Nuclear renaissance at cross hurdle of judicial activism

Writ in Supreme court against nuclear energy
Prospects of nuclear energy renaissance post Indo-US nuclear deal now faced with unexpected hurdle of judicial activism in the form of public interest litigation(PIL). Common Cause , the delhi based NGO, an old hand at PILs through its lawyer Prashant Bhushan filed a writ petition no. 464/2011 in the supreme court that came up for hearing on 14th November 2011.
The petitioners are mostly former bureaucrats led by former cabinet secretary TSR Subramanian. An assortment of retired IAS officers having occupied sensitive top positions in government and at one or other time might have been party to decision processes leading to Indo-US nuclear deal. Also included are some former Magsasay ward winners like retired Admiral L Ramdas. The Magsasy award sponsored by Ford Foundation has recently been in news in anti-corruption movement of Anna Hazare when one of demand in the controversial Jan Lokpal bill wanted the Magsasy awardees in the penal to select Lokpal. The lawyer of the petitioners is none other than the irrepressible Prashant Bhushan of Team Anna.
That apart, the writ among other challenges the constitutional validity of nuclear liability act passed by the parliament last year, seeks a safety assessment of all nuclear plants in India, and a comprehensive long term cost- benefit analysis of nuclear power. It aggressively seeks to put an end to construction and proposal of any more nuclear power plants pending safety review. It alleges that governments solitary motive in pushing for nuclear power is at the behest of multi-billion dollar global nuclear industry. The proposed French company Areva supplied nuclear plants in Jaitapur have come for special crititcism for its poor, unsafe and outdated technology from the anti-nuclear energy activists in the petition. Building heavily on public fears post Fukuyama, the petition also calls for establishing an independent regulatory authority to oversee nuclear power sector. , The current regulator, Atomic Energy Regulatory Board( AERB) they argue, is loaded with former atomic energy scientists hence can’t be relied to exercise their authority impartially.
The writ petition came up for hearing on 14th November in the court of Hon’ble Chief Justice of India. The court bluntly informed the lawyer of the petitioners that the issues raised on safety were more based on hearsay, stray newspaper reports rather than hard and unbiased factual analysis. Besides, the court was not an expert on nuclear safety matters. It rightly advised them to approach the concerned of the government i.e deptt of atomic energy. Court was hardly persuaded by Prashant Bhushan’s repeated pleas to intervene on regulatory issue when he learnt that court would not entertain any points concerning safety issues with complex technical implications. It further opined that if issue involved safety of any particular reactor or general safety norms, they could issue notice to the atomic energy department and seek information to alley their apprehension. In case government was not found to be sensitive to the safety aspects, courts were at liberty to intervene in public interest at any time.
The petitioners often referred to proposed Areva reactors in Jaitapur to drive home the point that French firm’s technology was old and unsafe and India was a dumping ground from what had now become prohibitively costly and outdated technology. Besides they were at pains to point out that india was expanding its civilian nuclear program much against prevailing global trend of phasing out nuclear power. Examples of Austria, Germany were pointed out. Dr Gopal Krishnan, a former retired DAE chairman’s articles and statements in media were made rallying points against the Indian nuclear program by Prahsant Bhushan. The learned judges didn’t fail to notice petitioners reference to a particular foreign supplier and hinted at the anomaly in lawyer activists views despite his lack of any competence of nuclear safety issues and comparative economic cost-benefit analysis of nuclear power. The argument clearly had shades of market access battle between operators.
In the prevailing mood of resistance largely led by anti-nuclear activists, it is likely that nuclear program will face renewed resistance at local level. Even though these trends are somewhat global and not localized strictly, nuclear industry is much to blame for the current state of affairs. The safety technologies have leapfrogged since Chernobyl and Three Mile Island accidents happened. Fukushima was hardly about robustness and reliability of safety technologies but more about a freak natural calamity that had lowest odds of disabling a reactor. Yet it happened because there is nothing like hundred percent safe technology anywhere. Nuclear industry due to sensitive proliferation concerns has failed to educate the public about safety standards in latest generation reactors. It needs to build a balanced and careful approach to improve transparency in safety operations without endangering security issues inherent in operation of nuclear power plants.
The blog will follow the development in this court battle when it is resumed and will inform readers as debate progresses.