Piercing the MEA’s fog on Section 46 of supplier liability for nuclear accidents
Siddharth Varadarajan
1. The Ministry of External Affairs’ FAQs on N-liability for suppliers makes too much of the fact that two amendments to include suppliers in the second part of 46 were negatived by the Rajya Sabha.
2. Section 46 says: “The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt the operator from any proceeding which might, apart from this act, be instituted against such operator.”
3. Until now, the Indian government and US suppliers have read this section to mean victims of a nuclear accident continue to have the right to invoke tort claims against any tortfeasor, whether operator or supplier. Now we are being told this is no longer the case.
4. Ironically, the government minister who piloted the law himself made the point about tort law during the RS debate. This is what Prithviraj Chavan, Minister of State in the PMO and for Science and Technology, said in Parliament on August 25, 2010. The implied reference to Sec 46 is unmistakable:
“There was a lot of debate on ceiling. Why has the ceiling been kept at a particular level? As I have informed in the opening remarks, this is a Bill for prompt payment, no fault payment, to likely victims or unfortunate victims. All other laws that are in existence in the country like the criminal liability law, the tort law, the product liability law, etc., are not being touched at all. They are all in place. This is an additionality. If we don’t pass this legislation today, all those laws which are in existence today will remain and the liability of the supplier for negligence, gross negligence, wilful
negligence, etc., will be in place because they are there in the Law of Torts and other criminal law regime. What is being done here is that we are bringing a new regime for quickly compensating the victims.”
5. Here, Chavan has made two important points. First, that the aim of the Civil Liability for Nuclear Damage Act is to provide speedy compensation for victims up to a specified ceiling (a goal which is met by channeling no-fault liability on to the operator); and second, that victims who are unhappy with this ceiling may use their rights under tort law to sue for more damages under existing laws, which remain in place, and under which suppliers are liable if they are in any way negligent.
6. Later in the Rajya Sabha debate, Chavan returns to this point:
“The suppliers are a little unhappy. But we will be able to explain to the suppliers that all the existing laws cannot be abridged; some of the constitutional guarantees cannot be abridged; those will remain. We have worked with those laws up till now.”
7. Now, when the government minister, in an implied reference to Section 46, talks about the CLNDA allowing the law of torts to be used against suppliers, how can the MEA cite the voting down of two redundant amendments to claim Parliament explicitly rejected torts against suppliers?
8. The amendments moved by D. Raja and Sitaram Yechury were rightly rejected because the sub-clause where the words “and suppliers” was being inserted had no use for them. That sub-clause was clearly intended to reinforce the idea that the channeling of no-fault liability to the operator would not exempt him from other proceedings, especially criminal proceedings.
9. The MEA cites Supreme Court jurisprudence to conclude that “It is well-settled principle of law that every statute is to be interpreted in accordance with the intention of the legislature or maker of the Statute” and that the defeated amendments are conclusive proof that suppliers are not covered by Section 46.
10. In the light of the government minister’s statements quoted above that the CLNDA is only an additionality and that the existing laws of the land including tort law continue to apply even for suppliers, the same assertion on the interpretation of statute will likely come to haunt the Modi government as it attempts to dilute the liability law through the backdoor.
The Rajya Sabha debate can be found here: http://rsdebate.nic.in/…/4…/2/PD_220_30082010_p9_p89_11.pdf… liability
The MEA’s FAQs can be read here: http://www.mea.gov.in/press-releases.htm…
Siddharth Varadarajan 