Shiban Khaibri
Looking to the ever growing demand for energy in the country, there has been a substantial reliance on the nuclear power, perhaps, that speaks for India signing a nuclear deal with the US in 2008; much to the objections then raised by almost all opposition parties to the extent of UPA 1 losing the “outside support” to it from the Left parties. Why did the Prime Minister then take a very unwavering stand to make the Indo – US Nuclear deal possible and to have it passed by the Parliament, needs to be analyzed. As is known, the implementation of the deal was stalled by a Civil Nuclear Liability Law passed by the Parliament. This law has succeeded in keeping all major nuclear power companies from entering Indian nuke market but as per reports available, attempts are afoot to revive the deal subtly in the shape of a sale purchase agreement.
The Manmohan Singh government, therefore, is all set to give practical shape to the deal presently in the state of dormancy, even if it had to bypass the “liability clause” of the Civil Nuclear Liability Act. Making the best of the forthcoming visit to the US by the Prime Minister, last ditch attempt is all set to be made to revive the deal and ink an agreement with the US companies to sell and install nuclear reactors in India. Can the designated US Company Westinghouse agree to sell the nuke reactors with the liability clause attached to the agreement and can India go ahead with the deal ignoring the provisions of the Liability Act passed by our Parliament? In both the cases, the answer should be in the negative but the PM is determined to make the deal as a “mega deal” by reportedly exploring the possibility of diluting the law, even to the extent of not being in agreement with the advice rendered by the Indian Energy Commission, thus paving the way for signing the preliminary contract with the US. The Indian Energy Commission is vested with the sensitive job of planning and implementing various measures on sound economic and technical principals, free from all non essential restrictions or fixed rules. The advice rendered by it in critical issues with regard to nuclear matters must prevail, being within the ambit of the laws of the country. The spate of criticism has revolved around the apprehension that the government was pushing the US agenda with an aim to appease it, making the whole exercise politically contentious. It is also fretted that the Prime Minister was up to a nuclear capitulation as the note of the cabinet committee on security had traced the “urgency” behind going the whole hog for the deal.
The $50 billion nuclear commercial deal is all about acquiring six of the American nuclear reactors for installing in the state of Gujarat. Apart from the reservations about the manner and tone of the deal from various quarters, political as well as technical across the country, even in the US, the deal is going to fructify on their terms rather than ours. Even if undoubtedly, the technology may be good but the going, therefore, is believed to be not that smooth. Americans have concern with India’s people friendly nuclear liability regime and therefore is “convincing” India on the matter to go in for a review to make it look and turn also, industry friendly. The recourse then would naturally be to dilute the Civil Nuclear Liability Act while getting the necessary agreement documents drafted which is termed by the opposition parties to be an “illegal act”. They point out that if the government wants to succumb to the US pressure for clinching the deal that would then amount to succumbing to the pressure tactics of the American government. It would mean bypassing the law passed by the Parliament and we in India want and welcome the deal but due regard needs to be had to the covenants of the requisite law of the land. The stand of the opposition parties stands vindicated by the fact that an attempt to this end had been made by the government earlier but the standing committee had rejected it. How can we be just silent seeing the US protecting the interests of its companies while ignoring the very concerns of the indemnity provisions against any nuclear accident on account of reasons like technical problem , installation flaws, operational under performance due to faulty material and the like in our country? The Japanese Fukushima nuclear mishap makes Indian apprehensions more vivid and passing of the civil nuclear liability law by the Parliament more relevant and direly needed. Japan is reportedly closing all its reactors following the nuclear mishap. Safety and the security of the Indian citizens should be the first and foremost priority of the Indian Government.
The liability of the supplier has to be specified and delineated which is taken care of by section 17(b) of the Civil Nuclear Liability Act (CNLA) which deals with “irrespective of the written contract , the right to recourse and the liability of the supplier will apply if there is any supply of faulty material or equipment.” The section deals with the legal recourse against the supplier or the manufacturer while section 17 (a) provides, inter-alia that only “if such right is expressly provided for in the contract in writing…..” which may give a glimmer of hope to do the business under its umbrella but if no recourse is mentioned in the clause, the provisions of section 17 (b) shall hold. Even if the government tries to limit the period during which the liability clause could apply, that too would be in contravention of the Act of Parliament. Any defence of the proposed deal with the US firm Westinghouse by way of linking it with Russia on the Kundankulam nuclear plant, can be termed as not relevant in as much as the CNLA was not passed by the Parliament when the deal was struck. Nuclear Power Corporation of India cannot enter into any agreement, bypassing the law passed by the Parliament.
Obama administration is reported to be under pressure from its nuclear industry and from the Congress to “finalise the deal” with India with terms in the interests of that country as the US had exempted India from its domestic laws and further had already done a favour to our country by agreeing to sell the reactors even India falling outside the ambit of non- proliferation (treaty) group of countries. Is, therefore, Indian government deliberately goofing by responding to the pressures from the US by doing all haste and not doing any viability analysis and even bypassing the Indian Energy Commission ? The views of Indian Energy Commission cannot be circumvented. Taking the refuge under section 17 (a) selectively and interpreting it to suit the terms of the supplier firm Westinghouse cannot allow Nuclear Power Corporation of India Ltd (NPCIL) to limit the liability clause to suit the US firm. .
The Prime Minister needs to steer clear of the haze of controversy by making a statement on the issue though NPCIL and Westinghouse are set to ink a deal, at the outset, for two or three of reactors only to turn the visit of Dr. Manmohan Singh to Washington as an important one against a lackluster one, expected earlier; but he may get all accolades in Washington, under the given circumstances, however, there appears to be no warm response or the felicitations , vis-à-vis the proposed nuke sale agreement, back home on his return.
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