G. SUNDARRAJAN v. UNION OF INDIA AND ORS.

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[DIPAK MISRA, J.] people of India and (iii) for other peaceful purposes. Thus, on one hand, the need was felt to get into the global arena for producing nuclear energy and, on the other, which is as important as the first one, for the welfare of the people. The necessity to generate energy from various sources in India was and still is a felt necessity. It has been submitted by the learned counsel for the appellant with immense emphasis that apart from violation of the Environment (Protection) Act, 1986 and the notificati.ons framed thereunder, the study would reflect that there would be multiple ecological problems and further the safety of the local people would be absolutely in peril. My c learned brother has already dealt in detail with regard to the submissions pertaining to the violations of the statutory provisions, the Rules and the Notifications relating to various environmental issues. I do not intend to add anything in that regard. My deliberation shall be: on the concept of welfare and 0 safety relating to the use of nuclear energy fer the purpose of development. Needless to say, it has to be totally guided by the conception of public safety and welfare of the citizens. The term 'welfare' is always related to the living generation and generations to come. It has been contended before us by the learned counsel for the appellant that the basic care has not been taken to make the nuclear plant at Kudankulam a safe one and further when the entire globe has been shaken by the Fukushima tragedy, the Government of India, without taking recourse to the participative process of public hearing and showing scant respect for public safety, has plunged into such an activity. That apart, it is highlighted that the radioactive substances have the real potentiality to gravely affect the present generation and that, in turn, will usher in immense disaster and suffering for the future generations. Per contra, learned counsel for the respondents would urge that the plant is based and founded on sophisticated technology and there are more than three layers of protection for safety which is not available in other nuclear plants in other parts of the world. In essence, it is submitted that all possible measures have been ta~en to avoid any kind of calamity. H

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197Copy pinpoint197. It is borne out from the material on record that two aspects have weighed with many a nation while thinking of a nuclear energy plant, namely, the caution and circumspection at the time of operation and how to deal with radioactive waste. We have been apprised how the re-use of radioactive waste B is done by a sophisticated method and the danger is kept at bay. On one hand, there is requirement of energy and the need of progress and development and, in a way, to compete with the progressive phenomenon of the other countries in many a sphere and, on the other, the likelihood of danger to be caused c to the people of the locality and the effect-potentiality to affect the larger section of public because of disposal of radioactive waste and transportation.

Certain Conventions pertaining to safety:

198Copy pinpoint198. At this juncture, I may profitably refer to the Convention on Nuclear Safety adopted on 17th June, 1994 in the Conference convened by the International Atomic Energy Agency at its Headquarters. India is a signatory to the said Convention. The Preamble of the Treaty reads as follows: - E i. "Aware of the importance to the international community of ensuring that the use· of nuclear energy is safe, well regulated and environmentally sound; F ii. Reaffirming the necessity of continuing to promote a high level of nuclear safety worldwide;

iii. Reaffirming that responsibility for nuclear safety rests with the State having jurisdiction over a G nuclear installation;

iv. Desiring to promote an effective nuclear safety culture;

V. Aware that accidents at nuclear installations have H the potential for transboundary impacts;

G. SUNDARRAJAN v. UNION OF INDIA AND ORS. · 791 [DIPAK MISRA, J.] vi. Keeping in mind the Convention on the Physical A Protection of Nuclear Material (1979), the Convention on Early Notification of a Nuclear Accident (1986), and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986); s vii. Affirming the importance of international co- operation for the enhancement of nuclear safety through existing bilateral and multilateral mechanisms and the establishment of this incentive Convention; C viii. Recognizing that this Convention entails a commitment to the application of fundamental safety principles for nuclear installations rather than of detailed safety standards and that there are internationally formulated safetv guidelines which are updated from time to time and so can provide guidance on contemporary means of achieving a high level of safetv: ix. Affirming the need to begin promptly the development of an· international c;:onvention on the safety of radioactive waste management as soon as the ongoing process to develop waste management safety fundamentals has resulted in broad international agreement; F x. Recognizing the usefulness of further technical work in connection with the safety of other parts of the nuclear fuel cycle, and that this work may, in time, facilitate the development of current or future international instruments;" G [Emphasis supplied]

199Copy pinpoint199. Article 10 deals with priority to nuclear safety. It reads as follows: - "Each Contracting Party shall take the appropriate steps H

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A to ensure that all organizations engaged in activities directly related to nuclear installations shall establish policies that give due prioritv to nuclear safety." [Emphasis added]

200Copy pinpoint200. Article 14 provides for assessment and verification of safety. It is as under: ~ "(i) comprehensive and systematic safetv assessments are carried out before the construction and commissioning of a nuclear installation and throughout its life. Such c assessments shall be well documented. subsequently updated in the light of operating experience and significant new safety information, and reviewed under the authority of the regulatory body; (ii) verification by analysis, surveillance, testing and D inspection is carried out to ensure that the physical state and the operation of a nuclear installation continue to be in accordance with its design, applicable national safety requirements, and operational limits and conditions." [Emphasis supplied] E

201Copy pinpoint201. Article ,16 stipulates emergency preparedness. It reads as follows: - "1. Each Contracting Party shall take the appropriate steps to ensure that there are on-site and off-site emergency plans that are routinely tested for nuclear installations and cover the activities to be carried out in the event of an emergency. For any new nuclear installation, such plans shall be prepared and tested before it commences operation above a low power level agreed by the regulatory body.

2. Each Contracting Party shall take the appropriate steps to ensure that, insofar as they are likely to be affected by a radiological emergency, its own population and the competent authorities of the States in the vicinity of the

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[DIPAK MISRA, J.] nuclear installation are provided with appropriate information for emergency planning and response.

3. Contracting Parties which do not have a nuclear installation on their territory, insofar as.they are likely to be affected in the event of a radiological emergency at a nuclear installation in the vicinity, shall take the appropriate steps for the preparation.and testing of emergency plans for their territory that cover the activities to be carried out in the event of such an emergency."

202Copy pinpoint202. Article 19 deals with operations. It is as follows: - c "Each Contracting Party shall take the appropriate steps to ensure that: (i) the initial authorization to operate a nuclear installation is based upon an appropriate safety analysis and a commissioning programme demonstrating that the installation, as constructed, is consistent with design and safety requirements; (ii) operational limits and conditions derived from the safety analysis, tests and operational experience are defined and revised as necessary for identifying safe boundaries for operation; (iii) operation, maintenance, inspection and testing of a nuclear installation are conducted in accordance with approved procedures; F (iv) procedures are established for responding to anticipated operational occurrences and to accidents; (v) necessary engineering and technical support in all G safety-related fields is available throughout the lifetime of a nuclear installation; {vi) incidents significant to safety are reported in a timely manner by the holder of the relevant licence to the regulatory body: H

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A (vii) programmes to collect and analyse operating experience are established, the results obtained and the conclusions drawn are acted upon and that existing mechanisms are used to share important experience with international bodies and with other B operating organizations and regulatory bodies; (viii) the generation of radioactive waste resulting from the operation of a nuclear installation is kept to the minimum practicable for the process concerned. both in activity and in volume. and any necessary c treatment and storage of spent fuel and waste directly related to the operation and on the same site as that of the nuclear installation take into consideration conditioning and disposal." [Underlining is mine] D

203Copy pinpoint203. The aforesaid Convention, as is demonstrable from the various Articles, lays down the priority to nuclear safety, comprehensive and systematic safety assessments at all stages including the life span of the plants, verification by analysis, surveillance, testing and inspection, regard being had to the safety requirements, emergency planning and preparedness to take care of the people in the vicinity of the nuclear installation, necessary engineering and technical support in all safety related fields available throughout the life time of the nuclear installation, constant reporting by the operator to the regulatory body pertaining to safety and the handling of radioactive waste resulting from the operation and the measures of safety carried thereon.

204Copy pinpoint204. In this regard, I may refer with profit to another G Convention, namely, the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management dated 5th September, 1997. I may hasten to add that India is not a signatory to the same but the said Convention is worth referring to in order to understand and appreciate the H world-wide concern for public safety. Chapter 2 deals with

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[DIPAK MISRA, J.] safety of spent fuel management, Chapter 3 deals with safety A of Radioactive Waste Management and Chapter 4 deals with General safety provisions. Article 4 occurring in Chapter 2 deals with general safety requirements. Clauses (v) and (vii) read as follows: - "Article 4. General Safety Requirements B Each Contracting Party shall take the appropriate steps to ensure that at all stages of spent fuel management, individuals, society and the environment are adequately protected against radiological hazards. c In so doing, each Contracting Party shall take the appropriate steps to: (v) take into account the biological, chemical and other hazards that may be associated with spent fuel management; D (vii) aim to avoid imposing undue burdens on future generations. n

205Copy pinpoint205. Article 11 in Chapter 3 pertains to General Safety Requirements. It is reproduced below: - E "Each contracting Party shall take the appropriate steps to ensure that at all stages of radioactive waste management individuals, society and the environment are adequately protected against radiological and other hazards. F In so doing, each Contracting party shall take the appropriate steps to: (i) ensure that criticality and removal of residual heat generated during radioactive waste management G are adequately addressed; (ii) ensure that the generation of radioactive waste is kept to the minimum practicable; (iii) take into account interdependencies among the H

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A different steps in radioactive waste management; (iv) provide for effective protection of individuals. society and the environment. by applying at the national level suitable protective methods as approved by the regulatory body. in the framework B of its national legislation which has due regard to internationally endorsed criteria and standards: (v) take into account the biological, chemical and other hazards that may be associated with radioactive waste management; c (vi) strive to avoid actions that impose reasonable predictable impacts on future generations greater than those permitted for the current generation: (vii) aim to avoid imposing undue burdens on future D generations." [Emphasis added]

206Copy pinpoint206. Article 15 deals with Assessment of Safety of facilities. The relevant clauses are as under: - E "Each Contracting Party shall take the appropriate steps to ensure that: (i) before construction of a radioactive waste management facility, a systematic safety assessment and an environmental assessment appropriate to the hazard presented by the facility and covering its operating lifetime shall be carried out; (ii) in addition, before construction of a disposal facility, a systematic safety assessment and environmental assessment for the period following closure shall be carried out and the results evaluated against the criteria established by the regulatory body; H

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[DIPAK MISRA, J.] (iii) before the operation of a radioactive waste A management facility, updated and detailed versions of the safety assessment and of the environmental assessment shall be prepared when deemed necessary to complement the assessments referred to in paragraph (i)." B

207Copy pinpoint207. Article 22 that occurs in Chapter 4 deals with Human and Financial Resources. It is apt to reproduce the same: - "Each Contracting Party shall take the appropriate steps to ensure that: c (i) qualified staff are available as needed for safety- related activities during the operating lifetime of a spent fuel and a radioactive waste management facility; (ii) adequate financial resources are available to support the safety of facilities for spent fuel and radioactive waste management during their lifetime and for decommissioning; (iii) financial provision is made which will enable the appropriate institutional control and monitoring arrangements to be continued for the period deemed necessary following the closure of a disposal facility."

208Copy pinpoint208. Article 23 deals with quality assurance. It reads as follows:- "Each Contracting Party shall take the necessary steps to ensure that all appropriate quality assurance programmes concerning the safety of spent fuel and radioactive waste management are established and implemented.~ G

209Copy pinpoint209. The aforesaid Convention, as is seen, lays emphasis on ecological hazards, avoidance of undue burden on future generations, management of radioactive waste, adequate protection against radiological and other hazards, application H

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A of suitable protective methods approved by the regulatory body keeping in view the interest of the individual and the society, to avoid actions that impose reasonable predictable impact on future generations, the systematic safety assessment and environmental assessment appropriate to the hazards presented by the facility and covering its operating lifetime, the institutional control and mandatory arrangements and ensuring of appropriate quality assu_rance programmes concerning the safety from spent fuel and radioactive waste. I am absolutely conscious that India has not ratified the said Convention but the safety concern at any level is a fundamental human concern. I have referred to the same, to repeat at the cost of repetition, to show the concern of many countries, especially, relating to safety measures taken at all times. The 1962 Act and the Convention which has been ratified by India speak eloquently about that. The conception of public safety, at no stage, can be brushed aside or ignored. It has to be treated with paramount primacy and highest priority for the simon pure reason life delights every person and creates an innate desire to live. E Necessity of Electrical Energy by the State and Concept of Public Safety:

210Copy pinpoint210. In Anderson v. Dunn\ the U.S. Supreme Court, in a different context, long back had stated about the role of the State and the safety of the citizens: - F "No one is so visionarv as to dispute the assertion. that the sole end and aim of all our institutions is the safety and happiness of the citizen. But the relation between the action and the end, is not always so direct and palpable as to strike the eye of every observer. The science of G government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies

H 1. 19 U.S. [6 Wheat] 204 (1821)].

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[DIPAK MISRA, J.]

of the state as they arise. It is the science of experiment." A After so stating, the U.S. Supreme Court proceeded to observe as follows: - ''That 'the safety of the people is the supreme law', not only comforts with, but is indispensable to, the exercise of those powers in their public functionaries, without which that safety cannot be guarded."

211Copy pinpoint211. In Charan Lal Sahu v. Union of lndia 2 , this Court, while dealing with the constitutional validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, observed that the said enactment was passed as a sequel to a grim tragedy that occurred on the night of December 2, 1984. This Court treated it to be the most tragic industrial disaster in recorded human history. While discussing the concept of parens patriae, the learned Chief Justice observed that the conception of the parens patriae theory is the obligation of the State to protect and it takes into custody the rights and the privileges of its citizens for discharging its obligation. While dealing with the said concept, it has been opined that the maxim salus populi suprema lex - regard for public welfare - is the highest law. E

212Copy pinpoint212. I have referred to the said pronouncement solely to emphasize on the role of the State to act in the greater welfare of the collective and how the public welfare has been treated to be at the zenith of law.

213Copy pinpoint213. In Union Carbide Corporation v. Union of India and F others3, a Constitution Bench regarded the Bhopal Gas Leak Tragedy as a horrendous industrial mass disaster, unparalleled in its magnitude, and the devastation and remains a ghastly monument to the dehumanizing influence of inherently dangerous technologies. While dealing with the justness and G reasonableness of the quantum of settlement, the Constitution Bench adverted to the problems emerging from the pursuit of such dangerous technologies for economic gains by

2. (1990) 1 sec 613.

3. (1989) 3 sec 38. H

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A multinationals, availability of cheap labour, captive markets and the facets of economic exploitation in developing countries where the matters of concern were propounded before the court and in that context, it has been observed as follows: - "32. These issues and certain cognate areas of even B wider significance and the limits of the adjudicative disposition of some of their aspects are indeed questions of seminal importance. The culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has c thrown open vital and fundamental issues of technology options. Associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate in a comprehensive sense in such contexts arise. These, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concern."

214Copy pinpoint214. Thereafter, the Court referred to the technology in agriculture that has given a big impetus to enterprises of chemical fertilizers and its serious problems. Thereafter, it has been stated thus: - "34. Indeed, there is also need to evolve a national policy to protect national interests from such ultra-hazardous pursuits of economic gains. Jurists, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanction." G

215Copy pinpoint215. In Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar4, the maxim salus populi suprema lex, i.e., welfare of the people is the supreme law, was again emphasised upon, though in a different context.

H 4. 1993 Supp (1) sec 529.

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[DIPAK MISRA, J.]

216Copy pinpoint216. At this juncture, I must also refer to the other maxim A salys republicae supreme lex, i.e., safety of the State is the supreme law and in case of any conflict, an individual must yield to the collective interest. But, it should not be done at the cost of safety. At all times and at all quarters, sincere efforts are to be made to maintain and sustain the safety of the people. That B has been spoken by the ancients when the Kings ruled and the same reigns supreme in a democratic set-up. True it is, there are exceptions, but the exceptions are to remain in the realm of exceptions only and should not be brought into play either at the whim or fancy of the executive. The purpose of saying is C that the law has many a mansion and the mosaic of law covers many spectrums so that both the maxims, namely, solus populi supreme lex and salus republicae supreme lex. can harmoniously coexist. The present case is one where there is need for nuclear energy for the welfare of the public and for other welfare of the people of India and for peaceful purpose. D Definitely, the interest of the economy and the interest of safety are to be the real concerns of a Welfare State. In this regard, I may usefully refer to the following observations made by this Court, though in a different context, in State of Kamataka and others v. Dr. Praveen Bhai Thogadia 5 :- E· "Welfare of the people is the ultimate goal of all laws, and State action and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of the society as a whole and not of any individual or particular groups carrying any brand names. It is inconceivable that there can be social well-being without communal harmony, love for each other and hatred for none. The core of religion based upon spiritual values, which the Vedas, Upanishads and Puranas were said to reveal to mankind seem to be: "Love others, serve others, help ever, hurt never" and "sarvae jana sukhino bhavantoo". •

217Copy pinpoint217. The concept of welfare State is a facet of Article 38 s. (2004) 4 sec 684. H

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A of the Constitution of India. It is the obligation of the State to see that the vvelfare of the people is appositely promoted. It is the obligation passed by the Constitution of the State to establish a welfare State. The words used in the Preamble of the 1962 Act are "welfare for the people" and "peace". There B is a necessity for generation of electrical energy arid regard being had to the hazards, there has to be guidance which the Acts, Rules and Notifications provide. The collective interests should not totally be thrown overboard for the development of the power sector. If the safety measures are adequately not taken and the apprehensions are not removed and the fear is not totally ostracized from the minds of the people of the locality, posterity may not recognize the same as a development or a progressive step. The conscientious and conscious policy decisions by the Government are to be taken with due care and consideration, keeping in mind the welfare of the people at large. True it is, when such policies are framed, especially for establishment of nuclear plants or such big projects, the safety measures become the primary concern and the same have to be adequately addressed to and taken care of. However, the Courts, in exercise of power of judicial review, cannot assume the role of approving authority for laying safety measures, but, a significant one, what the regulatory authorities have stated are to be regarded as the primary and principal concern. AERB Report:

218Copy pinpoint218. In this context, I may refer to the report of the AERB to review the safety of Indian Nuclear Power Plants against External Events of Natural Origin. For the sake of necessity and completeness, it is reproduced below: - "SAFETY ASSESSMENT OF KUDANKULAM NUCLEAR G POWER PLANT UNITS-1&2 (KK NPP1&2) IN THE WAKE OF FUKUSHIMA ACCIDENT Two Units of WER Pressurized Water Reactors (Model V-412) each of 1000 MW rating are being built at the Kudankulam Site in Tamil Nadu. Initial commissioning H

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[DIPAK MISRA, J.] activities for Unit # 1 have started with AERB issuing clearance for "Hot-Run" on June 30, 2011. Construction of Unit# 2 is in an advanced stage of completion. The design of KK NPP incorporates a number of engineered safety features (ESFs} for catering to design basis accident (DBAs} and beyond design basis accidents (BDBAs}, and several other design safety features. ESFs for catering to DBA. a. Emergency Core Cooling System (ECCS} C b. Secondary circuit protection against over- pressurisation c. Emergency Gas Removal System d. Fission Products Removal and Control Systems D

e. Emergency Safety Boron Injection System f. Quick Boron Injection System (QBIS} ESFs for catering to E BDBA * Passive Heat Removal System (PHRS} * Additional System for core passive flooding ·F * Annuls passive filtering system (APFS} * System for retaining and cooling of molten core Other salient design safety Features G * 4 x 100% active safety system trains and 4 x 33% passive safety system trains * Large water inventory in I and II stage ECCS hydro- accumulators H

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A * Automatic Reactor Scram on seismic signal * Battery banks with 24 hrs capacity * Sea water pumps located at more than 2.2m above design basis flood level (DBFL) B * Safety related buildings and structures located at least 3.0m above DBFL * A shore protection rubble wall Post-Fakushima safety Assessment c A Task Force (TF) constituted by NPCIL carried out safety assessment of KKNPP-1&2 in the light of Fakushipa accident and its findings were reviewed by the AERB's Advisory committee on Project safety review of light water reactors (ACPSR-LWR) and the AERB Committee on D safety review of Indian NPPs in the light of Fukushima accident. Salient points emerging from the assessment and its reviews are given below: - * Back up provisions from alternate sources should be made for E Charging water to secondary side of SGs Make-up of borated water to spent fuel pools Injection of borated water in the reactor coolant F system. * Sciesmic qualification of emergency water storage facility and augmentation of its storage capacity for core decay heat removal for a period of at least one week. G * Mobile self powered pumping equipment for emergency use * Facility for monitoring safety parameters using portable power packs H

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[DIPAK MISRA, J.] * Finalization of emergency operating procedures for A BDBA conditions * Primary Containment to be assessed for ultimate load bearing capacity. * Doors and barrels of airlocks to be qualified for B proof test pressure. * Ensuring that highly active water used for cooling the core catcher vessel under BDBA is contained inside the primary containment. c * Reconfirmation of design adequacy of hydrogen management system. * Environmental qualification of core catcher temperature monitoring system * · Adequacy of design provision for remote water addition to core catcher * Adequacy of instrumentation for monitoring plant status during BDBA. * Details of margin available on location of various safety related SSCs above DBFL should be reviewed again, * Need for design provision for containment venting, that has been deleted, should be re-examined. F * The backup sources for water injection to SG secondary side should be seismically qualified. * Provisions for addition of water to core catcher require a detailed study, to ensure that there is no possibility of any steam explosion. G * Provision of additional backup power supply sources for performing essential safety functions, like air cooled DGs located at a high elevation, should be considered. H

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A The recommendations are being examined and NPCIL's response would be reviewed in ACPSR- LWR before initial fuel loading in unit-1.

219Copy pinpoint219. A status report has been filed by NPCIL. An affidavit has been filed on 3.12.2012 and it is asserted therein that most B of the recommendations have already been complied with. It has been dealt with by my respected learned Brother that there is substantial compliance of the same and dates or fixed time frame has been given for compliance of certain recommendations which have not yet been complied. This C Court has been apprised of the fact that the AERB and, in turn, the MoEF are in total control of things and scrutiny is made and the same shall be looked into from time to time and all possible measures shall be taken to avoid any kind of accident. As advised, at present, I have noted the categorical assurance 9f o the Statutory Authority. Nuclear Energy development and doctrine of balance and proportionality vis-a-vis safety:

220Copy pinpoint220. It must be stated that the safety of the people residing in Kudankulam and the areas in its vicinity and also the people who are likely to be affected because of radioactive generation has to be respected, for their human dignity is their divinity. This Court has not directed for closure of the plant on the basis of the asseverations made before this Court. But, it is the highest concern of this Court that a devastating disaster should, be avoided at all costs by the people who are in-charge of looking after the safety measures. The statutory regulatory authority should responsibly keep the vigil and no one. who has the responsibility, should be complacent. The tragedy that has occurred at Fukushima shall remain as one of the darkest elements of history. The catastrophe of the Bhopal Gas Leak Disaster has not been erased or effaced from the minds of the public. The moan and mourns of the affected people of Bhopal who have been injured or lost their kith and kin are still heard and humane sensitivity would not permit one to ignore it. The H nuclear scientists, the administrators and other authorities

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[DIPAK MISRA, J.] cannot remain oblivious or totally insensitive to the possible hazards when the nuclear plant operates.

221Copy pinpoint221. When one thinks of safety in the context of establishment of a nuclear plant, the inevitable thought that gets into the depth of mind is security. Safety and security, in this context, are insegregably inter-twined commencing the planning, quality of construction, committed efforts to avoid operational jeopardy and monitoring and all are bound to remain in a singular chain. All endeavours are to be made to prevent, monitor and control. The concept of disaster management cannot be allowed to remain on paper. Its procrastination itself rings the bell of peril. The administration has to be alive to the said situation and the awakening to manage the disaster in case of an unfortunate incident has to be founded on scientific and sophisticated methods. Taking care of the situation of the present alone is not the solution. All concerned with the same o are required to look to the future because that elevates the real concern. The danger of the future should be seriously taken note of and should not be veiled in the guise of thought for the present. Not for nothing, it has been said that he who prepares for the future and remains prepared for the future has a good control over the present, and if one remains in a state of blindness thinking the future to be uncertain, he suffers the agony of the present and the anguish of the future. This is not only the truth in respect of an individual life but also the paramount truth for the collective of the present generation and the future generations. The present generation has no right to enjoy by eating away the time of the future generation. The protection of the environment and the safety for the present generation in its connotative sense covers the posterity.

222Copy pinpoint222. I have already discussed about the signification of the safety needed in respect of nuclear plants. Generation of nuclear energy is a necessity in a progressive modern State. As has been stated earlier, there is an enactment and notifications governing the field in various aspects. A policy decision has been taken to establish the nuclear plant at H

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A Kudankulam. Promotion of development and protection of environment are to be harmonized at the same time. In Intellectuals Forum, Tirupathi v. State of A.P and others6, it has been held that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What is required to be prescribed is the principle of sustainable development and find a balance between the developmental needs and the environmental degradation.

223Copy pinpoint223. In Bombay Dying & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and others7 , while dealing with the concept of sustainable development and planned development vis-a-vis Article 21 of the Constitution, a two- Judge Bench has opined thus: - "It is often felt that in the process of encouraging development the environment gets sidelined. However, D with major threats to the euvironment, such as climate change, depletion of natural resources, the eutrophication of water systems and biodiversity and global warming, the need to protect the environment has become a priority. At the same time, it is also necessary to promote E development. The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a F process in which development can be sustained over generations. Brundtland Report defines "sustainable development" as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public G policies raises important challenges that involve complex synergies and trade offs."

6. c2000) 3 sec 549.

H 7. c2000) 3 sec 434.

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224Copy pinpoint224. In M.C. Mehta v. Union of India and others8 , while stating about sustainable development and the needs of the present without compromising the ability of the future generation to meet their own needs, this Court has expressed thus: - "The definition of "sustainable development" which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Ando/an v. Union of lndia 9 this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. [See Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law Review, p. 509 at p. 549-A) as referred to in para 28 in A.P. Pollution Control Board v. Prof. M. V. Nayudu 10 .]" E

225Copy pinpoint225. In Tirupur Dyeing Factory Owners Association v. Noyya/ River Ayacutdars Protection Association and others11 , while dealing with the concept of sustainable development, the Court has observed as under: - "The concept of "sustainable development" has been F explained that it covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs. It means the development, that can take place and which can be sustained by nature/ecology with or without mitigation. G

8. c2004) 12 sec 118.

9. c2000) 10 sec 664.

10. (1999) 2 sec 118.

11. c2009) 9 sec 737. H

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A Therefore, in such matters, the required standard is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. The development of the industries, irrigation resources and power projects are necessary to improve B employment opportunities and generation of revenue, therefore, cannot be ignored. In such eventuality, a balance has to be struck for the reason that if the activity is allowed to go on, there may be irreparable damage to the environment and there may be irreparable damage to the economic interest. A similar view has been reiterated by c this Court in T.N. Godavarman Thirumulpad (104) v. Union of lndia 12 and M.C. Mehta v. Union of lndia 13 ."

226Copy pinpoint226. In T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India and others14 , this Court observed o that it cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.

227Copy pinpoint227. In Narmada Bachao Ando/an v. Union of India and others15 , a three-Judge Bench, while dealing with the public projects and policies, has opined that the court does not become the approving authority of such policies. Thereafter, the G Bench observed thus: - "Normally such decisions are taken by the Government

12. c2oos) 2 sec 222. 13_ c2009) 6 sec 142.

14. c2002) 10 sec 606.

H 15. c2000) 10 sec 664.

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[DIPAK MISRA, J.] after due care and consideration. In a democracy welfare A of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government.·

228Copy pinpoint228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a B balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger C public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of o the society. But, a pregnant one, the present case really does not fall within the four comers of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a G continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is taken and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution. It would be guillotining the H

812' SUPREME COURT REPORTS [2013] 8 S.C.R

A human right, for when the candle of life gets extinguished, all rights of that person perish with it. Safety, security and life would constitute a pyramid within the sanctity of Article 21 and no jettisoning is permissible. Therefore, I am obliged to think that 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. I may hasten to clarify that I have not discussed anything about the ecology and environment which has been propounded before us, but I may particularly put that the proportionality of risk may not be "zero" regard being had to the nature's unpredictability. All efforts are to be made to avoid any man-made disaster. Though the concept of delicate balance and the doctrine of proportionality of risk factor gets attracted, yet the same commands the highest degree of constant alertness, for it is disaster affecting the living. The life of some cannot be sacrificed for the purpose of the eventual larger good . •

229Copy pinpoint229. Before proceeding to issue certain directions, it is required to be stated that the appellant, by this Public Interest E 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 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 H "Constitutional Trust".

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[DIPAK MISRA, J.]

230Copy pinpoint230. We, therefore, fully endorse the view taken by the A Division Bench of the High Court, however, in the facts and circumstances of the case, we are inclined to give the following directions: DIRECTIONS: B

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. c

2. MoEF should oversee and monitor whether the NPCIL is complying with the conditions laid down, while granting clearance vide its communication dated 23.9.2008 under the provisions of EIA Notification of 2006, so also the conditions laid D down in the environmental clearance granted by the MoEF vide its communication dated 31.12.2009. AERB and MoEF will see that all the conditions stipulated by them are duly complied with before the plant is made operational. E

3. Maintaining safety is an ongoing process not only at the design level, but also during the operation for the nuclear plant. Safeguarding NPP, radioactive materials, ensuring physical security of the NSF are of paramount importance. NPCIL, AERB, the regulatory authority, should maintain constant vigil and make periodical inspection of the plant at least once in three months and if any defect is noticed, the same has to be rectified forthwith.

4. NPCIL shall send periodical reports to AERB and the AERB shall take prompt action on those reports, if any fallacy is noticed in the reports.

5. SNF generated needs to be managed in a safe manner to ensure protection of human health and environment from the undue effect of ionizing H

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A radiation now and future, for which sufficient surveillance and monitoring programme have to be evolved and implemented.

6. AERB should periodically review the design-safety aspects of AFR feasibly at KKNPP so that there will B be no adverse impact on the environment due to such storage which may also allay the fears and apprehensions expressed by the people.

7. DGR has to be set up at the earliest so that SNF could be transported from the nuclear plant to DGR. c NPCIL says the same would be done within a period of five years. Effective steps should be taken by the Union of India, NPCIL, AERB, AEC, DAE etc. to have a permanent DGR at the earliest so that apprehension voic~d by the people of keeping the NSF at the site of Kudankulam NPP could be dispelled.

8. NPCIL should ensure that the radioactive discharges to the environmental aquatic atmosphere and terrestrial route shall not cross the limits prescribed by the Regulatory Body.

9. The Union of India, AERB and NPCIL should take steps at the earliest to comply with rest of the seventeen recommendations, within the time stipulated in the affidavit filed by the NPCIL on F 3.12.2012.

10. SNF is not being re-processed at the site, which has to be transported to a Re-Processing facility. Therefore, the management and transportation of SNF be carried out strictly by the Code of Practices G laid down by the AERB, following the norms and regulations laid down by IAEA -

11. NPCIL, AERB and State of Tamil Nadu should take adequate steps to implement the National Disaster H Management Guidelines, 2009 and also carry out

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[DIPAK MISRA, J.) the periodical emergency exercises on and off site, A with the support of the concerned Ministries of the Government of India, Officials of the State Government and local authorities.

12. NPCIL, in association with the District Collector, Tiruneveli should take steps to discharge NPCIL B Corporate Social Responsibilities in accordance with DPE Guidelines and there must be effective and proper monitoring and supervision of the various projects undertaken under CSR to the fullest benefit of the people who are residing in and c around KKNPP.

13. NPCIL and the State of Tamil Nadu, based on the comprehensive emergency preparedness plan should conduct training courses on site and off site administer personnel, including the State D Government officials and other stake holders, including police, fire service, medicos, emergency services etc.

14. Endeavour should be made to withdraw all the criminal cases filed against the agitators so that E peace and normalcy be restored at Kudankulam and nearby places and steps should be taken to educate the people of the necessity of the plant which is in the largest interest of the nation particularly the State of Tamil Nadu. F

15. The AERB, NPCIL, MoEF and 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 G plant. A report to that effect be filed before this Court before commissioning of the plant. The appeals are accordingly disposed of without any order as to costs. B.B.B. Appeals disposed of. H