G. Sundarrajan v. Union of India, (2013) 6 SCC 620

Transcription

1 G. Sundarrajan v. Union of India, (2013) 6 SCC 620 Constitution of India Arts. 21, 47, 48-A, 51-A(g), 38, 32, 136, 226 and Nuclear Power - National nuclear policy and development of nuclear energy - Features of, and compliance with philosophical and jurisprudential principles and tests - Right to life, safety and environmental/ecological protection - Possibility of considerable economic development when weighed against risk of feared radiological hazards/detriment - If justifies establishment and expansion of nuclear power plants (NPP) - Opinion of experts as to adequacy of safety measures - Scope of judicial review - Primacy of expert opinion - Establishment of KKNPP [Kudankulam NPP (nuclear power plant)] Units 1 to 6, whether violates abovesaid rights, requiring closure of KKNPP - KKNPP complying with all statutory provisions, rules, regulations and safety guidelines and standards set by Indian and foreign expert bodies - Indian and foreign expert bodies having cleared KKNPP project by considering every aspect and all eventualities (internal, external, manmade and natural) for both present and future generations - All expert bodies being unanimous that KKNPP complied with latest safety standards as per national and international norms - There being continuous monitoring of KKNPP by national and international bodies for ensuring that standards with regard to safety and other aspects are being maintained - Task force constituted after occurrence of Fukushima Nuclear Reactor accident in Japan also cleared KKNPP by considering latest safety issues and tsunami factors, etc. - Even then expert committee of AERB recommended 17 safety measures by way of abundant caution of which 12 recommendations had already been implemented and remaining were to be implemented in a phased manner - KKNPP being in tune with national nuclear policy and 1962 Atomic Energy Act i.e. for the welfare of the people, for achieving economic development and alleviation of poverty, etc. - National nuclear policy and KKNPP project, held (per curiam), are justifiable, viable, valid and in tune with the principles of sustainable development, principle of intergenerational equality, principle of greatest good of the greatest number and latest principles and codes of nuclear safety standards set up and confirmed by national and international experts - In light of the above, held (per curiam), KKNPP cannot be directed to be closed down - It has got all required clearances, NOCs and approvals - Establishment of KKNPP project is valid and courts cannot go into the safety standards set by experts - A handful of Judges cannot interfere with policy decisions framed by elected representatives of the people - Court has to respect national nuclear policy of the country reflected in the Atomic Energy Act and the same has to be given effect to for the welfare of the people and the country's economic growth and it is with these objectives in mind that KKNPP has been set up - But when it is a question of right to life and safety of citizens, the courts must undertake an exercise to allay the fears expressed by people because nuclear accidents have taken place and it is natural for people to be apprehensive about a nuclear disaster - Therefore, additional detailed directions issued (per curiam) to ensure safety: (a) complete dedication by all to avert nuclear disaster, (b) continuous monitoring by authorities, (c) safe storage and transportation of nuclear waste i.e. spent nuclear fuel (SNF), (d) disaster management, preparedness, education and training of personnel/public functionaries, (e) discharge of corporate social responsibility (CSR), etc., and (f) final, valid and proper clearance before commissioning (see in detail paras to for the directions) - Held (per Radhakrishnan, J.), a balance has to be struck - Nuclear energy is a viable and sustainable source of energy and it is necessary to increase country's economic growth - India cannot afford to be a nuclear isolated nation - No doubt there are apprehensions about impact of nuclear installations on life and property, environment, flora and fauna, marine life, nuclear waste disposal, health, displacement of people, etc. which has a direct link with Art. 21, Constitution of India and the environmental laws of the country - But national policy-makers consider nuclear energy as an important element in India's energy mix - KKNPP has been set up as a part of India's national policy to develop, control and use of atomic energy for peaceful purpose i.e. for generation of electricity, which is for the welfare of the people of India and achieve economic development and remove poverty - Nuclear technologies and techniques can offer vital benefits for improving human well being like health care, radio therapy, food security, agricultural advantages to present and future generations - To sustain rapid economic growth, it is necessary to double the supply of energy - Justification for establishing KKNPP, therefore has been vindicated - Apprehension, however legitimate it may be, cannot override the justification of the project - Once the justification test is satisfied, the apprehension test is bound to fail - Further, KKNPP is being established not to negate right to life but to protect right to life guaranteed under Art Petitioner's contention that establishment of KKNPP will make an inroad into right to life guaranteed under Art. 21 of the Constitution, therefore has no basis - On the other hand, it will only protect the right to life guaranteed under Art. 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of the 1962 Atomic Energy Act - Held [per Misra, J. (concurring)], issues as to what nuclear safety standards should be followed is to be found in the statutes, rules and regulations and has to be addressed by policy-makers - Courts cannot assume the role of approving authority for safety measures - As regards nuclear safety, AERB and MoEF are in total control of things - However, it is the highest concern of Supreme Court to ensure that a devastating nuclear disaster is avoided at all costs - Disaster management cannot remain in paper - Development needs of present generations should not be at the cost of safety of future generations - Principle of larger public interest at the cost of smaller inconvenience to smaller number of people is not applicable to present case - It is not a case of the land oustees or a case of some inconvenience" or the loss caused to property - Safety, security and life come within Art. 21 and no jettisoning is permissible - Therefore, the delicate balance in other spheres may have some allowance but in the case of establishment of a nuclear plant, the safety measures would not tolerate any lapse - The grammar has to be totally different - Though the concept of delicate balance and the doctrine of proportionality of risk factor gets attracted,

2 yet the same commands the highest degree of constant alertness, for it would be a disaster affecting the living - The life of some cannot be sacrificed for the purpose of the eventual larger good, (2013) 6 SCC 620-A National nuclear policy and KKNPP - Fairness and reasonableness of policy decisions and findings by experts, held (per curiam), are not amenable to judicial review - Therefore, issue in present case as to what would be the effect of KKNPP on human health, marine life and ecology have to be addressed by policy-makers who are elected representatives of the people and the experts appointed for the purpose - Such issues are not dealt with by courts - But court can examine the safety standards being followed by a nuclear power plant such as KKNPP to allay the fears expressed by the people - Courts can interfere if a policy violates law or procedure (which is not the case here) - Courts can interfere if a policy is absolutely capricious, unreasonable and arbitrary or if a policy violates the basic structure of the Constitution (which is not the case here) - Court cannot sit in judgment on the views expressed by the technical and scientific bodies in setting up of a nuclear power plant such as KKNPP and on its safety and security, (2013) 6 SCC 620- B Development of, world over - Apprehensions about - Safety concern is a human concern, (2013) 6 SCC 620-C Civil Liability for Nuclear Damage Act, Preamble, SOR, Ss. 4 to 7, 9, 16, 19, 27, 35 and 36 - Provisions under for: (a) speedy disposal of claims, (b) liability for both victims and environmental degradation, (c) strict liability principle, (d) no-fault liability principle, discussed - Effect and relevance for issue as to whether KKNPP should be closed down or not, (2013) 6 SCC 620-D Tort Law Disaster Management Act, 2005 Ss. 3 to 6, 11 to 14, 18, 23, 31 and 37 - National Disaster Management Guidelines, 2009 framed under - Effect and relevance for issue as to whether KKNPP should be closed down or not, (2013) 6 SCC 620-E Atomic Energy Act, Preamble and Ss. 27, 16, 17, 23 & 27 - Objectives of 1962 Act and various codes and guidelines framed by AERB and other national and international bodies, considered - These codes and safety guidelines are meant to protect life and property of people including protection of environment guaranteed under Art. 21 of the Constitution - Codes of AERB relating to 4 kinds of nuclear emergency, considered - Codes of AERB deal with responsibilities of both operating organisation of NPP as well as responsibilities of public authorities - Features of AERB codes include, continuity of responsibility, DGR for high-level radioactive wastes (requiring long years of isolation), predisposal measures, NSDF and philosophy of SNF management, (2013) 6 SCC 620-F Site selection of nuclear plant (KKNPP in this case) - Judicial notice taken of, regarding care, caution and diligence of all concerned in site selection of KKNPP - Site Selection Committee (SSC) constituted by DAE while selecting KKNPP made a detailed study as per safety standards laid down by AERB - SSC study included: (a) studies relating to

3 seismicity, geology, metrology, environmental setting, all eventualities (natural, manmade, external and internal), (b) caution regarding proximity to sensitive sites like airports & military installations, etc., and (c) study relating to scope of implementation of public emergency procedures, etc. - Site selection for KKNPP was after survey and consideration by experts - KKNPP has the most modern design features for adequate core cooling even under off-normal conditions like total loss of electric power, (2013) 6 SCC 620-G Nuclear spent fuel (SNF) - Reprocessing capacity in India - As per experts, India is capable of reprocessing SNF - Uranium resource availability in India is limited - Without reprocessing of SNF, achievable nuclear power in India is 10,000 MWe, but with reprocessing, this can be increased to 2,75,000 MWe by % of SNF is capable of being reused/reprocessed and regarding removing of remaining 3% of SNF experts say that if the minor actinides are partitioned" or removed, the rest of the waste is dominated by FPs having a half-life of about 30 yrs and so in 10 halflives (300 yrs) it will have negligible activity and the partitioned minor actinides can then be transmuted" or burnt by inducing fission in fast breeder reactors or in accelerator driven systems (ADS), (2013) 6 SCC 620-H Nuclear spent fuel (SNF) - Storage of SNF - Need of deep geological repository (DGR) and away from rector storage (AFR), held (per curiam), is mandatory - Negligence of NPCIL in this regard, noticed - Therefore, directed per curiam, that NPCIL should start immediate planning for a permanent DGR for storing high level radioactive wastes requiring isolation for thousands of years, (2013) 6 SCC 620-I KKNPP - Exclusion zone and emergency zone - Safety measures regarding, ensured by authorities, discussed, (2013) 6 SCC 620-J Atomic Energy Act, Ss. 16, 17, 22, 23, 24, 27, 30, 3, 5, 2 and Preamble - Statutes with which 1962 Act should be read in tandem, (2013) 6 SCC 620-K International Law International Conventions Preamble and Arts. 10, 14, 16 and 19 - India being a signatory, effect (per Misra, J.), (2013) 6 SCC 620-L Doctrines and Maxims Generally Harmonious construction of maxims - Maxim salus populi (est) suprema lex (regard for public welfare is the highest law) and maxim salus reipublicae suprema lex (safety of the State is the supreme law and in case of any conflict, an individual must yield to the collective interest), prescribed (per Misra, J.), (2013) 6 SCC 620-M Interpretation of Statutes External Aids

4 US Price-Anderson Act, 1957, German Atomic Energy Act (1959), Swiss Federal Law on the Exploitation of Nuclear Energy for Peaceful Purposes and Protection from Radiation (1959) and Japanese Law on the Compensation of Nuclear Damage (1961), considered, (2013) 6 SCC 620-N KKNPP - NOC and clearances for Units 1 and 2 and CRZ compliance - Need for obtaining strict environmental clearance, stressed - Environmental clearance granted by various authorities, considered - The following bodies had cleared KKNPP with conditions: (a) Site Selection Committee of DAE, (b) Nine-member committee for regulating coasts gave clearance to KKNPP, (c) TNSEC granted clearance with 31 conditions specified, (d) PM office also gave clearance to KKNPP subject to MoEF ensuring safeguards relating to CRZ, (e) MoEF accorded approval to KKNPP subject to conditions specified, (f) AERB granted clearance subject to conditions specified, (2013) 6 SCC 620-O Nuclear Power Plants - KKNPP Units 1 and and 1994 EIA Notifications under Ss. 3(1) and 3(2)(v), 1986 Act r/w R. 5(3)(d), 1986 Rules and Sch. I and Explanatory Note 8 to 1994 Notification - Applicability - EIA Noti. dt (1991 EIA Notification) and (1994 EIA Notification) held are not applicable to KKNPP Units 1 and 2 - Rationale for, explained - KKNPP had been granted environmental clearance by various authorities prior to 1991 EIA Notification EIA Notification did not prohibit projects already in operation and prior to date of issue of notification Notification requires fresh environmental clearance and public hearing for expansion and modernisation because NPPs are covered under Sch. I - But in view of Expln. Note 8 to 1994 EIA Notification, said requirement would not be necessary for KKNPP Units 1 and 2 because plant capacity and sea water consumption always remained the same as envisaged in 1988 or 1998 Indo-Russian agreements - Further desalination plant is not also covered under Sch. I to 1994 EIA Notification - Further though a Circular dt of MoEF clarified that environmental clearance issued prior to 1994 EIA Notification would not be valid for cases where work had not commenced before , KKNPP Units 1 and 2 are not such projects as per the inspection of KKNPP done by MoEF on Thus 1994 EIA Notification would not be applicable for KKNPP Units 1 and 2, (2013) 6 SCC 620-P Nuclear Power Plants - KKNPP - Condenser cooling water (CCW) of thermal plant in coastal areas - Norm that difference between temperature of received water and discharged should not exceed 7?C - Compliance with - Held, KKNPP Units 3 and 4 had complied with the requirements as per report of experts - TNPCB has also accorded consent to operate on for Units 1 and 2 by stipulating condenser cooling water discharge limit as 7?C as per the amended 1986 Rules - Therefore, contention raised by appellants that rise in temperature of receiving water due to rise in temperature of condenser cooling water would affect marine ecosystem, cannot be sustained, (2013) 6 SCC 620-Q Nuclear Power Plants - KKNPP Units 1 and 2 - NOC requirement under the Air Act and the Water Act - Held, environmental clearance or NOC cannot be equated to consent to establish" under S. 25 of the Air Act and consent to operate" under S. 21 of the Water Act - Environmental clearance/noc was granted to KKNPP Units 1 and 2 as early as on by T.N. State Environmental Committee (TNSEC) though TNPCB had granted consent to establish" under S. 25 of the Air Act on and consent to operate" under the Water Act on KKNPP Units 1 and 2 are, therefore, entitled to get the benefit of Explanatory Note 8 to the 1994 EIA Notification - Further NPCIL, as part of the continuous process to ensure safety of environment made a rapid environmental impact assessment (REIA) of KKNPP Units 1 and 2 in the year 2001 and a comprehensive EIA report was submitted by NEERI in The comprehensive EIA report submitted by NEERI in January 2003 was later implemented under the expert guidance of M.S. Swaminathan Research Foundation, (2013) 6 SCC 620-R

5 Nuclear Power Plants - Environmental clearance for Units 3 to 6 - Held, environmental clearance for Units 3 to 6 was given by MoEF subject to implementation of 20 stated conditions - Public hearing for Units 3 to 6 was held for fresh environmental clearance as per 2006 Notification - Issues discussed in public hearing, stated - Appellants, therefore, cannot contend that the procedure laid down under 1994 and 2006 EIA Notifications had not been followed while granting environmental clearance, (2013) 6 SCC 620-S