BJP Disowning Vajpayee’s Nuclear Legacy

Since it lost national elections in 2004, the Bharatiya Janata Party (BJP) has been committing one political hara-kiri after another. It makes more news for its intra-fighting and faction-ridden politics than for its clarity of purposes, goals and visions. The party has now a new president who initially had raised some hopes among its supporters and sympathisers. But now he seems to have been a prisoner of the old guards, who, despite being instrumental in bringing party to the power in late 1990s, appear hell-bent on destroying it before their eventual retirement.

            If the BJP ruled India over six years, it was precisely due to the impression it created among the country’s youth, middle class, and nationalistic Indians that it was committed to be a party with a difference. The BJP was supposed to provide alternatives to the narrow, partisan and populist views. But these days, the BJP supports or opposes issues purely as opportunistically as anyone else. It does not provide any alternate visions. Its attitude on caste-based reservations in jobs and education, women reservations in legislatures, restructuring of states and economic reforms hardly inspire any confidence. On all these issues its leaders look as pedestrian and pathetic as others.

            Take for instance, its recent policies on Indian nuclear policy. Traditionally speaking, the BJP has been a great votary of nuclear power, both in its civilian and military dimensions. In fact, it made history when in 1998, Prime Minister Atal Behari Vajpayee, the BJP’s tallest leader so far, declared India as a nuclear weapon power through Pokhran II nuclear explosions. And it is the same Vajpayee government which not only succeeded in damage-controlling the subsequent international uproar but also in preparing grounds for the path-braking civilian nuclear deal with the United States.

            History will say at a later date how much damage the BJP caused to its own fortune when following the party’s defeat in the 2004 polls and the deterioration of Vajpayee’s health (resulting in his virtual sanyas from active politics), the party virtually disowned its own achievements in the nuclear field. It alienated considerably its strong middle class and nationalistic supporters when it mindlessly opposed the Manmohan Singh government on the Indo-US civilian nuclear deal, despite Singh openly saying that he was just taking the process started by Vajpayee to the logical conclusion.

            The BJP does not seem to have learnt any lesson form its second consecutive electoral loss in 2009 elections. Now it is opposing, again mindlessly, the proposed Civil Liability for Nuclear Damage Bill, without suggesting any alternative. The fact remains that since India is not self-sufficient in nuclear fuel, it has to import them from outside. The Indo-US nuclear deal has cleared many international obstacles for import of enriched uranium, the nuclear fuel, and the related technologies. In that sense, the Indo-US nuclear deal opened the door for the subsequent similar deals with countries such as France and Russia. India may now have many more such agreements, now that there are no legal restrictions from the group of nuclear supplier countries.

            However, the point is that it is a virtual necessity to have a nuclear liability provision, in the absence of which no country will provide fuel and technology to any Indian Nuclear Power Plant (NPP). No nuclear exporting country or farm undertakes the responsibility of safety, operations and maintenance of the NPP it has sold fuel and technology to. There has to be a national law or bilateral arrangement or international liability regime (such as Vienna-based Convention on Supplementary Compensation (CSC) for Nuclear Damage or Paris Convention on Third Party Nuclear Liability in the Field of Nuclear Energy) for the exporter and importer to manage the liability in case any nuclear accident takes place.

            Of the 30 countries that operate

436 NPPs, 28 countries, with 416 NPPs, have some sort of nuclear liability act in force in their territory. Only India, which operates 18 NPPs and Pakistan, which has two NPPS, are neither members of any international convention nor have any national legislation. But then, India, unlike Pakistan, has a big plan for augmenting nuclear energy. Now, by opposing the proposed Bill, is the BJP questioning the very need of India building a nuclear industry?

            It may be noted that in 1999, soon after the second Pokhran test, the Vajpayee government initiated the process of India joining the CSC for Nuclear Damage, which is the international regime for compensation payment in case of nuclear accidents. Simultaneously, the Vajpayee government set up a committee to study the nuclear liability regime. The two-member committee comprising Prof Coutinho of Government Law College, Bangalore, and Prof Rajagopal of National Institute of Advanced Law Studies, Bangalore produced a report in November 2001, which said that the Atomic Energy Act was silent about liability and compensation in case of nuclear accidents and that it was time to have a legal mechanism to clarify liabilities in case of nuclear accidents and join the international treaty regime for nuclear liability.

            Viewed thus, the proposed liability Bill is a legacy of the Vajpayee government, which the BJP seems to disown now. Of course, it could be argued that the Bill contains features that are not desirable. If that is the case, the BJP, as the responsible and the principal opposition party, should suggest alternative features rather than reject the Bill as such.

            Going by Atomic Energy Minister Prithviraj Chavan, in the proposed Bill, the operator of the NPP will be liable for all accidents, including those that occur during the transport of the material. Of course, force majeure occurrences such as armed conflicts, natural calamities, terrorist attacks, etc, are excluded. The Bill envisages a maximum national liability equivalent to Rs 2,133 crore and an operator cap of Rs 500 crore. The government can increase or decrease the liability, but there is still a cap of Rs 100 crore.

            The main criticisms against the proposed Bill are two in number. First, the liability limit is very low. Second, the Bill favours the suppliers in general and the American suppliers in particular.

            As regards the limit, the government has said that the amount could be raised. The point to note here is that in India all NPPs are owned by the government. So there is no private motive in limiting the liability in cases of a nuclear accident, which, in any case, is a rarest of rare possibility. Therefore, comparing the situation with the Bhopal-gas tragedy is irrelevant since the Union Carbide, owner of the Bhopal plant, was a foreign body (American organisation), whereas here the government of India owns the NPP. And the government always can go beyond the written liability amount by either meeting the excess amount from its own exchequer or from international sources such as the CSC.

            It does not make sense to have a high liability amount on paper since doing so would result in high insurance coverage of the concerned NPP. And once an NPP gives a high insurance premium, that will be ultimately reflected in the rate of the nuclear energy it will provide to the consumers.

            As regards the second criticism, it is wrong to say that only the Americans are demanding a liability law. France and Russia, or for that matter any other potential supplier, also want such a law, something Chavan has admitted.

            In fact, it would be naive to believe that in case of any untoward incident in an Indian NPP, French and Russian companies will agree to pay any amount India asks as damage. Their governments will surely step in and ask for an agreement in line with international practice, which almost universally shields suppliers from liabilities. In the absence of any liability law, they will be surly demanding separate bilateral agreements to take care of such a situation. But then, rather than go for bilateral treaty arrangements which may be uneven and contain clauses hidden from the public, it is better to have a transparent but uniform law applying to all the suppliers. And that is what the proposed Bill aims at.

            As is the case with similar legislations elsewhere, the proposed bill has also a feature that gives the operator a right of recourse, that is, scope, for recovering its liability from the supplier under certain circumstances.

            It is time the BJP reconsidered its opposition to the Bill.

By Prakash Nanda