The Supreme Court’s verdict on Koodankulam rests on three hugely contested premises: the judges’ belief in the necessity of the nuclear energy for India’s progress, their faith in the country’s nuclear establishment to perform its role, and the judges’ notion of the larger public interest and the apprehensions of small sections which should make way for the country’s progress. Not only have the judges given judicial sanctity to these contestable propositions, but have also completely overlooked the Koodankulam-specific brazen violations of the government’s own norms, raised by the petitioners.

The Supreme Court’s judgement on Koodankulam would go in India’s history in line with the Narmada Dam verdict and other judicial pronouncement reflecting the inability of our post-independence democratic institutions to overcome the narrowly defined confines of ‘larger public interest’, ‘development/growth’ and ‘national conscience’.

Whose interests are larger?

While the petition filed by the Chennai-based environmentalist group Poovulagin Nanbargal presented specific concerns of safety hazards and violations of the government’s own norms in implementing the project, India’s growth and the assumed indispensability of nuclear energy for it is a recurring rationale in the Supreme Court’s final verdict. The judges have gone beyond the scope of the prayer and have extolled nuclear energy as essential for India’s growth, terming the ‘fears’ of people as misplaced. The judgement goes on to prescribe that ‘minor inconveniences’ must be tolerated in the larger interest of the nation.

DOCUMENTS:

TEXT of the Supreme Court’s Judgement on Koodankulam

Koodankulam Scam: TEXT of the Petition Filed in the Supreme Court by Adv. Prashant Bhushan

Special Leave Petition on Koodankulam filed in Supreme Court

Writ Petition on Nuclear Liability for Koodankulam Filed in the Supreme Court of India

People’s Movement is Emotional fear, Nuclear Establishment has the Expertise

The second paragraph of the judgement itself calls the people’s massive agitation in Koodankulam an “emotional reaction” to the setting up of the reactor. It almost mocks the people’s concern saying the “fears and unrest” might not have been thought of by Enrico Fermi who set up the first nuclear power plant. Since then, the judgement says, people have reacted emotionally when every new reactor is commissioned. The judgement goes on to add that the people’s concern was mooted even the constituent assembly when the Constitution was being drafted. Does this imply that nuclear energy in India should be regarded a fait accompli?

The judgement accepts the establishment’s narrative on nuclear energy in India unquestioningly.

• The judgement extols the Atomic Energy Commission (AEC) as the repository of final authority on everything nuclear and the Atomic Energy Regulatory Board (AERB) as a competent regulator, glossing over its dependence on the AEC for funds and human resources and its being obliged to report to the AEC whose activities it is essentially mandated to regulate.
• The verdict also reposes complete faith in the national policy on nuclear energy and the existing framework to control and regulate all radioactivity-related activities in India.
• Under the title ‘National Policy’ (page 9) the judges narrate the evolution of India’s 20 nuclear power stations built over last four decades producing 4780 MWs today with a rare clinical coldness, without questioning the nuclear establishment’s claims and its performances in the same period, while under the same title on page 10, it mentions that renewable sources provide “small share” of our total electricity – 15%, which is actually 6 times more than the share of nuclear energy. 
  
• In its overview of the global status of nuclear energy, the rapid downward trend of the industry post-Fukushima doesn’t find a mention – France produces 74.6%, US has 104 reactors, world had 439 reactors in 2007 producing 13-14% of total energy. The reality is, nuclear power produced just 11% in In 2011 and the downward trend is expected to continue due to larger number of reactors ageing and lesser numbers being built today.
• It doesn’t even question the NPCIL’s claims of producing 20,000 MW by the year 2020 and 63,000 MW by 2030.
• Transgressing the scope of the petition, the judges have mentioned that “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 significance of the fossil fuel like coal, oil, gas etc.” The judges have not bothered to see that each of these adjectives have been questioned and have led to review of national policies, including in France where a national energy transformation law is underway.

As the questions raised in the petition involved technical problems plaguing the Koodankulam project, the Court consulted the government’s experts – officials from the Nuclear Power Corporation of India Limited (NPCIL) and the Atomic Energy Regulatory Board (AERB). Unfortunately, no independent institutionalised expertise on nuclear issues exists in India outside the confines of the Department of Atomic Energy.  This led to a situation in which the Judges have no option than to believe the same official experts against whose refusal to acknowledge the risks was the petition filed. While this made the entire proceeding lop-sided in the first place, there was still scope for the judges to look into the glaring violations and specific risks in Koodakulam which do not fall strictly under nuclear expert issues.

The crucial issues of supply of sub-standard equipments by ZiO-Podolsk, violation of Coastal Regulatory Zone stipulations and Environmental Impact Assessment norms, lack of clarity on the crucial issue of spent fuel storage, non-compliance with proper mock evacuation drill required by the AERB norms, much larger population in the vicinity than stipulated etc. have either been glossed over or have been legalized post-facto.

Court validating a political deal?

The judgement mentions India’s civil nuclear agreement with the US in 2005 and then with France and UK in 2008 and 2010, and explains them as the govt’s effort give effect to the “National Policy for development” for which “India has entered into various bilateral treaties and arrangements with countries which have considerable expertise and experience”. It is a well known fact that the nuclear deal came from the US side and the energy justification was a later concoction to justify it. The integrated energy policy of 2006 came one year after the Indo-US nuclear deal. In fact, it was the nuclear establishment in India which was the first one to get surprised with the news of Indo-US nuclear deal in 2005. The deal was essentially about the US manoeuvring internationals institutions norms of the  NSG and the IAEA to legitimise India’s nuclear weapons and ensure its entry into global international commerce. India’s compulsory purchase of the French, American and Russian reactors was a price it paid to achieve this. Former AEC Chairman Anil kakodkar himself has admitted in the past that importing foreign reactors, with an embarrassingly low liability cap,  had to do with accommodating these countries’ interests.

 Nuclear Energy and National Policy

After enthusiastically elaborating India’s national policy on nuclear energy, the judges say, “it is not for Courts to determine whether a particular policy or a particular decision taken in fulfilment of a policy, is fair” (page 13). Precisely. The petition before the court nowhere sought to discuss the rationale or desirability of the nuclear policy, if at all India has one. The petition raised concrete questions about safety norms and their violations. Then why the judges have went on to declare nuclear energy is green, clean and essential for India’s development? The judges quote an old case in Lodon to undermine that its “only duty is to expand the language of the Act in accordance with the settled rules of construction”, and hence “we cannot sit in judgment over the decision…for setting up of KKNPP in Kudankulam in view of the Indo-Russia agreement”. Fine, but what about ensuring that the inter-governmental agreement between India and Russia is made public and the liability provisions within it be made compliant to the law of the land?

After the aforementioned introductory part, the SC verdict has two parts – the first deals with safety and security of NPP, International COnventiions and Treaties, KKNPP Project, NSF and its management and transportation, DGR, Civil Liabilities, DMA, CSA and other related issues. Part II deals with environmental issues, CRZ, desalination plant, impact of radiation on eco-system, expert opinions, etc.

In part I, the verdict seeks to find out whether the project has adequate safety measures. In doing so, it starts with elaborating the Safety Codes of the AERB (in 12 full pages), without questioning its institutional autonomy or making mention of the CAG’s report on the AERB in which it strips down the myth of AERB’s independence and its efficacy. Details of India’s international obligations and its adherence with IAEA safety norms, based on the AERB’s submission, take several pages more.

IAEA’s 2008 report emphasizing tripling of electricity supply by 2050 is highlighted by the judges. The IAEA’s contested claim of nuclear energy being a low-carbon electricity is adopted unquestioningly.

The verdict reposes its complete faith in “the safety and security code of practices laid down by the AERB, the IAEA and its supports so as to allay the fears expressed from various quarters on the safety and security of KKNPP”

The judges mention PUCL vs Union of India and others case of 2004, where the court upheld that the AEC deals with a sensitive subject. The veil of secrecy remains intact in 2013 even if the civilian and military nuclear facilities are separated as per the Indo-US nuclear deal.

Safety Issues:

Reading the Supreme Court verdict’s sections on Koodankulam’s safety is not much different than reading AERB’s or NPCIL’s stated policies on nuclear safety. Elaborate claims of safety standards and practices, but very little about whether these guidelines sufficiently address the specific questions raised by the protests, even less on how efficient and democratic these procedures are.

In the section under part-II titled “KKNPP  Project” the judges have looked into site selection procedures and site-specific vulnerabilities of Koodankulam. The judges come out convinced that Koodankulam is totally safe for the reactor project – having absolutely no potential of earthquake, Tsunami or other geological disturbances. The evidences presented by the petitioners about the area being geologically unstable and having a history of earthquakes, volcanism and karst have gone completely unheard.

Much attention has been given to the questions of safely storing Spent Nuclear Fuel (SNF) and finding a Deep Geological Repository (DGR) for KKNPP. These are generic issues plaguing nuclear reactors everywhere and globally the nuclear industry has been struggling to find the answers for several decades. Not surprisingly, there are ready-made and extremely tentative solutions: the NPCIL has agreed to find a repository to store nuclear waste and has given details of its long-term pursuits in this direction, and it has assured the court to safely story the SNF. The AERB’s code of “Management of Radioactive Waste” has been discussed at length, to be found sufficient to address the problem. Typically, Indian nuclear establishment does not acknowledge nuclear waste as waste, because it claims it will reprocess most of it for the second phase of its 3-phase  nuclear programme, to which even the judges have shown admiration. Lost of course is the fact that reprocessing leads to more harmful and long-term wastes and India’s phased nuclear program has been too far from becoming a reality. The judges note : “the experts feel that setting up of a DGR is not much of a technological challenge…but more of a socio-political issue”. The massive  disapproval of proposed waste repositories in the US and elsewhere was based on independent expert opinion is lost again. The verdict mentions a proposed DGR in the abandoned Kolar mines of Karnataka. Of course on this and other several important issues, the NPCIL retracting publicly from its position taken in affidavits filed in the SC had its own trail over last 6 months.

The judges have noted that the Koodankulam reactor has its Spent Fuel Pool inside the primary containment, with a capacity to store fuel equivalent to 7 years of full power operation of  the reactor. That the presence of SFP close to the reactor core complicated the accident in Fukushima and is a concern even today in Japan finds no mention, of course.

Fukushima never happened !

While the judges mention the post-Fukushima safety review ordered by the Prime Minister, they have failed to take into account the critiques of the whole process and the serious risks of relying on such an internal safety review without any independent supervision or assessment. On the 17 Koodankulam-specific recommendations, the court is assured by the AERB that the NPCIL will implement them satisfactorily. In the subsequent paragraphs, the verdict rhymes the nuclear establishment’s lullaby on radiation: We are exposed to radiation in our daily lives, cosmic radiation, radiation from earth’s crust, air travel, X0ray, CT-Scan, angiography, angioplasty etc etc.

In the section titled ‘Response to People’s Resistance’, the Supreme Court gives a sanitized, government version of the dialogue with people. It makes no mention of the fact that the 15-member expert committee appointed by the government did not even bother to meet the protesting people in Idinthakarai, declined from sharing essential safety-related documents with people and completely failed to address the questions raised by the movement. While this sham of a dialogue was on, the state government kept on piling false police charges, the local congress goons kept beating the protesters, the local media kept provoking against the movement leaders and none other than the PM indulged in maligning the people’s genuine struggle. The judgement quotes the government experts group’s conclusion at length and feels satisfied. It also takes no notice that the fact that the Ex-AEC Chief’s appointment as the head of expert committee constituted by the Tamil Nadu State Government subsequently reflected a seriosu conflict of interests.

Under the heading ‘Civil Liability for Nuclear Damage’, the judges in principle agree to the importance of strict liability in nuclear sector, but fail to address the Koodankulam-specific problem of opacity on liability issue. The Russian officials have been claiming they have an exemption from liability under the Inter-Governmental Agreement (IGA)

Discussion on Disaster Management Plan (DMP), the SC verdict elaborates about the guidelines of the National Disaster Management Authority (NDMA) on radiological emergencies and has pressed for better coordination between the NDMA, the DAE, and the state administration to ensure swift evacuation and management in case of a disaster. Much emphasis has been given on the need to spread awareness among the people about nuclear accidents, however, the brazen violation and bluffing by the NPCIL on disaster management receives no attention.

Although the Supreme Court quotes AERB’s norms on population near a reactor sites and specifically mentions that no public habitation should be there within 1.5 km radius of the reactor, it has failed to take into account the Tsunami Colony in Koodankulam where more than 2500 people reside at a distance of just 700- metres from the reactor. Also, the judges have held that the emergency preparedness plan (EPP) for KKNPP is adequate for around 24000 people in the 5 km radius called ‘sterilised zone’ while the norms stipulate not more than 20000 people. The catch here is, the even the 24000 figure used by the SC is taken from 2001 census, not the 2011 census!

The judges admit the importance of the mock-drills and off-site emergency exercises, but strangely caution that ‘such mock-drills are conducted to educate the public not to scare them away, but make them understand that the project is part of the national policy, participatory in nature, and hence we cannot remain as a nuclear-isolated nation’. This would only ensure that the nuclear establishment remains insulated from public scrutiny. The judges’ faith in the affidavit filed by the district administration on off-site emergency exercises flies in the face of reality.

In the last paragraphs of part-I, the Supreme Court judges have iterated their faith in NPCIL’s promise to fulfill its corporate social responsibility (CSR) – millions of rupees allotted for building schools, hospitals, roads and so on. From Tarapur to Rawatbhata to nearby Kalpakkam, local people have seen the realities of such promises.

The second part of the verdict, focused on environmental impacts, again starts with the need to look at environmental issues in the perspective of indispensability of nuclear power in the ‘national policy’ – nuclear energy has a unique position in the emerging economics in India, it is a viable source of energy and it is necessary to increase country’s economic growth !

The judgement in this part dwells elaborately upon the arguments presented by the both sides, but only to concur with the government that Koodankulam project does not violate environmental impact assessment guidelines as the project was notified in 1988, prior to enactment of EIA requirements in 1994! The flimsy affidavits filed by the NPCIL and the MoEF have found better audience with the Supreme Court judges. The court has elaborated upon the rather general and very lenient attempt of taking of environmental impacts in Koodankulam as per a letter written by the then Prime Minister, quotes the 1989 memorandum of the MoEF, the 1989 stipulations by the AERB for clearance, and finally with the MoEF’s letter dated 6 September 2001 in which it legalised the violations in the wake of 377.30 crores already spent on the project, feels confident that the environmental impacts have been taken care of and no violation of EIA stipulations have happened. In case of Coastal Regulatory zone (CRZ) clearance, it again validates the 1994 exemption given to the Koodankulam project.

The EIA reports for the proposed 4 other reactors in Koodankulam have used the EIA studies for Koodankulam 1 and 2 as base-line, which were prepared without a public hearing. Supreme Courts doesn’t find it worthy of objection.

Modifying the initial plan to take water from two nearby dams, construction of a desalination plant was started in 2006 in Koodankuiam. The petitioners had pointed out that the desalination unit would have its own hazardous environmental impacts and will also add to the overall pollution and hence had demanded a fresh EIA clearance. The court has said that desalination units are not listed under the 1994 EIA stipulations, so absence of such an EIA in Koodankulam is not a violation. Of course, the cumulative impacts also do not need any re-assessment then!

Similarly, the Supreme Court has brushed aside significant objections on CRZ clearance and post-factto legalization by TNPCB of the increased temperature of affluent water in Koodankulam. Under the heading ‘Sustainable Development and Impact on the Eco-System’, the verdict quotes elaborately from the Rolay Commission on Environment Pollution (UK, 1971), Stockholm Conference (1972), UNGA’s World Charter for Nature (1982), Rio Summit (1992), the UN MIllenium Declaration of 2000, UN Conference on Sustainable Development (June 2012) and so on, but only to conclude that “we have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles” !

Larger Public Interests

Then the judges take it upon themselves to decide whether the claims of “smaller violations” of nearby population’s right to life under Article 21 of the Constitution should take precedence over production of energy, which is “of extreme importance for the economic growth of our country..to alleviate poverty, generate employment etc.” The judgement looks into various earlier cases of objections to ‘development’ projects on environmental and right to life grounds, and concludes that a balance between “economic scientific benefits” and “minor radiological detriments” has to be found. The pre-conceived notions of ‘development’ take over the judicial rigour and objectivity and in their hurry, the judges have done a grammatical faux pas: “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″! We can over look the grammatical blunder of our judges, but what about terming the massive protests by thousands of people in Koodankulam, run for over 25 years in a thoroughly peaceful manner, as ‘individual apprehension’? Who is the ‘larger community’? Do the interests of the farmers, fishermen and poor people of India do not form the ‘larger public interest’?

The judges have gone ahead to claim that apprehensions of far reaching consequences of radioactive effects has “no basis”! The say: “Nobody on the earth can predict what would happen in future and to a larger extent we have to leave it to the destiny….Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.” The Court goes by the “expert opinions” of MoEF, EAC, TNPCB, Report of IOM, Report of Engineers India Limited, NEERI’s EIA etc and concludes that all expert bodies are unanimous that in their opinion KKNPP has fully satisfied all safety norms.

Justice Dipak Misra in his prologue emphasizes the need to “march ahead with life allaying all apprehensions with a scientific mindset accepting the nature’s unpredictability to survive on the planet earth on the bedrock of the doctrine – survival of the fittest”. He again goes on to describe how elaborate the DAE’s guidelines on nuclear safety are, and concludes that ‘all possible measures have been taken to avoid any kind of calamity’. He goes on to quote extensively from the IAEA’s 1994 Convention on Nuclear Safety and the Joint Convention on the Safety of Spent FUel Management and on the Safety of Radioactive Waste Management 1997, to which India is not even a signatory, to appreciate the “world wide concern for public safety”. He again quotes in extenso from the AERB’s post-Fukushima Safety Review of KKNPP. However, an unquestioned faith in the nuclear establishment about adequacy of these recommendations and the establishment’s sincerity to implement leads to plain judicial reassurances.

Justice Misra looks into proportionality of safety vis-a-vis the necessity of nuclear energy development. While accepting the need for ensuring safety for present and future generations, he holds that ‘generation of nuclear energy is a necessity in a progressive modern state’ and ‘promotion of development and protection of the environment have to be harmonized’. Besides other cases, Justice Misra cites the Narmada case and quotes that “In a democracy, welfare of the people at large, and not merely of a small section of the society, has tobe the concern of a responsible Government.”

In the final judicial directions, the judges have asked the NPCIL to file a report before the Supreme Court before the final commissioning, certifying that each and every aspect of safety including environmental impacts, have been taken care of. For the periodical safety maintenance and reviews, safety of the spent nuclear fuel during transport, radioactive discharge to the atmosphere, compliance with the 17 post-Fukushima recommendations, and adherence to the NDMA guidelines, the court has directed the NPCIL, AERB, MoEF, TNPCB and other concerned bodies ensure strict compliance, but has essentially reposed faith in their efficacy and sincerity. The Supreme Court has ordered that a Deep Geological Repository should be set up at the earliest so that SNF can be transported from the nuclear plant to the DGR.

Withdraw Criminal Cases Against Protesters: The Supreme Court has directed to withdraw al criminal cases filed against the agitators in Koodankulam and to restore normalcy and peace.

The Supreme Court’s verdict rests on three major premises: the judges’ belief in the necessity of the nuclear energy for India’s progress, their faith in the country’s nuclear establishment to perform this role, and the judges’ notion of the larger public interest and the apprehensions of small sections which should make way for the country’s progress. All three of these are immensely contested propositions. But not only have the judges given judicial sanctity to these contestable claims, but have also completely overlooked the Koodankulam-specific brazen violations of the government’s own norms, raised by the petitioners.

In retrospect, the struggling people of India would find approaching to the Supreme Court in such matters pointless, and counter-productive, as the courts themselves are part of the system which has failed to address the widening gap between the aspirations and lives of the deprived masses and the mainstream notions of ‘larger public interest’. Prayers before the judiciary on such matters ends up legitimising the same ‘experts’ and disastrous notions of progress that the people have been fighting against.

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