New Delhi: The Civil nuclear deal between US President Barack Obama and Prime Minister Narendra Modi were reached based on an understanding about the the CLND Act.
Asserting that the country’s Civil Liability for Nuclear Damages (CLND) Act “channels all legal liability for nuclear damage exclusively to the operator”, the MEA said, “concerns” over the br-oad scope of Section 46, pertaining to possible actions under other laws, have been raised by suppliers, both domestic and foreign and clarified that this section “does not provide a basis for bringing claims for compensation for nuclear damage under other Acts.”
India has given a Memorandum to the US on Friday assuring them the same.
Meanwhile, ministry of external affairs Spokesp-erson Syed Akbaruddin also rejected the suggestion that there was a provision for bilateral safeguards given to the US on the tracking of the nuclear material.
“There will be no bilateral safeguards. Our approach is consistent with our practice and our international legal obligations. Nuclear material obligated to the US and other civil nuclear cooperation partners will remain under IAEA safeguards (as per India’s agreement with the international agency),” he said.
Pointing out that CLND Bill was adopted by a vote afterthe Parliamentary debates, the ministry said, “During the course of the vote on various clauses of the Bill, in the Rajya Sabha two amendments were moved for cla-use 46 that finally became Section 46 of the CLND Act that inter-alia sought to include suppliers in this provision.
“Both those amendm-ents were negatived. A pr-ovision that was expressly excluded from the sta-tute cannot be read into the statute by interpretation. At the same time it does not create the grounds for victims to move foreign courts. In fact that would be against the basic intent of the law to provide a domestic legal frassmework for victims of nuclear damage to seek compensation.
The fact that a specific amendment to introduce the jurisdiction of foreign courts was negatived during the adoption of the CLND Bill buttresses this interpretation,” it further added.
India and the U.S. have agreed to implement the September 2008 bilateral 123 Agreement. This will allow us to move towards commercial negotiations on setting up reactors with international collaboration in India and realise the economic and clean energy potential of the civil nuclear understanding of 2005-2008. Some of the FAQs are discussed below:
What is the CSC?
The objective of the 1997 Convention on Supplementary Compensation for Nuclear Damage (CSC) is to establish a worldwide liability regime and to increase the amount of compensation available to the victims of nuclear accidents. India not being party to the 1960 Paris or the 1963 Vienna Conventions signed the CSC on 29 October 2010 on the basis of its national law namely the CLND Act.
Does Section 17 establish a mandatory statutory right of recourse?
Section 17 permits but does not require an operator to include in the contract or exercise a right of recourse. In this regard, the India Nuclear Insurance Pool has been instituted to facilitate negotiations between the operator and the supplier concerning a right of recourse by providing a source of funds through a market based mechanism to compensate third parties for nuclear damage. It would enable the suppliers to seek insurance to cover the risk of invocation of recourse against them.
Does the Act channel the liability to the Operator of a nuclear plant as envisaged under CSC?
Foreign suppliers of atomic reactors to India cannot be sued for the damages by victims of a nuclear accident but can be held liable by the operator who has the right of recourse.
How will the proposed insurance pool operate for operators and suppliers?
The India Nuclear Insurance Pool is a risk transfer mechanism formed by GIC Re and 4 other PSUs who will together contribute a capacity of '750 crores out of a total of '1500 crores. The balance capacity will be contributed by the Government on a tapering basis.
Does Section 46 allow victims to go to foreign courts against the operator or the supplier?
It does not exempt the operator from application of other laws covering matters other than the civil liability for nuclear damage. At the same time it does not create the grounds for victims to move foreign courts. Country’s liability law also provides that the Central Government may establish a “Nuclear Liability Fund” by charging such amount of levy from the operators, in such manner, as may be prescribed. The move may result in a nominal increase of 2 to 5 paise per electricity unit to the consumer, according to sources.
Could operators and suppliers be asked to pay more compensation in the future on existing contracts than currently provided under the law?
There is well-established jurisprudence that a change in law cannot alter the terms of an existing contract made under the then extant law.
What are the next steps?
It will be now up to the companies to follow up with their own negotiations and come up with viable techno-commercial offers and contracts consistent with our law and our practice so that reactors built with international collaboration can start contributing to strengthening India’s energy security and India’s clean energy options.
How much compensation is payable under the CLND Act?
The maximum amount of liability in respect of each nuclear incident shall be the rupee equivalent of three hundred million Special Drawing Rights (SDRs) equivalent to about '2,610 crore. Beyond '2610 crore, India will be able to access international funds under the CSC once it is a party to that Convention
