DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW

FINAL DRAFT
Legal Research and Writing
TOPIC
Anti - Nuclear Protest in Kudankulam: The Right
Question

SUBMITTED TO:
SUBMITTED BY:
Ms. Shakuntala Sangam,
Singh
Asstt. Prof.
NO. 13
Faculty (Legal Research and Writing)
A

Aditya
ROLL
SECTION:

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Dr. RMLNLU, Lucknow

B.A.LLB.(Hons.)

7 thSem.,

TABLE OF CONTENTS

Abstract ..3
Statement of Problem..4
Significance of Problem..5
Purpose5
Hypothesis...6
Design study....6
Analysis of Data..6
Summary and Conclusion..10
Bibliography..11

ABSTRACT

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The violence that the agitation against the Kudankulam Nuclear Power
Project degenerated into had an unfortunate ring of foreordination about it. It
seemed to exemplify what happens when differences are not resolved
through peaceful means. the Union and the State governments had made no
more than nominal efforts to engage the local people protesting against the
project; experts had only made a cursory effort to address popular fears
about the safety of the nuclear reactors, the manner of disposal of nuclear
waste and the absence of a detailed public hearing; and the district
administration had resorted to an emergency preparedness drill whose
effectiveness was doubted by many. With the Madras HC clearing the
commissioning of the project and the Atomic Energy Regulatory giving its
nod for loading of fuel in the first unit, the next port of call for those opposed
to the plants commissioning should have been the Supreme Court. Instead,
a section of the protesters decided to step up their campaign. The apparent
failure of the police to anticipate that some protesters may take the coastal
route towards the plant resulted in a dramatic confrontation on the beach.
The police, who at the best of times need little prompting to resort to force,
responded with tear gas and lathis. In the neighboring Tuticorin, a fisherman
was killed in police firing.

STATEMENT OF THE PROBLEM

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The strife in Kudankulam is a sitting problem at hand for the country. The
problem started when peaceful rallies began in 1988, immediately after the
project was mooted by the then then Prime Minister Rajiv Gandhi and Soviet
President Mikhail Gorbachev, for the construction of two reactors. The project
remained in limbo for a decade due to the political and economic upheaval in
Russia after the post-1991 Soviet breakup. There were also objections from
the United States, on the grounds that the agreement does not meet the
1992 terms of the Nuclear Suppliers Group (NSG). Construction began only in
September 2001 and the cost was estimated to be US$ 3 billion (Rs.13,615
Crores).
A small port became operational in Kudankulam on 14 January 2004. This
port was established to receive barges carrying over sized light water reactor
equipment from ships anchored at a distance of 1.5 kilometers (0.93 mi).
Until 2004 materials had to be brought in via road from the port of Tuticorin,
risking damage during transportation.
In 2008 negotiation on building four additional reactors at the site began.
Though the capacity of these reactors has not been declared, it was
expected that the capacity of each reactor will be 1000 MW or 1 GW. The
new reactors would bring the total capacity of the power plant to 9200MW or
9.2 GW. To the peaceful rallies at that time the police opened live
ammunition. At the public hearing for the environmental impact assessment
of the proposed units 3 to 6, the project met with overwhelming opposition;
the government ignored this.
Last year, when the commissioning of the first reactor became imminent, a
large people shifted from sporadic expressions of opposition to active but
non violent resistance. The Jayalalithaa government stalled for a while but
soon- possibly after striking a political deal with the Manmohan singh
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government rolled ahead with the project. The recent incidents of state
repression- in which one person was killed in police firing and paramilitary
forces were seen literally driving villagers into the sea- form the latest
addition to this pattern.
With the Madras high Court clearing the commissioning of the project, and
the Atomic Energy Regulatory Board giving its nod for loading of fuel in the
first unit

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SIGNIFICANCE OF THE PROBLEM

Unfathomable attitude of the technocracy and the government and

giving in into ignorance about the hazards of a nuclear accident.

Clear cut violations of the law of land.

Violation of the right to information act

The Atomic Energy Regulatory Board has a seemingly weaker structure

and has a no say at all.

Problem of false hope and unlikely to be fulfilled promises

Health Problems to be caused due to the presence of the nuclear plant

in the vicinity of the villages.

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PURPOSE/OBJECTIVE

After recognizing the areas that majorly hold the grievances of the people of
the affected areas it seems that the Indian ruling class have evidently taken
the medieval ideas of ruling over the poor and the repressed to heart. They
are simply unable to acknowledge, anywhere in India, that farmers and
working class people may have a valid and independent perspective on
infrastructural projects that must be respected. Even after the first reactor at
Kudankulam

is

eventually

switched

on,

the

central

and

the

state

governments should respect the rights of the anti nuclear activists to

campaign peacefully and publicly for the closure of the plant and equally the
activists like their counterparts in Japan and Europe should focus on building
public support for their cause in Tamil Nadu peacefully and persuasively and
not resort to confrontations.

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HYPOTHESIS

All the discussion above brings us to the central issue at stake in

Kudankulam: Is the course of development in India to be charted only by
technocrats guided by corporate and upper class priorities or will India move
towards a true democracy where people have control of their own resources
and environment?

DESIGN STUDY

The research design method applied by the author of the project was to read and
recognize the various problems in the issue being discussed. After recognizing the
problem areas the categorization of the problems with respect to the debate that
also forms the hypothesis of the project. The research is an analytical one and the
issues at hand have been closely scrutinized and both sides have been equally

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weighed. The data collection is only through the newspapers and the question of
law and as well as of policy is the most intriguing in the above project.

ANALYSIS OF DATA

Analysis of data will be done with respect to the problem areas recognized above.
They being namely-

Unfathomable attitude of the technocracy and the government and

giving in into ignorance about the hazards of a nuclear accident.
The irrationality is seep in deep. The top echelons of our technocracy
which have persisted in making scientifically untenable statements like
the one made by the previous chairman of the Atomic energy
commission that the chance of nuclear accident in India was one in
infinity
It is easy for people without specialized knowledge to weigh this
against the patent evidence from Fukushima offered by the TV screens
around the world- that nuclear reactors can and do explode on
occasion- and decide not to trust the assertions of the experts. By
means of the process known as the probabilistic risk assessment, the
nuclear industry routinely trots out precise- looking figures, claiming
that the probability of accidents is very low. However data from the
past decades show that and contradict these claims and suggest a far
higher

probability

of

accidents.

This

obvious

dichotomy

has

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engendered public distrust, and nuclear technocrats have only to

blame themselves.

Clear cut violations of the law of land.

It is not clear as to whether the industry itself believes in its safety
claims. The manufacturer of the Kudankulam plant Atomstroyexport, is
protected by an intergovernmental agreement between India and
Russia which completely absolves it of any responsibility in the event
of disaster. This agreement is inconsistent with the laws of land as
stated in legislations and laid down by the Supreme court. A fresh writ
petition has been filed in the Supreme Court, contending that the
Kudankulam nuclear power plant could not be commissioned without
resolving the issue of Russias liability in case of an accident.
The PIL petition sought a declaration that the plant, in Tamil Nadus
Tirunelveli district, would be governed by the law of the land, as laid
down by the SC : the absolute liability and polluter pays principle.
The Civil liability for Nuclear Damage Act, 2010, channels the liability
of a nuclear accident to the operator (government undertaking) of the
said plant and then limits it to Rs. 1, 500 crore. The cap on liability will
have a severe impact on the safety of nuclear installations, said the
petition filed by the centre for Public Interest Litigation.
Though theAct imposes a very minimal liability on the nuclear reactor
supplier/ manufacturer [putting the safety of the plants to a grave risk]
in violation of the polluter pays and absolute liability principle the
government of India has made the Russian company exempt from even
this minimal liability by giving an undertaking that the Indian public
exchequer and taxpayers would foot the bill in case of an accident, and
Russians would be indemnified, the petitions contended.
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This undertaking had dangerous implications, any action of the

executive entailing expenditure from the exchequer (in the event of a
nuclear accident, this would run into lakhs of crores) would need
parliamentary approval. The govt. states it commission the plant in the
next two months, without resolving the issue of liability. The government
has steadfastly refused to make public the agreements with Russia
regarding the plant.

Violation of the right to information act

The government has refused to release the text of the agreement
despite a Right to Information request, a court petition, and even a
parliamentary question, leading to the suspicion that it contains
clauses that are even more egregious than commonly suspected.

The Atomic Energy Regulatory Board has a seemingly weaker structure

and has a no say at all.
The CAG has pointed out in its recent scathing report that the AERB
remains subordinate to the Central Government which also operates
all nuclear plants in India. The CAG report also stated that the AERB
failed to develop a mechanism to ensure regulatory compliance or
oversee the procedures for radiological emergencies.

Problem of false hope and unlikely to be fulfilled promises.

The AERB is unwilling to take its own reports seriously. After
Fukushima, an AERB committee recommended that reactors must have
sufficient power back up and freshwater supply for emergency cooling
of the reactor and spent fuel pools; the use of seawater for this
purpose can corrode a reactor. Instead of ensuring this, the AERB has
simply accepted the governments promise that it will construct a
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water tank, and provide a mobile diesel generator sometime in the

future. This sometime in the future clause leads to believe that it may
never happen anytime in the future or may happen with ample
procrastination, leading the locals to believe that they are not in the
safest of situations. The locals also have no way of holding the
government or the manufacturers to account because of the no fault
liability clause in the agreement in case of an accident.

Health Problems to be caused due to the presence of the nuclear plant

in the vicinity of the villages.
The fisherfolk near Kudankulam are also worried that the routine
operation of the nuclear plant will adversely affect their livelihood.
Rather than engaging with these concerns constructively, which it
could easily have done, the government has simply dismissed them
with more expert opinions.
There also have been few epidemiological studies of the health of the
people living in the vicinity of nuclear facilities. One study compared
the health status of the inhabitants of five villages within 10 km of the
Rajasthan atomic power station and four other villages more than 50
km away. It observed statistically significant increases in several
indices including the rates of congenital deformities, spontaneous
abortions, still births, and solid tumors in the villages closer to the
reactor.
This survey does not reveal the precise cause of these differences but,
in the absence of any other plausible factor, indicates that it is the
nuclear plant that is responsible in some way.

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SUMMARY AND CONCLUSION

The conclusion to a problem where everybody seems to have an opinion is very

difficult to arrive. All including the Courts are acting with ambiguous traits in them.
The Courts not delving into the problem of sharing the blame and coming to the
rescue at the time of disaster is something to stand up to and take notice. The issue
is not to share the blame but to act to it and come to the rescue of the people who
are harmed if at all a Chernobyl type disaster takes place ever. The question is to
ask the right questions. In this age of severe shortfall of energy the environmental
and societal damage from the hydroelectric power is well known. Power plants
running on fossil fuel, especially coal (the dominant fuel in India), and cause
incalculably more damage- including the ionizing radiation than nuclear power. Wind

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Power is promising but, when implemented on large scale, has its own
environmental concerns, particularly to migratory birds. The decision to support
nuclear energy should come as a surprise if done by some.
Ofcourse there maybe valid safety or environmental concerns about a particular
power project. There may be concerns about resettlement and rehabilitation of
displaced people. The DAE needs to work out how to address these concerns in
order to prevent similar problems with the upcoming power projects. But it cannot
do that on its own. Independent oversight is required.
It is a concrete debate about ensuring the mechanisms for ensuring the safety and
transparency. Unfortunately, in all the noise about Kudankulam, this issue has
received comparatively little attention from the media. Since the Fukushima
earthquake, worries about nuclear power have been widespread around the world.
But if we look closely, despite the magnitude of the disaster, the age of the plant,
and the inadequate safety features, which led to a meltdown nobody has yet
received the lethal dose of radiation. This means that well maintained plants built
to modern safety standards pose a little threat to the public. Meanwhile, we are
facing unprecedented demands for energy, and global warming driven by
accelerating use of fossil fuels and resulting in rising sea levels and extreme
weather, presents the biggest environmental threat to the world- especially, one
should note, to poor coastal fishing communities such as the one at Kudankulam.
The record of low performance of the Indian Government we have a distrust towards
the DAE. Given our inability maintain the railways, highways, postal department,
and the other necessary infrastructure in good working order, why should our
government be trusted to maintain nuclear plants? It is a good question and
deserves a good answer. The DAE may be an excellent organization, but it must be
seen to be excellent and only openness and external scrutiny will provide that.

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BIBLIOGRAPHY

Books:

The Meltdown of reason- The Hindu: September 13, 2012 (Thursday).

The Real Question from Kudankulam- The Hindu: September 14, 2012 (Friday).
Where the mind is full of fear- The Hindu: September 19, 2012 (Wednesday).
Another anti-Kudankulam PIL on Russian liability- The Hindu: September 18, 2012
(Tuesday).
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Kudankulam on shaky legal ground- The Hindu: November 5, 2012 (Monday).

Web Sources:

http://timesofindia.indiatimes.com/topic/KUDANKULAM
http://timesofindia.indiatimes.com/india/Kudankulam-another-Bhopal-in-waiting-

Chomsky/articleshow/17054467.cms
http://economictimes.indiatimes.com/news/politics/nation/anti-nuke-protestors-seek-

support-of-international-community/articleshow/17032983.cms
http://timesofindia.indiatimes.com/india/Kudankulam-unit-I-to-be-operational-shortlyGovt/articleshow/17019213.cms

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