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Tackling Nuclear Radiation: Indian Law

Since Uranium was discovered by Martin Klaproth in 1789, Nuclear energy has come a long way.[1] Nuclear energy has become one of the most efficient ways for solving the need of growing green energy. Nuclear power constitutes approximately 16% of the world's electricity. France produced about 379.50 BkWh or 68.5 % of its electricity through nuclear reactors in 2020. The United States of America emerged as a world leader producing 789.88 BkWh electricity through nuclear reactors.

This was 29.9% of the world's electricity generation through nuclear reactors.[2] Nuclear reactors don't release carbon dioxide or pollute the air when they're in operation, in contrast to fossil fuel-fired power plants. However, significant energy is needed for the mining, processing, and manufacturing of reactor fuel from uranium ore. Nuclear power plants' emissions may be linked to the electricity they produce if fossil fuels are utilized in the uranium ore mining and refining process, or if they are used in the construction of the plant.[3]

Nuclear (ionizing) Radiation

Nuclear radiation, also known as ionizing radiation, is energy released in the form of electromagnetic waves or charged particles traveling at a high speed. Many sources, both artificial and natural, can emit radiation. Small amounts of radiation from cosmic rays, sunlight, and rocks are a constant source of exposure for all living things.[4]

Global public concern is directed towards man-made sources of radiation exposure, particularly those associated with nuclear activity. Medical sources are widely accepted for their benefits even if they provide the greatest amount of man-made sources. Natural sources of radiation, which are common and the least controlled form of exposure, are even less of a concern.

Three main sources of radiation associated with the nuclear business consists of:

  1. Nuclear fuel production
  2. Nuclear tests
  3. Nuclear accidents involving the large-scale release of radioactivity, like the Chernobyl accident, are the[5]

Nuclear Fuel Production

Radioactive wastes, including used reactor fuel and uranium mill tailings, are produced by nuclear power. For millennia, these substances may continue to be radioactive and hazardous to human health. The majority of nuclear power sector waste has relatively modest radiation levels when measured by volume. Spent nuclear reactor fuel that has been exposed to radiation is known as high-level radioactive waste. Because spent reactor fuel assemblies are extremely radioactive, they must first be kept in specially made water pools.[6] This poses a major concern and stresses the underlying needs for better and stricter management of these reactors.

Nuclear Tests

Countries possessing nuclear weapons have carried out several atmospheric nuclear tests during the past 40�45 years. The majority of radioactive fallout from atmospheric experiments settles in the vicinity of the test site. Some are transported by the wind around the globe at roughly the same latitude and remain in the troposphere, the lowest layer of the atmosphere. The radionuclides settle on the earth's surface during their journey, spending, on average, around one month in the atmosphere. However, the majority of radioactivity is forced into the stratosphere, which is between 10 and 50 km above the earth. There, it remains for several months before gradually descending to the surface and exposing individuals to ionizing radiation.

Even though fallout comprises hundreds of radionuclides, the majority are either produced in extremely minute concentrations or decay quickly, thus only a limited number of them pose a risk to human health. In decreasing order of significance, the following four radionuclides make up more than 1% of the total dose given to the global population:
  1. strontium-90
  2. zirconium-95
  3. carbon-14
  4. cesium-137[7]

Nuclear Accidents

There have only been two significant nuclear power plant accidents, and both had significantly less serious effects than initially anticipated. Fossil fuels are the deadliest energy source overall because of the 8.7 million deaths caused annually by air pollution from their combustion, especially in power plants. Hydroelectric power is the deadliest way to generate electricity in terms of accident fatalities. According to government estimates, the hydro tragedy that claimed the most lives was the collapse of the Banqiao Dam in the Henan province of China in 1975. This accident resulted in 171,000 deaths directly and indirectly. [8]

In terms of both cost and mortality toll, the Chernobyl tragedy is the deadliest nuclear power plant accident in history. The only other INES Level 7 disaster occurred on April 26, 1986, when reactor number four at the Ukrainian plant was destroyed by a steam explosion. Large amounts of radioactive waste were dispersed throughout Western Europe as a result of the ensuing fires, which immediately killed some thirty people from acute radiation poisoning and raised long-term concerns about an increase in thyroid cancer cases.[9] Only 31 people perished as a direct result of Chernobyl, according to the official, internationally accepted death toll, although the UN estimates that only 50 deaths are directly related to the accident. It was estimated in 2005 that an additional 4,000 people would pass away from radiation exposure.[10]

The 9.0 magnitude Great East Japan Earthquake that struck on Friday, March 11, 2011, resulted in a 15-meter tsunami that cut off the power supply and caused three reactor meltdowns at the Fukushima Daiichi plant. According to official statistics, the evacuation effort resulted in the displacement of over 100,000 people and over 1,000 deaths. Investigations conducted later on have revealed that the infrastructure and risk assessment were insufficient for a natural disaster with this magnitude.

The accident that was given the most serious Level 7 rating in history was only the second one.[11] A Yomiuri Shimbun Survey in 2012 reveals that 13 municipalities impacted by the crisis at the crippled Fukushima No. 1 nuclear power plant have classified 573 deaths as "disaster-related".[12]

Regulation Of Nuclear Radiation In India

Atomic Energy Act 1962

Since there had not been much experience running nuclear power plants, the challenges of nuclear safety had not taken on more importance in the early years of India's nuclear programme. Scientific advancements led to the replacement of the Atomic Energy Act of 1948 with the Atomic Energy Act of 1962.

With its main office located in Mumbai, Maharashtra, the Atomic Energy Regulatory Board (AERB) is a statutory agency that was established to carry out the laws and guidelines specified by this Act. This Act's primary goal is to control the development, production, use, and management of atomic energy in order to give India's citizens a peaceful environment.[13]

In accordance with section 3, the Central Government is granted general powers, such as the ability to establish controls over radioactive materials or radiation-generating facilities in order to:
  1. prevent radiation hazards;
  2. ensure public safety and the safety of those handling radioactive materials or radiation-generating facilities;
  3. guarantee the safe disposal of radioactive wastes.

Along with special measures for safety, power of access and inspection, control over the production and use of atomic energy, inventions, and the production and distribution of electricity, the act also provided unique provisions for the control of radioactive substances. The Law Minister informed the Lok Sabha on August 20, 1962 that the Government has resolved to establish a 200 MWe electric generating station at Pratapsagar in Rajasthan and Tarapur in Bombay, from which power would be bought under the Atomic Energy Act of 1962, giving thrust to the Act.[14]

Today India has come a long way. In 2020 India generated a total of 533 TWh electricity out of which coal powered 1097 TWh (72%) and hydro 161 TWh (11%) the nuclear reactors produced 43.0 TWh (3%) of the total output.[15]

Over time various rules were made under the Atomic Energy Act regulating various activities in the field of nuclear and radiation safety are:
  1. Atomic Energy (Working of the Mines, Minerals and Handling of Prescribed Substances) Rules, 1984
  2. Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987
  3. Atomic Energy (Control of Irradiation of Food) Rules, 1996
  4. Atomic Energy (Factories) Rules, 1996
  5. Atomic Energy (Radiation Protection) Rules, 2004

Atomic Energy Regulatory Board

On November 15, 1983, the President of India established the Atomic Energy Regulatory Board (AERB) by utilizing the authority granted by section 27 of the Atomic Energy Act, 1962 to execute the regulatory and safety duties under the Act. The Environmental (Protection) Act of 1986 and the Atomic Energy Act of 1962 provide the rules and notices that AERB is required to follow. The Board's goal is to guarantee that there is no excessive risk to public health and the environment from the use of nuclear energy and ionizing radiation in India. As of now, the AERB is India's highest regulatory and supervisory authority for atomic energy.

Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987

The Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987, published under the Atomic Energy Act, regulate the release of radioactive waste from Nuclear Power Plants or the NPPs. In accordance with the aforementioned guidelines, a Nuclear Power Plant (NPP) must acquire authorization from AERB before disposing of radioactive trash. The regulatory limits for radioactive effluents are set by AERB using the public allocation of an effective dosage limit of one mSv annually, resulting from nuclear facilities at a location, taking into account all possible discharge pathways and noteworthy radionuclides in every discharge path.[16]

Rule 3 of the Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987 states that anyone cannot dispose of radioactive waste:

  1. unless they have received permission from the appropriate authorities in accordance with these rules;
  2. in any way that deviates from the guidelines and criteria outlined in the permission granted in line with certain rules;
  3. anywhere other than the areas mentioned in the authorization;
  4. in amounts greater than those listed in the authorization.

The rules also have provisions for recording of radioactive waste released and accidental release of radioactive waste

Atomic Energy (Control of Irradiation of Food) Rules, 1996
These Rules cover all aspects of the use of radiation sources, including the need for regulatory consent, certification of personnel authorized to handle radiation sources, administrative procedures to be followed, technical requirements and managerial considerations to ensure radiation source safety, handling of radioactive waste, and radiation of food.

These regulations were first published in 1991 and then revised in 1994 and 1996. They specify the technological requirements for food irradiation, the qualifications of the operator, quality control officer, and radiation safety officer, as well as the different operating conditions for the irradiation facility, dosimetry considerations, and other things. After confirming that the food irradiation facility's design complies with standards and that certified personnel is on hand to ensure its safe operation, the Certificate of Approval is granted. According to these regulations, the Chairman of the AERB, the Competent Authority, grants the Certificate of Approval. Onions, potatoes, frozen seafood, and spices have respective doses of 60 Gy, 100 Gy, 5 kGy, and 10 kGy.[17]

Atomic Energy (Radiation Protection) Rules, 2004

The Civil Liability for Nuclear Damage Act, 2010
Legal responsibility exists for operators of nuclear installations for whatever harm they may cause. Operator liability is based on the strict liability or no fault concept, which applies regardless of fault, rather than the fault principle. The impact of this destruction will extend beyond the country where the accident occurred to include its bordering countries.

The owners of nuclear plants and establishments are typically held partially or fully responsible for any harm, which they may be able to reimburse through insurance. Beyond that, States assume accountability as the insurer of last resort in accordance with international law and practice.[18]

At present, the international framework of nuclear liability consists of three principal accords. These are:
  1. The 1960 Paris Convention.
  2. The Vienna Convention of 1963 and the Vienna Convention Amendment Protocol of 1997.
  3. The 1997 Convention on Supplementary Compensation for Nuclear Damage.
Of these agreements, only the Convention on Supplementary Compensation for Nuclear Damage has been signed by India.

The Civil Liability for Nuclear damage Act, 2010 was passed in 2010. This legislation's primary goal is to establish civil liability for nuclear damage and promptly compensate victims of nuclear accidents by imposing liability on the State and the operator through a no-fault liability framework. The creation of a Nuclear Damage Claims Commission and the appointment of a Claims Commissioner are further objectives of this Act.

The enactment of this law is also attributed to the "necessity of joining an international liability regime" and to allow for liabilities resulting from a nuclear incident. The Act covers nuclear damage sustained in or over the exclusive economic zone, in or over the marine areas outside of India's territorial waters, on board or by a ship registered in India, or on or by an artificial island, station, or construction falling under Indian jurisdiction. However, it only pertains to nuclear installations that are owned or managed by the Central Government, whether directly through a government enterprise or through any authority or corporation that it may have established.[19]

Sections 3 to 8 of Chapter II of the Act establish the rules and guidelines for nuclear harm responsibility. The Atomic Energy Regulatory Board (AERB) is required to report any nuclear incident within 15 days of its occurrence if it determines that the risk and threat involved are not negligible. The Board will also publicize the occurrence widely after being notified, encouraging individuals to exercise caution and take all required safety precautions. Nonetheless, it appears that this section uses the word "insignificant" inconsistently. As there are no established criteria, it leaves the AERB free to decide what is and is not significant.

According to Section 4(1), the operator of the nuclear installation is responsible for any nuclear damage brought on by a nuclear incident. Furthermore, Section 4(4) stipulates that the Operator of the nuclear facility shall be strictly liable and shall be based on the no-fault liability concept. According to Section 8(1), the Operator must get insurance or other financial security covering his liabilities before starting to operate his nuclear site. All of these clauses, in addition to the Act's lengthy title, make sure that the Operator is subject to strict liability under a no-fault liability system.[20]

If a nuclear incident occurs involving a "nuclear installation" or "nuclear materials" that are under its control, the Operator will be held accountable for any resulting "Nuclear Damage." Each operator will be liable "Joint and Several" if there are multiple operators and the damage attributable to them is not separable. Nevertheless, even in the event of such joint and several responsibilities, the operator's overall liability will be as stated in section 6(2).

Simultaneously, in the event that multiple nuclear facilities owned by the same operator are implicated in a nuclear incident, such operators shall be held individually accountable to the level specified by section 6 (2) for each of those nuclear sites.

The "absolute liability" principle, which is the Indian counterpart of strict liability, states that in the event that an enterprise engages in a hazardous or inherently dangerous activity and an accident occurs during the operation of said activity that results in the escape of toxic gas, for example, the enterprise is strictly and absolutely liable to compensate all parties affected by the accident. This liability is unaffected by any exceptions that apply to the tortious principle of strict liability devised in Rylands v. Fletcher[21]. The Indian Supreme Court established this principle of absolute liability in M.C. Mehta v. Union of India[22](Oleum Gas Leak Case).

It is not specified, meanwhile, what kind of culpability would exist in India in the event of a nuclear disaster. The Act itself specifies a few unusual situations in which an operator is exempt from duty; even in these cases, the victim will still get compensation because the Central Government will bear the burden of liability.

The following conditions apply:
  1. A severe natural disaster of a unique kind. The Act does not, however, define the term "exceptional character." This gives the authorities a great deal of latitude.
  2. An act of terrorism, insurrection, civil war, hostility, or armed conflict
Instead of the operator, the Central Government is liable if certain conditions directly result in nuclear damage.

The following nuclear installations, whether fully or partially built on the site of the incident, are also included in the list:
  1. The nuclear installation itself and any other nuclear installation.
  2. To any property on the same site that will be utilized in conjunction with this installation or that is now in use.
  3. To the mode of transportation used at the time of the nuclear accident to convey the relevant radioactive materials
These clauses may conflict with the interests of other parties whose property was on the same site as the nuclear disaster, even if their main goal is to prohibit the operator from being compensated for any nuclear catastrophe he caused.

The Civil Liability for Nuclear Damage Rules 2011
On November 11, 2011, notice of the Rules was given in accordance with the Civil Liability for Nuclear Damage Act, 2010. The Rules outline requirements, among other things, for the operator to pursue recourse against the supplier when that right is granted under a contract. The Rules lay out the steps for filing a compensation claim for radioactive damage.[23]

Rule 6 addresses applications for compensation. It says that the following parties may file a claim for compensation for nuclear damage: (a) the person who was harmed; (b) the owner of the property where the damage occurred; (c) the deceased's representatives; or (d) any agent duly authorized by such person, owner, or legal representatives

The Act outlines three situations in which the operator may pursue remedy under Section 17. Recourse may be pursued under Section 17(a) in cases when a written contract outlines such a right. When a nuclear accident happens as a result of a latent or patent fault in the product that was supplied, Section 17(b) protects the right to remedy. When a planned action intended to cause nuclear damage results in a nuclear event, Section 17(c) permits the right of redress. Section 46 of the Act permits claims based on other laws, including torts. The Rules exclusively address recourse rights that are expressly granted by a contract, such as under Section 17(a).

The process for paying compensation to victims of nuclear accidents is outlined in the Rules. In the event that a woman makes the claim, the money may be invested or passed to a dependent or heir. The compensation payment must be invested for a minimum of three years if the claimant is illiterate. The procedure for minors should be followed if the claimant is semi literate. A minor's compensation must be put in a fixed deposit until the minor reaches the age of eighteen. [24]

Compensation Amount
The maximum liability for each nuclear event is now set at three hundred million Special Drawing Rights (SDRs) in rupees, according to Section 6(1) of the The Civil Liability for Nuclear Damage Act, 2010. Three hundred million SDRs are equal to roughly Rs 3166.97 crores, since one SDR is now worth around Rs 105.5658.

The Act's Section 6(2) specifies that the operator's maximum liability is limited to Rs. 1500 crore. According to Section 7 (1) (a) of the The Civil Liability for Nuclear Damage Act, 2010 the Central Government will fill the difference between the total liability and 300 million SDR equivalent rupees in the event that it surpasses Rs 1500 crores. Under the CSC, India will be able to access foreign money up to 300 million rupees equivalent to SDRs.

According to The Civil Liability for Nuclear Damage Act, 2010, Section 7(2), the Central Government may create a "Nuclear Liability Fund" by levying operators in the amount and according to the approved method. Since December 2015, the Nuclear Liability Fund has been in existence. Regarding the possibility of increasing the Act's maximum compensation amount in the future and how that would affect suppliers' recourse with regard to existing contracts, it is well-established jurisprudence that a change in legislation cannot change the terms of an existing contract created under the then-current legislation. A court of law would not uphold a retroactive law that impacts a Party's fundamental vested rights under a contract.

The central government may, in light of the harm or damage resulting from a nuclear incident, establish a Nuclear Damages Claims Commission (NDCC) for the purpose of resolving claims. An application to the Nuclear Damages Claims Commission must be filed within three years after the date on which the nuclear damage was discovered, much like an application to the Claims Commissioner. All applications that are pending before a Claims Commissioner will be moved to the newly constituted NDCC.

The insurer or any other person, as the case may be, who is obligated to pay under the terms of the insurance or financial security contract must deposit the funds as ordered to the extent of his liability following the decision made by the Claims Commissioner or the NDCC. The remaining sum must be deposited by the Operator, up to the extent of his maximum obligation. After then, the NDCC or the Claims Commissioner will choose a person to receive the money that was deposited, and that individual will get it within fifteen days.[25]

In order to participate in a pool arrangement and contribute their capacities to underwrite nuclear liability exposures through a designated policy issuing direct insurance, GIC Re and eleven domestic non-life insurance companies formed the India Nuclear Insurance Pool (INIP), a risk transfer mechanism. The pool has a total capacity of Rs. 1500 Cr.

The risks associated with the nuclear operator's obligation under Section 6(2) of the The Civil Liability for Nuclear Damage Act, 2010 and the suppliers' liabilities under Sections 17(a) and (b) of the The Civil Liability for Nuclear Damage Act, 2010 are covered by INIP. Risks related to suppliers' liabilities under Section 17 Nuclear Operator's liabilities and the nuclear operator's obligation under Section 6(2) of the The Civil Liability for Nuclear Damage Act, 2010 are covered by INIP.

Subject to the terms, limitations, and circumstances specified in the Policy, INIP shall indemnify and hold harmless the Insured against its obligation deriving solely from the Nuclear Operator's right of recourse under Section 17 of the The Civil Liability for Nuclear Damage Act, 2010.

Pricing and premiums differ amongst products and are contingent upon a number of variables. When pricing an operator's policy, various factors are taken into account, including the age of the reactors, their location, the number of reactors, the length of the policy, etc. Factors including the supplier's contract value with the operator, the length of coverage requested, the number of sub suppliers, etc., are taken into account when pricing the supplier's policy.[26]

Committee on Subordinate Legislation Report Summary (Civil Liability for Nuclear Damage Rules, 2011)

2011 saw the submission of the 27th Report on Civil Liability for Nuclear Damage Rules by the Committee on Subordinate Legislation. The report was made by a committee chaired by Mr. P. Karunakaran.

The scope of the operator's recourse against the supplier is not specified under the Act. According to the Rules, a contract for the supply of nuclear material must, at minimum, include recourse in an amount equal to the lower of the following two amounts: (i) the contract's value; (ii) or the operator's liability. The Committee believed that the strict responsibility imposed by the Act was lessened by the Rules. It made the observation that clauses in the Rules shouldn't conflict with the main points of the Act. The Rules must not include any restrictions or overreaching that the Act does not authorize.

According to the Act, victims may file a claim for compensation within ten years in the event that property is damaged and within twenty years in the event that physical injury occurs. Therefore, it may take the higher judiciary more than 20 years to decide on a claim in its entirety. The Committee observed that if the available recourse is not exhausted, neither the Act nor the Rules made it clear whether the operator could pursue recourse against the supplier regardless of the deadline.

The Committee also observed that the Act's notification of the Rules was delayed. It noted that notice of rules must be given within six months of the start of an enactment. The Committee believed that the Rules' drafting ought to have started concurrently with the Bill's development. The Act's enforcement was postponed by 13 months due to the postponement of the Rules' development.[27]

In addition to the discussed legal framework, it is imperative to acknowledge the growing importance of nuclear energy on the global stage. With approximately 16% of the world's electricity generated from nuclear power, nations are increasingly turning to this source for its efficiency and reduced carbon footprint during operational phases. The highlighted cases of Chernobyl and Fukushima Daiichi underscore the vital need for stringent regulations to prevent accidents or leakages that can have severe consequences for human health and the environment.

As we reflect on India's strides in nuclear energy production, it becomes evident that the existing legal framework, while comprehensive, needs to adapt to the evolving landscape. The preventive aspect of nuclear safety needs continuous attention,and the necessity for additional laws that specifically focus on accident prevention, stringent safety measures, and proactive risk management.

The current legal provisions deal with liability and compensation in the aftermath of a nuclear incident, efforts should be made on preventing such incidents. This approach aligns with global efforts to ensure the responsible utilization of nuclear energy, safeguarding not only the immediate population but also the broader ecological balance.

In this context, a holistic legal framework should encompass preventive measures and regular safety audits. This will be useful in striking a balance between progress and precaution in this crucial domain.

End-Notes:Outline History of Nuclear Energy
  • World Nuclear Association (Nov. 13, 2023, 8:30 PM) -
Nuclear Explained
  • Nuclear explained, U.S. Energy Information Administration (Nov. 13, 2023, 8:30 PM) -
  • Nuclear power and the environment, U.S. Energy Information Administration (Nov. 13, 2023, 8:30 PM) -
Nuclear Radiation
  1. What is nuclear radiation?, University of Western Australia (Nov. 13, 2023, 8:30 PM) -
  2. Population Exposure to Ionising Radiation in India, Indian Society for Radiation Physics (Nov. 13, 2023, 8:30 PM) -
Nuclear Disasters
  1. What are the effects of nuclear accidents?, World Nuclear Association (Nov. 13, 2023, 8:30 PM) -
  2. The five worst nuclear disasters in history, Processing Industry Forum (Nov. 13, 2023, 8:30 PM) -
  3. The true toll of the Chernobyl disaster, BBC (Nov. 13, 2023, 8:30 PM) -
Nuclear Laws and Regulations in India
  1. Overview of Indian Laws Dealing with Nuclear Energy (Nov. 13, 2023, 8:30 PM) -
  2. Genesis & Evolution OF Indian Nuclear Policy (Nov. 13, 2023, 8:30 PM) -
  3. Nuclear Power in India, World Nuclear Association (Nov. 13, 2023, 8:30 PM) -
  4. Regulatory framework for nuclear and radiation Facilities (Nov. 13, 2023, 8:30 PM) -
  5. Regulatory control for safe usage of radiation sources in India, P.K. Ghosh & A.U. Sonawane, Atomic Energy Regulatory Board (Nov. 13, 2023, 8:30 PM) -
  6. Atomic Energy Law in India: An Analysis Vishnu Konoorayar K. and Jaya V. S (Nov. 13, 2023, 8:30 PM) -
  7. Nuclear Energy Law in India: An Analysis of Environmental Perspective, Gurmanpreet Kaur (Nov. 13, 2023, 8:30 PM) -
  8. FAQs Version 2.0 on CLND Act 2010, Department of Atomic Energy (Nov. 13, 2023, 8:30 PM) -
  9. The Civil Liability for Nuclear Damage Rules 2011, PRS India (Nov. 13, 2023, 8:30 PM) -
  10. Rules & Regulations Review: The Civil Liability for Nuclear Damage Rules, 2011, PRS India (Nov. 13, 2023, 8:30 PM) -
  11. Committee on Subordinate Legislation Report Summary: The Civil Liability for Nuclear Damage Rules, 2011, PRS India (Nov. 13, 2023, 8:30 PM) -,_Report_Summary.pdf
Legal Cases
  • Rylands v. Fletcher, (1868) LR 3HL 330
  • M.C. Mehta v. Union of India, AIR 1987 SC 1086

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