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Conflicting Opinions

The Supreme Court of India’s Judgment on the Kudankulam Nuclear Plant

by N.D. JAYAPRAKASH

New Delhi.

Contrary to most media reports, the Supreme Court of India – vide its Judgment dated 06 May 2013 in SLP(C)* [*See Glossary] No.27335 of 2012 – has not yet formally granted permission for commissioning of the Kudankulam nuclear power plant (KKNPP) in Tamil Nadu. In fact, the Supreme Court has clearly stipulated in paras 1 and 15 of its directions as follows:

 (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”; and

(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 plant. A report to that effect be filed before this Court before commissioning of the plant.” [1]

It may, however, be noted that although the two-Judge Bench of the Supreme Court had unanimously pronounced on the rationes decidendi (the operative part and directions) of the Judgment, the opinions expressed by the two judges – Justice K.S.Radhakrishnan and Justice Dipak Misra – on some of the critical aspects relating to the subject are vastly different. Moreover, while the two Hon’ble Justices have underlined the importance of ensuring “quality of various components” at the KKNPP by focusing attention on it twice in the operative part of the Judgment, it is disheartening to note that there is only a passing reference to that concern in para-80 of the 230-para/242-page obiter dicta (the explanatory part).  The reasons as to why the Supreme Court has desisted from elaborating the point regarding “quality of components” is all the more strange since prima facie evidence regarding installation of sub-standard components at KKNPP was actually brought to the attention of the Supreme Court. Through an application seeking interim directions, Prashant Bhushan and Sanjay Parikh, counsel for the petitioner, had submitted before the Supreme Court on 23 April 2013 that Dr.A.Gopalakrishnan, former Chairperson of AERB, had raised serious concerns regarding the quality of components, which the Russian supplier had supplied to KKNPP. Dr.Gopalakrishnan’s apprehensions were expressed in an article that was published in The New Indian Express on 19 April 2013 [2]

According to Dr.Gopalakrishnan, the first of the two 1000 MWe VVER nuclear reactors at Koodankulam Project (KKNP-1), under commissioning and testing, is supplied by the Russian atomic energy corporation, Rosatom, through its subsidiary, Atomstroyexport. On the Indian side, the KKNP project is owned by the NPCIL, a public sector undertaking of DAE. The overall safety regulation responsibility is with the AERB. A Russian government-owned company called Machine-Building Plant ZiO-Podolsk (ZiO), which is another Rosatom subsidiary, has exported crucial materials and reactor parts to KKNP-1 and 2.

Alarming Report

An alarming report published on 28 February 2012 on the Internet had stated that the Russian Federal Security Service (FSB) had arrested Sergei Shutov, the procurement director of ZiO-Podolsk, on charges of corruption and fraud. The FSB had charged Shutov with buying low-quality raw materials on the cheap over the years, passing them off as high-quality materials, and pocketing the difference. [3] Thus, according to Dr.Gopalkrishnan, “The problems with ZiO-Podolsk supplies to the KKNP-1 Project, seen in the context of the widespread allegations of corruption and poor quality, indicate that the root cause of KKNP-1 problems lies in those sub-standard supplies.” [4]

The charge of poor quality supplies to KKNP-1 Project from the Russian supplier was not a wild allegation. The AERB itself has found at least four defective valves during the second round of inspections at KKNP-1, the results of which were revealed on 19.04.2013. [5] (Incidentally, the defective values were detected only after activists in Kudankulam, who found out about the said scam in Russia, raised a furore. [6]) The claim that the Russian supplier had supplied only four defective valves to KKNPP is a little hard to digest. That the concerned officials in India are hardly perturbed by the arrest of the procurement director of ZiO-Podolsk by the Russian Government for large-scale fraud is even more disturbing. In this regard, Dr.Gopalkrishnan has cautioned the decision makers in India as follows:

“There could be a large number of equipment, components and materials of substandard quality from ZiO-Podolsk already installed in various parts of KKNP-1& 2 whose deficiencies and defects are dormant today, but these very same shortcomings may cause such parts to catastrophically fail when the reactor is operated for some time. Many such parts and materials may have been installed within the reactor pressure vessel itself, which is now closed and sealed in preparation for the start-up. Once the reactor is made critical and reaches power operation, much of these components and materials inside will become radioactive and/or will be in environments where they cannot be properly tested for quality or performance. Under the circumstances, KKNP Unit-1 commissioning and KKNP-2 construction work must be stopped forthwith, and there can be no question of resuming these works towards start-up of both these reactors until a thorough and impartial investigation is carried out into the impact of this corruption scandal and sub-standard supplies on the safety of these reactors. And these investigations must be carried out by a team, where majority membership must not be from DAE, NPCIL and AERB, but include subject experts from other organisations in the country. India must also seriously consider inviting an IAEA expert team specially constituted to investigate the specific issues which this scandal has thrown up.”[7]

Recently, in another article dated 19 June 2013, Dr.Gopalakrishnan has drawn attention to yet another safety concern. According to him:

“Besides the probable installation of substandard parts in KKNPP reactors due to laxity of quality control, it is now evident that another major safety issue related to the I&C [instrumentation & control] systems is worrying the KKNPP management and the AERB, because of which the Unit 1 start-up is now postponed to July 2013. This inference is reached by piecing together information now available in the public domain. The problem, to put it simply, appears to be the inability to eliminate spurious signals of untraced origin appearing in many of the instrumentation cables of paramount importance to safety, like the reactor neutron chamber output lines, wiring of the safety and shut-off rod control systems, etc. Such phenomena belong to a broad class of problems known as Electro-Magnetic Interference (EMI)…. It is most likely that the KKNPP cable system, as completed today, has not conformed to the norms and standards of cable selection, EMI shielding, or layout as per Russian, Indian or any other standards. No wonder the EMI problem is persisting, because there is no other short-cut solution other than re-doing a sizeable part of the I&C cabling and its layout in accordance with a set of modern standards, agreeable also to the Russians. This may take several more months and extensive re-working, but this must be done in the interest of public safety.” [8])

In this context, it may be noted that Justice Radhakrishnan himself, in para 24 of the Judgment, had observed as follows:

“Safety and security of the people and the nation are of paramount importance when a nuclear plant is being set up and it is vital to have in place all safety standards in which public can have full confidence to safeguard them against risks which they fear and to avoid serious long term or irreversible environmental consequences.”

Violation of Safety Norms

While the Judgment has explicitly stated that the “Safety and security of the people and the nation are of paramount importance when a nuclear plant is being set up”, the fact is that it has failed to take note of the concerns expressed by Dr.Gopalakrishnan with the importance that they duly deserved. Nothing had prevented the Hon’ble Judges from giving specific directions to the AERB and the NPCIL to allay the apprehensions expressed by Dr.Gopalkrishnan, who has all the necessary scientific and technical expertise to raise the said questions regarding the quality of the components installed at KKNP-1 & 2.  Although the operative part of the said Judgment has placed ample emphasis on the need for ensuring quality of components installed at KKNP-1 & 2, the inability to dwell on the actual failures in this regard in the explanatory part is a glaring omission in the Judgment. It is an undeniable fact that the NPCIL had failed to detect the existence of the said four faulty valves at the pre-installation stage and the AERB too had failed to detect the same during the first round of inspections that it had carried out at KKNP-1. The fact that the AERB had permitted NPCIL to load fuel rods into the reactor core (from 20 September 2012 onward when four defective valves were still in place at KKNP-1) was a gross violation of safety precautions. [9] Considering that Justice Radhakrishnan has taken pains to explain at length the various laws and guidelines purportedly in place for ensuring the requisite safety standards in nuclear power plants, in all fairness, the Hon’ble Court should have taken the AERB and the NPCIL to task for their laxity in implementing those very laws and guidelines.

The reasons for the reluctance on the part of the Hon’ble Court to pass strictures against the AERB and the NPCIL are apparent from the manner in which Justice Radhakrishnan has sought to address the problem. It is rather unfortunate that he has placed complete faith in the scientific & technical competence of the NPCIL (operator) & the AERB (regulator) as well as the impartialness of the two organizations in satisfactorily addressing all issues relating to safety and security of KKNPP despite the operator & the regulator being merely two wings of the same establishment. On the premise that the Court is not competent to pronounce on the veracity of scientific & technical opinions, Justice Radhakrishnan, in para 188 of the Judgment, has stated as follows:

“The Court, in our view, cannot sit in judgment on the views    expressed by the Technical and Scientific Bodies in setting up of    KKNPP plant at Kudankulam and on its safety and security.”

While it may be true that “The Court… cannot sit in judgment on the views expressed by the Technical and Scientific Bodies…”,  it was certainly not prudent on the part of the Hon’ble Court to have discounted the possibility of availability of a body of competent independent experts, who could provide technically sound second opinion on the matter. In fact, after the Fukushima disaster, the Government of India itself had introduced the Nuclear Safety Regulatory Authority Bill in the Parliament on 07 September 2011, which would purportedly create an independent & transparent regulatory mechanism to oversee safety and security of nuclear establishments in India. [10] While the various clauses of the present bill effectively stifle all hopes of creating an independent & transparent regulatory body [11], the fact that the Government had actually dabbled with the idea of creating an independent & transparent regulatory body was a radical departure from its usually narrow views on this subject. Considering that safety and security of nuclear power plants are paramount for ensuring the health and wellbeing of the people living near and around nuclear power plants, the Supreme Court could have easily passed appropriate directions for creating the requisite independent & transparent nuclear regulatory authority. Therefore, as to whether the Court has reneged from its duty of upholding the spirit of Article 21 of the Constitution of India (Protection of Life and Personal Liberty) [12]  is a matter that requires to be examined in a little more detail.

Contradictory Views

Justice Radhakrishnan, on his part, has tried to turn the essence of Article 21 on its head: his opinion that the petitioner’s complaint against violation of Article 21 “has no basis” since the alleged violation was actually an act in fulfillment of the object & purpose of Article 21 amounts precisely to that. Justice Radhakrishnan, indeed, has stated so in para 184 of the Judgment, which is as follows:

“Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The petitioner’s contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution … therefore has no basis.”

Already in para 178 of the Judgment, Justice Radhakrishnan had expressed his opinion regarding applicability of Article 21 as follows: “While setting up a project of this nature, we have to have an overall view of larger public interest rather than smaller violation of right to life guaranteed under Article 21 of the Constitution.” None other than Justice Radhakrishnan’s colleague on the two-Judge Bench, Justice Dipak Misra, finds it hard to agree to such farfetched interpretation of Article 21. Justice Dipak Misra’s view on the matter, which he has elaborated in para 228 of the Judgment, is as follows:

“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 the society. But, a pregnant one, the present case really does not fall within the four corners of that principle…. It is not a case of “some inconvenience”. It is not comparable to the loss caused to property…. 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…. 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 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 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…. 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.”

That there is wide difference of opinion between Justice Radhakrishnan and Justice Misra regarding the scope of Article 21 is very evident.

Undue Faith

Justice Radhakrishnan also appears to have reposed complete faith in the infallibility of the reports submitted by the various official agencies. In para 185 of the Judgment, Justice Radhakrishnan has expressed his views in this regard very approvingly as follows:

“AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already taken at KKNPP which are to be given due weight that they deserve. Further, as already indicated, NPCIL Task Force Report on Security of all NPPs including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert Opinion on Design Committee Safety dated 31.8.2011, 15 Member Expert Team Committee Report (post Fukushima) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, report submitted by Sri R. Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP.”

How could these official claims made during 2011-2012 that “adequate safety and security measures have already [been] taken at KKNPP” be taken at face value when the AERB was forced to disclose on 19 April 2013 [see: en.5] that four defective valves in KKNP-1 had to be replaced? Yet, Justice Radhakrishnan is dismissive of views/opinions that are critical of the official reports on the ground that they are unwarranted apprehensions. According to him, “Apprehension, however, legitimate it may be, cannot override the justification of the project…. But once the justification test is satisfied, the apprehension test is bound to fail.” [13] This is a wholly untenable argument because, even if there are adequate justifications for setting up a particular project, there could still be many legitimate apprehensions regarding design, quality, execution, and operation – especially whether they meet the requisite safety standards. Unfortunately, Justice Radhakrishnan appears to discount all such possibilities.

Moreover, it is one thing to claim that the official “expert bodies, are all unanimous in their opinions that adequate safety and security measures have already [been] taken at KKNPP” and quite another to ignore the considered opinions of non-official experts. When none other than the former Chairperson of the AERB, Dr.A.Gopakrishnan, has repeatedly drawn attention to the violation of various safety norms at the plant, to practically brush aside his earnest opinions as that of a non-expert was not very judicious. [14] If official reports were to be accepted as the unquestionable truth, there would have been no need or occasion for the Courts to adjudicate on matters and dispense justice in accordance with the various constitutional provisions. Justice Misra’s opinion on the matter is certainly different as is evident from para 229 of the Judgment, which is as follows:

“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 “Constitutional Trust”.”

Lessons from Fukushima

It also appears that the Supreme Court of India has not had the opportunity to deliberate on the findings of The Fukushima Nuclear Accident Independent Investigation Commission (NAIIC), which the National Diet of Japan had set up on 08 December 2011 in response to the Fukushima disaster of 11 March 2011. The NAIIC Report, which was released on 12 September 2012, is explicit and forthright in expressing the view that the Fukushima disaster was a “manmade disaster”. The Chairperson of the NAIIC, Dr.Kiyoshi Kurokawa (former President of the Science Council of Japan) in his message in the Executive Summary of the Report has made it amply clear that:

“…the Fukushima Daiichi Nuclear Power Plant cannot be regarded as a natural disaster. It was a profoundly manmade disaster – that could and should have been foreseen and prevented. And its effects could have been mitigated by a more effective human response…. Our report catalogues a multitude of errors and willful negligence that left the Fukushima plant unprepared for the events of March 11…. What must be admitted – very painfully – is that this was a disaster “Made in Japan.” Its fundamental causes are to be found in the ingrained conventions of Japanese culture: our reflexive obedience; our reluctance to question authority; our devotion to ‘sticking with the program’; our groupism; and our insularity.… This conceit was reinforced by the collective mindset of Japanese bureaucracy, by which the first duty of any individual bureaucrat is to defend the interests of his organization. Carried to an extreme, this led bureaucrats to put organizational interests ahead of their paramount duty to protect public safety. Only by grasping this mindset can one understand how Japan’s nuclear industry managed to avoid absorbing the critical lessons learned from Three Mile Island and Chernobyl; and how it became accepted practice to resist regulatory pressure and cover up small-scale accidents. It was this mindset that led to the disaster at the Fukushima Daiichi Nuclear Plant.” [15]

The conclusions of the NAIIC Report are equally damning. It unequivocally states that:

(a)   “The TEPCO [Tokyo Electric Power Company] Fukushima Nuclear Power Plant accident was the result of collusion between the government, the regulators and TEPCO, and the lack of governance by said parties. They effectively betrayed the nation’s right to be safe from nuclear accidents. Therefore, we conclude that the accident was clearly “manmade.” [p.16]

(b)  “There were many opportunities for taking preventive measures prior to March 11 [2011]. The accident occurred because TEPCO did not take these measures, and NISA [Nuclear and Industrial Safety Agency] and the Nuclear Safety Commission (NSC) went along. They either intentionally postponed putting safety measures in place, or made decisions based on their organization’s self interest, and not in the interest of public safety.” [p.16]

(c)   “The regulators should have taken a strong position on behalf of the public, but failed to do so. As they had firmly committed themselves to the idea that nuclear power plants were safe, they were reluctant to actively create new regulations. Further exacerbating the problem was the fact that NISA was created as part of the Ministry of Economy, Trade & Industry (METI), an organization that has been actively promoting nuclear power.” [p.17]

(d)  “The regulators did not monitor or supervise nuclear safety.… Their independence from the political arena, the ministries promoting nuclear energy, and the operators was a mockery. They were incapable, and lacked the expertise and the commitment to assure the safety of nuclear power. Moreover, the organization lacked transparency. Without the investigation by this Commission, operating independently of the government, many of the facts revealing the collusion between the regulators and other players might never have been revealed.” [p.20] [16]

The recommendations of the NAIIC include creation of an independent and transparent regulatory body, which would function under the supervision of Japan’s National Diet (Parliament). Since the ingrained “mind-set” in India is probably more rigid than the one prevailing in Japan, it is hoped that the Supreme Court of India would peruse the NAIIC Report and draw appropriate conclusions before giving its final ruling on the commissioning of the Kudankulam Nuclear Power Plant. It is also hoped that the AEC, DAE, NPCIL, AERB and the TNPCB would learn appropriate lessons from the NAIIC Report and would act accordingly.

N.D. Jayaprakash is Joint Secretary, Delhi Science Forum. He can be reached at: jaypdsf@gmail.com

Glossary: SLP-C (Special Leave Petition – Civil); KKNPP (Kudankulam Nuclear Power Plant); AEC (Atomic Energy Commission); AERB (Atomic Energy Regulatory Board); BARC (Bhabha Atomic Research Centre); DAE (Department of Atomic Energy); MoEF (Ministry of Environment & Forests, Government of India); NPCIL (Nuclear Power Corporation of India Limited); TNPCB (Tamil Nadu Pollution Control Board); VVER (Vodo-Vodyanoi Energetichesky Reactor, i.e., water-cooled power reactor); NAIIC (The Fukushima Nuclear Accident Independent Investigation Commission, Japan)

REFERENCES:

[1] See: Judgment delivered by Justice K.S.Radhakrihnan & Justice Dipak Misra on 06 May 2013 at http://judis.nic.in/supremecourt/chejudis.asp, p.242

[2] Dr.A.Gopalakrishnan, ‘Resolve Kudankulam Issues’, The New Indian Express, 19.04.2013 at:  http://newindianexpress.com/opinion/Resolve-Koodankulam-issues/2013/04/19/article1551164.ece.

[3] See: Report titled BELLONA.ORG: Rosatom-owned company accused of selling shoddy equipment to reactors at home and abroad, pocketing profits’ at:  http://www.anti-atom.ru/en/node/3468

[4] A. Gopalakrishnan, op cit.

[5] See: The Hindu, 20.04.2013, http://www.thehindu.com/news/national/tamil-nadu/four-valves-found-deficient-at-kudankulam-being-replaced-aerb/article4634626.ece

[6] Letter to NPCIL dated 28.01.2013 filed by Dr.S.P.Udaykumar under the Right to Information (RTI) Act, 2005

[7] Dr.A.Gopalakrishnan, op cit.

[8] Dr.A.Gopalakrishnan,‘Flaws in Koodankulam plant’, The New Indian Express at: http://newindianexpress.com/opinion/Flaws-in-Koodankulam-plant/2013/06/19/article1641376.ece

[9] See: The Hindu, 21.09.2012 at http://www.thehindu.com/news/national/tamil-nadu/fuel-loading-begins-at-kudankulam-after-aerbs-green-signal/article3922714.ece

[10] See: The Hindu, 08.09.2011 at: http://www.thehindu.com/news/national/nuclear-safety-bill-introduced/article2433384.ece

[11] Dr.A.Gopalakrishnan, A nuclear regulator without teeth’, The Hindu, 16.09.2011 at: http://www.thehindu.com/opinion/op-ed/a-nuclear-regulator-without-teeth/article2456317.ece

[12] See: Constitution of India, Part-III, at: http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss%286%29.pdf

[13] Para 181 of the Judgment, op.cit.

[14] Numerous other Indian scientists too have raised their concern in this regard. See: The Hindu, 16.05.2013 at: http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/sixty-scientists-voice-concern-over-kudankulam-plant-safety/article4719786.ece

[15] See: The Official Report of the Fukushima Nuclear Accident Independent Investigation Commission, Executive Summary, page 9 at:

http://warp.da.ndl.go.jp/info:ndljp/pid/3856371/naiic.go.jp/en/report/

[16] Ibid, pp.16, 17, and 20