Many people in India have a deep faith in the legal system. They believe that the courts provide justice. Very often, whenever some new nuclear project is in the works, the first thing one hears is, “Let us go to the courts.” Though invariably these attempts have ended in disappointments, the faith abides. Sordid tales of corruption amongst the judiciary have shaken it somewhat, but deep down most feel that in the Supreme Court at least, their concerns will get a fair hearing and once the truth is known, justice shall prevail. Satyameva Jayate.

I have somehow never shared this faith in the judicial process. Maybe it is the anarchist in me but I have always been sceptical of the wisdom of the judges. Two recent judgements of the Supreme Court in cases related to nuclear matters have only reinforced this scepticism. I have seriously begun to doubt, if the honourable judges do read and understand their own judgements. To illustrate my point let us consider the judgement in the case of G. Sundarrajan vs The Union of India & others (The Koodankulam case)

At the very beginning of the judgement itself the honourable judges write;

“We are in these appeals concerned with an issue of considerable national and international importance, pertaining to the setting up of a nuclear power plant in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu. The incidents occurred in Three Miles Island Power Plant USA, Chernobyl, Ukraine, USSR, Fukoshima, Japan, Union Carbide, Bhopal might be haunting the memory of the people living in and around Kudankulam, leading to large-scale agitation and emotional reaction to the setting up of the Nuclear Power Plant (NPP) and its commissioning.

The nature of potential adverse effect of ionizing radiation, adds to fears and unrest which might not have even thought of by Enrico Fermi a noble laureate in physics in 1938, who was responsible for the setting up of the first Nuclear reactor in a Doubles quash Court at Slagg Field, at the Chicago University, USA.”

Let me first of all clarify that my role while quoting the judgement is purely that of a cut-paste artist. I have not added or subtracted even a comma or corrected the spellings. So those amongst you, dear readers, who have any problems with the English in the text, should take up the matter directly with the authors themselves. I shall only direct your attention to a portion of the last sentence, in fact, towards the Doubles quash Court at the Slagg Field at Chicago University, USA. A minor detail first: It is the University of Chicago and not Chicago University. Second, there is no Slagg Field there. A quick glance at wikipedia confirms it to be Stagg Field. But what takes the cake, is the “Doubles quash Court”. It is of course well known that Fermi built the first atomic pile underneath the squash court at the University of Chicago and that squash is a ball game like tennis played inside a room either by two (singles) or by four(doubles) players. It was previously known as racquets. Pakistanis have been world beaters at this sport with Jehangir Khan being a real legend. But what is quash? Specially Doubles quash. A look at the dictionary comes up with three possibilities:

1. to subdue forcefully and completely; put down; suppress

2. to annul or make void (a law, decision, etc.)

3. (Law) to reject (an indictment, writ, etc.) as invalid

Alas, nothing at all on Doubles quash. Maybe the two (doubles?) learned judges through this Freudian slip are giving an early indication of what they intend to do with people’s aspirations for justice.

I can sense a certain remonstration amongst you, dear readers at all this. Why make such a song and dance about something that might actually be just a typo. So, let it pass although I do think that three mistakes in just half a sentence in the opening paragraph itself in a judgement on an issue of international importance, is something unworthy of what one expects of the Supreme Court of India.

Going further on page 9 and 10 we have,

“As a sequel to that national policy, the Central Government, with the active cooperation of AEC, BARC, NPCIL, AERB etc., have already set up about twenty operating power reactors in the country with installed nuclear capacity of 4780 MWe, which have been commissioned over the last four decades from the year 1969 to 2011.

Over and above, India has now set up two PHWRs of VVER based NPPs (2 X 1000 MWe) at Kudankulam in Tamil Nadu with the co-operation of Russian Federation which is the subject matter of this litigation.”

It is entirely understandable if a novice gets confused in this alphabet soup. But since the learned judges themselves call it as “the subject matter of this litigation,” one would at least expect that they would know that PHWR and VVER refer to two entirely different reactor types and calling PHWR of VVER based NPP is just absurd. PHWR stands for Pressurized Heavy Water Reactor while VVER are the initials in Russian of what might be translated as Water-water Energised Reactor. A pressurized heavy water reactor is better known as CANDU standing for Canadian Deuterium Uranium reactor. As the name implies, it uses natural uranium as fuel and heavy water both as a moderator as well as the coolant. VVER on the other hand uses enriched uranium as fuel and ordinary natural water as both moderator and coolant. Most Indian reactors till now except for the first two at Tarapur are CANDU types. The Indian atomic energy establishment does not like the name CANDU since it refers to the Canadian origin of the design and rather prefers PHWR of Indian design.

During the entire text of the judgement, the judges place an extraordinary reliance on the Atomic Energy Regulatory Board (AERB) a toothless lapdog regulatory body. Although it would be wrong to say that every page refers to AERB, the total number of references 126 in a 247 page report (more than once in two pages), does illustrate the dependence of the judges on this fig-leaf of a regulator. Even the Government of India having realized following Fukushima the uselessness of AERB as a regulator has decided to constitute a new regulatory body but the faith of the judges in the effectiveness of AERB as a regulator remains strong. However, AERB has no previous experience of regulating a VVER reactor. More relevant is the fact that DAE and NPCIL care two hoots for what ever the AERB manuals may contain.

On pages 14 and 15, the judges are very particular to point out that it is not their province to decide on the correctness of a policy. That is strictly for the parliament to decide. They quote many other legal luminaries to bolster this argument.

It is not for Courts to determine whether a particular policy or a particular decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the Statute.

Lord Macnaughten in Vacher & Sons v. London Society of Compositors, (1913)AC107(118)HL has stated:

“Some people think the policy of the Act unwise and even dangerous to the community……But a Judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty is to expand the language of the Act in accordance with the settled rules of construction.”

12. In CCSU v. Min. (1984) 3 All ER 935 (954) HL, it was held that it is not for the Courts to determine whether a particular policy or particular decision taken in fulfillment of that policy

are fair. They are concerned only with the manner in which those decisions have been taken, if that manner is unfair, the decision will be tainted with that Lord Diplock labels as ‘procedural impropriety’.

13. This Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors., (1997 )7SCC 592 held that unless the policy framed is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is invalid in constitutional or statutory mandate, court’s interference is not called for. Reference may also be made in the judgment of this Court in M/s. Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635; Dhampur Sugar

(Kashipur) Ltd. v. State of Uttranchal and Ors. (2007) 8 SCC 418 and Delhi Bar Association v. Union of India and Ors., (2008) 13 SCC 628.

We are therefore firmly of the opinion that we cannot sit in judgment over the decision taken by the Government of India, NPCIL etc. for setting up of KKNPP at Kudankulam in view of the Indo-Russia agreement. Courts also cannot stand in the way of the Union of India honouring its

Inter-Governmental Agreement entered into between India and Russia.

But if the judges really believed in this how come on page 11 one finds them waxing eloquent on the merits of nuclear energy?

“One of the reasons for preferring nuclear energy as an alternative source of energy is that it is a clean, safe, reliable and competitive energy source which can replace a significant part of the fossil fuels like coal, oil, gas etc. Oil and natural gas resources might exhaust themselves.”

Does the injunction against making judgements on policy matters hold only if the policy is not to the judge’s liking? What makes this pontification all the more disgusting is the fact that each of the adjectives used to describe nuclear energy; clean, safe, reliable and competitive is not applicable to nuclear energy at all. Nuclear energy is not clean, not safe, not reliable and certainly not competitive. Even with all the corruption involved in the coalgate scandal, coal is still considerably cheaper than nuclear. The judges in exhibiting their complete ignorance of the facts concerning nuclear energy just show the enormous amount of work that still needs to be done in educating the so-called educated classes.

As early as October 2010, we have had the spectacle of the Minister of State in the Prime Minister’s office, Mr Narayanswami making periodic announcements regarding early start to the Koodankulam electricity generation. That has just not happened in the last three years and the reason for the delay is not just public agitation. The fact is that there are serious deficiencies in the equipment supplied for the plant, but the judges have totally ignored this reality and chosen to rely on the worthless assurances of DAE and its lapdog regulator AERB.

In case you are still not convinced of my assertion regarding the judges being ignorant of their own judgement, there is yet another gem in the judgement. On page 192 the judges categorically declare, “Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21. ”

Now what can be clearer than this. The judges have already by now (page 192) made absolutely clear that they consider nuclear energy to be in the larger public interest of the community. But according to the statement above, that does not matter. Thousands of individuals have expressed and continue to express their apprehensions of violations of their human rights and the right to life guaranteed under article 21 and whatever invisible public good there might be in nuclear energy, that has to give way according to the learned judges to these apprehensions.

Yet, just a page later on page 194, the judges sing an entirely different tune.

Apprehension, however, legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.

The learned judges have by this u-turn completely lost me and I suspect anybody who reads the judgement seriously. While the project has to give way to people’s apprehensions, the apprehensions cannot override the project. I suppose I shall have plenty of time to ponder on this dilemma and on the wisdom of the judges of the Supreme doubles quash Court when I don’t give way to a truck and the truck overrides me.