SC holds back on nuclear safety PIL

Chief Justice S.H. Kapadia said the court would prefer a “public debate” on the issue of nuclear safety

The Supreme Court on Monday declined to take up a public interest case seeking the setting up of an independent regulatory mechanism to oversee the safety of India’s nuclear energy plants as it is a policy issue and therefore outside the purview of the court.

Prashant Bhushan, counsel for the petitioners, said the main concern was that Prime Minister Manmohan Singh, the principal force behind India’s nuclear energy plans, is also in charge of the regulator (the Department of Atomic Energy is directly under the Prime Minister’s Office), implying a conflict of interest.

After enquiring if the Nuclear Safety Regulatory Authority (NSRA) Bill was pending before the on-going session of Parliament, Chief Justice S.H. Kapadia said the court would prefer a “public debate” on the issue of nuclear safety, rather than for it to take up the issue. “We are not experts,” said Kapadia.

Adjourning the case for a month, the court told the petitioners they could suggest some regulatory models independent of the government adopted in countries such as the US, France, the UK and Canada, which it would then “recommend” to the government.

The NSRA Bill seeks to “to establish an Authority and such other regulatory bodies for regulation of radiation safety or nuclear safety and achieving highest standards of such safety.”

The court, however, did not dismiss the petition, leaving it open to be dealt with in the future.

“We are not saying this matter is not important. It is a matter involving the right to life under Article 21. We are conscious of that. We want to know what mechanism for independent regulation is there,” justice Kapadia told Bhushan.

Bhushan sought to draw the court into the debate using the Lokpal example, where he as a part of Anna Hazare’s team is crusading for an anti-corruption ombudsman to prosecute government officials for graft.

Kapadia’s bench brushed aside Bhushan’s argument. “Lokpal is a different issue. We feel this is premature at this stage. Please show us one or two examples of an independent regulatory mechanism.”

Justice Kapadia then disagreed with Bhushan saying, “this is not a matter where it has to be totally independent of the government. I’ll tell you why - most of the scientists in India are from the government. This is not the US where there may be scientists in private labs - don’t bring those examples here.”

Kapadia also defended the scientific community by arguing that they were being underestimated by the petitioners. “Ultimately scientists are not bound by the government. If the government says set up a plan, they won’t just do what the government says. They will take care.”

Bhushan, however, did not back down. He reminded the bench of the 1986 Chernobyl disaster and the 2010 Fukushima accident in Japan. “We are sitting on a ticking time bomb. Anything can happen at any minute,” he said.

India has 18 nuclear power plants, with seven more in the pipeline.

“We have gone through some of the literature. The issue Mr. Bhushan is that there is a divide within the scientific community. That is why there should be a public debate,” said the court.

Bhushan then cited the credentials of the petitioners - two NGOs and 13 former public officials, academics and scientists - many of whom have served in key positions within the government vis-a-vis nuclear energy and its safety.

The bench ignored this and instead explained why it wanted Parliament and the government to take up the issue. “If they (government) are going to take action now and we issue notice, they may say ‘the matter is subjudice’ and withhold,” said justice A.K. Patnaik.

“What is the nature of independence you are seeking? Please produce before us the model,” said the court.

The court also demarcated its turf by saying that some of the issues raised by the petition could be in the government’s exclusive domain. “So far as public safety is concerned - Article 21 is there. For all other issues they may not be for a court of law to decide. They may be issues of policy. Supreme Court is not Parliament,” said justice Patnaik.

Nikhil Kanekal