G. SUNDARRAJAN v. UNION OF INDIA AND ORS.

The Judgment of the Court was delivered by D K.S. RADHAKRISHNAN, J. 1. Leave granted.

2Copy pinpoint2. 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 E tip· of India, at Kudankulam in the State of Tamil Nadu. The incidents occurred in Three Miles lslaftd 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. Since then, it is history, India has now 20 Nuclear Reactors; in place, and the world over about 439, but people still react emotionally, for more reasons than one, when a new one is being established. H

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3Copy pinpoint3. People's concern was mooted, even in the Constituent Assembly when it deliberated the issue before constituting India into a Sovereign Democratic Republic and adopting and enacting the Constitution of India.

B GENERAL

4Copy pinpoint4. The Constituent Assembly discussed the formal legal framework to regulate atomic energy in the year 1948 and the legislation by the name Atomic Energy Act, 1948 (29 of 1948) was enacted. That Act envisaged the constitution of an Atomic C Energy Commission (AEC) and a Department of Atomic Energy (DAE) and both were established in the year 1954. The AEC is the apex body of the Central Government for atomic energy that provides direction on policies related to atomic energy. It consists of eminent scientists and technocrats, secretaries to different ministries, senior officials from the office of the Prime Minister. The AEC has to report to the Prime Minister of India on various policies related to atomic energy. DAE deals with the development and implementation of nuclear power and related nuclear fuel cycle activities and research and development activities carried out in various units under it. Baba Atomic Research Centre (BARC), formerly AEE, was also established in the year 1954 and research reactors namely Apsara, Cirus and Dhruva were set up in the year 1956, 1960 and 1985 respectively. The control and development of atomic energy in the country and matters connected therewith were then regulated by Act 29 of 1948.

5Copy pinpoint5. Parliament having taken note of the developments in the field of atomic energy and with a view to implement the future programme of expansion in the field, thought it necessary to have a comprehensive legislation dealing with Atomic Energy, consequently, Act 29 of 1948 was repealed and the Atomic Energy Act, 1962 (33 of 1962) (in short the Act) was enacted which came into force on 29.01.1962. The Act has been enacted to provide for the development, control and use of atomic energy for the welfare of the people of India and for other

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[K.S. RADHAKRISHNAN, J.] peaceful purposes. The Central Government, in exercise of the powers conferred under Section 27 of the Act, constituted the Atomic Energy Regulatory Board (AERB) vide notification dated 15.11.1983 to carry out certain regulatory and safety functions envisaged under Sections 16, 17 and 23 of the Act. The AERB have powers to lay down safety standards and frame rules and regulations in regard to the regulatory and safety requirements envisaged under the Act and have to report to AEC. The Act underwent amendment vide amending Acts 59 and 29 in the years 1986 and 1987 respectively. However, the major amendment was of the year 1987, vide Amending Act c 29 of 1987, by which the Central Government was empowered to produce and supply electricity from atomic energy. For achieving the envisaged target of nuclear power generation, a nuclear power corporation or a Government company was also decided to be set up which would design, construct and D operate nuclear power stations in India. Following that, a separate public sector company, namely, the Nuclear Power Corporation of India (NPCIL) with a view to design, build and operate nuclear reactors in the country was created in September 1987. NPCIL is a wholly owned by the Government E of India undertaking which functions under the administrative control of DAE.

NATIONAL POLICY:

6Copy pinpoint6. The Parliament in unequivocal terms has pronounced its national policy through the Act, that is to develop, control and use of atomic energy for the welfare of the people of India. The Central Government has also been entrusted with the power to provide for the control over radioactive substances or radiation generating plant and to provide for the production and supply of electricity from atomic energy etc. Central Government have also got the power to require any substance which contains uranium, plutonium or any of their isotopes and extract from that any substance which is essential to the atomic energy· programme. The Act, though, provides the basic regulatory H

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A framework for the regulation of nuclear related activity, we have other related laws which have to be applied and read in tandem like the Factories Act, 1948, the Indian Electricity Act, 2003, the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and B Control Regulation) Act, 1981, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Indian Explosives Act, 1884, the Disaster Management Act, 2005, the Atomic Energy (Radiation Protection) Rules, 2004, the Industrial Radiography (Radiation Surveillance) Procedure, 1980, the Atomic Energy c (Factories) Rules, 1996, the Atomic Energy (Working of Mines, Minerals and Handling of Prescribed Substances) Rules 1984, the Atomic Energy (Safe Disposal of Radioactive Waste) Rules, 1987, the Radiation Surveillance Procedure for Medical Application of Radiation, 1989 and the Atomic Energy (Control and Irradiation of Food) Rules, 1996 and so on. 0

7Copy pinpoint7. The Central Government, as per the Act, is legally obliged to develop a sound and adequate national policy in regard to atomic power and to coordinate such policy with the Central Electricity Authority (CEA) and the State Electricity E Boards (SEBs) constituted under the Act for the generation of electricity in pursuance of such policy and to operate atomic power stations in. the manner determined by it in consultation with the Boards or Corporations concerned. Section 22, which deals with the provisions for the generation of electricity, reads F as follows:

"22. Special provision as to electricity.-

(1) Notwithstanding anything contained in the Electricity (Supply) Act, 1948 (54 of 1948 ), the Central G Government shall have authority-

(a) to develop a sound and adequate national policy in regard to atomic power, to co- ordinate such policy with the Central H Electricity Authority and the State Electricity

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[K.S. RADHAKRISHNAN, J.] Boards constituted under section.s 3 and 5 A respectively of that Act and other similar statutory corporations concerned with the control ·and utilisation of other power resources, to implement schemes for the generation of 1[ either by itself or through any B authority or corporation established by it or a Government company,) electricity in pursuance of such policy and to operate atomic power stations in the manner determined by it in consultation with the c Boards or Corporations concerned, with whom it shall enter into agreement regarding the supply of electricity so produced;

(b) to fix rates for and regulate the supply of electricity from atomic power stations 2[ , D either by itself or through any authority or corporation established by it or a Government company, in consultation with] the Central Electricity Authority; E (c) to enter into arrangements with the Electricity Board of the State in which an atomic power station is situated, 1[ either by itself or through any authority or corporation established by it or a Government company] for the F transmission of electricity to any other State: Provided that in case there is difference of opinion between the Central Government 1[ or such authority or corporation or Government company, as the case may be] G and any State Electricity Board in regard to the construction of necessary transmission lines, the matter shall be referred to the Central Electricity Authority whose decision shall be binding on the parties concerned. H

662 ' SUPREME COURT REPORTS (2013] 8 S.C.R.

A (2) No provision of the Indian Electricity Act, 1910 (9 of 1910 ), or any rule made thereunder or of any instrument having effect by virtue of such law or rule shall have any effect so far as it is inconsistent with any of the provisions of this Act. B (3) Save as otherwise provided in this Act, the provisions of this Act shall be in addition to, and not in derogation of the Indian Electricity Act, 1910 (9 of 1910 ), and the Electricity (Supply) Act, 1948 (45 of 1948 )." c

8Copy pinpoint8. 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 D 4780 MWe, which have been commissioned over the last four decades from the year 1969 to 2011. Seven more units with a capacity of 5300 MWe are under construction (commissioning). The latest one to be commissioned is at Kudankulam in the State of Tamil Nadu. The first nuclear power plant (NPP) in the E country Tarapur Atomic Power Station (TAPS) units 1 and 2, based on boiling water reactors (BWR), was supplied by General Electric USA and became operational in the year

1969. The Rajasthan Atomic Power Stations (RAPS) 1 and 2 with two 200 MWe were established in 1970s at Rawatbhata F in Rajasthan with the technical cooperation of AECL (Canada). Later, in 1980s two 220 MWe Pressurized Heavy Water Reactors (PHWRs) Madras Atomic Power Station - 1 and 2 were constructed at Kalpakkam in Tamil Nadu. Later, India developed a standardized design of 220 MWe PHWRs. Four G reactors of that standardized design were built, two each at Narora in Uttar Pradesh (Narora Atomic Power Station - 1 and 2) and Kakrapar in Gujarat (Kakrapar Atomic Power Project - 1 and 2). Those plants became operational in 1990s:. Later eight more units of standardized 220 MWe PHWRs were built, four each at Kaiga in Karnataka (Kaiga Generating Stations H

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[K.S. RADHAKRISHNAN, J.] units 1-4) and Rawatbhata in Rajasthan (RAPS Units 3-6). India A in 1990s undertook the design and development of 540 MWe PHWR. Two reactors based on that design became operational in 2005-06 at Tarapur. India has also developed 700 MWe design with limited boiling in the coolant char.nels. The construction of four such units was almost completed at B Kakrapar and Rawatbhata sites. Currently, 500 MWe Prototype Fast Breeder Reactor (PFBR) is under construction at Kalpakkam. PFBR is built with the design and technology developed at Indira Gandhi Centre for Atomic Research (IGCAR). Over and above, India has now set up two PHWRs c of WER 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.

9Copy pinpoint9. India draws bulk of its electricity, above 64%, from thermal sources, especially coal. Hydro power comes second of 18% and then renewable sources provide small share at about 15%. We are informed that, at present, the share of nuclear energy is hardly three per cent of India's total electricity production, while France accounts for 74.6% as on 2008. NPPs provide about 6% of the world's energy and 13-14% of the world's electricity with U.S., France and Japan together accounting for about 50% of nuclear generated electricity. U.S.A. has 104 nuclear reactors and more than 100,000 MWe of electricity is produced by nuclear generation. International Atomic Energy Agency (IAEA) has reported that in the year F 2007, there were 439 Nuclear Power Reactors in operation in the world operating in thirty one countries. The DAE, it is reported, plans to increase its nuclear energy production to 20000 MWe by 2020 and 63,000 by 2030. The Policy makers consider that the nuclear energy remains as an important G element in India's energy mix for sustaining economic growth of natural and domestic use. 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 H

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A etc. Oil and natural gas resources might exhaust themselves. Coal is also not an effective substitution since forests are also no longer able to satisfy the energy requirements. Major source of electricity generation, about 66%, is still contributed by fossil thermal powers, like coal. To put into practice the national policy, India has already entered into various collaborations witn most of the developed countries which have proved expertise and experience in the field of establishment and production of nuclear energy.

10Copy pinpoint10. Economic growth and energy support have to go hand in hand, for the country's development for which India has entered into various collaboration agreements with U.SA, Canada, Russia etc. and several NPPs have already been set up in the country. Government of India, in implementation of its national policy, had made a joint statement with U.S.A., called lndo-U.S. Joint Statement 2005, for a renewed global civil nuclear energy co-operation. A co-operation agreement called 2007 Co-operation Agreement was also entered into between India and U.S.A. for the peaceful uses of nuclear energy. This was later followed by the lndo-France Joint Statement in E September, 2008. A Joint Statement was made in February 2010 with United Kingdom. Above facts would indicate that in order to give effect to the National Policy for development, control and use of atomic energy, India has entered into various bilateral treaties and arrangements with countries which have F considerable expertise and experience. For establishing the NPP at Kudankulam, India had entered into an inter- governmental agreement with the erstwhile USSR in November 1988 followed by a supplementary agreement on 21.06.1998 signed by India and Russia which is in tune with India's National G Policy.

11Copy pinpoint11. India's National Policy has been clearly and unequivocally expressed by the legislature in the Atomic Energy Act. National and International policy of the country is to develop control and use of atomic energy for the welfare of the people H

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[K.S. RADHAKRISHNAN, J.] and for other peaceful purposes. NPP has been set up at A Kudankulam as part of the national policy which is discernible from the Preamble of the Act and the provisions contained therein. 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." D

12Copy pinpoint12. 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 E which those decisions have been taken, if that manner is unfair, the decision will be tainted with that Lord Diplock labels as 'procedural impropriety'.

13Copy pinpoint13. This Court in M.P. Oil Extraction and Anr. v. State of F 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 Mis. Ugar Sugar Works Ltd. v. Delhi Administration G & 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, H

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A NPCIL etc. for setting up of KKNPP at Kudankulam in view of the Inda-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.

14Copy pinpoint14. We may, however, focus our attention on various other 8 issues raised in these appeals in the light of the provisions of the Atomic Energy Act, Rules and Regulations framed thereunder, International conventions, covenants entered into by India with other countries, AERB Code of Practices and Safety C Guides, Expert's opinion, Environmental and other related laws. Part I of this judgment, we propose to deal with the safety and security of NPP, International Conventions and Treaties, KKNPP Project, NSF and its management and transportation, DGR, Civil Liabilities, OMA, CSR and other related issues and in Part II, we mainly focus on the environmental issues, CRZ, D Desalination Plant, Impact of Radiation on Eco-system, Experts opinions etc.

PART I

15Copy pinpoint15. KKNPP has been set up by NPCIL based on the lndo- Russia Joint Agreement under the guidance and supervision of AEC, BARG, AERB, MoEF, TNPCB, Central and State Governments etc.

ARGUMENTS - FOR AND AGAINST F

16Copy pinpoint16. Shri Prashant Bhushan, learned counsel appearing for the appellant in SLP Nos. 27335 of 2012, submitted that having seen the experience at Three Mile Island (USA), Chernobyl in Russia and Fukushina in Japan etc., safety of the people and the environment are of paramount importance and if the units . are allowed to be commissioned before making sufficient safeguards on the basis of the recommendations made by the Task Force of NPCIL, it may lead to serious consequences which could not be remedied. Learned counsel submitted unless the seventeen recommendations made by the Task

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[K.S. RADHAKRISHNAN, J.] Force appointed by NPCIL are implemented before commissioning the plant, serious consequences may follow. Learned counsel submitted that AERB and NPCIL are legally obliged to implement the recommendations and this Court sitting in this jurisdiction is bound to safeguard the life and property of the people residing in and near Kudakulam which is a fundamental right guaranteed to them under Article 21 of the Constitution of India.

17Copy pinpoint17. Mrs. Nagasaila, learned counsel appearing for the 8th respondent in SLP (C) No. 27813 of 2012, also pointed out that sufficient safeguards have not been taken for the safe disposal of the radioactive waste and no site has so far been identified for the safe handling of radioactive waste, failing which it may cause serious health hazard. Learned counsel also pointed out that even, at the plant site, there is no proper facility for storage of spent fuel and high level radioactive waste. D Learned counsel also pointed out that no adequa~e measures have been taken to safeguard the life and property of the people in case of any potential disaster, in accordance with the Disaster Management Plan. E

18Copy pinpoint18. Learned Attorney General appearing for AERB submitted that the plant has been set up after following all the safety standards laid down by AERB. The design of KKNPP incorporates advance safety features complying with current standards of redundancy, reliability, independence and F prevention of common cause failures in its safety system. Further, it was also pointed out that the design takes care of Anticipated Operational Occurrences (AOO), Design Basis Accidents (DBA) and Beyond Design Basis Accidents (BDBA) like Station Black Out (SBO), Anticipated Transients Without G Scram (ATWS), Metal Water reaction etc. Further, it was pointed out that the Board of AERB met on 23.3.2011 and took stock of safety and NPPs in the light of Fukushima accident. AERB also constituted a High Level Committee of Specialists to review and recommend safety upgrades as required to H

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A handle extreme external events of natural origin. Learned Attorney General also pointed out that KKNPP design also has several Advanced Safety Features. including those for ensuring safety against external events of natural origin and for management of design basis as well as beyond design basis 8 accidents. Further, it was pointed out that, over and above, steps are being taken to implement the 17 recommendations made by the Task Force of NPCIL and that, amongst them, few recommendations have already been implemented.

19Copy pinpoint19. Shri Rohington Nariman, learned Solicitor General of C India appearing for NPCIL, submitted that KKNPP is a 3+Generation NPP and its design incorporates advanced safety features complying with current standards of redundancy, reliability, independence and prevention of common cause failures in its safety systems. The design includes provisions D for withstanding external events like earthquake, tsunami/storm, tidal waves, cyclones, shock waves, aircraft impact on main buildings and fire. KKNPP also incorporates various additional safety features like Quick Boron Injection System, Passive Heat Removal System, Second Stage Hydro Accumulators, Passive E Hydrogen Re-combiners, Annulus Passive Filtering System (Passive System), Core Catcher etc. Details of further safety measure adopted have already been elaborately stated in the counter-affidavit filed by NPCIL on 26.9.2012. Learned Solicitor General submitted that KKNPP is absolutely safe even without F the 17 recommendations made out of abundant caution by AERB. Learned Solicitor General submitted that the 17 recommendations of AERB would also be complied with in a phased manner, out of which 7 have already been implemented.

20Copy pinpoint20. Shri Mohan Parasaran, learned Additional Solicitor General of India, appearing on behalf of responde"nt no. 1, while referring to the affidavit filed by the Union of India, submitted with regard to the process - "Re-processing and Disposal of Spent Fuel" - that most of the spent fuel i.e. 97% is capable of H

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[K.S. RADHAKRISHNAN, J.] being reused, the remaining 3% of the spent fuel consists of various Fission Products (FPs) and Minor Actinides (MAs). All MAs have varying half-lives/decay periods, the dominant amongst them have half-lives of the order of 1 lakh 70 thousand years. Each NPP has a water storage pool for storage of spent fuel, namely "Spent Fuel Storage Bay" (SFSB). Those pools are temporary storage facilities for recyclable fuel and are essentially water filled concrete vaults with SS lining, having the c:irrangement for storing spent fuel in racks. They are designed, constructed and operated as per the AERB Guidelines and requirements. It was also stated that AERB Safety Guide C 'Design of fuel handling and storage systems for pressurized heavy water reactors - AERB/SG/D-24" deals with the safety in design of storage of spent fuel. F1i1rther, it was also pointed out that the transportation of spent"fuel is governed by the Regulations specified by AERB in "Safety Code for the transport of radioactive materials - AERB/SC/TR-1' and international requirements given in IAEA Regulation for safe transport of radioactive material, 2005. Learned Additional Solicitor General also submitted that the Department of Atomic Energy is also aware of the importan:e of safety and security and takes utmost care to ensure that the management and transport is carried out safely, following the internationally recognized norms and regulations and that the same is done under the supervision of AERB and Government of India.

21Copy pinpoint21. Government of India's decision to establish the NPP F at Kudankulam, as already stated, cannot be questioned before this Court being part of a National Policy. Lot of scientific litei atures, experts opinions etc. have been produced before us to show its dangers, harm it may cause to human health, environment, marine life and so on not only on the present G generation but on future generation as well. Further, it was also pointed out that due to growing nuclear accidents and the resultant ecological and other dangers, many countries have started retreating from their forward nuclear programmes. H

SUPREME COURT REPORTS [2013] 8 S.C.R. 670

22Copy pinpoint22. We have already indicated that these issues are to be addressed to policy makers, not to courts because the destiny of a nation is shaped by the people's representatives and not by a handful of judges, unless there is an attempt to tamper with the fundamental Constitutional principles or basic structure of 8 the Constitution.

23Copy pinpoint23. We are however deeply concerned with the safety and security of the people of this country, its environment, its flora and fauna, its marine life, ecology, bio-diversity and so on which the policy makers cannot be on the guise of national policy, C mutilate or rob of, in such an event the courts can unveil the mask and find out the truth for the safety, security and welfare of the people and the mother earth.

Safeguards and Security D l

24Copy pinpoint24. Safety and security of the people and the nation are of paramount importance when a nuclear plant is being set up and it is vital to have in place all safety standards in which public can have full confidence to safeguard them against risks which they fear and to avoid serious long term or irreversible environmental consequences. It is, therefore, necessary to examine at some length the safety standards already in place to allay the fears expressed at some quarters.

25Copy pinpoint25. Let us first examine whether the project proponent has taken adequate safety requirements in site and off site of the KKNPP and followed the Code of Practices laid down by AERB and nationally and internationally recognized safety methods. Before examining those issues, we have to first examine the role of the AERB in the matter of setting up of nuclear plant and what are the codes and safety guides laid down by the AERB for maintaining high safety standards for setting up and for the functioning of nuclear plants in the country.

AERB Safety Codes

26Copy pinpoint26. AERB, as already indicated, was constituted by the

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[K.S. RADHAKRISHNAN, J.] Central Government in exercise of powers conferred under A Section 27 of the Act to carry out certain regulatory and safety functions envisaged under Sections 16, 17 and 23 of the Act vide notification dated 15.11.1983. The functions to be discharged by the Board have also been enumerated in the said notification which reads as follows: B

(i) Develop Safety Codes, Guides and Standards for siting, design, construction, commissioning, operation, and decommissioning of the different types of plants, keeping in view the international C .recommendations and local requirements and develop safety policies in both radiation and ir:idustrial safety areas.

(ii) Ensure compliance by DAE and non-DAE installations of safety codes and standards during construction commissioning stages

(iii) Advise AEC/DAE on technical matters that may specifically be referred to it in connection with the siting.; design, construction, commissioning, operation, and decommissioning of the plants under DAE.

(iv) Review from the safety angle requests for authorizing/commissioning/operation of DAE Projects/plants. Before authorization of commissioning I operation of the plant I project is granted, the AERB will be satisfied by appropriate review of: ··

(a) Final design Analysis Report prepared by the project plant; (b) Commissioning reports and results thereof; and (c) Proposed operating procedures and operational limits and conditions; that the plant/ H

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A project can be operated without undue risk to the operating personnel and the population. For this purpose, AERB may ask for relevant additional supporting information.

B (v) Review health and safety aspects of modifications in design/operation involving changes in the technical specification adopted in any of the DAE units.

(vi) Review operational experience in the light of the c radiological and other safety criteria recommended by the International Commission on Radiological Protection, International Atomic Energy Agency and such other international bodies and adapted to suit Indian conditions, and I thereby evolve major safety D _policies.

(vii) Prescribe acceptable limits of radiation exposure to occupational workers and members of the public and approve acceptable limits of environmental release of radioactive substances. (In the DAE units, the AERB shall also prescribe limits for environmental release of conventional pollutants).

(viii) Review the emergency preparedness plans prepared by the different DAE units, similar plans for non-DAE installations and during transport of large radioactive sources (eg. Irradiated fuel kilo/ mega curie sources, fissile materials).

(ix) Promote research and development efforts for fulfilling the above functions and responsibilities.

(x) Review the training programme, qualifications and licensing policies for personnel by the projecU plants.

H (xi) Prescribe the syllabi for training of personnel in .

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[K.S. RADHAKRISHNAN, J.] safety aspects at all levels. A

(xii) Enforce rules and regulations promulgated under the Atomic Energy Act, 1962 for radiation safety in the country and under the Factories Act, 1948 for industrial safety in the units under the control of B DAE.

(xiii) Maintain liaison with statutory bodies in the country as well as abroad regarding safety matters.

(xiv) Take such steps as necessary to keep the public c informed on major issues of radiological safety significance.

(xv) Perform such other functions as may be assigned to it by the Atomic Energy Commission. D (xvi) Send reports periodically to Chairman, AEC on safety status including observance of safety regulations and standards and implementation of the recommendations in all DAE and non DAE units. It will also submit an Annual Report of its E activities to Chairman, AEC.

27Copy pinpoint27. The notification clearly states that the Board shall be assisted by the DAE SRC and DRP BARC in the performance of its functions at (ii), (iv), (v) and (xii) mentioned above. The F AERB has also been entrusted with the powers of the competent authority to enforce rules and regulations framed under the Act for radiation safety in the country. The powers have also been entrusted with the AERB to administer the provisions of the Factories Act 1948, the industrial safety for G the units of DAE as per Section 23 of the Act. The AERB under its programme of developing Codes and Safety Guides issued four Codes of practice covering the following topics namely (i) Safety in Nuclear Power Plant Siting; (ii) Safety in Nuclear Power Plant Design; (iii) Safety in Nuclear Power Plant Operation; (iv) Quality Assurance for Safety in Nuclear Power' H

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A Plants. Those Codes are intended to establish the objectives and to set the minimum requirements that have been fulfilled to provide assurance that nuclear power plants will be sited, designed, constructed and operated without undue risk to personnel, public and environment. The Code of Practice for B Nuclear Power Plant Siting provides appropriate criteria and outlines the procedures to be applied to assess the suitability of a site for the location of nuclear power plant taking into account, the operational requirements and accidental conditions. The same has to be prepared following the criteria c laid down by DAE for selection of site and the relevant IAEA documents under the Nuclear Safety Standards (NUSS) programme specially the Code of Practice for Nuclear Power Plant Siting and similar documents from various leading countries. The Code of Practice on Safety in Nuclear Power 0 Plant Siting was issued by the AERB on March 9, 1990. The Code encompasses site-related characteristics, natural events and man-induced events specific to the site which will have a bearing on the safety of the plant and the radiological impact on the environment and population due to the location of NPP at the site. The Code also lays down appropriate criteria and outlines the procedures for assessing the suitability of a site taking into account the operational requirements and accident conditions. The Code also indicates the extent of site-related information required to be obtained and also defines site- related design bases. Certain man-induced events like war, acts of sabotage which can cause large scale damage to the plant safety systems, however, are beyond the scope of 1990 Code, in other words, the Code prescribes minimum requirements in siting considerations for limiting the radiological impact. The main aim is protection of man and his environment. The Code G outlined the requirements for limiting doses to man.

28Copy pinpoint28. The AERB in October 1999 issued guidance for the Preparation of Off-Site Emergency Preparedness Plans for Nuclear Installations. This document has been issued as a lead H document to facilitate preparation of specific site manuals by

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[K.S. RADHAKRISHNAN, J.] the responsible organization for emergency response plans at A each site to ensure their preparedness to meet any eventuality due to site emergency in order to mitigate its consequences on the health and safety of site personnel. The document also takes cognizance of an earlier AERB publication on the subject: "Safety Manual on Off-Site Emergency Plan for Nuclear B Installations" issued in the year 1988. While drafting this document, reference has been also made to the documents of the IAEA and also the statutory requirements laid down in the Manufacture, Storage and Transport of Hazardous Chemicals Rules, 1989 as well as the amendments incorporated therein c subsequently.

29Copy pinpoint29. The purpose of these Safety Guidelines is to lay down the requirements of the Regulatory Body for the operating organization and state public authorities in preparing an emergency response plan for off-site emergency for the nuclear installation. Radiological emergencies at the nuclear installations are mainly categorized as Plant emergency alert; Plant emergency; Site emergency and Off-site emergency. The operating organization is responsible for handli11g the first.three categories of emergencies, while the off-site emergencies involving radiation fallout in the public domain is handled by the state public authorities with the technical input and guidance from the operating organization and the Regulatory Body. The main objectives of this Safety Guidelines are stated hereunder: F (i) To provide detailed guidelines for nuclear installations in the country on the essential components of off-site emergency preparedness and response plans at each installation taking into consideration any ongoing construction activities at G the off-site.

(ii) To elaborate various aspects of the response plan such as: Emergency Organisation, Emergency Equipment and Facilities needed outside the nuclear installation in order to protect the site H

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A personnel from risks of undue radiation exposure.

(iii) To advise on other aspects such as: enforcement of off-site emergency plans, conduct of periodic off- site emergency drills to ensure readiness of the nuclear installation for handling off-site B emergencies.

(iv) To indicate guidelines on off-site related factors, which may influence management of off-site emergencies. c (v) To highlight the need for the operating organization/ plant management to establish and maintain communication lines between the site, the headquarters of the operating organization, D Regulatory Body and the state public authorities for prompt and effective use in times of off-site emergency.

30Copy pinpoint30. The AERB has also issued the document "Preparedness of the Operating Organization for handling E Emergencies" at Nuclear Power Plants in March 2000. This document supplemented the Code of Practice on Safety in NPP Operation (AERB/SC/O). The purpose of this document is to prescribe guidelines for the development of a state of preparedness for response to emergencies at nuclear power F plants. The main objectives of this safety guide are given as follows:

(a) To highlight to plant management the various categories of emergencies that could rise at NPP; G (b) To focus on the contents offhe emergency manuals in respect of resources and procedures to help respond adequately to emergency situations;

(c) To emphasize the responsibilities of plant H management regarding personnel, plant and site

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[K.S. RADHAKRISHNAN, J.] emergency and responsibilities of the State A Government in respect of off-site emergency and need for close liaison between Plant Management and Public Authorities;

(d) To bring out the importance of maintaining efficient 8 and effective communication links among Plant Management, Operating Organisation, Responsible Organisation, Regulatory Body, State Authorities and the Department of Atomic Energy Crisis Management Group (DAE-CMG}; and c (e} To develop the infrastructure including manpower and their training.

31Copy pinpoint31. The AERB issued another safety code in August 2000 on "Regulation of Nuclear and Radiation Facilities". This D document has been issued to spell out the minimum safety related requirements/obligations to meet by a nuclear or radiation facility to qualify for the issue of regulatory consent at every stage leading to eventual operation. The Code also elaborates on the regulatory inspection and enforcement to be E carried out by the Regulatory Body on such facilities. This document has also been prepared by the AERB from the information contained in the relevant documents issued by IAEA under the NUSS programme especially the Code on "Governmental Organization for Regulation of Nuclear Power F Plants" (50-C-G}.

The main objectives of the Code are to ensure that:-

(a) Only such practices are permitted which are justified in terms of their societal and/or individual benefits, G

(b) Radiation protection is duly optimized in all nuclear/ radiation facilities,

(c) Radiation doses to the personnel in these facilities, and to the members of the public in their vicinity, H

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A do not exceed the prescribed limits and

(d) The potential for accidental exposures from the facilities remains acceptably low.

32Copy pinpoint32. The scope of the Code also covers the various facilities and activities like mining and processing of radioactive ores and minerals; uranium/thorium processing and fuel fabrication plants , heavy water plants, research reactors, experimental reactors and critical assemblies, nuclear power plants, fuel reprocessing plants, radioactive waste management facilities, industrial facilities related to nuclear fuel cycle activities, transport of radioactive materials, medical applications of radiation, industrial and agricultural applications of radiation, research applications of radiation, and all other practices involving the handling of radioactive sources. D

33Copy pinpoint33. The AERB also issued another safety guide on October 2002 on "Design of Fuel Handling and Storage Systems for Pressurized Heavy Water Reactors". The Code of Practice on Design for Safety in Pressurized Heavy Water E Based Nuclear Power Plants (AERB/SC/D,1989) lays down the minimum requirements for ensuring adequate safety in plant design. The safety code issued in October 2002 is one of a series of guides. The objective of this safety guide is to specify the minimum requirements to be met in the design of fuel handling and storage system in PHWR. It is intended to be used by the designer to ensure safety of plant and personnel by providing adequate measures for prevention of accidents and mitigation of adverse consequences, should an accident occur, in other words, the scope of this guide includes the safety in design of equipment for handling and storage of new fuel, spent fuel and other irradiated core components, which are related to handling of fuel including handling and storage of failed or damaged fuel bundles. The guide also addresses the safety aspects in fuel handling control and instrumentation and auxiliary equipment related to the fuel handling system. Design H provisions to facilitate inspection and testing of fuel handling

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[K.S. RADHAKRISHNAN, J.] and storage systems are also covered in that guide. The same A has been prepared following the safety standards laid down by IAEA. The Code has been prepared by specialists in the field drawn from the AERB, BARC, IGCAR and NPCIL.

34Copy pinpoint34. Various codes and safety standards issued by the B AERB, referred to above, mainly deal with siting, design, construction, operation, quality assurance, decommissioning etc. Safety codes and safety standards are formulated on the basis of nationally and internationally accepted safety criteria for design, construction and operation of specific equipment, systems, structures and components of nuclear and radiation facilities. Further, India has also entered into various bilateral treaties and is also a party to various international conventions on nuclear safety, physical protection of nuclear material, nuclear accident, radiological emergency and so on. India, as already stated, is also governed by the safety and security standards laid down by IAEA. A brief reference to those conventions, treaties and IAEA may be apposite.

INTERNATIONAL CONVENTIONS. BILETERAL TREATIES ETC.: E

35Copy pinpoint35. India is not a signatory to the Nuclear Non-Proliferation Treaty (NPT). India is, however, party to various international conventions, such as:

The Convention on the Physical Protection of Nuclear F Material, which was adopted on 26.10.1979 and was signed at Vienna and at New York on 3.3.1980. The Convention makes it legally binding for States parties to protect nuclear facilities and material for peaceful domestic use, storage as well transport. It also provides expanded cooperation between and G among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage and prevent and combat related offences. H

680 SUPREME COURT. REPORTS [2013) 8 S.C.R.

36Copy pinpoint36. The Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency was adopted by the General Conference at its special session 24-26.9.1986 and was opened for signature at Vienna on 26.9.1986 and at New York on 6.10.1986. B

37Copy pinpoint37. The Convention on Nuclear Safety was adopted on 17.6.1994 by a Diplomatic Conference convened by IAEA at its Headquarters from 14-17 .6.1994. The Convention was opened for signature on 20.9.1994.

c 38. The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, the first legal instrument to directly address these issues on a global scale, was opened for signature on 29.9.1997 and entered into force on 18.6.2001. D

39Copy pinpoint39. The Convention on Early Notification of a Nuclear Accident establishes a notification system for nuclear accidents which have the potential for international trans-boundary release that could be of radiological safety significance for another E State. Date of adoption is 26.9.1986.

40Copy pinpoint40. India has also entered into various Bilateral Civil Nuclear Co-operations. India has entered into a cooperation agreement with France for the construction of ERR Power Plants (10,000 MWe) at Jethapur site in Maharashtra, which F also comprises of cooperation in the areas of research, safety and security, waste management, education etc., followed by various other commercial contracts as well. India and Canada have finalized the terms for their nuclear deal paving the way for Canadian firms to export Uranium to India in the year 2010. G Discussions are on for safe nuclear cooperation as well with Canada.

41Copy pinpoint41. India has also signed civil nuclear deal with Mongolia for supply of uranium to India. MOUs on the Development of H Co-operation on Peaceful Uses of Radioactive Minerals and

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[K.S. RADHAKRISHNAN, J.] Nuclear Energy by senior officials of the Department of Atomic A Energy of both the countries. India has also entered into agreements with Namibia including one on civil nuclear energy which allows for supply of uranium from Namibia. India- Namibian Agreement for Peaceful Uses of Nuclear Energy allows for supply of uranium for setting up of nuclear reactors. B India-Kazakhstan have also signed a pact on nuclear co- operation in April 2011 and agreed to have collaboration in nuclear energy for peaceful purposes. Discussions are on to execute a civil nuclear agreement with Argentina.

42Copy pinpoint42. lndia-U.S. issued an Inter U.S. Joint Statement at C Washington on 18.7.2005 which has located the final broad policy so as to actually facilitate and also outline the broad contours of a legally binding agreement. Some of the policy frameworks relate to preventing WMD Proliferation, goals of prompting nuclear power and achieving nuclear energy, D expeditious consideration of fuel steps for safeguarded nuclear reactors etc. Nuclear 2007 - an agreement for co-operation between India and U.S. concerning peaceful uses of nuclear energy (2007 Co-operation Agreement) laid down certain binding obligations between the two countries. Though, India E is not a party to any of the Liability Conventions, specifically, IAEA Vienna Convention on Civil Liability for Nuclear Damage, India has enacted the Civil Liability for Nuclear Damage Act, 2010 (Nuclear Liability Act) which aims to provide a civil liability for nuclear damage and prompt compensation to the victims F of a nuclear accident through No-Fault Liability to the operators.

International Atomic Energy Agency (IAEA)

43Copy pinpoint43. IAEA is an independent international organization situated in Vienna, Austria is related to the United Nations G system, its relationship with the United Nations is regulated by special agreement. The IAEA reports annually to the United Nations General Assembly and when appropriate, to the Security Council regarding non-compliance by States with their safeguards obligations as well as on matters relating to H

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A international peace and security. The IAEA works with its member States and multiple partners worldwide to promote safe, secure and peaceful nuclear technologies. The IAEA has the responsibility to help member States to put in place the necessary infrastructure needed to develop nuclear energy safely, securely and peacefully and it works with member States to coordinate research to design reactors that are economical, safe and proliferation-resistant.

44Copy pinpoint44. The IAEA's object is to maximize the contributions from nuclear technologies to human well being while minimizing their risks. Few facts and trends highlighted in the report prepared by an independent commission at the request of the IAEA in May 2008 highlights the ten key facts and trends which frame the nuclear opportunities and challenges the world now faces. The report highlights that to sustain rapid global economic growth, it is necessary to double the supply of energy and tripling supply of electricity by 2050. Further, it is stated billions of poor people need energy and other life saving and job creating technologies. The report also noticed that energy prices are increasing, a broader reliance on nuclear energy whose prices are much less dependent on its fuel costs conceivably could help to ameliorate those tensions and risks. The report highlights that the world still dependent on burning coal, oil and natural gas for 80% of its energy supply surging energy use causes surging emissions of greenhouse gases disrupting the climate with potentially catastrophic results. Nuclear energy, it is stated, is a readily expandable source of low-carbon baseload electricity and in the future might also help to meet other energy needs such as hydrogen production and water desalination. G

45Copy pinpoint45. The IAEA's International Project on Innovative Nuclear Reactor and Fuel Cycles (INPRO) brings many States together to consider approaches to safer, cheaper, more secure and more proliferation-resistant nuclear systems with effective H management of nuclear waste. India is in partnership with the

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[K.S. RADHAKRISHNAN, J.] IAEA and has incorporated many of its directives in the code of practice framed by the AERB, hence there could be no compromise on safety and security of the NPPs in the country. We have elaborately discussed the Safety and Security Code of Practices laid down by AERB, IAEA and its supports so as to allay the apprehension or fears expressed from various quarters on the safety and security of KKNPP and its effect on human life, property and environment and we notice that adequate and effective protection measures are in place.

46Copy pinpoint46. Parliament, as we have already indicated, is very much concerned with the safety and security of its people and its environment. The Preamble of the Act pronounces in an eloquent terms that it has been enacted for the development, control and use of atomic energy for the "welfare of the people of India". People's comfort, happiness, prosperity and the economic growth of the nation is always the concern of their representatives in the Parliament. Safety and security of people in that process have to be in the uppermost mind of the legislature. Keeping in mind that concern, special provisions have been incorporated for the safety and security. Reference has already been made to Section 17 of the Act which casts an obligation on the Central Government to ensure proper rules with regard to the safety, which we have already examined at length. We have also examined both nationally as well as internationally accepted guidelines for safety and security of the people of the Nation and notice that those are being followed. F In People's Union for Civil Liberties and Another v. Union of India and Others, (2004) 2 SCC 476, the Court held that the Atomic Energy Act deals with a sensitive subject. Statutory scheme contained in the provisions of the Act, the Rules framed thereunder, composition of the AEC and AERB leave no G manner of doubt that the effective functions of the nuclear power plants are sensitive in nature. Various Codes of Practice, safety guidelines, extensively discussed above and the decision taken in various international conventions and the guidelines laid down by various international agencies followed by India are H