People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)


No. 25

June 20, 2010

Bhopal and the Nuclear Liability Bill


Prakash Karat


THE verdict on the Bhopal gas accident has led to an outpouring of protests at the travesty of justice. There is justified outrage at the protection accorded to the Union Carbide and the manner in which its chairman Warren Anderson was allowed to leave the country. 


The whole sorry episode which has dragged on for 26 years has starkly brought out some class truths. The first is that the central government of the day and successive governments have served the interests of big capitalists and corporates of America and India. The second linked class truth is that the 20,000 people who died  and the tens of thousands who were physically affected were poor people belonging to the bastis of Bhopal who were, as far as the ruling classes and their political representatives were concerned, expendable. The judiciary also reflected this class bias.  The third aspect is that there is no change in this class outlook of the central government and the ruling party, as can be seen in the Civil Nuclear Liability Bill.


The Bhopal verdict has a direct relevance to the Nuclear Liability Bill introduced in parliament.  Just two days after the court verdict, the first sitting of the Standing Committee of Parliament to examine the Nuclear Liability Bill took place. This is a Bill which was denounced by the CPI(M) when it was in the stage of being drafted within the government. This is a legislation being brought to fulfill a commitment made by the UPA government when it enter into the Indo-US nuclear deal. The Polit Bureau of the CPI(M) had, in a statement on October 2, 2008 asking the government not to sign the 123 agreement, said: “India is committing  to buy a minimum of 10,000 MW from the dying US nuclear industry, which has not received any new order for the last 30 years.  It is going to indemnify suppliers from all consequences of a nuclear accident.”  This commitment was made in writing by the then foreign secretary in a letter to the US under secretary, William Burns. 


The Nuclear Liability Bill introduced in parliament is meant to safeguard the interests of the US companies who will supply reactors to India.  In the event of a nuclear accident, they are to be exempted from any liability to pay compensation for the damages caused.  What Westinghouse and General Electric want is that even the limited liability which accrued to Union Carbide  in the case of Bhopal ($470 million as per the settlement approved by the  Supreme Court) should not fall on them. The Congress-led government has obliged the United States by bringing this shocking piece of legislation which makes it near impossible to hold foreign suppliers of nuclear reactors to account in the case of an accident.  


The government has tried to obfuscate the issue by arguing that a foreign supplier can be liable if such a clause is included in the contract between the operator and the supplier.  What it does not say is that neither the public sector Nuclear Power Corporation of India, which is the Indian operator, nor the American company, which will be the supplier, will include such a liability clause in the contract.  If this law is passed, if there is a faulty design or a manufacturing defect in a reactor supplied by a US company, the operator or the victim of an accident has no right to claim damages from the supplier.  The other clause cited by the government is the one by which the operator has the right to recourse against the supplier if the nuclear accident has resulted due to a “willful act or gross negligence” on the part of the supplier.  This makes it extremely difficult to hold the supplier liable as proving that faulty design or other defects are due to willful action or gross negligence will be well nigh impossible.


The cap put on the liability of the operator is Rs 500 crore while the overall financial liability for a nuclear accident is capped at around Rs 2140 crore. The reason why the liability of the operator is limited to Rs 500 crore is because the government wants to bring in private operators in the nuclear sector. The law will, therefore, limit the liability of Indian or foreign private companies who operate reactors to Rs 500 crore. Any amount to be paid above this cap will be footed by the government. In this manner, the government will subsidise private operators, including foreign companies, in the future. 


The class outlook of the government is evident.  The people will have to pay with their lives or health in the case of a nuclear accident, but the profits of US companies and the corporate sector in India should be protected by limiting their liability. In the case of Bhopal, the compensation paid by the Union Carbide amounted to Rs 713 crore ($470 million).  A nuclear accident may involve casualties on a much larger scale than Bhopal. Under the Nuclear Liability Bill, the maximum compensation to be paid will be Rs 2140 crore, the bulk of which would be paid by the government.


The government has made much of the fact that it wants to accede to the Convention on Supplementary Compensation for Nuclear Damage.  By joining this international convention, the government claims that it can access international funds to compensate victims of nuclear accidents. What the government does not say is that this is a Convention favoured by the United States as it provides complete protection to the suppliers of nuclear equipment. Only 13 countries have  joined the Convention out of which only four have ratified it. The government should answer why it does not go by the Vienna Convention on Civil Liability which does not cap nuclear liability but only puts a minimum floor. Further, it also allows countries to operate their independent liability regimes.


How eager the Manmohan Singh  government is to  fulfill its commitment to the United States can be seen in the maneouvres it resorted  to, to bring this legislation in parliament. After being thwarted  in the first half of the budget session from introducing the Bill in the Lok Sabha, when the entire Opposition opposed the  introduction of the Bill, the government had to strike deals with parties like the Samajwadi Party and the RJD to get it introduced in the fag end of the budget session.  Normally, such a Bill should go to the Standing Committee on Energy.   But the government decided to route it through the Standing Committee on Science and Technology where a Congress MP is the chairman. There was an effort by the government before the Standing Committee to delete the clause which gives the operator the limited right to recourse against the  supplier in the case of a willful action or gross negligence. The nuclear industrial lobby of the United States has expressed its unhappiness at even this weak clause and wants it deleted.


The Civil Nuclear Liability Bill bears the handiwork of the US nuclear industry lobby. The manner in which liability is fixed shows a familiar pattern. In the United States, the powerful oil lobby had got the US Congress to put a cap on the liability of oil firms for damage done by oil spills at $75 million. Now with the havoc caused by the Gulf Coast spill from the BP’s drilling platform, efforts are on to raise the cap to $10 billion or to leave the scope for unlimited liability.


The pressure on the Manmohan Singh government to fulfill its commitment is relentless.  William Burns, the Under Secretary for Political Affairs, in a speech to the Council on Foreign Relations “India’s rise and the promise of US-Indian partnership” on June 1, 2010 referred to the need for the nuclear liability law.  He said, “US companies are prepared to support the expansion of India’s  civil nuclear infrastructure with two reactor park sites already identified.  As prime minister Singh argued publicly last week, it is deeply in India’s self-interest for its parliament to enact liability legislation consistent with international standards.”  In the Indo-US strategic dialogue which took place immediately thereafter, the Indian side led by foreign  minister, S M Krishna, assured the United States that the  Liability Bill would be passed into law.


No more Bhopals and Warren Andersons should recur. For this, Dow Chemical which took over Union Carbide should be made to pay all the costs for cleaning up the Bhopal factory site and the environment. Ironically, the Group of Ministers set-up by the government includes ministers who wanted to absolve Dow of all such responsibility. This will be an acid test of the government’s intentions.


If there are lessons to be learnt from the tragic episode of Bhopal, it is that there should be strict laws which will assign civil liability and ensure that criminal liability is also pinned down.  There can be no compromise  with the lives and safety of the Indian people in order to appease the commercial  interests and profits of foreign and Indian  big business.


The first step towards ensuring this will be to scrap the Civil Nuclear Liability Bill.