Amity petitioner

I N T H E H O N ’ B L E

S U P R E M E C O U R T O F R E N A T A

(UNDER ARTICLE 139-A OF THE CONSTITUTION OF RENATA)

TRANSFERRED CASES NO. ____/2010

Anada and Ors. … Petitioner

v.

Union of Renata and Ors. … Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER ,

COUNSEL FOR THE PETITIONER .

1S T NATIONAL MOOT COURT COMPETITION 2011

ii

T A B L E O F C O N T E N T S

MEMORIAL FOR THE PETITIONER

iii

I N D E X O F A U T H O R I T I E S

BOOKS

1. D.D. Basu, Commentary on the Constitution of India (5th edn., Nagpur: Wadhwa &

Co., 1965).

2. D.D. Basu, Shorter Constitution of India, (13th edn., Nagpur: Wadhwa & Co., 2001).

3. G.P. Singh, Principles of Statutory Interpretation, (7th edn., G. P. Singh ed., Nagpur:

Wadhwa & Co., 1999).

4. H.M. Seervai, Constitutional Law of India Vol. I-III (4th edn., New Delhi: Universal

Law Publishing Co. Pvt. Ltd., 1993).

5. M.N. Kaul et al., Practice and Procedure of Parliament (4th edn., New Delhi: Lok

Sabha Secretariat, 1994).

6. M.P. Jain, Indian Constitutional Law (5th edn., New Delhi: Wadhwa & Co., 2003).

7. S.C. Kashyap, Parliamentary Procedure: The Law, Privileges, Practice and Precedents

(New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2000).

8. V.N. Shukla, Constitution Of India, (10th edn., M.P.Singh ed., Lucknow: Eastern

Book Company, 2001).

9. Willoughby’s Constitutional Law of the United States (2nd edn., New York: West

Publishing Co. 1988).

10. Dr. Subhash C. Kashyap, Constitutional Law of India, Vol. I-II, 2008 edition,

Universal Law Publishing Co.

11. Dr. Madabhushi Sridhar “ Right to Information” Law and Practise, 1 Edition,2007.


iv

CASES

1) Subhash v. State of Bihar, AIR 1991 SC 420

2) M.C. Mehta v. Union of India AIR 2006 SC 1325

3) Ramsharan v. Union of India, AIR 1989 SC 549

4 ) M.C. Mehta v. Kamal Nath,(1997) 1 SCC 388

5) In Maneka Gandhi v Union of India AIR 1978 SC 597.

6) T.Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987

AP 171.

8) Charan Lal Sahu v. Union of India AIR 1990 SC 1480

9) Chameli Singh v. State of Uttar Pradesh AIR 1996 SC 1051 : (1996) 2 SCC 549.

10) A.K.Gopalan VS. State of Madras AIR 1950 SC 27

11) R.C.Cooper VS. Union of India AIR 1970 SC 564

12) Maneka Gandhi vs. Union of India (1978) 1 SCC 248

13) Francis Caralie (1993)1 SCC 645

14) Union Carbide Corporation v. Union of India 1988


v

ARTICLES

1. http://www.hinduonnet.com/fline/fl2409/stories/20070518002109700.htm. last visited

on September 18, 2007.

2. 1966 3 & 4 US 436, Referred in Kamisar Yale, Modern Criminal Procedure, Sixth

edition, (1st Reprint), 1987, Wayne R. Lafave (ed.) & Jerold H. Israel (ed.), West

Publishing Co., Minnesota, ISBN 0314 23839 5

3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, United Nations, 10 December 1984.

4. Special Rapporteur on the Promotion and protection of Human Rights while

Countering Terrorism (hereafter, Special Rapporteur), “Protection of Human Rights

and Fundamental Freedoms while Countering Terroism”(16 August 2006)

5. Indian Legal System, Chapter, Constitutional Law- Civil and Political Rights. Article

by Justice V.S. Pande, 2nd Edition.

STATUTES

1. The Code of Criminal Procedure, 1973.

2. The Indian Evidence Act, 1872.

3. The Indian Penal Code, 1860.

4. The Constitution of India, 1950.


vi

S T A T E M E N T O F J U R I S D I C T I O N

The Petitioners have approached before the Hon’ble Supreme Court of the Union of Renata

by means of Transfer Petition under Article 139 A (1) of the Constitution for withdrawing

pending Writ Petitions filed before several High Courts to the jurisdiction of the Hon’ble

Supreme Court. The jurisdiction of this Court comprises all cases referred to it.


vii

S T A T E M E N T O F F A C T S

I

Union of Renata is a developed state located in the Southern Asia. The Constitution

establishes a republican form of government with Presidents as the head of the state.

It is a commonwealth nation and guarantees to its citizen’s basic fundamental rights

including equality before law and protection of life and liberty.

II.

Renata is facing extreme energy crisis the Government of Renata, while

understanding this part and with the intention of raising its revenues besides

protecting the human rights of its citizens passed the Civil Liabilities for Nuclear

Damages Act, 2010.

III.

The Act was criticized by the leader of opposition who remarked that “The Nuclear

Damages Act is to favour the interests of Golanod United companies and not to

protect the interests of Renatians citizens.”

IV.

On March 27, 2017 at 0023 Hrs while testing the potential safety emergency core

cooling feature in a scheduled experiment during the normal shutdown procedure at

the Santagar Power Plant located at Santagar District in Eastern Province of Renata,

the nuclear reactor suffered a catastrophic power increase leading to explosions in the

core thereby dispersing large quantities of radioactive fuel and core materials into the

atmosphere igniting the combustible graphite moderator leading to a nuclear

meltdown. Five neighbouring provinces and some trans-boundary areas were also


viii

affected. The director general of Santagar power plant refused to comment on the

incident at all.

V.

The incident was brought to the notice of the Atomic Energy Regulatory Authority

which in a meeting held on April 4, 2017 and after preliminary inquiry concluding

that there was no grave and imminent danger to life and property did not notify the

incident.

VI.

The Renatan Times, leading newspaper reported that ‘four hundred times more

radioactive material was released than had been by the atomic bombing of

Hiroshima. However, compared to the total amount released by nuclear weapons

testing during the 1950s and 1960s, the Santagar disaster released 100 to 1000 times

less radioactivity. Around 1.24 million people affected with damage to property

amounting to $1.2 billion’. The matter was of grave concern as per the reports but the

reply by the authorities was found to be completely disappointing. When contacted by

the Press, the Director-General of the Santagar Power Plant refused to comment on

the incident.

VII.

In a report published by the Retanian Daily, it was stated that a meltdown occurs

when a severe, compounded failure of a nuclear power plant system or components

causing the reactor core to cease being properly cooled to the extent that the sealed

nuclear fuel assemblies (which contain the uranium or plutonium and radioactive

fission products) begin to overheat and melt. Sources in the Santagar Power Plant

mentioned that the cooling feature imported from Karnikav Inc. of Golanod United


ix

had been replaced a month back. Foul play on the part of Karnikav was suspected

which was later confirmed by the Director-General’s office.

VIII.

Meanwhile, the District Courts in Santagar and other affected areas were flooded with

claims against the Santagar Power Corporation including Karnikav Inc. but relief was

just unavailable as the Court had no jurisdiction to adjudicate claims arising out of

nuclear incidents. It was contended by Santagar Power Corporation that no liability

could be accorded since the cooling feature supplied by Karnikav which was the

cause of the incident was faulty. The claims were estimated to be around $23 billion.

Several Writ Petitions were filed by various NGOs in the High Courts of as many as

five provinces of Renata inter alia challenging the validity of the Nuclear Damages

Act, 2010 mainly on the grounds of its insufficiency to meet the liabilities in case of

nuclear disaster.

IX.

Transfer petition was filed in the Supreme Court by Anada, an organisation working

for the protection and preservation of environment founded by Ms. Riyalin Roundal, a

Retanian citizen. The Supreme Court issued notice to all concerned and listed the

matter for hearing on 20.08.2019. Retania is not a member of any international

instrument regarding civil liability for nuclear damages but signed and ratified

Agreement for Civil Nuclear Cooperation with the Golanod United on August 3, 2007

which entered into force on January 1, 2008. The Agreement provides for transfer of

technology and nuclear fuel at subsidised rates to be used for production of energy.

Hence, the matter is for final argument.


x

QUESTIONS PRESENTED

The Petitioner respectfully requests this Court to decide:

I. Whether Hon’ble Supreme Court has jurisdiction in the present matter?

II. Whether the Civil Liabilities for Nuclear Damages Act, 2010 is sufficient to meet

liabilities in case of nuclear disasters?

III. Whether the Civil Liabilities for Nuclear Damages Act, 2010 is constitutional?

IV. Whether claim of 23 billion US dollars as compensation is reasonable?

S U M M A R Y O F A R G U M E N T S


xi


1

A R G U M E N T S A D V A N C E D

I. Whether Hon’ble Supreme Court has jurisdiction in the present matter?

1. Transfer Petition in the present matter is maintainable under Article 139-A of Constituion

Article 139-A enables the litigant to approach the apex court for transfer of proceedings if the

conditions envisaged in that article are satisfied.1 Art. 139-A was not intended, nor does it

operate, to whittle down the existing wide powers under Art. 136 and 1422

The same issue being the subject matter in other writ Petitions in the High Court, it is

submitted that it is advisable to withdraw them to this Court so that the petitioners of those

petitions may also have an opportunity to participate in the hearing before this hon’ble

Court.3 It is necessary for a comprehensive adjudication of the challenge to the statute.

1.1 The questions involved in the present matter is of “substantial and of great importance”

To invoke the jurisdiction under this Article, the question involved in the cases should be

“substantial and of great importance”4

1 Union Carbide Corporation and others v. Union of India and others. (1991) 4 SCC 584

2 Ibid para 61

3 Union of India v. M. Ismail Faruqqui, (1994) 1 SCC 265

4 Union of India v. M. Ismail Faruqqui, (1994) 1 SCC 265; Punjab Vidhan Sabha v. Prakash

Singh Badal, 1987 (Supp) SCC 610.MEMORIAL FOR THE PETITIONER

2

The Supreme Court may transfer to itself Writ Petition pending before various High Courts

raising similar questions where legal points are to be decided “as expeditiously as possible”

and to avoid conflict of decisions.5

It is submitted that the present Transfer Petition raises important questions of law. Writ

Petition not otherwise admissible under Article 32 may be admitted if it could be filed under

Article 226 and would finally come to the Supreme Court under Article 136 or Article 139-

A.6

In the judges’ case – S.P. Gupta v Union of India7, a petition under Article 226 was pending

before the Bombay High Court. From the preliminary order issuing Rule in that case, an

application for Special Leave to appeal under Art. 136 was made to the Supreme Court. The

same questions of law would be involved in the Writ Petition before the Bombay high Court

and in the application for Special Leave before the Supreme Court. Hence, on the application

of the Union of India and the Law Minister, who were parties to these cases, the Supreme

Court transferred the Bombay Writ Petition to itself.8

It is submitted that Article 139-A invests the Supreme Court with exclusive jurisdiction to

determine the Constitutional Validity of Central Laws. To the extent power of a withdrawal

and transfer of cases to the Apex Court is, in the opinion of the Court, necessary for the

5 Union of India v. Radhika Backliwal, (2003) 2 SCC316; Union of India v. Vellayani M.A.

Robinson, 1991 (Supp-1) SCC 184.

6 SP Gupta v. Union of India 1981 (Supp) SCC 87 (para 7)

7 AIR 1982 SC1491

8 Para 2, ibidMEMORIAL FOR THE PETITIONER

3

purpose of effectuating the high purposes of articles 136 and 142(1), it must be held not to

exhaust the power of withdrawal and transfer.9

It is, therefore, submitted that the Hon’ble Supreme Court has jurisdiction in the present

matter.

II. Whether the Civil Liabilities for Nuclear Damages Act, 2010 is sufficient to meet

liabilities in case of nuclear disasters?

It is respectfully submitted that the Nuclear Damages Act, 2010 has parts that are of

significant concern; presently it institutes an ambiguous system that inadequately protects

Union of Renata and its citizens in case of calamity. The on-going litigation surrounding the

Santagar power plant has exposed the shortfalls on the recourse and compensation process.

1. The Act is discriminatory, as it will let foreign suppliers escape liability.

Section 17(a) states that a foreign supplier can be liable if a section is included in a private

contract between the supplier and the operator.10 The Act needs to provide a blanket that

specifically details the liability on a supplier. A point of concern is Section 46, which fails to

mention supplier liability in any form, and only mentions the operator.11

9 Dr. Subhash C. Kashyap, Constitutional Law of India, volume 1, page no. 1288, ed.2008

10 Section 17(a) of Civil Liabilities for Nuclear Damages Act, 2010

11 Section 46, ibid.MEMORIAL FOR THE PETITIONER

4

Further there is no system in place capable of handling the aftermath of a nuclear accident,

and it is necessary that some sort of governmental organization be established and be given

responsibility before India can safely proceed with nuclear technology.12

It is submitted that past nuclear events like the Chernobyl Disaster or the Three Mile Island

incident have shown that an accident of such scope can cost billions in damages. The current

cap needs to be raised to a more realistic amount, and the government needs to bear that

liability.

The Act is riddled with ambiguities. As a result, the Act loses its operational integrity as it

leaves adherence and enforcement of the entire Act at the government’s discretion.13

2. The inadequate liability cap amount means that it will be taxpayers’ rupees that pay

the remaining compensation if damages exceed Rs. 500 crore.

The maximum financial liability of each nuclear accident has been set at the rupee equivalent

of 300 million Special Drawing Rights, which equals $458 million.14 This cap is inadequate

for a nuclear disaster. Beyond this amount victims will receive no compensation. The

financial liability is inadequate in covering the damages in the case of a nuclear accident.

As the operator is a government owned facility, all payments will come entirely from the

government—meaning that it will come from Indian taxpayers.15

12 “Left Parties Appeal to All MPs: Do Not Support the Civil Nuclear Liability Bill,”

Communist Party of India (Marxist), July 2010.

13 For example, terms such as “nuclear damage” in Section 2(F) need to be more clearly and

extensively defined. (ibid.)

14 Section 6 supra. n 11

15 Section 7, ibid.MEMORIAL FOR THE PETITIONER

5

The Act allows only the operator to sue manufacturers and suppliers for negligence in case of

nuclear disaster.16 Victims can only sue the operator, and not the manufacturers and suppliers.

However, in Renata the operator will be a government owned facility. Therefore if victims

sue the government and receive monetary compensation, the money will come from fellow

taxpayers.17

A section needs to be added detailing supplier liability, or victims should be allowed to sue

both suppliers and operators depending on where the issue of negligence lies.

2.1 Victims has not been assured proper rights of recourse

Civil courts have no authority on nuclear accident claims. Trials will go to the Nuclear

Damage Claims Commissions, and be adjudicated by the Claims Commissioner appointed to

each prescribed ‘zone.’18

Further the decision of the Claims Commissioner on compensation for victims cannot be

appealed, even at the High Court.19

16 Section 17 of Civil Liabilities for Nuclear Damages Act, 2010

17 The Russian Federal Act on Atomic Energy does not impose a limit upon the operator’s

right of Recourse; Germany allows persons other than the operator to be liable for the

damage, and allows victims to sue suppliers for fault-liability and receive compensation

beyond what the operator pays.

18 Section 35 Supra. n 16

19 In comparison, in the U.S. the Price Anderson Act allows lawsuits and criminal

proceedings to go under the U.S. Civil Courts. According to an expert, the U.S. system

“allows tort claims as well as an unrestricted right of recourse for the operator,” giving the

operator a chance to sue the supplier for the mishap.MEMORIAL FOR THE PETITIONER

6

A more comprehensive system giving victims the right of recourse should be established.

Victims should also be allowed to sue in civil courts, rather than make claims to a

commission, which under Section 38 is permitted to be dissolved even in the event that there

exist pending cases. The judiciary should have authority on these cases, rather than a 6-

person commission.20

3. The Act will allow future accidents resembling Bhopal to occur without adequate

repercussions.

In the 2005 amendment to the Price-Anderson Act 1957, the government’s share became zero

and the total liability of the operator increased to $10,761 million and all of it has to be

assured and indemnified.

4. The inadequate system of recourse means victims will have difficulty receiving

compensation.

The Nuclear damages Act, 2010 limits the right to claim compensation for any nuclear

damage at 10 years from the date the accident is notified.21 Using past accidents as reference,

10 years is too limited a time frame to assess the full extent of damages from a nuclear

accident. The long-term health effects of an accident may not be known until after 10 years,

and research and studies on long-term damage and illnesses can take more than 10 years to be

conducted and published.

20 Press Trust of India, “Nuclear liability Bill in Lok Sabha: Opposition protests,” NDTV.com,

July 2010.

21 Section 18, supra. n 16MEMORIAL FOR THE PETITIONER

7

In comparison to other nuclear conventions, the Vienna and Paris conventions allow for a 30-

year claim period.22 Such departures from the international conventions cannot but be viewed

as against the welfare of the victims.

The Act appears to have been drafted without proper application of mind and without

considering the data available from Hiroshima and Nagasaki survivors. The scientific naivety

of the Act cannot be denied.23

4.1 The Act fails to provide straightforward and functioning System for Victims to Find

Recourse

The Act provides for circumstances where the operator will not be liable for any nuclear

damage, yet subsequently fails to denote the party that will be responsible. 24Sections such as

this will become problematic when victims try to find recourse and are unable to attribute

liability or responsibility to any party. What Section 5 reveals is a bigger issue: the Act’s

failure to attribute absolute liability. Whether this should be with the government, the

22 The protocols to amend the convention on third party liability in the field of Nuclear

energy of 29 July, 1960, as amended by the Additional Protocol Of 28 January 1964 and by

the Protocol of 16 November, 1982.

23 In November 1982 the US Nuclear Regulatory Agency had sponsored yet another

programme CRAC2 (Calculation of Reactor Accident Consequences) that estimated cost of

US reactor accident to be as high as $314 billion. In July 1986, the United States General

Accounting Office (GAO) report stated that a $6.5billion limit on liability would cover 95 per

cent of the reactor accidents in the country but a serious accident could be up to 10 times

greater.

24 Section 5 of Civil Liabilities for Nuclear Damages Act, 2010MEMORIAL FOR THE PETITIONER

8

operator, or the supplier, one party needs to ultimately hold liability or at the very least be

responsible for dealing with the pertinent issues that may arise.

Further the Act which makes a provision for the operator to seek damages from the supplier

where “the nuclear incident has resulted from the wilful act or gross negligence on the part of

the supplier.” This provision is not found in the Convention on Supplementary Compensation

for Nuclear Damage.

4.2 Victims not allowed to approach Civil Court for receiving compensation

This system should allow victims to sue in Civil Court. Suppliers and operators can be liable,

but victims need channels to attribute responsibility and to receive compensation. In addition,

Section 3(1) specifies that the accident be reported within 15 days of its occurrence.

However, it fails to address the situation of a notification occurring after 15 days, and where

does the liability lie if such a situation were to occur? In such a case, will victims still be able

to approach the Claims Commissioner? These loopholes and hypothetical situations need to

be addressed in order to create a comprehensive legal framework.25

III. Whether the Civil Liabilities for Nuclear Damages Act, 2010 is constitutional?

1. The impugned legislation is not in consonance with the principles underlined in the

Directive Principles of State Policy under Part IV of the Constituion.

It is submitted that Article 48-A obligates the state to endeavor to protect and improve the

environment and to safeguard the forests and the wild life of the country.26

25 Dr. Rajeev Dhavan, interview on 24 July 2010.

26 Constitution of India, 1950. MEMORIAL FOR THE PETITIONER

http://www.iaea.org/Publications/Documents/Conventions/supcomp.html

http://www.iaea.org/Publications/Documents/Conventions/supcomp.html

9

Further Article 51 A (g) endeavors to protect and improve the natural environment including

forests, lakes, rivers and wildlife, and to have compassion for living creatures.27

It is respectfully submitted that the hon’ble Supreme Court has clarified that whenever a

problem of ecology is brought before the Court, it is bound to keep in mind Arts 48-A and

51A(g) and cannot leave the matter entirely to the government. Reading Arts 21, 47, 48A and

51A(g) together the Supreme Court has taken an active interest in the protection of the

environment. Reading Arts 48A and 51A(g), it is clear that while Art. Imposes a duty on the

state to preserve environment28, Art 51A(g) imposes a fundamental duty on every citizen for

the same purpose. 29

In M.C. Mehta v. Union of India30 the Court has said: “Article 39(e), 47 and 48A by

themselves and collectively cast a duty on the state to secure the health of the people improve

public health and protect and improve the environment.”

Two principles, viz., “precautionary principle” and “the polluter pays principle” have been

developed by the Supreme Court. In M.C. Mehta v. Union of India,31 the Supreme Court has

issued several directions in order to protect Taj Mahal from deterioration on account of

environmental pollution.

27 Ibid.

28 Rural Litigation and Entitlement Kendra v State of U.P., AIR 1987 SC 2426; Banwari Sewa

Ashram v. State of U.P., AIR 1987 SC 374; Sachidanand v. State of West of Bengal, AIR

1987 SC 1109.

29 M.P.Jain, Indian Constitutional Law, fifth edition 2003;vol. 2

30 JT, 2002(3) SC 527

31 AIR 1997 SC 734MEMORIAL FOR THE PETITIONER

10

The Constitutional Scheme to protect and preserve the environment has been provided under

Articles 21, 48-A and 51-A (g) which includes fundamental right to have healthful and

pollution free environment, constitutional obligation of the State and fundamental duty of all

the citizens of India to protect and improve the natural environment. It has also been observed

by the court that this scheme is based on the ‘constitutional policy of sustainable development

which must be implemented’32. The court seeks to draw a balance between preservation of the

environment and sustainable development.

2. The Civil Liabilities for Nuclear Damages Act, 2010 fails to follow the established Polluter

Pays Principle in Environmental Jurisprudence

Polluter Pays Principle though was adopted in 1972 by OECDE countries33 was explained by

the commission that “enterprises may be encouraged to invest to prevent restorative and

compensatory measures with subsidies of various kinds” and to encourage industries ‘to

internalize environmental costs’ and reflect them in the prices of the products.

Pollutant will be liable to compensate the victims and would also restore the environmental

degradation. In the present case also this principle should be applicable as polluter has

disturbed the environment by radioactive material and affected 1.24 billion people and caused

damage to the property amounting to $1.2 billion.

32 Bombay Dyeing & Mfg. Co. Ltd. V. Bombay Environmnetal Action Group, (2006) 3 SCC

434.

33 OECDE guiding principle concerning international economic aspect of environmental

politics, council recommendation,(1972) 128 Paris,26 May, 1972MEMORIAL FOR THE PETITIONER

11

The polluter pays principle is illustrated by Bichhri’s case34, where remedial or clean up costs

to restore the environment may be recovered from the polluter under writ jurisdiction

In Indian Council for Enviro-Legal Action v. UOI35 the polluter pays principle was explained

as under-

a. The polluting industry is absolutely liable to compensate for harm caused to the

environment.

b. He is also liable to pay the cost of restoring the environmental degradation- reserving

the damaged ecology.

Further in T.N. Godavaram case Thirumalpad v. UOI (2002) - two statutory principles-

principle of sustainable development and precautionary measures are there included in the

Polluter Pays Principle.36

In Vellore citizens’ Welfare Forum v. UOI37- SC directed that this principle shall be

implemented while deciding the cases related to environment pollution and traced the source

of constitutional and statutory provisions that protect the environment to the ‘inalienable

common law right’ of every person to a clean environment. Quoting from Blackstone’s

Commentaries on the English law of nuisance, the court held that since the Indian legal

system was founded on English common law, the right to a pollution free environment was a

part of the basic jurisprudence of the land.

34 Indian Council for Enviro-Legal Action v. UOI, (1996) 3 SCC 212

35 (1996) 3 SCC 212

36 T.N. Godavaram Thirumalpad v. UOI (2008) 2 SCC 222

37 (1996)SC 2715MEMORIAL FOR THE PETITIONER

12

In Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society of India38,

while applying the Precautionary principle in a given situation the ‘public interest must be

kept in mind.’

Hon’ble Supreme Court in Deepak Nitrite Ltd. V. State of Gujarat39 declared that the

compensation to be awarded must have some broad correlation not only with the magnitude

of the risk and the capacity of the enterprise, but with harm caused by it.

It is most respectfully submitted that hon’ble Supreme Court has also held that this principle

envisages ‘precautionary protection against environmental hazards is avoiding and reducing

environmental risks before specific harm is expected.’ Thus it has become a part of the

principle of sustainable development.40

Fixing the absolute liability of the polluter , the court has observed that once the activity

carried on is hazardous or inherently dangerous , the person carrying on such activity is liable

to make good the loss caused to any person by his activity, irrespective of the fact whether he

took the reasonable care while carrying on his activity.41

Article 2142 confers Right to life or Personal liberty to the citizens of India. It has been held

by Supreme Court in many cases that Right to life includes Right to safe and decent

environment.

38 (2004) 4 SCC 420

39 (2004) 6 SCC 402

40 Research Foundation for Science v UOI (2005) 13 SCC 186

41 Shyam Divan, Environmental Law and Policy in India; second edition 2001

42 Article 21 of Constitution of India, 1950 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.


13

Right to life and personal liberty as guaranteed under Art.21 also includes Right to pollution-

free water and air43 and Right to food, clothing, decent environment44 and even protection of

cultural heritage45; right to health as well.

In Maneka Gandhi v Union of India46 case the court gave a new dimension to Article 21. It

held that the right to live is not merely confined to physical existence but it includes within its

ambit the right to live with human dignity. The right to live is not confined to the protection

of any limb through which life is enjoyed but it also includes the right to live with human

dignity and all that goes along with it namely the bare necessity of life such as adequate

nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in

diverse forms, freely moving about and mixing and commingling with fellow human beings.

In Subhash Kumar v. State of Bihar47, the Apex Court has held that enjoyment of pollution

free environment is included under right to life under Article 21 of the Constitution. The

Court observed, “Right to live is a Fundamental Right under Art.21 of the Constitution and it

includes the right of enjoyment of pollution free water and air for full enjoyment of life. If

anything endangers or impairs that quality of life in derogation of laws, a citizen has right to

have recourse to Art.32 of the Constitution for removing the pollution of water or air which

may be detrimental to the quality of life.”

The enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of The

Constitution embraces the protection and preservation of nature’s gift without which life

cannot be enjoyed. There can be no reason why practice of violent extinguishment of life

alone should be regarded as violative of Article 21 of the Constitution. The slow poisoning by

the polluted atmosphere caused by environmental pollution and spoliation should also be

regarded as amounting to violation of Article 21 of the Constitution.48

In Charan Lal Sahu v. Union of India49 expanded upon this decision when Justice Kuldip

Singh described the government’s role in the protection of fundamental rights: “It is the

obligation of the State to assume such responsibility and protect its citizens.” The Court held 43 Subhash v. State of Bihar, AIR 1991 SC 42044 Ibid and See M.C. Mehta v. Union of India AIR 2006 SC 132545 Ramsharan v. Union of India, AIR 1989 SC 54946 AIR 1978 SC 59747 AIR 1991 SC 420 at 424.48 T. Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171.49 AIR 1990 SC 1480


14

that the government’s obligation to protect fundamental rights forces it to protect the

environment.

This right includes the right to have a ‘living environment’ congenial to human existence.

Any activity which pollutes the environment and makes it unhealthy, hazardous to human

health or health of flora and fauna, is violative of right to have ‘living environment’,

implicitly guaranteed by Article 2150.

In Chameli Singh v. State of Uttar Pradesh,51 The Supreme Court while dealing with Art

21 has held that the need for a decent environment.

3. Right to Life cannot be taken away under any circumstances

It is humbly submitted before this Hon’ble Court that in the present case, there has been

effected a violation of article 21.

Article 21 of the Indian Constitution guarantees that no person shall be deprived of his life or

personal liberty except according to the procedure established by law. By the term ‘life’ as

here used something more is meant than mere animal existence.52 The inhibition against its

deprivation extends to all those limbs and faculties by which life is enjoyed.53

Article 21 cannot be considered to be the sole repository of the right to life and personal

liberty. The right to life and personal liberty is the most precious right of human beings in

civilized societies governed by the rule of law. The question is whether the laws speaking

through the authority of the courts shall be absolutely silenced and rendered mute because of

such threat.

50 T.Damodhar Rao v. S.O.Municipal Corpn. Hyderabad, AIR 1987 AP 17151 AIR 1996 SC 1051 : (1996) 2 SCC 549.52Munn v. Illinois 94 U.S. 113.

53 Ibid. MEMORIAL FOR THE PETITIONER

15

The Minimum Standards of Human Rights Norms in a State of Exception (popularly known

as the Chowdhury report and referred to as the Paris Minimum Standards) list sixteen non-

suspend able rights. They are: Right to legal personality; freedom from slavery and servitude;

freedom from discrimination; right to life; right to liberty; freedom from torture and cruel,

inhuman or degrading treatment or punishment; right to fair trial; freedom of thought,

conscience and religion; freedom from imprisonment for inability to fulfill a contractual

obligation; rights of minorities; rights of the family; right to a name; right of the child; right

to nationality; right to participate in government and right to a remedy.

The apex court interpreted that the words "procedure established by law" in article 21 are to

be given a wide and fluid meaning of the expression "due process of law" as given under the

U.S. Constitution but it refers to only state made statutes laws. If any statutory law prescribed

procedure for depriving a person of his rights or personal liberty it should meet the

requirements of article 2154.

However, after 2 decades this was over ruled in the case of R.C.Cooper VS. Union of India55

after this there was a series of decisions by the apex court including that of Maneka Gandhi

vs. Union of India56in this case it was held that any law that deprives the life and liberty must

be just and fair, Krishna Iyer J. rightly said that "procedure" in Article 21 means fair, not

formal procedure law is reasonable law not any enacted pieces". Now it is settled that article

21 confers positive rights to life and liberty. The word life in article 21 means a life of dignity

and not just mere animal survival (this was also upheld in the case of Francis Caralie57. The

procedure of depriving a person of his life and liberty must be reasonable, fair and just.

The provision of the Act states that58:

(1) The maximum amount of liability in respect of each nuclear incident shall be

the rupee equivalent of three hundred million Special Drawing Rights.54 A.K.Gopalan VS. State of Madras AIR 1950 SC 27 55 AIR 1970 SC 56456 (1978) 1 SCC 24857 (1993)1 SCC 64558 Civil Liabilities for Nuclear Damages Act, 2010


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(2) The liability of an operator for each nuclear incident shall be rupees five hundred

crores:

Provided that the Central Government may, having regard to the extent of risk involved in a

nuclear installation, by notification, either increase or decrease the amount of liability of the

operator:

Provided further that where the amount of liability is decreased, it shall not be less than

rupees one hundred crore:

The preamble of the Act59 provide prompt compensation to the victims of a nuclear incident

through no fault liability regime channelling liability to the operator, appointment of Claims

Commissioner, established of Nuclear Damage Claims Commission and for connected

matters therewith or incidental thereto.

As per the provision of the Act the compensation for the damage has been fixed upto five

hundred crores and if it will exceed the said value then it will be contrary to the absolute

liability. Limiting the liability of the operator would be not in consonance with the procedure

established by law under Article 21. Further the Act fails to establish liability on the side of

the supplier in case of damage caused by nuclear accident.

The Absolute Liability theory laid down by the Supreme Court in Shriram was first applied

by the Madhya Pradesh High Court to support its award of interim compensation to the

Bhopal victims.60

5. THE ACT OF GOVERNMENT IS ARBITRARY AND THUS VIOLATES ARTICLE 14 OF

CONSTITUTION.

It is most respectfully submitted that the range and scope of Article 14 has been widened by a

process of judicial interpretation, so that the right to equality now not only means the right

59 Ibid.60 Union Carbide Corporation v. Union of India 1988


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not to be discriminated against but also protection against any arbitrary or irrational act of the

state.61

Article 14 of the Constitution of India provides that the ‘state shall not deny to any person

equality before the law or the equal protection of the laws within the territory of India’.62 The

right to equality is also recognized as one of the basic features of the constitution63 flowing

directly from the doctrine of equality embodied in Article 14.64

It is now a basic requirement of Article 14 that the exercise of discretion must always be

guided by some standards or norms so that it doesn’t degenerate into arbitrariness and operate

unequally on person similarly situated.65 The constitution declares that the state shall not

make any law which takes away or abridges the fundamental rights and that to the extent of

inconsistency such laws shall be void.

6. The impugned legislation violates the rights guaranteed under Article 14, 19 and 21 of the

Constitution

It is humbly submitted that Indian Supreme Court had made a progressive contribution to the

doctrine of Equality jurisprudence by adding the American Concept of due process to the

61 Pradeep Kr. Biswas v. Indian tusti of Chemical Biology (2002) 5 SCC 111.

62 Constitution of India, 1950.

63 Indra Sawhney v. Union of India AIR 2000 SC 498.

64 R.D. Shetty v. I A Authority of India (1979) 3 SCC 489.

65 Bachan Singh v. State of Punjab, AIR 1982 SC 1325.MEMORIAL FOR THE PETITIONER

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equal protection in the 14th amendment to the American Constitution.66 Equality is the

essence of the constitution.67

Although in India, there is no due process clause in the constitution. Hence, the court cannot

directly introduce the concept of ‘Due Process’ in the interpretation of Art -14. It is

indirectly done that by reading Art-14 along with Art-19 and Art-2168, which has earlier69

been interpreted to ensure the requirements of reasonableness, non-arbitrariness, justice and

fairness. In short, when the constitutionality of law is challenged under Art-14, the court has

to considerate on the anvil of interplay of Art-14, 19 and 21 as if they were ‘all part of the

integral scheme’. Since during the time of emergency, Art-19 is automatically suspended but

Art-21 and Art-22 cannot be taken away in any cost.

It is, therefore, most respectfully submitted that the Civil Liabilities for Nuclear Damages

Act, 2010 is violative of the basic principles underlined in Part III and Part IV of the

Constitution and hence is unconstitutional.

IV. Whether claim of 23 billion US dollars as compensation is reasonable?

1. The enterprise was carrying out inherently dangerous act so as to attract absolute liability

66 SCW 75 as reported in D.D.Basu “Commentary on the constitution of India, 8th

Ed.,2007,Vol-1,pg-969.

67 D.D.Basu “Commentary on the constitution of India, 8th Ed.,2007,Vol-1,pg-969.

68 D.T.C v. D.T.C Mazdoor Congress,(1991) Supp 1 SCC 600 (paras 295-97) ; AIR 1991 SC

101.

69 Maneka Gandhi v. Union of India, ( 1978) 1SCC 248; AIR 1978 SC 579.MEMORIAL FOR THE PETITIONER

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Carrying out such nuclear activity is itself a dangerous activity and degree of danger to the

environment as well as to the people and property is much higher than that of any normal

industrial activity. Hence it is necessary to put absolute liability on the operator so that it

would have a deterrent effect70. The operator must be responsible and made liable for such

inherently dangerous work carrying out by him.

The degree of liability must be such as the degree of activity being carried on. The activities

related to nuclear equipments are inherently dangerous and thus the liability must also be

high in relation of the work. Any disaster taken place due to the nuclear incident would be

very harmful, for the environment, people and property, hence there must be absolute liability

on the operator’s part to pay compensation to the victims and to restore the environment as

both the issues are of utmost importance.

In a decision The Hon’ble Supreme Court observed that the measure of compensation be co-

related to the magnitude and capacity of the enterprise because such compensation must have

a deterrent effect. The larger and more prosperous the enterprise, the greater the amount of

compensation payable by it for the harm caused on account of an accident in the carrying on

of the hazardous or inherently dangerous activity by the enterprise.71

As per the provisio72 the Central Government may, having regard to the extent of risk

involved in a nuclear installation, by notification, either increase or decrease the amount of

liability of the operator. This means that the compensation limit may vary as per the risk

involved in the nuclear installation. Again there has been a minimum limit mentioned in the

Act but no maximum limit has been given.

70 Civil Liability for Nuclear Damage Act,201071 M.C.Mehta v. Union of India, AIR 198572 Sec 6 of Civil Liability for Nuclear Damage Act,2010


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2. The damage to life and property is far more than what is covered by the Act

As per the Renatan times’s report,a leading newspaper, Santagar disaster was four hundred

times more radioactive material was released than that had been by the atomic bombing of

Hiroshima. Around 1.24 million people affected with damage to property amounting to $1.2

billion. This shows that the disaster was at high level and compensation demanded $23

billion is reasonable to compensate the victims as well as to restore the environment. It has

been clearly mentioned that the matter was of grave concern as per the reports.

In such huge disaster the quantum of compensation must also be high so that principle of

‘absolute liability’ is followed and also polluter pays principle. The disaster is so huge that in

order to compensate the victims and to restore the environment, the amount claimed as

compensation is reasonable so that principle given in the Preamble of the Act73 i.e. absolute

liability is followed properly, as the ceiling of Rs. 500 crores is in contrary to this principle.

P R A Y E R

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Hon’ble Court may be pleased to adjudge, declare and hold that:

the Civil Liabilities for Nuclear Damages Act, 2010 is unconstitutional..

there is violation of fundamental rights by the State.

73 Civil Liability for Nuclear Damage Act,2010MEMORIAL FOR THE PETITIONER

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And, the demand of 23 billion US Dollars as compensation is valid.

And pass any other order that this Hon’ble Court may deem fit in the interests of justice,

equity and good conscience.

ALL OF WHICH IS HUMBLY PRAYED,

COUNSEL FOR THE PETITIONER


Amity petitioner

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