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Nuclear energy and risk assessment

by Indian courts: analysis of judicial
intervention in the Kudankulam
Nuclear Power Project
ab c
M.P. Ram Mohan & Akshay Shandilya
a
The Energy and Resources Institute (TERI), New Delhi, India
b
Nuclear Law Association, India
c
Hidayatullah National Law University, Raipur, India
Published online: 16 May 2014.
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To cite this article: M.P. Ram Mohan & Akshay Shandilya (2015) Nuclear energy and risk assessment
by Indian courts: analysis of judicial intervention in the Kudankulam Nuclear Power Project, Journal
of Risk Research, 18:8, 1051-1069, DOI: 10.1080/13669877.2014.913665
To link to this article: http://dx.doi.org/10.1080/13669877.2014.913665
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Journal of Risk Research, 2015
Vol. 18, No. 8, 1051–1069, http://dx.doi.org/10.1080/13669877.2014.913665
Nuclear energy and risk assessment by Indian courts: analysis of

judicial intervention in the Kudankulam Nuclear Power Project
M.P. Ram Mohana,b* and Akshay Shandilyac
a
The Energy and Resources Institute (TERI), New Delhi, India; bNuclear Law Association,
India; cHidayatullah National Law University, Raipur, India
(Received 14 February 2014; final version received 29 March 2014)
Judicial intervention on nuclear energy safety discourse in India is very recent.

The debate on the Civil Nuclear Liability for Damage Act 2010 in the Parlia-
ment and the 2011 Fukushima nuclear accident in Japan provoked public appre-
hension about nuclear safety in India. The Kudankulam Nuclear Power Project
(KNPP) in South India became the flash point. The localized agitation against
the project consequently gained momentum and was taken up aggressively by
civil society groups citing safety compromise on various technical parameters.
Though the government constituted expert committees to assuage any misgiv-
ings, the matter, however, was challenged before the Madras High Court and as
appeal before the Supreme Court of India. The former assured safety and legality
of the project and the latter endorsed this view, with supplemental directions,
determining the superiority of expert committees who unequivocally concluded
that the project was safe. The Courts similarly converged on the issue that the
project was of national importance. On the access to project information, though
the Central Information Commission ordered to make public the KNPP site and
safety evaluation reports, however, Nuclear Power Corporation appealed to the
Delhi High Court arguing the information was proprietary and obtained a stay
order.
Keywords: nuclear energy and law; Supreme Court of India; Kudankulam
Nuclear Power Project; nuclear risk perception and assessment; public discourse
and nuclear energy; Department of Atomic Energy; Atomic Energy Regulatory
Board; Nuclear Power Corporation of India Limited
1. Introduction
Nuclear energy forms an indispensible fraction in India’s energy mix and the
Government does not stir any doubts regarding the foregoing. It is evidenced by the
country’s national policy as visible in the preamble of Atomic Energy Act, 1962,
which states that the legislation had been enacted for the development, control and
use of atomic energy for the ‘welfare of the people of India’. Successive govern-
ments stood firm even under international isolation in the aftermath of Pokhran I
and II nuclear tests maintaining that the country’s nuclear energy programme
remained a national priority.
Faced with technological and fuel limitations in expanding nuclear power
capacity during the sanction years, USSR offered to assist India in setting up high
*Corresponding author. Email: mprmohan@teri.res.in
© 2014 Taylor & Francis

1052 M.P. Ram Mohan and A. Shandilya
capacity VVER (Voda Voda Energo Reactor) reactors. India entered into an inter-
governmental agreement with the erstwhile USSR in November 1988. Following its
disintegration in 1993, it renewed the deal by means of a supplementary agreement
in 1998 with Russia. Consequently, Nuclear Power Corporation of India Limited
(NPCIL) undertook the task of constructing two VVER-1000 Model reactors
through technical assistance from Atomstroyexport, a wholly owned Russian Gov-
ernment Company. The project was planned at Kudankulam, a coastal town in Tamil
Nadu. However, a few years into construction, successive unforeseen events turned
the tide for this show case project of the Indo-Russian joint venture. Allegation was
raised by the local community and few others that the Kudankulam Nuclear Power
Plant (KNPP) reactors were faulty and claimed assurance of safety from the operator
as well as the Government. The Fukushima-Daiichi nuclear disaster in 2011 fuelled
the conscience of the agitators who then demanded shutting down of the plant citing
numerous risks connected with generation of nuclear energy. The dissent turned
violent (‘One Killed in Anti-Kudankulam Protests’ 2012; ‘Anti-Kudankulam
Activists to Raise Protest’ 2013). and the issue as to whether KNPP should be
commissioned was presented before Indian Courts.
The objective of this paper is to bring out a commentary of the judgments deliv-
ered by the hierarchy of Indian judiciary regarding KNPP’s safety and the legality of
the order of commissioning of the plant. The research emphasizes on a batch of peti-
tions filed by Mr G. Sundarrajan before the High Court of Judicature at Madras; the
first praying for a fresh and transparent review of KNPP (G. Sundarrajan v. Union
of India & others: Writ Petition No. 24770 of 2011) and the second praying for the
clearances for ‘Initial Fuel Loading’ (IFL) and ‘First Approach to Criticality’ to be
held void (G. Sundarrajan v. Union of India& others: Writ Petition No. 22253 of
2012). Aggrieved by the decision of the bench in both cases, which found no fault
with the project, the petitioner appealed before the Supreme Court of India
(G. Sundarrajan v. Union of India & others: 6 SCC 620, Civil Appeal No. 4440 of
2013). The paper covers a detailed review of arguments made by the petitioners and
respondents in the above three cases while examining the decision of the Courts.
The paper further examines the Chief Information Commission’s (CIC) order in Dr
S.P. Udaykumar v. NPCIL (CIC Decision No. CIC/SG/A/2012/000544/18674) in
light of transparency requesting the project developer for disclosure of critical docu-
ments related to the KNPP.
2. Nuclear energy: a matter of national policy

In 2011, when the Government of India was taking steps to commission Units I and
II of the KNPPP, it not only invited organized protests but also judicial proceedings
when Public Interest Litigations (PIL) were filed in the Madras High Court. The
legal actions questioned the order of such commission demanding fresh and trans-
parent review of the project.1 With the matter being decided in favour of the respon-
dents, the appeal was then heard by the Supreme Court of India. Moreover, the 12
August 2013 press release notifying the clearance for ‘IFL’ and ‘First Approach to
Criticality’ (FAC) of Unit I attracted another legal action citing various illegalities in
the project inter alia that safety regulations had not been complied with by the oper-
ator. The maintainability of the petitions in Madras High Court and the Supreme
Court was vehemently rebutted by the Department of Atomic Energy (DAE),2
Atomic Energy Regulatory Board (AERB)3 and NPCIL on the ground that it was a
Journal of Risk Research 1053
matter of India’s national policy and the Courts could not interfere in such a subject.
The Courts clarified that India’s national policy was visibly represented or rather
unequivocally expressed by the legislature in the Atomic Energy Act. The Supreme
Court observed that it is not for Courts to determine whether a particular policy or a
particular decision taken in fulfilment of a policy is fair, and it is not the province of
a Court to scan the wisdom or reasonableness of the policy behind the Statute.4
Thus, the argument of the petitioners that the sovereign does not require atomic
power to seal the power shortage is negated by the reason of it being the executive’s
decision and a matter of national policy discernible from the legislation. The Courts
could not question such a decision by the Government.5
It was formerly argued by DAE in the Madras High Court that it had, on behalf
of the government, entered into numerous international contracts as a consequence
of the inter-governmental agreement giving rise to third-party rights and that any
judicial interference would cripple the economic development of the country.6 On

this issue, the Supreme Court agreed with DAE and held that it could not stand in
the way of the Union of India honouring its agreement with Russia when it is not in
conflict with India’s national policy.7
3. Public apprehension grounded on Article 21 of the constitution

Another issue before the Courts was the value of nuclear energy in the national
framework when petitioners questioned India’s approach towards achieving energy
security by utilizing atomic power. In a petition (W.P. 22771 of 2011) heard by the
Madras High Court together with the original one (W.P. 24770 of 2011) due to simi-
larity of issues, the interested party termed the construction of nuclear power pro-
jects as ‘dangerous and destructive’ by highlighting that other countries had begun
shutting down their nuclear power programme. It was stated that the immediate and
long-term environmental pollution due to such a project was apparent. Reliance was
placed upon scientific studies to show the threat to fish communities and livelihood
of thousands of people, especially fishermen residing around KNPP, adding further
that the right to life guaranteed under Article 21 of the Constitution of India was
violated in such way.8 In the Supreme Court, the appellants contended that mishan-
dling of radioactive waste could cause serious contamination of land, water, food,
air and ecosystems.9 They further argued that if the units were commissioned or put
into operation, their possible radioactive effects would have far-reaching conse-
quences sweeping the future generation.10
The Court made it explicit that such apprehension ‘had no basis’ and added fur-
ther that no concern, however legitimate, could override the justification of the pro-
ject.11 According to the Bench, nuclear energy assumes an important element in
India’s energy mix for sustaining economic and industrial growth which in future
would replace a significant part of fossil fuel.12 It was thus being established not to
negate right to life but rather to protect the same under Article 21 of the Constitu-
tion13 as right to shelter includes access to electricity.14 Strangely, the Court even
went on to proclaim that power from KNPP would be much cheaper than other
forms of energy in the long run achieving a larger public interest along with the
object of Atomic Energy Act.15
Alternatively, it is pertinent to note that there existed competing views in the
Supreme Court regarding the scope of Article 21 of the Constitution. Justice
Radhakrishnan declared that establishment of nuclear power plants was consistent
with the right to life guaranteed by the Constitution and dismissed the contention of
the petitioners that commissioning of KNPP would make inroad into such a right. In
contrast, his companion Judge, Justice Dipak Misra, concluded that such a wide
view would totally shatter the constitutional guarantee enshrined under Article 21 of
the Constitution that ensures safety and security of life. Sympathy and apprehension
evidently form the basis of his conclusion. Js Misra observed that a delicate balance
in other spheres may be allowed but in the case of a nuclear plant, the safety is para-
mount stating the life of some cannot be sacrificed for the purpose of the eventual
larger good. Therefore, he believed that the case of Kudankulam fell short of the
principle of inconvenience of some being bypassed for a larger interest or cause of
the society. Consequently, the Bench was inclined to give additional guidelines to
ensure safety of the project but did not oppose its commissioning.
4. Alteration of agreement
The Indian government had concluded a bilateral inter-governmental agreement with
USSR for setting up of two VVER-1000 reactors in India on 20 November 1988.
But following the disintegration of the former, India concluded a revised or supple-
mental agreement with Russia on 21 June 1998 with the intent to continue the sanc-
tity of the original agreement. According to People’s Union of Civil Liberties
(PUCL), who became the proposed party16 in W.P. 24770 of 2012 in the Madras
High Court, the latter agreement signified a fresh contract since Russia was not the
legal successor of USSR and it owed no obligations under customary and conven-
tional international law regarding the original agreement.17 However, it is tough to
assimilate that such an erroneous argument was neither rebutted by the numerous
respondents nor taken into cognizance by the Court. Ever since the disintegration of
USSR in 1991, Russia has existed as a ‘continuation’ of the Union. It also ‘contin-
ued’ the membership of USSR in the United Nations. In fact, Russia’s membership
was supported by 11 of the 12 members of the Commonwealth of Independent
States (the former members of the Union). In this sense, Russia assumed all interna-
tional obligations as well as the rights of the Union (Mullerson 1993).
In the instant case, however, the petitioners further contended that the contract of
1998 and its terms were, in substance, distinct from the one concluded in 1988.18 It
was their submission, firstly, that at the time of grant of environmental clearance on
9 May 1989, the standard temperature difference between the inlet and outlet of con-
densed cooling water for discharge for temperature was fixed at 5 °C. However,
clause 84-B of a subsequent notification, dated 22 December 1998, amending the
Environment (Protection) Rules, 1986, stipulated the same not to exceed 7 °C.19
Secondly, that the contract of 1988 specified water to be drawn from Pechiparai
Dam that had subsequently been modified to putting up a desalination plant near the
KNPP site.20 Thirdly, that according to original condition, spent fuel was required to
be sent back to USSR, however, during the renewal of the deal India insisted on
retaining the spent fuel and the agreement was amended allowing India to do so. It
was the cumulative effect of the aforementioned developments that rendered the
contract of 1998 ‘modernized’.21
The Madras High Court and the Supreme Court correspondingly held that it was
baseless to hold that the subsequent contract was a modernized agreement.22 In their
explanation, the project contemplated related to 2 × 1000 MWe VVER nuclear
power plant even in 1988 and there was no change regarding the same.23
Surprisingly, it went on to add that the ‘apprehension appears to have arisen due to
the Fukushima Accident’.24 For the first argument contemplating increase in pollu-
tion loads, the Courts observed that the plant capacity and the process for releasing
the water back into the sea is the same and therefore, the change in differential tem-
perature would be ineffective to alter the core agreement. With respect to the second
contention of putting up a desalination plant, the Court stated that it would not
amount to modernization of the project because it was merely a method which was
more congenial for the implementation of the central project (setting up of 2 × 1000
MWe VVER).25 Furthermore, it was argued by DAE and AERB and also subse-
quently held by the Courts that the water to be sought from Pechiparai dam (a fresh-
water dam located approximately 65 km from the site) was only potable water and
not for the purpose of using in the nuclear power project.26 Against the third argu-
ment, DAE maintained that retaining spent fuel did not amount to change of the
agreement.27 The Additional Solicitor General of India (ASG) argued before the
Madras High Court, ‘[spent fuel] cannot be said to be totally useless, but is useful
for other purposes by the Government’. The Court agreed with the respondents but
added further that the government should take appropriate protective measures for
such containment.28
5. The course of site selection

Site selection based on technical parameters constitutes the core component of any
project and the same attracted a lot of debate with respect to KNPP. It was con-
tended, both before the Madras High Court and the Supreme Court, that in case of
KNPP, proper regulatory procedure as to site selection was not followed. In order to
execute its obligations under the Indo-USSR agreement, the government, after due
deliberations with AEC, AERB and NPCIL, decided to set up a nuclear power plant
in south India.29 In furtherance of such decision, DAE set up a Site Selection Com-
mittee (SSC) in 1988. SSC evaluated the site in the Coromandel coast of Tamil
Nadu and the Site Evaluation Report (SER) was submitted to the AERB according
to the criterion laid down by the AERB Code of Practice on Safety in Nuclear
Power Plants Siting.30 As per the report, only two reactors were sanctioned for the
site with the condition that spent fuel would be temporarily stored and shipped to
USSR. On 10 November 1989, the AERB accorded the site clearance for setting up
2 × 1000 MWe VVERs subject to 23 conditions.31
DAE, AERB and NPCIL argued that the Tamil Nadu was first consulted by the
Central Government for its willingness to offer the site which was then evaluated by
SSC. The report formulated by SSC had to pass through a two-phase review to be
finally cleared by AERB, initially by the Site Evaluation Committee followed by the
Advisory Committee for Site Evaluate.32 It was only when the Committees granted
approval that AERB granted site clearance for KNPP in November 1989.
Besides, it was submitted by the petitioners that as per the Coastal Regulation
Zone (CRZ)33 notification issued on 19 February 1991, no activity which was
termed as prohibited could be carried out except activities which were permissible
therein within 500 m from the high tide line.34 They reasoned that the nuclear power
plant is a prohibited activity under the said notification.35 The rebuttal presented by
the Ministry of Environment and Forest (MoEF) clarified that the CRZ was notified
only in February 1991, whereas clearance for Units I and II was granted as early as
1989 and therefore, the petition was misconceived.36 The project had received
clearance prior to the date of the issue of notification.37 Further, the notification
explicitly mentioned that it became operational from the date of publication, which
meant its application extended only to new projects and not to the projects already
in existence, work on which had already begun.38 However, the petitioners then
argued in the Madras High Court that the CRZ notification was issued much before
the subsequent agreement of 1998. However, the Court established yet again that
agreement of 1998 was not in the nature of a ‘subsequent’ but a ‘supplemental’
agreement. Therefore, the project could not be treated as a ‘new’ project for the pur-
poses of the notification as there was no modernization of the scheme.39
The issue was resolved by the Supreme Court which observed that an exemption
had already been granted to the project even prior to 1991 by the then Prime Minis-
ter of India, vide communication dated 19 April 1989. The Prime Minister had
approved an exemption of 500 m norm, especially for the Kudankulam project sub-
ject to the MoEF prescribing and ensuring sufficient safeguards for preserving the
ecology. Also, paragraph 2(1) of 1991 CRZ Notification as amended by Notification
dated 12 April 2011 exempted projects of DAE. A cumulative reading of the afore-
mentioned lead the Supreme Court to hold that KNPP Units I and II had not vio-
lated the 1991 CRZ Notification.40
6. The question of post-facto ‘Consent to Establish’

The inspection of the site by Tamil Nadu State Pollution Control Board’s (TNSPCB)
officials on 19 September 2001 revealed that construction activities had been under-
taken well before the Consent to Establish was even made.41 The petitioners pointed
out that TNPCB granted the Consent only on 25 February 2004, the application for
which was made on 30 December 2001. On the basis of the foregoing facts, the
petitioners alleged gross violation of the procedures by NPCIL42 for obtaining post-
facto Consent to Establish. In the Madras High Court, TNPCB maintained that the
Consent was granted to NPCIL for a period of two years and certain conditions,
both general as well as special, were imposed on the project proponent whose com-
pliance would allow it to procure Consent to Operate. The petitioners alleged that
the said conditions were not implemented by the operator and TNPCB’s affidavit
stated that their site inspection on 12 June 2012 had verified compliance of both
general and special conditions required for the Consent to Establish. Therefore, the
Court held that the allegation made by the petitioner that some of the conditions
imposed by the TNPCB had not been complied with was incorrect.43 The Pollution
Board had granted the Consent to Operate on 20 September 2012 after satisfying
itself with the necessary requirements. But the Supreme Court observed that the
Board had already cleared the project on 15 December 1988, which served as a No
Object Certificate. It was only consequent to this that land was acquired and con-
struction activities started. Thus, the court dismissed the argument to the extent that
consent was obtained post-facto.44
7. The conflict in environmental clearance

It was argued by the petitioners that the environmental clearance granted by MoEF,
dated 9 May 1989, was illegal as it was given before the site clearance, dated 10
November 1989. Moreover, since clearance was given without detailed project
report, the petitioner also doubted Kudankulam’s site suitability.45 In the Supreme
Court, the appellant submitted that the environment clearance granted by the MoEF
on 9 May 1989 was not only vague but with imprecise conditions and that no envi-
ronmental impact study or public hearing was conducted.46 To make their case, the
petitioners relied on two MoEF notifications, one of 27 January 1994 which made it
mandatory to procure prior environmental clearance by conducting both environ-
ment impact study and public hearing, and one of 10 April 1997 (an amendment to
the 1994 notification) which prescribed the procedure for public hearing.47
The petitioners further argued that no fresh environmental clearance was
obtained from MoEF as per the 1994 notification and even if obtained, the same
would be ‘valid only for five years’ before the construction or operation of the pro-
ject.48 Moreover, it was also pointed out that the environmental clearance granted in
1989 was revalidated by a letter dated 9 June 2001 when EIA Notification of 1994
was in force. In its counter-affidavit, MoEF stated that in 1989, there did not exist a
law requiring prior impact assessment study, which came much later in 1994 and for
that reason, the clearance was valid.49 MoEF had also issued a Circular dated 23
August 1998 stating that environment clearance issued prior to 1994 would not be
valid in the cases where work did not commence before 1 September 1998.50 How-
ever, NPCIL informed the Supreme Court that the 1994 notification provided an
exception for the project which had commenced the pre-project stage activities vide
exception clause 8 and since activities like construction of boundary wall, roads and
some buildings were initiated and completed during 1991–1993, the notification
would not apply to Units I and II.51 According to the Madras High Court, ‘at the
time of these clearances issued by the various authorities … there was neither CRZ
restriction, nor any statutory notification for conducting public hearing by the MoEF
before granting any environmental clearance’.52
The petitioners submitted that since no public hearing was conducted before
granting of environmental clearance in 1989, the project could not be undertaken.53
In its counter-affidavit, the DAE maintained ‘at that time, the law did not require
any public hearing’.54 The ASG further argued that there arose no question of ex-
post-facto hearing, when no hearing was contemplated when the approval was
given.55 But during Court proceedings, DAE informed the Bench that public hearing
was conducted for Units III and IV as they were squarely covered by the notifica-
tion.56 In this respect, the judges observed ‘when once a project has already been
started, we do not understand as to what purpose the public hearing will serve in
respect of an existing project’ adding further ‘in such a situation, in our considered
view, public hearing can at the most be for the purpose of rectification of possible
defects and not for the purpose of abandonment of the project’.57
Furthermore, by quoting the consensus of establishing a desalination plant
instead of sourcing water from Pechiparai dam, retaining of spent fuel and increment
in the temperature of coolant water, features not explicitly visible in the 1988 agree-
ment, it was argued by the petitioners, firstly, that the original scheme had been
altered and, secondly, that the environmental clearance granted in 1989 was based
on false premise.58 Emphasizing the EIA notification of 1994, which required mod-
ernized projects to obtain fresh environmental clearance, petitioners contented EIA
notification of 1994 applied to KNPP Units I and II.
On the issue of fresh environmental clearance, the Madras High Court held,
‘NPCIL … has proceeded with the project after the proposal and thorough study
and obtaining clearances which are required as per the then existing law (emphasis
of the authors) … and therefore, the subsequent notifications issued by the

Government are not applicable’.59 Similarly, the Supreme Court opined that the
notifications of 1994 and 1997 did not apply to the two Units as clearance had
already been granted in 1989.60 Thus, the Courts concluded that no fresh
environmental clearance was required.61
8. Not another Chernobyl or Fukushima

In the Madras High Court, the petitioner termed the construction of nuclear power
projects as ‘dangerous and destructive’ while citing examples of countries like
Argentina, Brazil, China, Mexico, Spain and Germany which have ‘decided against
atomic power’. Interestingly, China’s nuclear energy expansion plan is even more
ambitious and this fact was completely overlooked by the petitioner. Quoting the
accidents at Chernobyl (1986) and Fukushima (2011), the petitioner pleaded the
court to reminisce the destruction besides subsequent human and environmental pol-
lution caused by atomic projects.62 It was also argued that there was every possibil-
ity of an accident in India similar to Fukushima, which resulted in radioactive
contamination leaving farming to be abandoned within 12 miles of the plant. As per
the experts, it would take minimum 20 years before the residents could safely return
to the affected area.
However, DAE stated that the chances for such accidents in KNPP were
remote.63 To supplement its claim, DAE submitted that the reports of Expert Com-
mittees of AERB did consider and compare the two accidents with KNPP but
declared that KNPP was a much more modern and advanced nuclear facility.64 The
reports considered that even in a hypothetical case of a core melt down, a core
catcher was provided where the molten core would be retained and cooled and the
double containment would ensure that there would be no significant radiological
impact in the public domain.
The ASG further clarified before the Supreme Court that the government had
taken utmost care to ensure KNPP’s safety, especially after the tragedy in Japan.65
Reports of Experts66 indicated that Fukushima accident happened due to a combina-
tion of earthquake and tsunami as the project site was located only 110 km away
from the epicentre. KNPP is located about 1500 km away from the nearest offshore
fault line (Andaman–Nicobar–Sumatra fault) which was capable of generating tsuna-
mis. Moreover, maximum flood level at KNPP site on account of the strongest
tsunami or storm surge had been determined at 5.44 m above the mean sea level and
the reactors were situated at a height of 7.44 m.67 Therefore, the possibility of
tsunami impact at Kudankulam, as the one that hit Fukushima, seems to be
remote.68 Further, the ‘Report of AERB Committee to Review Safety of Indian
Nuclear Power Plants against External Events of Natural Origin’ on KNPP
consequent to the disaster at Fukushima concluded that it was implausible that any
accident similar to Three Mile Island, Chernobyl or Fukushima could take place at
KNPP.69
The Madras High Court seems to have reposed complete faith in the solidity of
the scientific reports when it concluded that the Court could not substitute the view
of such professionals by its own view merely because there was a fear after such
accidents. It added that in projects of such nature, there was certainty of public fear
but the apprehension was unwarranted.70
9. In-site safety standards

The most contentious of the issues before the Courts was the ‘safety’ concern. Peti-
tioners/appellants vehemently pleaded that KNPP did not technically comply with
the safety standards and does not address the safety concerns raised by many includ-
ing local communities. The major part of the deliberation revolves around the imple-
mentation of safeguards set by experts failing which the reactors could not be
commissioned.
9.1. Discharge of coolant water

The petitioners in the Madras High Court argued that the unilateral increase of dif-
ferential temperature of coolant water from 5 to 7 °C by an EIA done by NEERI
(National Environmental Engineering Research Institute) in 2003, firstly, had no
basis and, secondly, could damage marine life.71 It was also argued that the impact
of thermal pollution on marine ecology had not been properly studied,72 an issue
local community also alludes to in their protests. The Court clarified that the studies
undertaken by Manonmaniam Sundaranar University, Institute of Ocean Manage-
ment, Anna University, and Engineers India Limited/CMFRI found that operation of
nuclear power plants in the country at other coastal locations, Tarapur in Maharash-
tra and Kalpakkam in Tamil Nadu, had not shown any adverse effects on marine
life, including fish.73 The Supreme Court while confirming this view 74 observed
that ‘all the expert teams are unanimous in their opinion of the safety and security
of the KNPP both to life and property of the people and the environment which
includes marine life’.75 Consequently, it rejected the contention of the appellants that
rise in temperature, i.e. from 5 to 7 °C, of the coolant water would affect marine
ecosystem.76
9.2. Exposure to radiation

Undoubtedly, when it comes to nuclear energy, the attention is always drawn
towards radiation. Considering the sensitivity of the issue, the petitioners argued in
the Madras High Court that radioactive isotopes, when released into the atmosphere,
would affect the surrounding population in the form of external and internal radia-
tion doses flowing into different routes. According to them, human health was likely
to be affected in this way violating Article 14 and 21 of the Constitution unless and
until precautionary measures are taken by NPCIL.
The Supreme Court observed that any radiation incident having a potential to
result in exposure or contamination in excess of the permissible limits could lead to
a nuclear/radiological emergency which was not bound to occur. With respect to the
issue of safety, the High Court considered radiation as ‘the only danger’.
Taking into account the protests about the possible impact of radiation from
KNPP Units I and II, the Supreme Court noted that the impact and effect of radia-
tion from the Units on both humans and ecology required redressal by AERB,
NPCIL, MoEF and all the Expert Committees.77 In the High Court, NPCIL submit-
ted that the primary containment of reactors at Kudankulam was made of pre-
stressed reinforced concrete with carbon steel lining on the inner surface and was
designed to confine radioactive substances within primary containment under all
conditions including accidents, so that the level of radiation in external environment
remains within acceptable limits. The Court also took note of Dr A.P.J. Abdul
Kalam, former president of India and himself a scientist, who had stated that the
Passive Heat Removal System (PHRS) in the reactors would not permit any radia-
tion leakage in the atmosphere in emergency cases. Moreover, the Expert Group
constituted by the Government concluded:
the radiological releases during the plant operation are expected to be well below
prescribed limits’. Therefore, the Supreme Court held ‘expert committees are of the
unanimous opinion that there will not be any deleterious effects due to radiation
from the operation of KNPP, and that adequate safety measures have already been
taken’.78
The Supreme Court cited paragraph 3.6 of the National Disaster Management
Guidelines under the head ‘Public Awareness’, which states:
the fact that one cannot see, feel or smell the presence of radiation, coupled with a gen-
eral lack of credible and authentic information to the public at large about radiation
and radiation emergencies and the wide publicity given to any nuclear/radiation-related
incident, has resulted in several erroneous perceptions about nuclear technology.
(National Disaster Management Guideline 2009)
It quite easily assumes that people perceive any small nuclear/radiation-related inci-
dent to lead to a situation like Hiroshima or Nagasaki, or the Chernobyl accident.
Once the Court had cited such a far-fetched and purely assumption-based report, it
was not surprising to note that it concluded by saying that people are exposed to
radiation daily in the form of cosmic rays, X-rays, CT-scan, mobile phones, surger-
ies, etc. It goes to the extent of saying ‘we have to balance “economic scientific ben-
efits” with that of “minor radiological detriments” on the touchstone of our national
nuclear policy’ and ‘larger public interest of the community should give way to indi-
vidual apprehension of violation of human rights and right to life guaranteed under
Article 21’. On a philosophical note, the court stated that
Nobody on the earth can predict what would happen in future and to a larger extent
we have to leave it to the destiny … apprehension is something we anticipate with anx-
iety or fear, a fearful anticipation, which may vary from person to person.
9.3. Implementation of safeguards

Following the accident at Fukushima, the Prime Minister of India on 11 March 2011
ordered a security audit of all NPPs against external events emphasizing safety as a
matter of highest priority for the government.79 Pursuant to such direction, the
AERB constituted a 15-member high level committee (AERBSC-EE) to review
safety of NPPs against external events of natural origin with national level experts
in the areas of (i) design, safety analysis and NPP operation and (ii) external events
in the field of seismology, hydrology and earthquake engineering to carry out a com-
prehensive review of capability of NPPs to deal with external events within and
beyond design basis.80 NPCIL, the operating agency, constituted separate task forces
to review safety of NPPs depending on types of reactor designs and their vintages.81
The interim report submitted by NPCIL Committee on 31 August 2013, titled
‘Safety Evaluation of the Systems of KNPP Post Fukushima Event’,82 included 17
recommendations83 made to deal with unanticipated, natural events stated to be of
very low probability.84 Interestingly, though, the task force constituted by NPCIL
found that KNPP had already incorporated all safety standards.85
In a press release dated 10 August 2012, AERB gave the clearance for ‘IFL’ and
FAC) of Unit I. Consequently, Sundarrajan filed another petition against the Union
of India86 in the Madras High Court for an order against such clearance, stating that
the 17 requirements were not disclosed to the public and this created a doubt as to
whether the recommendations had even been complied with.87 The petitioner articu-
lated ‘while few of them require compliance within a short term period viz., 6
months, some other recommendations required a long term period of two years for
the purpose of compliance’.88 The counter-affidavit of AERB itself suggested that
only some of the 17 requirements were complied with. However, it submitted that
the requirements were not necessary requirements for the purpose of starting a
nuclear project or loading fuel but were made for ‘extra security’ and ‘to avoid any
sort of accident as it took place in Fukushima’.89 Notwithstanding the foregoing, it

clarified further that it would compel NPCIL to follow the rest of the recommenda-
tions in a ‘phased manner’ and that the petitioner need not suspect its conduct.90
AERB assured the Supreme Court that steps were being taken to implement the 17
recommendations.
The Attorney General, appearing for AERB, submitted that the KNPP units I
and II had been set up after following all the safety standards laid down by AERB.
The Counsel further affirmed that the design of plant incorporated advance safety
features91 complying with current standards of redundancy, reliability, independence
and prevention of common cause failures in its safety system.92 The Solicitor
General of India, appearing for NPCIL, informed the court that KNPP was a 3 +
Generation NPP93; that the advanced safety features have been incorporated in the
reactors, namely: Quick Boron Injection System (for catering to Anticipated
Transients Without Scram situations), PHRS (cooling of nuclear fuel without opera-
tor action or power supply), Second-Stage Hydro Accumulators (with large water
inventory), Passive Hydrogen Re-combiners (to prevent hydrogen explosion; release
of hydrogen converted to water without operator action or power supply), Annulus
Passive Filtering System(to maintain vacuum and cleaning fluid in inter-space
between double containment), Core Catcher (for retaining and cooling molten core),
etc.94
9.4. The experts vs. court debate

It is a settled principle that in matters where the Court itself cannot adjudicate on
the basis of law at hand, it requests assistance of experts who are exceptionally
knowledgeable in the field. The present issue of safety at Kudankulam is an example
where the Court considered itself squared by the opinions of numerous experts pre-
sented before it.
In connection with the integrity of the reports of Experts, the Madras High Court
quoted a relevant section from Tehri Bandh Virodhi Sangarsh Samiti and ors. v.
State of U.P. and ors.95: ‘[the] Court does not possess the requisite expertise to ren-
der any final opinion on the rival contentions of the experts’. The Supreme Court
observed
environmental impact on setting up of a nuclear plant anywhere in the world is bound
to generate some apprehension, at least in the minds of the ordinary people, of its
possible impact on environment, life and property, flora and fauna, marine life, radia-
tion, nuclear waste and its disposal and other related issues.96
In this respect, the Court held ‘it would normally be wise and safe for the courts to
leave the decisions to experts who are more familiar with the problems which they
face than the courts generally can’ by adding further that it had been the consistent
view of the Court.97
The High Court further held that AERB was an expert body consisting of scien-
tists having a statutory character and once such regulatory body requires compliance
of regulations,
it is not for the Court to look into it with suspicion … [since] this Court does not have
any expertise to come to a conclusion as to whether these requirements are necessary
either for the purpose of Initial Fuel Loading or for the purpose of its subsequent oper-
ation.98
10. Emergency preparedness plans

A NPP is mandatorily required to formulate an emergency action plan, as a precau-
tionary measure, in case an unprecedented event occurs at the site. Specifically
regarding KNPP, the Supreme Court observed ‘site emergency may affect the public
personnel living beyond 1.6 km radius of the plant boundary’.99 In respect to the
conditions relating to on-site and off-site disaster management plan, the area around
KNPP within a radius of 30 km had been divided into three zones. The area up to a
radius of 2 km (km) defined as Exclusive Zone under the control of the NPCIL; the
area from 2 km to 5 km radius defined as Sterilized Zone; and the area from 5 to 30
km radius defined as Monitoring Zone under the control of the District Collector.100
The Supreme Court noted that radiological emergencies at the nuclear installations
were mainly categorized as Plant Emergency Alert; Plant Emergency; Site Emer-
gency and Off-Site Emergency. The operating organization is responsible for han-
dling the first three categories of emergencies, while the off-site emergencies
involving radiation fallout in the public domain were to be handled by the state pub-
lic authorities with the technical input and guidance from the operating organization
and the Atomic Energy Regulatory Body.101
NPCIL, as per AERB norms, had prepared Emergency Preparedness Plans, both
on and off site, with the latter being issued in July 2010.102 After thorough scrutiny,
the Supreme Court concluded that the Off-Site Emergency Plan dealt with almost all
eventualities.103 According to the Plan, the Off-Site Emergency Exercise is required
to be carried out once in two years and NPCIL and State Authorities are to conduct
such exercises in other nearby villages frequently.104 The Madras High Court
recorded that such an Exercise was conducted on 9 June 2012 and the various
events logged.105 The petitioners’ assertion was that the emergency drill had been
conducted in total violation of the mandatory requirements106 and was ‘sham and
only a farce’107 as it was conducted no more than in a small hamlet called
Nakkaneri.108 The State Government clarified that the drill was conducted in the Vil-
lage as it was near the project and was done as per AERB guidelines.109 The High
Court, however, directed the emergency drill to be conducted in all the 30–40
villages which were within 30 km radius of KNPP considering its importance. The
Court ordered, ‘an awareness programme must be made to infuse confidence in the
minds of the local people that the project is for the benefit of the country and there
is no need to alarm’.110
Similarly, the Supreme Court observed in its judgement:
such mock-drills are conducted to educate the public not to scare them away, but make
them understand that the Project is part of the National Policy, participatory in nat-
ure…[and] to assess whether plant management and the local authorities, including the
communication and infrastructure facilities, are geared up for tackling with a real emer-
gency situation, in case it arises.
Consequently, the Court directed NPCIL and the State of Tamil Nadu to conduct
training courses on and off site for personnel, State Government officials and other
stake holders. It also instructed NPCIL, AERB and State government to take ade-
quate steps to implement the National Disaster Management Guidelines, 2009, and
carry out the periodical emergency exercises on and off site.111
11. Nuclear waste management

The petitioners relied upon paragraph 4.5 of the report compiled by NEERI in
2003, which stated that the discharge of the radioactive liquid wastes of the
NPP into the water would affect the biodiversity of flora and fauna in the Gulf
of Mannar if not treated adequately.112 Citing nuclear waste as detrimental to
environment before the Supreme Court, the appellants further argued that no sus-
tainable solution had been found or implemented worldwide so as to do away
with nuclear waste.113 The Supreme Court also observed that spent fuel poses a
dangerous, long-term health and environmental risk.114 But the Madras High
Court noted the opinion of Dr Kalam who stated ‘that it was a popular myth
that nuclear waste was dumped into the oceans which killed marine life and
contaminated water and that it was completely false’.115 In addition to this, the
report of the 15-member team of AERB, released in December 2011, maintains
that ‘spent fuel is not a waste in the Indian nuclear programme’.116 It states that
storage of spent fuel at Kudankulam is only an interim measure till it is trans-
ported to a Reprocessing Facility away from the site. Furthermore, in their sub-
mission, NPCIL and DAE stated that KNPP has the capacity to store fuel
equivalent to 7 years of full power operation of the plant plus one full core load
while asserting that AERB safety guidelines with respect to spent fuel117 were
being followed ‘scrupulously’. The ASG further reinforced the argument stating
that the ‘Spent Fuel Storage Bay’ is designed, constructed and operated as per
the AERB Guidelines and requirements.118
However, it was clarified by the Madras High Court that the Government
should take appropriate protective measures for the purpose of retaining the spent
fuel and ensure that the emanation from the same did not result in health hazards
to the people in the area.119 The Supreme Court observed that storing of spent
fuel at NPP site would, in the long run, pose a dangerous, long-term health and
environmental risk and informed that it was of utmost importance that the Indian
government, NPCIL, etc. find a place for a permanent Deep Geological Reposi-
tory.120 Against this directive, NPCIL replied that it would be established within
five years.121
12. Public engagement and knowledge sharing

Nuclear energy projects are established pursuant to a declared national policy. More-
over, it is the tax payers’ funds which are utilized for implementing such projects of
national importance. Consequently, non-engagement of public and concealment of
information especially for a nuclear project where there is an element of public
apprehension is an area of concern.
On two occasions – the Supreme Court in 2004 and the Delhi High Court in
2012 – found rare merit that nuclear project information is sensitive and should not
be shared notwithstanding the purpose of the project.
Considering the issue of access to information, the Supreme Court in People’s
Union for Civil Liberties v. Union of India, (2004) 2 SCC 476 dismissed the appel-
lant’s plea under the Right to Information Act seeking disclosure of safety violations
and defects in nuclear establishments together with the reports of AERB. The Court
held that such information is sensitive in nature and a reasonable restriction on the
exercise of the right is always permissible in the interest of the security of the State.
This case happened in the pre-Fukushima time; a review petition now may have a
different outcome.
On KNPP, while the matter of site selection and environmental assessment being
irregular was sub-judice before the Madras High Court, there was an application
filed under the Right to Information Act 2005 by a local anti-nuclear protester
Dr S.P. Udaykumar seeking copies of Safety Analysis, Site Evaluation and Environ-
ment Impact Assessment Reports for Unit I and II. The NPCIL Public Information
Officer (PIO) argued that the Reports were classified and were protected from dis-
closure under Sections 8(1)(a)122 and (d)123 of the Act. A perusal of the facts sug-
gests the PIO did not supplement his argument for claiming the said exemptions
with explanations.124
The CIC found good merit in the appellant’s contention regarding the SER
affirming that the purpose of a site evaluation for nuclear installation is to protect
the public and the environment from the radiological consequences of radioactive
releases due to accidents. Since Site Selection also contains ‘technical information’
useful for fulfilling Environmental Impact Assessment, it was held that a citizen
should have access to such SER to have a comprehensive understanding of the
likely environmental impact of the KNPP project.125 With respect to Safety Evalu-
ation Report, the Commission held that any nuclear installation or site must be
designed in a way to account for any unforeseen accidents and natural hazards
which is the basic purpose of the report and thus, citizens have a right to know
what safety assessment has been done of the KKNP Project Units I & II. Further-
more, the Commissioner was of the opinion that disclosure of all the three reports
would enable citizens to get a holistic understanding of the KKNP Project includ-
ing environment, health and safety concerns.126 The idea was to ‘facilitate an
informed discussion between citizens based on a report prepared with their/public
money’.127
However, NPCIL appealed against this CIC order before the Delhi High Court
challenging the non-appreciation of the sensitive nature of proprietary informa-
tion.128 The Court stayed the impugned order passed by the Commission to the
extent of publication of the reports. The matter is sub-judice and the Court is in want
of counter-affidavit to be filed by NPCIL.
13. Conclusion
Any discussion on nuclear energy invariably invites public concern with respect to
its risk perception. In the KNPP case, the court was tasked to decide on two broad
contentious issues – safety assessment and procedural issue. On the question of
safety, when several expert committees’ reports stated that safety of KNPP was not
compromised and it is one of the most advanced reactors, the court accepted the
view that KNPP is a safe plant. The Supreme Court fully endorsed the view of the
Madras High Court and gave the Kudankulam NPP to go ahead and operate contin-
gent on satisfaction of 14 directions. The Court in effect reposed faith in the scien-
tific competence of Indian nuclear establishment. On the procedural issue, Courts
declined to accept that there were inconsistencies or deficiencies in execution of var-
ious project stages and clarified that all clearances were obtained according to the
existing law. Additionally, the Bench directed implementation of National Disaster
Management Guidelines, 2009, and performing periodical emergency exercises on

and off site.
On the larger national policy question, court was categorical that the nuclear
energy projects are pursued as part of a national policy and the court has no role to
determine its fairness. A question (purely academic) can be raised that since two
judges of the Supreme Court had competing views on Article 21 (right to life) which
highlights the contestation of legal rights, did the Courts took a lenient view strictly
seeing nuclear energy from the prism of a national policy? In the right to informa-
tion case, disclosure (without propriety information) will only enhance trust on
nuclear institutions and its processes, and this will greatly help in gaining public
acceptance as the country expands its nuclear programme.
Acknowledgements
This research paper is part of the Atomic Energy Commission of India (AEC) supported
independent research study – ‘Understanding Energy Risks in India: Towards a Safe and
Informed Energy Program’ [Contract Order No.9/4/2012/R&D-II/6827] undertaken by TERI.
Authors acknowledge the comments received from M.V. Shiju, TERI University and Mohit
Abraham, Advocate-On-Record, Supreme Court of India and thank the project team compris-
ing Ligia Noronha, Atul Kumar, Anandajit Goswami, Madhura Joshi and others.
Notes
1. G. Sundarrajan v. Union of India, W.P. 24770 of 2011 (hereinafter MHC) ¶2.1.
2. MHC ¶13.1.
3. MHC ¶16.1.
4. G. Sundarrajan v. Union of India, (2013) 6 SCC 620 (hereinafter, SC) ¶11.
5. SC ¶21.
6. MHC ¶13.29.
7. SC ¶13.
8. MHC ¶20.10. Article 21 reads ‘No person shall be deprived of his life or personal lib-
erty except according to procedure established by law’.
9. Id., ¶54.
10. SC ¶181.
11. Id., ¶181.
12. Id., ¶182.
13. Id., ¶184.
14. Chameli Singh & Ors. v. State of U.P. & Ors (1996) 2 SCC 549.
15. Id., ¶182.
16. PUCL impleaded itself in the proceedings as it claimed it had valuable documents and
information which would assist the Court in the PIL. PUCL became the proposed party
to the case, while Mr Sundarrajan is the original plaintiff.
17. MHC ¶3.8.
18. MHC ¶22.5.
19. MHC ¶3.15. See also, SC ¶119.
20. MHC ¶3.11. See also, SC ¶120.
21. SC ¶111.
22. MHC ¶71 & 73. See also, SC ¶140.
23. MHC ¶71. See also, SC ¶140.
24. MHC ¶71.
25. MHC ¶76.
26. See MHC ¶14.2, ¶29.11, ¶26.3 and ¶76. See also, SC ¶143.
27. MHC ¶14.11.
28. MHC ¶79.3.
29. SC ¶47. See also ¶124.

30. The Code gives the mandatory and desirable requirements of the site from safety point
of view.
31. Some of these conditions are: the studies relating to thermal pollution; steps to prevent
increase in population in Idinthikarai and Kudankulam villages, which are within the
sterilized zones; adequate water storage facility should be provided to meet the require-
ments of uninterrupted cooling of core and other safety-related systems on a long-term
basis; the NPCIL should conceptualize schemes at the detailed project report stage for
utilization of the water from upper Kodiyar storage reservoir for such eventuality; stud-
ies on biofouling and jelly fish, etc. that may affect the water supply should be taken
up, etc.
32. MHC ¶13.13.
33. Coastal stretches as Coastal stretches of seas, backwaters, creeks, rivers and backwaters
which are influenced by tidal action (in the landward side) up to 500 m from the HTL
and the land between the low tide line and the HTL are called coastal regulation zone.
34. MHC ¶22.5 & ¶54.
35. MHC ¶5.2. By an amendment dated 12 April 2001 S.O.329(C), the said notification
under paragraph 2 on ‘prohibited activities’ was revised by substituting clause (1) to
the following effect ‘setting up of new industries and expansion of existing industries
except (a) those directly related to water front or directly needing foreshore facilities
(b) projects of Department of Atomic Energy’.
36. MHC ¶15.4.
37. SC ¶131.
38. MHC ¶29.7.
39. MHC ¶69 and ¶68.
40. SC ¶132.
41. SC ¶120.
42. MHC ¶3.11. See also, ¶3.18.
43. MHC ¶18.3.
44. SC ¶149.
45. MHC ¶3.6.
46. SC ¶110. See, MHC ¶3.9.
47. See, SC ¶136.
48. SC ¶110. See, MHC ¶22.7.
49. MHC ¶15.2.
50. SC ¶136.
51. SC ¶113.
52. MHC ¶54.
53. MHC ¶3.9. See also, ¶3.18.
54. MHC ¶13.8. See also MHC ¶14.6.
55. MHC ¶29.7.
56. MHC ¶13.8.
57. MHC ¶73.
58. See, MHC ¶20.7, 20.8, 20.11 & 22.7.

59. MHC ¶70.
60. SC ¶139.
61. SC ¶150. The 1994 Notification requires a project proponent to seek environmental
clearance for a proposed expansion/modernization activity if the resultant pollution
load is to exceed the existing levels.
62. MHC ¶ 9.3.
63. MHC ¶13.17.
64. MHC ¶82.1.
65. MHC ¶28.2.
66. NPCIL Task Force Report on Security of all NPPs including KNPP dated 11 May
2011, AERB-EE Expert Opinion on Design Committee Safety dated 31 August 2011,
15 Member Expert Team Committee Report (post Fukushima) dated December 2011,
Supplementary Report dated 31 Febrauary 2012 on the Grievances raised by some of
the agitators, report submitted by Sri R. Srinivasan, Former Chairman, Atomic Energy
Commission appointed by the State of Tamil Nadu.

67. MHC ¶82.2.
68. SC ¶73.
69. SC ¶75. The report of the Committee is available at: http://www.aerb.gov.in/AERBPortal/
pages/English/t/publications/CODESGUIDES/report-nov.pdf. (last accessed December
11, 2013).
70. MHC ¶72.
71. MHC ¶3.15. See also, SC ¶111.
72. MHC ¶3.16.
73. MHC ¶82.3. The Institute of Ocean Management, Anna University, which submitted
its report in July 2008 and the Engineers India Ltd. along with CHFRI which submit-
ted its report in August 2011. In these reports, experts undisputedly concluded that
there would be no impact on the marine ecosystem on account of desalination. See, SC
¶146.
74. SC ¶190.
75. Id.
76. SC ¶146.
77. SC ¶178 and ¶159.
78. SC ¶178.
79. SC ¶68.
80. SC ¶70. See also, MHC ¶2.9.
81. SC ¶68.
82. The Interim Report is available at: http://www.npcil.nic.in/pdf/A5.pdf (last accessed
December 6, 2013).
83. The 17 requirements are tabled in of the Supreme Court judgement in G. Sundarrajan
v. Union of India, (2013) 6 SCC 620, ¶72.
84. MHC ¶2.9. See also, SC ¶72.
85. SC ¶69.
86. G. Sundarrajan v. Union of India, W.P. 22253 of 2012 (hereinafter, MHC (II)).
87. See MHC (2) ¶4.
88. MHC (II) ¶6. See also, ¶12.
89. MHC (II) ¶8. See also, SC ¶19 and ¶189.
90. MHC (II) ¶8. See SC ¶19.
91. The advance safety features protect against external events of natural origin and for
management of design basis as well as beyond design basis accidents.
92. SC ¶18.
93. See also, MHC ¶17.9.2. Even the Expert Committee appointed by the State Govern-
ment of Tamil Nadu observed that KNPP design belonged to Generation III Plus. See,
MHC ¶78.4.
94. SC ¶19.
95. 1992 Supp (1) SCC 44.
96. SC ¶108.
97. See SC ¶187. The Court cited numerous decisions to support its view: State of Bihar v.
Asis Kumar Mukherjee (Dr) (1975) 3 SCC 602, Dalpat Abasaheb Solunke v. B.S.
Mahajan (1990) 1 SCC 305, Central Areca Nut & Cocoa Marketing & Processing
Coop. Ltd. v. State of Karnataka (1997) 8 SCC 31, Dental Council of India v. Subharti
K.K.B. Charitable Trust & Anr. (2001) 5 SCC 486, Basavaiah (Dr) v. Dr H.L. Ramesh
(2010) 8 SCC 372 and AvishekGoenka v. Union of India (2012) 5 SCC 275.
98. MHC (II) ¶13.
99. SC ¶101.
100. MHC ¶21.6.
101. SC ¶29.
102. SC ¶101.
103. Id.
104. SC ¶102.
105. MHC ¶89.
106. MHC ¶3.17.
107. MHC ¶3.2. & 22.9.

108. MHC ¶21.7.
109. In October 1999, AERB issued ‘Guidance for the Preparation of Off-Site Emergency
Preparedness Plans for Nuclear Installations’ which serves as a lead document to facil-
itate preparation of specific site manuals by the responsible organizations for emer-
gency response plans at each NPP 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. See SC ¶28 and MHC ¶27.1.
110. MHC ¶89.
111. See, SC Directives 11 and 13 at 245 and 246, respectively.
112. MHC ¶2.7. See also, MHC ¶21.3.
113. SC ¶54.
114. SC ¶58.
115. MHC ¶12.5.
116. Report Point no. 6.3.
117. AERB Safety Guide ‘Design of fuel handling and storage systems for pressurized
heavy water reactors – AERB/SG/D-24’.
118. SC ¶20.
119. MHC ¶79.3.
120. SC ¶66.
121. SC Directive 7 at 244.
122. Right to Information Act, 2005, S. 8(1)(a): ‘[exempts from disclosure] … information,
disclosure of which would prejudicially affect the sovereignty and integrity of India,
the security, strategic, scientific or economic interests of the State, relation with foreign
State or lead to incitement of an offence’.
123. Right to Information Act, 2005, S. 8(1)(a): ‘[exempts from disclosure] … information
including commercial confidence, trade secrets or intellectual property, the disclosure
of which would harm the competitive position of a third party, unless the competent
authority is satisfied that larger public interest warrants the disclosure of such informa-
tion’.
124. Appeal No. CIC/SG/A/2012/000544 from Dr S.P. Udaykumar, Decision No. CIC/SG/
A/2012/000544/18674, 2. (CIC).
125. hereinafter, CIC, 4.
126. CIC, 5.
127. CIC, 6.
128. NPCIL v. S.P. Udaykumar, W.P. (C) 3353/2013 (Delhi High Court).
References
“Anti-Kudankulam activists to raise protest to next level.” The Hindu, October 20, 2013.
Accessed December 6, 2013. http://www.thehindu.com/news/national/tamil-nadu/
antikudankulam-activists-to-raise-protest-to-next-level/article5032106.ece
Mullerson, Rein. 1993. “The Continuity and Succession of States, by Reference to the
Former USSR and Yugoslavia.” International and Comparative Law Quarterly 42 (3):
473–493. http://www.jstor.org/stable/760961.
National Disaster Management Authority. 2009. “Management of Nuclear and Radiological
Emergencies.” National Disaster Management Guideline. Accessed December 11, 2013.
http://www.ndma.gov.in/images/guidelines/managementofnuclearradiologicalemergencies.
pdf
“One killed in anti-Kudankulam protests; Shinde blames foreign NGOs.” Hindustan Times,
September 10, 2012. Accessed December 6, 2013. http://www.hindustantimes.com/india
-news/one-killed-in-anti-kudankulam-protests-shinde-blames-foreign-ngos/article1–92737
5.aspx

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Nuclear energy and risk assessment

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Nuclear energy and risk assessment by Indian courts: analysis of

Judicial intervention on nuclear energy safety discourse in India is very recent.

*Corresponding author. Email: mprmohan@teri.res.in

© 2014 Taylor & Francis

2. Nuclear energy: a matter of national policy

judicial interference would cripple the economic development of the country.6 On

3. Public apprehension grounded on Article 21 of the constitution

5. The course of site selection

6. The question of post-facto ‘Consent to Establish’

7. The conﬂict in environmental clearance

of the authors) … and therefore, the subsequent notiﬁcations issued by the

8. Not another Chernobyl or Fukushima

9. In-site safety standards

9.1. Discharge of coolant water

9.2. Exposure to radiation

9.3. Implementation of safeguards

sort of accident as it took place in Fukushima’.89 Notwithstanding the foregoing, it

9.4. The experts vs. court debate

10. Emergency preparedness plans

11. Nuclear waste management

12. Public engagement and knowledge sharing

Management Guidelines, 2009, and performing periodical emergency exercises on

29. SC ¶47. See also ¶124.

58. See, MHC ¶20.7, 20.8, 20.11 & 22.7.

Commission appointed by the State of Tamil Nadu.

107. MHC ¶3.2. & 22.9.

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