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,