samudaya, a grassroots group from Dharwad. On 7 May 1993, the SC directed the central government, that is, the Department of Atomic Energy (DAE), to “take cognizance of...the petitions submitted on the question of re-siting the Kaiga plant”. In legal terms, this was a victory for the movement challenging the Kaiga plant, but in practical terms it meant little – the DAE simply maintained that they had taken into account the concerns of the petitioners and continued building the reactors. The Court ought to have been far more specific this time around, but failed to do so.

The SC’s uncritical reliance on the opinions of the nuclear establishment and its complete disregard of the absence of public trust in the regulatory agency is the more serious problem with the judgment. It quotes extensively from AERB documents, especially safety codes, yet overlooks the fact that AERB and NPCIL do not often follow their own safety rules. The most pertinent example is that of Koodankulam itself, when AERB allowed the loading of fuel into the reactors even though NPCIL had not complied with its safety recommendations following the Fukushima nuclear accidents.

The Court did not even acknowledge, let alone examine, the questions surrounding the independence and effectiveness of the AERB, and instead claimed that the AERB has been “regulating the nuclear and radiation facilities in the country very effectively”. Last year, the Comptroller and Auditor General (CAG) pointed out that AERB “continued to be...an authority subordinate to the central government”, putting a big question mark over its independence as a regulator. Its actions in the case of Koodankulam, unfortunately, do not enhance the credibility of the AERB. The Court claims that the AERB “has, over the years, issued a large number of codes, standards and guides”, while the CAG pointed out that the AERB had failed to prepare “a radiation safety policy even after three decades of its existence”.

The Court’s decision is also disturbing because it casually makes various assertions that are not just debatable but are the very reasons that the petitioners appealed to the judiciary in the first place. For example, the Court states “nuclear energy…is a clean, safe, reliable and competitive energy source”. In contrast, the petition by G Sundararajan that the Court was examining starts with characterising nuclear power as “the most dangerous means of producing energy with a serious potential for catastrophic accidents causing severe damage to life and property, with cost of reparation running into lakhs of crores of rupees”. Given this starting point, it is surprising that the Court’s judgment blandly accepts nuclear energy as “safe” without any reasoned justification.

Safety concerns remain paramount in the minds of the citizens living in the vicinity of Koodankulam. These have not been adequately acknowledged by the Court, which did not even see fit to mention the problems with valves that the AERB disclosed, or the news reports of corruption in supplier companies in Russia. The Court’s call to “educate the people” smacks of condescension, which is anachronistic for a democracy and inexplicable when seen in the context of this well-informed and widely-participated movement against the Koodankulam reactors.

The 6 May decision represents yet another judgment when a narrow notion of national interest has been used to quash genuine and justified public concerns. But this should not be surprising in light of an earlier decision by the SC in 2004, where it ruled that information relating to nuclear installations not be made public due to national security reasons. As with the earlier decisions on Bhopal and Narmada, it will lead to further erosion of trust in the justice system among the citizenry. Is there any surprise that the grass-roots groups have vowed to continue their protests against Koodankulam?

-Editorial Article of Economic Political Weekly,

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