In a Season of Impetuous Lawmaking, whither Nuclear Safety?

In this piece, the author while discussing the issues around nuclear safety, debates on why it is important to re-examine the proposed Nuclear Safety Regulatory Authority Bill for better regulation, transparency, and liability. 

SINCE returning to power last year with an overwhelming majority in the 2019 general elections, the Modi-led government has passed a series of legislations in rapid succession without any credible dialogue both within and outside Parliament – amendments to the Protection of Human Rights Act, 1993, which in effect have diluted the statutory requirement for the National Human Rights Commission to be headed by a former Chief Justice of the Supreme Court of India, amendments to the already infamous Unlawful Activities (Prevention) Act, under which even individuals can now be designated terrorists and their properties seized, dilution of the hard-fought 'Right to Information Act', which in essence diminishes the independence of the office of the Chief Information Commissioner (CIC) and other information officers, to the latest onslaught of the CAA-NRC-NPR combine, which is being seen as an attempt to disenfranchise particular sections of Indian society – have raised legitimate concerns that the Centre is in an unprecedented rush to appropriate for itself disproportionate powers to meddle with India's public institutions, weaken democratic oversight, muzzle the right to information, and punish 'inconvenient' activists, human rights defenders, and even local communities who are resisting the usurpation of their lands and other community resources for large-scale industrial projects.

However, even as there has been exceptional eagerness to push these amendments and pass new legislation, including notifying the Citizenship (Amendment) Act, 2019 despite intense country-wide protests and a raging debate on its underlying intent, there are urgent issues, such as, nuclear safety, which remain in indefinite suspension.

The UPA-II government, under Dr Manmohan Singh, had introduced the Nuclear Safety Regulatory Authority (NSRA) Bill in the Lok Sabha on 07 September 2011, aimed at replacing India's existing nuclear regulator, the Atomic Energy Regulatory Board (AERB) with a purportedly improved and more autonomous Nuclear Safety Regulatory Authority (NSRA) which would have the mandate to 'regulate nuclear safety and activities related to nuclear material and facilities'.

The Bill, however, which had been referred to the Department-related Parliamentary Standing Committee on Science and Technology, Environment and Forests, did not come up for discussion before the dissolution of the 15^th Lok Sabha, and subsequently, lapsed. The Standing Committee had reportedly endorsed the Bill with only minor suggestions for changes, while two members of the Committee from the CPI(M), gave dissent notes, arguing that the Bill provided 'no substantive autonomy' to the proposed NSRA. According to available information, in April 2017, the Union Minister of State (Independent Charge) Atomic Energy and Space, Dr Jitendra Singh, in a written response to a question in the Lok Sabha had stated that a 'fresh Bill' similar to the earlier NSRA Bill, was 'under examination'.

While the Fukushima nuclear accident of March 2011, and the resultant surge in popular grassroots opposition to extant and proposed nuclear power projects in India, concerns raised in Parliament, and an increased engagement of Courts in nuclear matters, specifically on issues of human and environmental safety emerging from the country's nuclear programme, formed the immediate backdrop to the introduction of the NSRA Bill, the demand for setting up an authoritative and autonomous nuclear regulator is one that has been echoed far longer.

The Meckoni Committee of 1981 and the 1997 Raja Ramanna Committee, constituted to review the regulatory and oversight mechanisms for the country's various civilian nuclear facilities/installations underscored not only the need for an independent statutory regulatory board under the Atomic Energy Act, but also called for a 'considerable broadening of the functions and responsibilities' of the AERB after its creation, including enhancing the financial powers of the Chairman of the AERB and 'full powers to exercise control on the funds allocated', with a view to significantly enhance the effectiveness of nuclear regulation in India.

India's nuclear regulatory framework has long been criticized for being so thoroughly enmeshed within the government structure so as to render its requisite independence, practically meaningless. Nuclear safety in India has been the remit of the AERB, which was set up in November of 1983 by an executive order of the Secretary of the DAE under Section 27 of the Atomic Energy Act, 1962, with modifications made in April 2000 to "exclude all BARC facilities from (its) oversight, (following) the declaration of BARC as a nuclear weapons laboratory".

The AERB has had the dishonourable reputation of being subservient to India's exclusively public sector operators, which it is required to monitor, and is also acknowledged as suffering from an acute lack of independence from industry and government. As things stand, the AERB is responsible for monitoring the safety of the various nuclear facilities operated by agencies such as, the Nuclear Power Corporation of India Limited (NPCIL) and the Uranium Corporation of India Limited (UCIL), which fall under the purview of the Department of Atomic Energy (DAE). However, the Board is required to report to the Atomic Energy Commission (AEC), whose chairman is the Secretary of the DAE and one of whose members is the Chair of the NPCIL, and which overall, comes under the direct control of the Prime Minister of India. Thus, the regulatory board reports to the very agency it is required to assess and monitor in the interest of public safety. Moreover, the AERB frequently draws upon the 'expertise' of scientists and engineers provided by the DAE – "almost 95% of the members in AERB's review and advisory committees are drawn from among retired employees of the DAE, either from one of their research institutes like the Bhabha Atomic Research Center or a power generation company like the Nuclear Power Corporation of India Ltd." –  thus, calling into question the AERB's functional autonomy.

Dr A Gopalakrishnan, the former Chairman of the AERB has been at pains to explain how the present institutional setup makes nuclear safety regulation in India a 'mere sham' and that for the AERB to function effectively, the DAE's hold on the Board needs to be urgently done away with. In 1995, during Dr Gopalakrishnan's tenure as the nuclear regulator, the AERB had prepared a comprehensive 'Document on Safety Issues in DAE Installations' – a report detailing nearly 130 safety issues across India's nuclear installations with 95 of them having been designated 'top priority', to which the first reactions from the NPCIL and BARC according to Dr Gopalakrishnan, were of denial and questioning AERB's own technical expertise to review safety matters.

A 2012 Performance Audit Report on the AERB prepared by the Comptroller and Auditor General of India (CAG) and submitted to the Indian Parliament labelled the AERB a 'subordinate office, exercising delegated functions of Central government and not that of the regulator'. The Public Accounts Committee (PAC) scrutinizing the CAG report in 2013 castigated the Regulatory Board for failing to prepare a 'comprehensive nuclear radiation safety policy despite a specific mandate in its constitution order of 1983'. The International Atomic Energy Agency's (IAEA) Peer Review of India's Nuclear Regulatory Framework in 2015 was also categorical in asserting that the AERB was in need of being separated from 'other entities having responsibilities or interests that could unduly influence its decision making'.

As has been pointed out by MV Ramana, physicist and author of The Power of Promise, there have been accidents of 'varying severity' at several of the nuclear facilities being operated by the DAE, yet the regulatory board has frequently been seen downplaying the seriousness of such incidents, "postponing essential repairs to suit the DAE's time schedules, and allowing continued operation of installations when public safety considerations would warrant their immediate shutdown and repair". The charade of the AERB's professed independence is further underscored by its conspicuous silence on the recent cybersecurity breach at the Koodankulam Nuclear Power Plant in Tirunelveli District in Tamil Nadu in October 2019.

It is these glaring frailties of the nuclear regulatory framework coupled with the obdurate insistence of the Central government to massively expand its activities along the entire nuclear fuel cycle, despite unsettled safety concerns, a long-standing and vociferous people's resistance against uranium mining and nuclear energy projects, and concerns surrounding the health, environmental, economic, and democratic costs of this expansion, that make imperative, the need for a fiercely independent and non-partisan nuclear regulator.

Does the proposed NSRA fit the bill?

The NSRA Bill, 2011 upon its introduction, had failed to invoke any enthusiasm among independent experts, nuclear sector watchers, and civil society actors, and instead, was met with grim scepticism given that among other things, it made light of the principle of 'separation' as required under Article 8 of the IAEA Convention on Nuclear Safety to which India is a State Party.

The NSRA Bill provides for the establishment of a 'Council of Nuclear Safety', headed by the Prime Minister and comprised of five or more Union Ministers, the Cabinet Secretary, Chairman of the AEC, and other 'eminent experts' nominated by the Central government, which in turn, will constitute 'search committees' to select the Chair and Members of the proposed Regulatory Authority. Moreover, under Article 14 of the Bill, the Chairperson and Members of the NSRA can be removed by an order of the Central government.

Dr Gopalakrishnan argues that the Bill makes only an ornamental show of granting independence to the NSRA by requiring the Authority to report to the Parliament instead of a government department, ministry or official. Concomitantly, however, the Bill also unambiguously provides for the supersession of and the assumption of 'all the powers, functions and duties' of the Authority by the Central Government, if in its 'opinion' the Authority fails to function in concert with the provisions of the proposed Act, and, requires the Authority to seek approval of the central government prior to initiating any interaction with nuclear regulators of other countries and/or international organizations 'engaged in activities relevant to…nuclear/radiation safety, physical security of nuclear material and facilities, transportation of nuclear and radioactive materials and nuclear and radiation safety and regulation'.

Article 20 (q) of the Bill mandates the NSRA to 'discharge its functions and powers in a manner consistent with the international obligations of India'. This provision, argues Dr Gopalakrishnan is deeply worrisome for it "could mean, that if the Prime Minister has promised the French President in 2008 that India would buy six European Pressurised Reactors (EPRs)…(this) unilateral and personal commitment…will now (be) labelled 'India's international obligation', and the NSRA cannot question, even on strong safety grounds, the setting up of those six EPR units, since that will violate the said clause of the Bill" – this might prove disastrous for both, public and environmental safety in the long term.

Experts argue that far from separating the regulator from the government, these provisions contained in the NSRA Bill will only mean absolute government control over nuclear regulation, including over appointment and dismissal procedures, thus, opening the way for 'pliant technocrats' to occupy prominent positions within the Authority.

The proposed Bill is also fuzzy on the question of which nuclear facilities will fall under the purview of the NSRA – it empowers, for instance, the central government to exempt "any nuclear material, radioactive material, facilities, premises and activities" from the jurisdiction of the Authority, on grounds of 'national defence and security'. Another evident and widely-criticised flaw in the Bill has been the attempt to seek amendments to Section 8(1) of the Right to Information Act (RTI Act), 2005 to introduce exemptions for 'sensitive nuclear material, technologies, and facilities' and "an unspecified number of yet-to-be-established nuclear safety agencies" from the purview of the RTI Act. These and other provisions of the Bill are a stark reminder that the DAE has no love lost for transparency and public oversight – take, for instance, Article 45 which requires the Chairperson, Members, and other employees of the Authority to sign a 'declaration of fidelity and secrecy' "to not communicate or allow to be communicated to any person not legally entitled to any information relating to the affairs of the Authority". It is for these reasons that the former nuclear regulator, Dr Gopalakrishnan has described the proposed NSRA Bill as an exercise in 'boxing in' nuclear regulation "from all sides by government controls, diktats, and threats of retaliation", thus making it even more emaciated than the existing nuclear regulator – the AERB.

Says Kumar Sundaram, Editor of DiaNuke.org, "although the BJP has never been opposed to nuclear energy per se, when in opposition, it strongly argued for better regulation, more transparency and absolute liability. Given that nuclear safety remains a serious concern and that the Modi government is seeking to expand India's nuclear infrastructure, it is imperative that it uses its current Parliamentary majority to ensure that the NSRA, in a more effective and meaningful form than the one proposed by the previous government, is expedited, while taking on board the important concerns of various experts, citizens groups and independent environmental and medical bodies. Unlike other contentious Bills that the BJP has been relentlessly pushing on the back of its overwhelming majority, nuclear security is an agenda on which it will receive wider support."

The model of reckless governance that Modi has made a defining feature of his second tenure does not bode well for India's democracy and is not even sustainable for his remaining term. The only way that the Prime Minister can undo the breach of public trust unleashed by his government is to repeal the CAA, engage in an open, democratic and responsible dialogue and pursue bold legislations where they are really needed – nuclear safety along with women's reservation, environmental protection, public education and health care a few good places to begin.

[Sonali Huria is a PhD research scholar at Jamia Millia Islamia Central University and her doctoral research focuses on the people's movement in India against nuclear energy].