Supreme Court Judgment–The Essence

On 6^th May 2013, Supreme Court delivered the much awaited judgment on the Koodunkulam Nuclear Power Plant (KKNPP) arising out of SLP (C) 27335/2012 that had been reserved since first week of December 2012. The penultimate para (229) of the judgment reads thus: “Before proceeding to issue certain directions, it is required to be stated that the appellant, by this Public Interest Litigation, has, in a way, invoked and aroused the conscience/concern of the court to such an issue. True it is, the prayer is for the total closure of the plant and the Court has not acceded to the said prayer but his noble effort is appreciated to put forth the grievance of the local people and the necessity of adequate safety measures as is perceived. When such cause comes up before this Court, it is the bounden duty to remind the authorities “Be alert, remain always alert and duty calls you to nurture constant and sustained vigilance and nation warns you not to be complacent and get into a mild slumber”. The Atomic Energy Regulatory Board (AERB) as the regulatory authority and the MoEF are obliged to perform their duty that safety measures are adequately taken before the plant commences its operation. That is the trust of the people in the authorities which they can ill afford to betray, and it shall not be an exaggeration to state that safety in a case of this nature in any one’s hand has to be placed on the pedestal of “Constitutional Trust”.

After placing public safety on the pedestal of “Constitutional Trust”, Supreme Court has issued 15 directions for compliance by nuclear establishment and other regulators for strict compliance before commissioning of the plant. From the language, tone and tenor these conditions appear to be non-negotiable.

Response from Nuclear Establishment

Nuclear Power Corporation of India Ltd (NPCIL) response to the judgment was typical of the nuclear establishment’s vulgar hurry to impose the unsafe KKNPP on the struggling people: “With the Supreme Court giving the green signal, the first reactor of the Kudankulam Nuclear Power Project is likely to go critical anytime between May 13 and 20. Top sources in the NPCIL told ‘The Hindu’ that a team of Automic Energy Regulatory Board experts are going through the results of the test conducted a few days ago and holding discussions on the results with the NPCIL technocrats. The AERB’s governing body, expected to meet before this weekend is likely to take a final decision on giving the nod for criticality immediately”

As for RK Sinha, Chairman of the Atomic Energy Commission (AEC) it was a great relief and he said so: ‘I humbly welcome the judgment of the court, it should lay to rest all perceived doubts about the Kudankulam atomic reactor. The reactor is at an advanced stage of commissioning and criticality or the start of the nuclear chain reaction in the plant should happen soon.’

Legal Notice

It looks as if nuclear establishment had not read the judgment carefully. If they had done so their response would have been different. And they had to be reminded of it the hard way-through a legal Notice which reads as under:

“As you are aware, the Supreme Court has given several directions to be complied with before the commissioning of KKNPP including the following two directions:

1. The plant should not be made operational unless AERB, NPCIL, DAE accord final clearance for commissioning of the plant ensuring the quality of various components and systems because their reliability is of vital importance…….

15. The AERB, NPCIL, Ministry of Environment & Forests (MoEF) and Tamil Nadu Pollution Control Board (TNPCB) would oversee each and every aspect of the matter, including the safety of the plant, impact on environment, quality of various components and systems in the plant before commissioning of the plant. A report to that effect be filed before this Court before commissioning of the plant.

The above directions of the Supreme Court are categorical. These directions need no interpretation whatsoever. As per these directions, Kudankulam Nuclear Power Project cannot be commissioned as it stands now. When clearance was granted by you (AERB) for initial fuel loading (IFL) and first approach to criticality (FAC) of Unit.I of Kudankulam Nuclear Power Project on August 10, 2012 the same was challenged before the Madras High Court by my client. The said clearance was ultimately tested by the Supreme Court in Civil Appeal No. 4440 of 2013 and batch matters. Having considered all aspects of the matter, the Supreme Court has now given a direction to you (AERB & NPCIL) and the Department of Atomic Energy not to make the KKNPP operational until a fresh review of the quality of various components and systems of the KKNPP is undertaken. The Supreme Court has further given a direction to you (AERB & NPCIL) and Ministry of Environment & Forest of the Government of India and the Tamil Nadu Pollution Control Board to oversee each and every aspect of the matter, including the safety of the plant, impact on environment, quality of various components and systems in the plant and after fulfilling this task file a report in the Supreme Court before commissioning of the plant. These directions have not yet been complied with by you (AERB & NPCIL) or by the Government of India or by the Tamil Nadu Pollution Control Board.

It appears that after the judgment of the Supreme Court you have not even commenced a fresh review of the ‘quality of various components and systems in the plants’. Without even attempting to comply with the directions of the Supreme Court, NPCIL is making a statement to the press that the KKNPP is likely to go critical any time between May 13 and 20.

Kindly take notice that any such assertion on the part of NPCIL or AERB as reported in The Hindu dated 7 May 2013 would amount to contempt of the Supreme Court, since no report as directed by the Supreme Court in direction No.15 has so far been submitted to the Supreme Court.”

The Flaws

While this could bring some succour to the struggling farmer-fisher folk, Supreme Court judgment nevertheless suffer from several flaws:

1. While the Special Leave Petition starts with characterising nuclear power as “the most dangerous means of producing energy with a serious potential for catastrophic accidents causing severe damage to life and property, with cost of reparation running into lakhs of crores of rupees”, the court nonchalantly and without appropriate due diligence declares that “nuclear energy…is a clean, safe, reliable and competitive energy source”. This assertion is debatable, disputable and defeats the very purpose for which the petitioners appealed to the highest court of law.
2. On the issue DGR (Deep Geologic Repository) for radioactive nuclear waste, which is a critical issue concerning public safety, the court has been very casual: “NPCIL does not seem to have a long term plan, other than, stating and hoping that in the near future, it would establish a DGR (Deep Geologic Repository)”. Its directive that “DGR has to be set up at the earliest” does not specify a date nor make it a necessary condition before NPCIL embarks on new nuclear reactor construction. This is clear pandering of the nuclear establishment.
3. Safety concerns that remain paramount in the minds of the citizens living in the vicinity of Koodankulam have not been adequately acknowledged by the Court, which did not even see fit to mention the problems with valves that the AERB disclosed, or the news reports of corruption in supplier companies in Russia. The Court’s call to “educate the people” smacks of condescension, which is anachronistic for a democracy and inexplicable when seen in the context of this well-informed and widely-participated movement against the Koodankulam reactors.
4. SC’s uncritical reliance on the opinions of the nuclear establishment and its complete disregard of the absence of public trust in the regulatory agency is a serious problem with the judgment. It quotes extensively from AERB documents, especially safety codes, yet overlooks the fact that AERB and NPCIL do not often follow their own safety rules. The most pertinent example is that of Koodankulam itself, when AERB allowed the loading of fuel into the reactors even though NPCIL had not complied with its safety recommendations following the Fukushima nuclear accidents.
5. The Court did not even acknowledge, let alone examine, the questions surrounding the independence and effectiveness of the AERB, and instead claimed that the AERB has been “regulating the nuclear and radiation facilities in the country very effectively”. Last year, the Comptroller and Auditor General (CAG) pointed out that AERB “continued to be…an authority subordinate to the central government”, putting a big question mark over its independence as a regulator. Its actions in the case of Koodankulam, unfortunately, do not enhance the credibility of the AERB. The Court claims that the AERB “has, over the years, issued a large number of codes, standards and guides”, while the CAG pointed out that the AERB had failed to prepare “a radiation safety policy even after three decades of its existence”.

6. The court does not seem to have properly considered the prayers contained in the SLP. While the petitioner had asked for commissioning the plant after ensuring all safety & environmental requirements court has said that the petitioner wanted “total closure of the plant and we have not conceded to the said prayer”.

Not addressing corruption and sub-standard machinery issues

Another disturbing aspect of the judgment is the question as to why did SC ignore the IA filed on 23 April (two weeks before the judgment) clearly bringing to the notice of the Supreme Court the supply of sub-standard equipment and materials by ZiO Podolsk, a Russian public sector machine works company, to the Koodankulam plant, and how Unit 2 of the Leningrad nuclear power plant using similar materials supplied by the same company collapsed on 17 July 2011, leading to the arrest and prosecution of Sergei Shutov, procurement director of ZiO Podolsk, by a Federal court in Russia. All other scams/scandals like 2G Spectrum, Commonwealth Games, Coalgate etc came out and are under serious investigation because of exposures by CAG followed by activism and advocacy by civil society with legal luminaries in the forefront. Courts had not been forewarned in these scams, but when these came before the SC it took very serious notice and is pursuing these with vigour by upbraiding the government and constituting SIT etc. What happened in the Coalgate case is an apt example. But in the KKNPP case it is just the opposite. SC was forewarned about the scam, sub-standard material and corruption and criminal action in Russia against supplier company weeks before the judgment was issued and was ‘mentioned’ in open court. The least SC could have done was to ask for independent investigation in to these ‘life-threatening’ allegations and satisfied itself before issuing final orders.

On this aspect of SC judgment Dr. A. Gopalakrishnan, former Chairman, AERB has a slightly different take. This is what he has to say: “As per Directions No: 15 given in the SC Judgment, NPCIL, AERB, MoEF and TNPCB are to be jointly involved in all  aspects  of  certifying  this  reactor as safe. Of  these three  organizations (AERB, TNPCB, MoEF) are Regulatory Agencies, and NPCIL is the promoter  and  it will  have  to  serve  as  the main supplier of  inspection data and other compliance information to the other three for  review . Without  solely  resting their confidence & trust  in the  two  DAE  institutions (AERB & NPCIL) , the Supreme Court  has intentionally broadened the jury to include two additional government  regulators  who are not connected with the DAE. This I see as the impact of our last affidavit (IA on 23 April) on Zio-Podolsk corruption and supply of substandard components & equipment from  Russia. We have to make best use of this opportunity”.

This matter however has been taken care of in a complaint filed with the CBI and a writ filed in the Madras High Court for directing the CBI to conduct expeditious investigation into corruption and supply of sub-standard equipment.

Future Imperatives

Dr. EAS Sarma, former Secretary to Government of India, Ministry of Power has created a matrix for making the ‘best use’ of the 15 directions and other observations made in the SC judgment. It is presented below with some of my inputs:

Compliance requirement suggested for Direction #15 assumes all the more importance due to post-judgment revelations through a research study that the reactor pressure vessel (RPV) supplied to KKNPP, considered to be the heart of the reactor, could be obsolete and different from the originally promised one. This has humongous repercussions and if unchecked, has all the potential for a catastrophe in peninsular India and the island of Sri Lanka. Serious charges of corruption and suspicion of substandard material and obsolete RPV have arisen, but not addressed even by the highest court of law. God forbid, if some incident/accident happens during commissioning or after, besides human catastrophe it would devastate SC as an institution and extinguish whatever little faith people have in this bulwark of justice. Supreme Court monitored pre-commissioning is therefore a must because the Court has placed public safety on the pedestal of “Constitutional Trust” and hopefully would never countenance its betrayal by the nuclear establishment.

The Groundview

But the ‘soldiers on the ground’ have a different perception altogether. They are of the view that in order to free up Russia from supplier liability, charges of theft and abject project failure, the Indian nuclear establishment has begun to claim that the KKNPP is not a Russian turnkey project.

Following the Supreme Court’s verdict, nuclear establishment is announcing various dates to fake-commission the project and trying to protect their own self interests and save the Russians from all the embarrassing and serious charges. Instead of answering the component-related concerns, financial improprieties and liability commitments in an earnest manner, they are spreading irresponsible rumors and conjectures as they have been doing since 2005 about commissioning the KKNPP.

In fact, the KKNPP authorities do not even allow journalists anywhere near the reactors for fear of their smelling any of the fishy things that have been happening there. In an interview RS Sundar, the site director has claimed that they are facing difficulties with the media.

This is what the struggle leaders have to say: “The Indian government, Department of Atomic Energy (DAE), and the AERB do not even want to walk the extra mile of assessing the quality and safety of the components with a team of independent scientists, engineers and journalists. No one in India knows anything about the omissions and the commissions of the KKNPP, NPCIL, AERB, DAE, AEC and their Russian counterparts and suppliers. Even the Indian courts seem to accept the establishmentarian views in spite of the fact that they have laid down fifteen directions in their recent judgment. All nuclear establishment want is commissioning of the plant even if it is a fake one! So all the thefts, untested technology, unsafe components and the overall failure could be buried in radioactive contamination and inter-governmental cover up.”

So the struggling community, all ordinary citizens of India, have decided to turn to their fellow citizens and Mother Nature to protect the interests of our country and people. They have decided to come out in the open, travel to neighboring villages and organize people all over again. They have decided to fight it out to the finish and are confident that they shall overcome.

To this determination Admiral L.Ramdas has responded to the struggle coordinator Udayakumar: “We are happy to see that the spirit of “Never say Die” prevails. I am sure our prayers and hard work and commitment will not go waste. Regards and Greater strength to your elbow”. So, it is from Supreme Court to the Court of the People.

We are a Democracy and VOX POPULI is VOX DEI–‘Voice of the People is Voice of God’. But is mere voice enough? To seek assurance, ground forces should draw on the famous clarion of Alexander Solzhenitsyn: “It is infinitely difficult to begin when mere words must remove a great block of matter. But there is no other way if none of the material strength is on your side. And a shout in the mountains has been known to cause an avalanche”

Just replace ‘mountain’ with ocean and ‘avalanche’ with tsunami. BRAVO.