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TEAM CODE:

BEFORE THE HON’ BLE SUPREME COURT OF INDIVA

Civil original Jurisdiction

Petition (Civil) No. Of 2023

IN THE MATTERS OF

LSCNLS … APPELLANT

… Vs…

UNION OF INDIVA … RESPONDENT

ON SUBMISSION TO THE HON’ BLE SUPREME COURT OF INDIVA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIVA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVATIONS… … … … … … … … … … … … … … … … … … … … … … … … ..

TABLE OF AUTHORITIES… … … … … … … … … … … … … … … … … … … … … … … … ..

STATEMENT OF JURISDICTION… … … … … … … … … … … … … … … … … … … … … ..

SUMMARY OF FACTS… … … … … … … … … … … … … … … … … … … … … … … … … … ..

ISSUES RAISED… … … … … … … … … … … … … … … … … … … … … … … … … … … … ....

SUMMARY OF THE ARGUMENTS… … … … … … … … … … … … … … … … … … … … ..

PRAYER… … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … .

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LIST OF ABBREVATIONS

AIR : All India Report

Art. : Article

Hon’ ble : Honorable

PIL : Public Interest Litigation

SC : Supreme Court

SCC : Supreme Court Cases

SCR : Supreme Court Reports

v. : Versus

Ors. : Others

NPC : National Policy Commission

UAPA : Unlawful Activities Prevention Act

NGO : Non Government Organization

RTI : Response to Intervention

HC : High court

ICCPR : International Convenanton Civil and Political Rights

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INDEX OF AUTHORITIES

BOOKS REFERED:

Constitution of India - V.N.Shukla’ s Eastern Books Company, India thirteenth

edition: 2017

Indian surrogacy Bill 2020-

Unlawful Activities Prevention Act, 1967, 8th edition, 2018, Eastern Book

Company India.

Protection of Human Rights 1993 -

ENACTMENTS AND CONVENTIONS:

International Covenant on Civil and Political Rights, 1966.

WEBSITES REFERED:

www.advocatekhoj.com

www.vakilno1.com

www.indiakanoon.org

www.manupatra.com

www.legalservices.com

www.iccpr.org

CASELAWS CITED:

1. G.Sundarrajan V. Union of india

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2. M.P.Oil Extraction and Anr. V. State of M.P

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STATEMENT OF JURISDICTION

Respondent approach this Honb’ le court under article 21 of the constitution. Leave

has been accordingly granted. The petitioners humbly submit to the jurisdiction of this

Hon’ ble Supreme Court.

Article 14

Article 14 of constitution states that Equality before law.

The State shall not deny to any person equality before the law or the equal protection

of the laws within the territory of India Prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth.

The benefits of Article 14 is therefore, not limited to citizens. Every person whether

natural or artificial, whether he is a citizen of an alien, is entitled to the protection of

this article.

Article 21

Article 21 of the constitution says that "No person shall be deprived of his life or

personal liberty except according to procedure established by law". This right has

been held to be the heart of the Constitution, the most organic and progressive

provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “ life” or “ personal

liberty” by the “ State” as defined in Article 12. Violation of the right by private

individuals is not within the preview of Article 21.

Article 21 secures two rights:

1) Right to life, and

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2) Right to personal liberty.

SUMMARY OF FACTS

The Legal Services Clinic of the National Law School of Indiva is involved, inter

alia, in initiating and supporting social justice actions including public interest

litigation. Trysore in Kannataka is a beautiful city inhabited by over 50 lakh people,

endowed with luxurious vegetation and blessed by the Cauvery River which provides

drinking water to the people of not only the State but also to those in neighbouring

Thai Nadu. The main occupation of the people of Trysore is agriculture and industries

based on forest produce. In 1987, contrary to the advice of environmental experts, the

Central Government decided to set up a nuclear power station amidst the forests in

the vicinity of Trysore City. Several citizens’ organisations represented to the State

and Central Governments to give up the project but all of them proved futile.In 1987,

the State Government started acquiring land around the project site displacing large

number of Adivasis traditionally living in the area and disturbing wild life in the forests

around. The foreign power with whom the Central government entered into an

agreement for setting up the nuclear station sent part of the machinery and a large

number of technical personnel to attend the preliminary works. A student of the

National Law School ordinarily resident of Trysore city approached the LSCNLS for

taking whatever legal action possible to prevent the possible harm the project might

cause to the health of citizens, the environment to the city, the livelihood of the

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affected people and the cultural traditions of Trysore. On behalf of the student,

LSCNLS has now preferred this petition in this Supreme Court of Indiva under Article

32 of the Constitution seeking appropriate orders to protect the rights under Article 21

read with Article 48-A and 51-A(g).

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“ THE HON’ BLE SUPREME COURT OF DRUPADAM FOR THE SAKE OF

CONVENIENCE DECIDED TO HEAR ALL THE CASES ON THE SAME DAY WITH SOME

COMMON ISSUES.”

ISSUES RAISED

ISSUE-I

1. WHETHER UNDER ARTICLE 32 OF CONSITUTIONAL LAW IS VOILATED OR

NOT?

ISSUE-II

2. WHETHER THE ADIVASI TRADITIONALLY LIVING IN THE AREA AND

DISTURBING THE WILD LIFE IN THE FORESTS OR NOT?

ISSUE-III

3. WHETHER UNDER ARTICLE 32 SHALL NOT BE SUSPENDED EXCEPT AS

OTHERWISE PROVIDED FOR THE CON

STITUTION?

ISSUE-IV

4. WHETHER PETITION FILED BY LSCNLS STUDENT TO PROTECT THE RIGHTS

UNDER ARTICLE 21 IS MAINTAINABLE?

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WRITTEN ARGUMENT BY THE RESPONDENT COUNSEL

1. Respondent submits that appeals concerned with an issue of

considerable national and international importance, pertaining to the
setting up of a nuclear power plant in the South-Eastern tip of India, at
Kudankulam in the State of Tamil Nadu. The incidents occurred in Three
Miles Island Power Plant USA, Chernobyl, Ukraine, USSR, Fukoshima,
Japan, Union Carbide, Bhopal might be haunting the memory of the
people living in and around Kudankulam, leading to large-scale agitation
and emotional reaction to the setting up of the Nuclear Power Plant (NPP)
and its commissioning. The nature of potential adverse effect of ionizing
radiation, adds to fears and unrest which might not have even thought of
by Enrico Fermi a noble laureate in physics in 1938, who was responsible
for the setting up of the first Nuclear reactor in a Doubles quash Court at
Slagg Field, at the Chicago University, USA. Since then, it is history, India
has now 20 Nuclear Reactors, in place, and the world over about 439, but
people still react emotionally, for more reasons than one, when a new one
is being established.

2. People’ s concern was mooted, even in the Constituent

Assembly when it deliberated the issue before constituting India into a
Sovereign Democratic Republic and adopting and enacting the
Constitution of India.

3.The Constituent Assembly discussed the formal legal framework

to regulate atomic energy in the year 1948 and the legislation by the
name Atomic Energy Act, 1948 (29 of 1948) was enacted. That

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Act envisaged the constitution of an Atomic Energy Commission (AEC)

and a Department of Atomic Energy (DAE) and both were established in
the year 1954. The AEC is the apex body of the Central Government for
atomic energy that provides direction on policies related to atomic energy.
It consists of eminent scientists and technocrats, secretaries to different
ministries, senior officials from the office of the Prime Minister. The AEC
has to report to the Prime Minister of India on various policies related to
atomic energy. DAE deals with the development and implementation of
nuclear power and related nuclear fuel cycle activities and research and
development activities carried out in various units under it. Baba Atomic
Research Centre (BARC), formerly AEE, was also established in the year
1954 and research reactors namely Apsara, Cirus and Dhruva were set up
in the year 1956, 1960 and 1985 respectively. The control and
development of atomic energy in the country and matters connected
therewith were then regulated by Act 29 of 1948.

4. Parliament having taken note of the developments in the field of

atomic energy and with a view to implement the future programme of
expansion in the field, thought it necessary to have a comprehensive
legislation dealing with Atomic Energy, consequently, Act 29 of 1948 was
repealed and the Atomic Energy Act, 1962 (33 of 1962) (in short the Act)
was enacted which came into force on 29.01.1962. The Act has been
enacted to provide for the development, control and use of atomic energy
for the welfare of the people of India and for other peaceful purposes. The
Central Government, in exercise of the powers conferred under Section
27 of the Act, constituted the Atomic Energy Regulatory Board (AERB)
vide notification dated 15.11.1983 to carry out certain regulatory and
safety functions envisaged under Sections 16, 17 and 23 of the Act. The
AERB have powers to lay down safety standards and frame rules and
regulations in regard to the regulatory and safety requirements envisaged
under the Act and have to report to AEC. The Act underwent amendment
vide amending Acts 59 and 29 in the years 1986 and 1987 respectively.
However, the major amendment was of the year 1987, vide Amending
Act 29 of 1987, by which the Central Government was empowered to
produce and supply electricity from atomic energy. For achieving the
envisaged target of nuclear power generation, a nuclear power

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corporation or a Government company was also decided to be set up

which would design, construct and operate nuclear power stations in India.
Following that, a separate public sector company, namely, the Nuclear
Power Corporation of India (NPCIL) with a view to design, build and
operate nuclear reactors in the country was created in September 1987.
NPCIL is a wholly owned by the Government of India undertaking which
functions under the administrative control of DAE.

NATIONAL POLICY:

5. The Parliament in unequivocal terms has pronounced its national policy

through the Act, that is to develop, control and use of atomic energy for
the welfare of the people of India. The Central Government has also been
entrusted with the power to provide for the control over radioactive
substances or radiation generating plant and to provide for the production
and supply of electricity from atomic energy etc. Central Government have
also got the power to require any substance which contains uranium,
plutonium or any of their isotopes and extract from that any substance
which is essential to the atomic energy programme. The Act, though,
provides the basic regulatory framework for the regulation of nuclear
related activity, we have other related laws which have to be applied and
read in tandem like the Factories Act, 1948, the Indian Electricity Act, 2003,
the Environment (Protection) Act, 1986, the Water (Prevention
and Control of Pollution) Act, 1974, the Air (Prevention and Control
Regulation) Act, 1981, the Water (Prevention and Control of Pollution)
Cess Act, 1977, the Indian Explosives Act, 1884, the Disaster Management
Act, 2005, the Atomic Energy (Radiation Protection) Rules, 2004, the
Industrial Radiography (Radiation Surveillance) Procedure, 1980, the
Atomic Energy (Factories) Rules, 1996, the Atomic Energy (Working of
Mines, Minerals and Handling of Prescribed Substances) Rules 1984, the
Atomic Energy (Safe Disposal of Radioactive Waste) Rules, 1987, the
Radiation Surveillance Procedure for Medical Application of Radiation,
1989 and the Atomic Energy (Control and Irradiation of Food) Rules, 1996
and so on.

6. The Central Government, as per the Act, is legally obliged to develop a

sound and adequate national policy in regard to atomic power and to

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coordinate such policy with the Central Electricity Authority (CEA) and the
State Electricity Boards (SEBs) constituted under the Act for the
generation of electricity in pursuance of such policy and to operate
atomic power stations in the manner determined by it in consultation with
the Boards or Corporations concerned. Section 22, which deals with the
provisions for the generation of electricity, reads as follows:

“ 22. Special provision as to electricity.-

1) Notwithstanding anything contained in the Electricity (Supply) Act,

1948 (54 of 1948 ), the Central Government shall have authority—

(a) to develop a sound and adequate national policy in regard to atomic

power, to co- ordinate such policy with the Central Electricity Authority and
the State Electricity Boards constituted under sections
3 and 5 respectively of that Act and other similar statutory corporations
concerned with the control and utilisation of other power resources, to
implement schemes for the generation of 1[ either by itself or through any
authority or corporation established by it or a Government company,]
electricity in pursuance of such policy and to operate atomic power
stations in the manner determined by it in consultation with the Boards or
Corporations concerned, with whom it shall enter into agreement
regarding the supply of electricity so produced;

(b) to fix rates for and regulate the supply of electricity from atomic
power stations 2[ , either by itself or through any authority or corporation
established by it or a Government company, in consultation with] the
Central Electricity Authority;

(c) to enter into arrangements with the Electricity Board of the State in
which an atomic power station is situated, 1[ either by itself or through
any authority or corporation established by it or a Government company]
for the transmission of electricity to any other State: Provided that in case
there is difference of opinion between the Central Government 1[ or such
authority or corporation or Government company, as the case may be] and
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any State Electricity Board in regard to the construction of necessary

transmission lines, the matter shall be referred to the Central Electricity
Authority whose decision shall be binding on the parties concerned.

2) No provision of the Indian Electricity Act, 1910 (9 of 1910 ), or any rule

made thereunder or of any instrument having effect by virtue of such law
or rule shall have any effect so far as it is inconsistent with any of the
provisions of this Act.

(3) Save as otherwise provided in this Act, the provisions of this Act shall
be in addition to, and not in derogation of the Indian Electricity Act, 1910
(9 of 1910 ), and the Electricity (Supply) Act, 1948 (45 of 1948 ).”

7. As a sequel to that national policy, the Central Government, with the

active cooperation of AEC, BARC, NPCIL, AERB etc., have already set up
about twenty operating power reactors in the country with installed
nuclear capacity of 4780 MWe, which have been commissioned over the
last four decades from the year 1969 to 2011. Seven more units with a
capacity of 5300 MWe are under construction (commissioning). The
latest one to be commissioned is at Kudankulam in the State of Tamil
Nadu. The first nuclear power plant (NPP) in the country Tarapur Atomic
Power Station (TAPS) units 1 and 2, based on boiling water reactors
(BWR), was supplied by General Electric USA and became operational in
the year 1969. The Rajasthan Atomic Power Stations (RAPS) 1 and 2 with
two 200 MWe were established in 1970s at Rawatbhata in Rajasthan with
the technical cooperation of AECL (Canada). Later, in 1980s two 220
MWe Pressurized Heavy Water Reactors (PHWRs) Madras Atomic Power
Station – 1 and 2 were constructed at Kalpakkam in Tamil Nadu. Later,
India developed a standardized design of 220 MWe PHWRs. Four reactors
of that standardized design were built, two each at Narora in Uttar
Pradesh (Narora Atomic Power Station – 1 and 2) and Kakrapar in
Gujarat (Kakrapar Atomic Power Project – 1 and 2). Those plants
became operational in 1990s. Later eight more units of standardized 220
MWe PHWRs were built, four each at Kaiga in Karnataka (Kaiga
Generating Stations units 1-4) and Rawatbhata in Rajasthan (RAPS Units 3-
6). India in 1990s undertook the design and development of 540 MWe
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PHWR. Two reactors based on that design became operational in 2005-

06 at Tarapur. India has also developed 700 MWe design with limited
boiling in the coolant channels. The construction of four such units was
almost completed at Kakrapar and Rawatbhata sites. Currently, 500 MWe
Prototype Fast Breeder Reactor (PFBR) is under construction at
Kalpakkam. PFBR is built with the design and technology developed at
Indira Gandhi Centre for Atomic Research (IGCAR). Over and above, India
has now set up two PHWRs of VVER based NPPs (2 X 1000 MWe) at
Kudankulam in Tamil Nadu with the co-operation of Russian Federation
which is the subject matter of this litigation.

8. India draws bulk of its electricity, above 64%, from thermal sources,
especially coal. Hydro power comes second of 18% and then renewable
sources provide small share at about 15%. We are informed that, at
present, the share of nuclear energy is hardly three per cent of India’ s
total electricity production, while France accounts for 74.6% as on 2008.
NPPs provide about 6% of the world’ s energy and 13-14% of the world’
s electricity with U.S., France and Japan together accounting for about
50% of nuclear generated electricity. U.S.A. has 104 nuclear reactors and
more than 100,000 MWe of electricity is produced by nuclear generation.
International Atomic Energy Agency (IAEA) has reported that in the year
2007, there were 439 Nuclear Power Reactors in operation in the world
operating in thirty one countries. The DAE, it is reported, plans to increase
its nuclear energy production to 20000 MWe by 2020 and 63,000 by 2030.
The Policy makers consider that the nuclear energy remains as an
important element in India’ s energy mix for sustaining economic growth
of natural and domestic use. One of the reasons for preferring nuclear
energy as an alternative source of energy is that it is a clean, safe, reliable
and competitive energy source which can replace a significant part of the
fossil fuels like coal, oil, gas etc. Oil and natural gas resources might
exhaust themselves. Coal is also not an effective substitution since
forests are also no longer able to satisfy the energy requirements. Major
source of electricity generation, about 66%, is still contributed by fossil
thermal powers, like coal. To put into practice the national policy, India
has already entered into various collaborations with most of the

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developed countries which have proved expertise and experience in the

field of establishment and production of nuclear energy.

9. Economic growth and energy support have to go hand in hand, for the
country’ s development for which India has entered into various
collaboration agreements with U.S.A., Canada, Russia etc. and several
NPPs have already been set up in the country. Government of India, in
implementation of its national policy, had made a joint statement with U.S.
A., called Indo-U.S. Joint Statement 2005, for a renewed global civil
nuclear energy co-operation. A co-operation agreement called 2007 Co-
operation Agreement was also entered into between India and U.S.A. for
the peaceful uses of nuclear energy. This was later followed by the Indo-
France Joint Statement in September, 2008. A Joint Statement was made
in February 2010 with United Kingdom. Above facts would indicate that in
order to give effect to the National Policy for development, control and
use of atomic energy, India has entered into various bilateral treaties and
arrangements with countries which have considerable expertise and
experience. For establishing the NPP at Kudankulam, India had entered
into an inter-governmental agreement with the erstwhile USSR in
November 1988 followed by a supplementary agreement on 21.06.1998
signed by India and Russia which is in tune with India’ s National Policy.

10. India’ s National Policy has been clearly and unequivocally expressed
by the legislature in the Atomic Energy Act. National and International
policy of the country is to develop control and use of atomic energy for
the welfare of the people and for other peaceful purposes. NPP has been
set up at Kudankulam as part of the national policy which is discernible
from the Preamble of the Act and the provisions contained therein. It is
not for Courts to determine whether a particular policy or a particular
decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not
the province of a court to scan the wisdom or reasonableness of the
policy behind the Statute. Lord Macnaughten in Vacher & Sons v. London
Society of Compositors, (1913)AC107(118)HL has stated:

“ Some people think the policy of the Act unwise and even dangerous to
the community… … But a Judicial tribunal has nothing to do with the policy

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of any Act which it may be called upon to interpret. That may be a matter
for private judgment. The duty of the Court, and its only duty is to expand
the language of the Act in accordance with the settled rules of
construction.”

11. In CCSU v. Min. (1984) 3 All ER 935 (954) HL, it was held that it is not
for the Courts to determine whether a particular policy or particular
decision taken in fulfillment of that policy are fair. They are concerned
only with the manner in which those decisions have been taken, if that
manner is unfair, the decision will be tainted with that Lord Diplock labels
as ‘ procedural impropriety’ .

12. This Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors.,
(1997 )7SCC 592 held that unless the policy framed is absolutely
capricious, unreasonable and arbitrary and based on mere ipse dixit of the
executive authority or is invalid in constitutional or statutory mandate,
court’ s interference is not called for. Reference may also be made in the
judgment of this Court in M/s. Ugar Sugar Works Ltd. v. Delhi
Administration & Ors., (2001) 3 SCC 635; Dhampur Sugar (Kashipur) Ltd. v.
State of Uttranchal and Ors. (2007) 8 SCC 418 and Delhi Bar Association
v. Union of India and Ors., (2008) 13 SCC 628. We are therefore firmly of
the opinion that we cannot sit in judgment over the decision taken by the
Government of India, NPCIL etc. for setting up of KKNPP at Kudankulam
in view of the Indo-Russia agreement. Courts also cannot stand in the way
of the Union of India honouring its Inter-Governmental Agreement entered
into between India and Russia.

13. We may, however, focus our attention on various other issues raised in
these appeals in the light of the provisions of the Atomic Energy Act,
Rules and Regulations framed thereunder, International conventions,
covenants entered into by India with other countries, AERB Code of
Practices and Safety Guides, Expert’ s opinion, Environmental and other
related laws. Part I of this judgment, we propose to deal with the safety
and security of NPP, International Conventions and Treaties, KKNPP
Project, NSF and its management and transportation, DGR, Civil Liabilities,
DMA, CSR and other related issues and in Part II, we mainly focus on the

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environmental issues, CRZ, Desalination Plant, Impact of Radiation on Eco-

system, Experts opinions etc. PART I

14. KKNPP has been set up by NPCIL based on the Indo-Russia Joint
Agreement under the guidance and supervision of AEC, BARC, AERB,
MoEF, TNPCB, Central and State Governments etc. ARGUMENTS – FOR
AND AGAINST

15. Shri Prashant Bhushan, learned counsel appearing for the appellant in
SLP Nos. 27335 of 2012, submitted that having seen the experience at
Three Mile Island (USA), Chernobyl in Russia and Fukushina in Japan etc.,
safety of the people and the environment are of paramount importance
and if the units are allowed to be commissioned before making sufficient
safeguards on the basis of the recommendations made by the Task Force
of NPCIL, it may lead to serious consequences which could not be
remedied. Learned counsel submitted unless the seventeen
recommendations made by the Task Force appointed by NPCIL are
implemented before commissioning the plant, serious consequences may
follow. Learned counsel submitted that AERB and NPCIL are legally
obliged to implement the recommendations and this Court sitting in this
jurisdiction is bound to safeguard the life and property of the people
residing in and near Kudakulam which is a fundamental right guaranteed
to them under Article 21 of the Constitution of India.

16. Mrs. Nagasaila, learned counsel appearing for the 8th respondent in
SLP (C) No. 27813 of 2012, also pointed out that sufficient safeguards
have not been taken for the safe disposal of the radioactive waste and no
site has so far been identified for the safe handling of radioactive waste,
failing which it may cause serious health hazard. Learned counsel also
pointed out that even, at the plant site, there is no proper facility for
storage of spent fuel and high level radioactive waste. Learned counsel
also pointed out that no adequate measures have been taken to
safeguard the life and property of the people in case of any potential
disaster, in accordance with the Disaster Management Plan.

17. Learned Attorney General appearing for AERB submitted that the plant
has been set up after following all the safety standards laid down by AERB.

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The design of KKNPP incorporates advance safety features complying

with current standards of redundancy, reliability, independence and
prevention of common cause failures in its safety system. Further, it was
also pointed out that the design takes care of Anticipated Operational
Occurrences (AOO), Design Basis Accidents (DBA) and Beyond Design
Basis Accidents (BDBA) like Station Black Out (SBO), Anticipated
Transients Without Scram (ATWS), Metal Water reaction etc. Further, it
was pointed out that the Board of AERB met on 23.3.2011 and took stock
of safety and NPPs in the light of Fukushima accident. AERB also
constituted a High Level Committee of Specialists to review and
recommend safety upgrades as required to handle extreme external
events of natural origin. Learned Attorney General also pointed out that
KKNPP design also has several Advanced Safety Features, including
those for ensuring safety against external events of natural origin and for
management of design basis as well as beyond design basis accidents.
Further, it was pointed out that, over and above, steps are being taken to
implement the 17 recommendations made by the Task Force of NPCIL
and that, amongst them, few recommendations have already been
implemented.

19. Shri Rohington Nariman, learned Solicitor General of India appearing

for NPCIL, submitted that KKNPP is a 3+Generation NPP and its design
incorporates advanced safety features complying with current standards
of redundancy, reliability, independence and prevention of common cause
failures in its safety systems. The design includes provisions for
withstanding external events like earthquake, tsunami/storm, tidal waves,
cyclones, shock waves, aircraft impact on main buildings and fire. KKNPP
also incorporates various additional safety features like Quick Boron
Injection System, Passive Heat Removal System, Second Stage Hydro
Accumulators, Passive Hydrogen Re-combiners, Annulus Passive Filtering
System (Passive System), Core Catcher etc. Details of further safety
measure adopted have already been elaborately stated in the counter-
affidavit filed by NPCIL on 26.9.2012. Learned Solicitor General submitted
that KKNPP is absolutely safe even without the 17 recommendations
made out of abundant caution by AERB. Learned Solicitor General

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submitted that the 17 recommendations of AERB would also be complied

with in a phased manner, out of which 7 have already been implemented.

20. Shri Mohan Parasaran, learned Additional Solicitor General of India,

appearing on behalf of respondent no. 1, while referring to the affidavit
filed by the Union of India, submitted with regard to the process – “ Re-
processing and Disposal of Spent Fuel” - that most of the spent fuel i.e.
97% is capable of being reused, the remaining 3% of the spent fuel
consists of various Fission Products (FPs) and Minor Actinides (MAs). All
MAs have varying half-lives/decay periods, the dominant amongst them
have half-lives of the order of 1 lakh 70 thousand years. Each NPP has a
water storage pool for storage of spent fuel, namely “ Spent Fuel Storage
Bay” (SFSB). Those pools are temporary storage facilities for recyclable
fuel and are essentially water filled concrete vaults with SS lining, having
the arrangement for storing spent fuel in racks. They are designed,
constructed and operated as per the AERB Guidelines and requirements. It
was also stated that AERB Safety Guide ‘ Design of fuel handling and
storage systems for pressurized heavy water reactors – AERB/SG/D-24”
deals with the safety in design of storage of spent fuel. Further, it was
also pointed out that the transportation of spent fuel is governed by the
Regulations specified by AERB in “ Safety Code for the transport of
radioactive materials – AERB/SC/TR-1’ and international requirements
given in IAEA Regulation for safe transport of radioactive material, 2005.
Learned Additional Solicitor General also submitted that the Department
of Atomic Energy is also aware of the importance of safety and security
and takes utmost care to ensure that the management and transport is
carried out safely, following the internationally recognized norms and
regulations and that the same is done under the supervision of AERB and
Government of India.

21. Government of India’ s decision to establish the NPP at Kudankulam,

as already stated, cannot be questioned before this Court being part of a
National Policy. Lot of scientific literatures, experts opinions etc. have
been produced before us to show its dangers, harm it may cause to
human health, environment, marine life and so on not only on the present
generation but on future generation as well. Further, it was also pointed
out that due to growing nuclear accidents and the resultant ecological
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and other dangers, many countries have started retreating from their
forward nuclear programmes.

22. We have already indicated that these issues are to be addressed to

policy makers, not to courts because the destiny of a nation is shaped by
the people’ s representatives and not by a handful of judges, unless there
is an attempt to tamper with the fundamental Constitutional principles or
basic structure of the Constitution.

23. We are however deeply concerned with the safety and security of the
people of this country, its environment, its flora and fauna, its marine life,
ecology, bio-diversity and so on which the policy makers cannot be on the
guise of national policy, mutilate or rob of, in such an event the courts can
unveil the mask and find out the truth for the safety, security and welfare
of the people and the mother earth.

Safeguards and Security

24. Safety and security of the people and the nation are of paramount
importance when a nuclear plant is being set up and it is vital to have in
place all safety standards in which public can have full confidence to
safeguard them against risks which they fear and to avoid serious long
term or irreversible environmental consequences. It is, therefore,
necessary to examine at some length the safety standards already in
place to allay the fears expressed at some quarters.

25. Let us first examine whether the project proponent has taken
adequate safety requirements in site and off site of the KKNPP and
followed the Code of Practices laid down by AERB and nationally and
internationally recognized safety methods. Before examining those issues,
we have to first examine the role of the AERB in the matter of setting up
of nuclear plant and what are the codes and safety guides laid down by
the AERB for maintaining high safety standards for setting up and for the
functioning of nuclear plants in the country.

AERB Safety Codes

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26. AERB, as already indicated, was constituted by the Central

Government in exercise of powers conferred under Section 27 of the Act
to carry out certain regulatory and safety functions envisaged
under Sections 16, 17 and 23 of the Act vide notification dated
15.11.1983. The functions to be discharged by the Board have also been
enumerated in the said notification which reads as follows:

i) Develop Safety Codes, Guides and Standards for siting, design,

construction, commissioning, operation, and decommissioning of the
different types of plants, keeping in view the international
recommendations and local requirements and develop safety policies in
both radiation and industrial safety areas.

ii) Ensure compliance by DAE and non-DAE installations of safety codes

and standards during construction commissioning stages

iii) Advise AEC/DAE on technical matters that may specifically be referred

to it in connection with the siting, design, construction, commissioning,
operation, and decommissioning of the plants under DAE.

iv) Review from the safety angle requests for

authorizing/commissioning/operation of DAE Projects/plants. Before
authorization of commissioning / operation of the plant / project is
granted, the AERB will be satisfied by appropriate review of:

a) Final design Analysis Report prepared by the project plant;

b) Commissioning reports and results thereof; and

c) Proposed operating procedures and operational limits and conditions;

that the plant/project can be operated without undue risk to the operating
personnel and the population. For this purpose, AERB may ask for relevant
additional supporting information.

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v) Review health and safety aspects of modifications in design/operation

involving changes in the technical specification adopted in any of the DAE
units.

vi) Review operational experience in the light of the radiological and other
safety criteria recommended by the International Commission on
Radiological Protection, International Atomic Energy Agency and such
other international bodies and adapted to suit Indian conditions, and I
thereby evolve major safety policies.

vii) Prescribe acceptable limits of radiation exposure to occupational

workers and members of the public and approve acceptable limits of
environmental release of radioactive substances. (In the DAE units, the
AERB shall also prescribe limits for environmental release of conventional
pollutants).

viii) Review the emergency preparedness plans prepared by the different

DAE units, similar plans for non-DAE installations and during transport of
large radioactive sources (eg. Irradiated fuel kilo/mega curie sources,
fissile materials).

ix) Promote research and development efforts for fulfilling the above
functions and responsibilities.

x) Review the training programme, qualifications and licensing policies for

personnel by the project/plants.

xi) Prescribe the syllabi for training of personnel in safety aspects at all
levels.

xii) Enforce rules and regulations promulgated under the Atomic Energy
Act, 1962 for radiation safety in the country and under the Factories Act,
1948 for industrial safety in the units under the control of DAE.

xiii) Maintain liaison with statutory bodies in the country as well as abroad
regarding safety matters.
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xiv) Take such steps as necessary to keep the public informed on major
issues of radiological safety significance.

xv) Perform such other functions as may be assigned to it by the Atomic

Energy Commission.

xvi) Send reports periodically to Chairman, AEC on safety status including

observance of safety regulations and standards and implementation of
the recommendations in all DAE and non DAE units. It will also submit an
Annual Report of its activities to Chairman, AEC.

27. The notification clearly states that the Board shall be assisted by the
DAE SRC and DRP BARC in the performance of its functions at (ii), (iv),

(v) and (xii) mentioned above. The AERB has also been entrusted with the
powers of the competent authority to enforce rules and regulations
framed under the Act for radiation safety in the country. The powers have
also been entrusted with the AERB to administer the provisions of
the Factories Act 1948, the industrial safety for the units of DAE as
per Section 23 of the Act. The AERB under its programme of developing
Codes and Safety Guides issued four Codes of practice covering the
following topics namely

(i) Safety in Nuclear Power Plant Siting; (ii) Safety in Nuclear Power Plant
Design; (iii) Safety in Nuclear Power Plant Operation; (iv) Quality
Assurance for Safety in Nuclear Power Plants. Those Codes are intended
to establish the objectives and to set the minimum requirements that have
been fulfilled to provide assurance that nuclear power plants will be sited,
designed, constructed and operated without undue risk to personnel,
public and environment. The Code of Practice for Nuclear Power Plant
Siting provides appropriate criteria and outlines the procedures to be
applied to assess the suitability of a site for the location of nuclear power
plant taking into account, the operational requirements and accidental
conditions. The same has to be prepared following the criteria laid down
by DAE for selection of site and the relevant IAEA documents under the
Nuclear Safety Standards (NUSS) programme specially the Code of
Practice for Nuclear Power Plant Siting and similar documents from
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various leading countries. The Code of Practice on Safety in Nuclear

Power Plant Siting was issued by the AERB on March 9, 1990. The Code
encompasses site-related characteristics, natural events and
man-induced events specific to the site which will have a bearing on the
safety of the plant and the radiological impact on the environment and
population due to the location of NPP at the site. The Code also lays down
appropriate criteria and outlines the procedures for assessing the
suitability of a site taking into account the operational requirements and
accident conditions. The Code also indicates the extent of site-related
information required to be obtained and also defines site-related design
bases. Certain man-induced events like war, acts of sabotage which can
cause large scale damage to the plant safety systems, however, are
beyond the scope of 1990 Code, in other words, the Code prescribes
minimum requirements in siting considerations for limiting the
radiological impact. The main aim is protection of man and his
environment. The Code outlined the requirements for limiting doses to
man.

28. The AERB in October 1999 issued guidance for the Preparation of Off-
Site Emergency Preparedness Plans for Nuclear Installations. This
document has been issued as a lead document to facilitate preparation of
specific site manuals by the responsible organization for emergency
response plans at each site to ensure their preparedness to meet any
eventuality due to site emergency in order to mitigate its consequences
on the health and safety of site personnel. The document also takes
cognizance of an earlier AERB publication on the subject: “ Safety
Manual on Off-Site Emergency Plan for Nuclear Installations” issued in
the year 1988. While drafting this document, reference has been also
made to the documents of the IAEA and also the statutory requirements
laid down in the Manufacture, Storage and Transport of Hazardous
Chemicals Rules, 1989 as well as the amendments incorporated therein
subsequently.

29. The purpose of these Safety Guidelines is to lay down the

requirements of the Regulatory Body for the operating organization and
state public authorities in preparing an emergency response plan for off-
site emergency for the nuclear installation. Radiological emergencies at
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the nuclear installations are mainly categorized as Plant emergency alert;

Plant emergency; Site emergency and Off-site emergency. The operating
organization is responsible for handling the first three categories of
emergencies, while the off-site emergencies involving radiation fallout in
the public domain is handled by the state public authorities with the
technical input and guidance from the operating organization and the
Regulatory Body. The main objectives of this Safety Guidelines are stated
hereunder:

i) To provide detailed guidelines for nuclear installations in the country on

the essential components of off-site emergency preparedness and
response plans at each installation taking into consideration any ongoing
construction activities at the off- site.

ii) To elaborate various aspects of the response plan such as:

Emergency Organisation, Emergency Equipment and Facilities needed

outside the nuclear installation in order to protect the site personnel from
risks of undue radiation exposure.

iii) To advise on other aspects such as: enforcement of off-site emergency

plans, conduct of periodic off-site emergency drills to ensure readiness of
the nuclear installation for handling off- site emergencies.

iv) To indicate guidelines on off-site related factors, which may influence

management of off-site emergencies.

v) To highlight the need for the operating organization/plant management

to establish and maintain communication lines between the site, the
headquarters of the operating organization, Regulatory Body and the state
public authorities for prompt and effective use in times of off-site
emergency.

The AERB has also issued the document “ Preparedness of the Operating
Organization for handling Emergencies” at Nuclear Power Plants in
March 2000. This document supplemented the Code of Practice on Safety

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in NPP Operation (AERB/SC/O). The purpose of this document is to

prescribe guidelines for the development of a state of preparedness for
response to emergencies at nuclear power plants. The main objectives of
this safety guide are given as follows:

a) To highlight to plant management the various categories of

emergencies that could rise at NPP;

b) To focus on the contents of the emergency manuals in respect of

resources and procedures to help respond adequately to emergency
situations;

c) To emphasize the responsibilities of plant management regarding

personnel, plant and site emergency and responsibilities of the State
Government in respect of off-site emergency and need for close liaison
between Plant Management and Public Authorities;

d) To bring out the importance of maintaining efficient and effective

communication links among Plant Management, Operating Organisation,
Responsible Organisation, Regulatory Body, State Authorities and the
Department of Atomic Energy Crisis Management Group (DAE-CMG); and

e) To develop the infrastructure including manpower and their training.

31. The AERB issued another safety code in August 2000 on “ Regulation
of Nuclear and Radiation Facilities” . This document has been issued to
spell out the minimum safety related requirements/obligations to meet by
a nuclear or radiation facility to qualify for the issue of regulatory consent
at every stage leading to eventual operation. The Code also elaborates on
the regulatory inspection and enforcement to be carried out by the
Regulatory Body on such facilities. This document has also been prepared
by the AERB from the information contained in the relevant documents
issued by IAEA under the NUSS programme especially the Code on
“ Governmental Organization for Regulation of Nuclear Power Plants”
(50-C- G).

The main objectives of the Code are to ensure that:-

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a) Only such practices are permitted which are justified in terms of their
societal and/or individual benefits,

b) Radiation protection is duly optimized in all nuclear/radiation facilities,

c) Radiation doses to the personnel in these facilities, and to the members

of the public in their vicinity, do not exceed the prescribed limits and

d) The potential for accidental exposures from the facilities remains

acceptably low.

32. The scope of the Code also covers the various facilities and activities
like mining and processing of radioactive ores and minerals;
uranium/thorium processing and fuel fabrication plants , heavy water
plants, research reactors, experimental reactors and critical assemblies,
nuclear power plants, fuel reprocessing plants, radioactive waste
management facilities, industrial facilities related to nuclear fuel cycle
activities, transport of radioactive materials, medical applications of
radiation, industrial and agricultural applications of radiation, research
applications of radiation, and all other practices involving the handling of
radioactive sources.

33. The AERB also issued another safety guide on October 2002 on
“ Design of Fuel Handling and Storage Systems for Pressurized Heavy
Water Reactors” . The Code of Practice on Design for Safety in
Pressurized Heavy Water Based Nuclear Power Plants (AERB/SC/D,1989)
lays down the minimum requirements for ensuring adequate safety in
plant design. The safety code issued in October 2002 is one of a series of
guides. The objective of this safety guide is to specify the minimum
requirements to be met in the design of fuel handling and storage system
in PHWR. It is intended to be used by the designer to ensure safety of
plant and personnel by providing adequate measures for prevention of
accidents and mitigation of adverse consequences, should an accident
occur, in other words, the scope of this guide includes the safety in design
of equipment for handling and storage of new fuel, spent fuel and other
irradiated core components, which are related to handling of fuel
including handling and storage of failed or damaged fuel bundles. The

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guide also addresses the safety aspects in fuel handling control and
instrumentation and auxiliary equipment related to the fuel handling
system. Design provisions to facilitate inspection and testing of fuel
handling and storage systems are also covered in that guide. The same
has been prepared following the safety standards laid down by IAEA. The
Code has been prepared by specialists in the field drawn from the AERB,
BARC, IGCAR and NPCIL.

34. Various codes and safety standards issued by the AERB, referred to
above, mainly deal with siting, design, construction, operation, quality
assurance, decommissioning etc. Safety codes and safety standards are
formulated on the basis of nationally and internationally accepted safety
criteria for design, construction and operation of specific equipment,
systems, structures and components of nuclear and radiation facilities.
Further, India has also entered into various bilateral treaties and is also a
party to various international conventions on nuclear safety, physical
protection of nuclear material, nuclear accident, radiological emergency
and so on. India, as already stated, is also governed by the safety and
security standards laid down by IAEA. A brief reference to those
conventions, treaties and IAEA may be apposite.

INTERNATIONAL CONVENTIONS, BILETERAL TREATIES ETC.:

35. India is not a signatory to the Nuclear Non-Proliferation Treaty (NPT).

India is, however, party to various international conventions, such as:

The Convention on the Physical Protection of Nuclear Material, which was

adopted on 26.10.1979 and was signed at Vienna and at New York on
3.3.1980. The Convention makes it legally binding for States parties to
protect nuclear facilities and material for peaceful domestic use, storage
as well transport. It also provides expanded cooperation between and
among States regarding rapid measures to locate and recover stolen or
smuggled nuclear material, mitigate any radiological consequences of
sabotage and prevent and combat related offences.

36. The Convention on Assistance in the Case of a Nuclear Accident or

Radiological Emergency was adopted by the General Conference at its

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special session 24-26.9.1986 and was opened for signature at Vienna on

26.9.1986 and at New York on 6.10.1986.

37. The Convention on Nuclear Safety was adopted on 17.6.1994 by a

Diplomatic Conference convened by IAEA at its Headquarters from 14-
17.6.1994. The Convention was opened for signature on 20.9.1994.

38. The Joint Convention on the Safety of Spent Fuel Management and on
the Safety of Radioactive Waste Management, the first legal instrument to
directly address these issues on a global scale, was opened for signature
on 29.9.1997 and entered into force on 18.6.2001.

39. The Convention on Early Notification of a Nuclear Accident

establishes a notification system for nuclear accidents which have the
potential for international trans-boundary release that could be of
radiological safety significance for another State. Date of adoption is 26.9.
1986.

40. India has also entered into various Bilateral Civil Nuclear Co-
operations. India has entered into a cooperation agreement with France
for the construction of ERR Power Plants (10,000 MWe) at Jethapur site in
Maharashtra, which also comprises of cooperation in the areas of
research, safety and security, waste management, education etc.,
followed by various other commercial contracts as well. India and Canada
have finalized the terms for their nuclear deal paving the way for Canadian
firms to export Uranium to India in the year 2010. Discussions are on for
safe nuclear cooperation as well with Canada.

41. India has also signed civil nuclear deal with Mongolia for supply of
uranium to India. MOUs on the Development of Co-operation on Peaceful
Uses of Radioactive Minerals and Nuclear Energy by senior officials of the
Department of Atomic Energy of both the countries. India has also entered
into agreements with Namibia including one on civil nuclear energy which
allows for supply of uranium from Namibia. India-Namibian Agreement for
Peaceful Uses of Nuclear Energy allows for supply of uranium for setting
up of nuclear reactors. India-Kazakhstan have also signed a pact on
nuclear co-operation in April 2011 and agreed to have collaboration in

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nuclear energy for peaceful purposes. Discussions are on to execute a

civil nuclear agreement with Argentina.

42. India-U.S. issued an Inter U.S. Joint Statement at Washington on

18.7.2005 which has located the final broad policy so as to actually
facilitate and also outline the broad contours of a legally binding
agreement. Some of the policy frameworks relate to preventing WMD
Proliferation, goals of prompting nuclear power and achieving nuclear
energy, expeditious consideration of fuel steps for safeguarded nuclear
reactors etc. Nuclear 2007 – an agreement for co-operation between
India and U.S. concerning peaceful uses of nuclear energy (2007
Co-operation Agreement) laid down certain binding obligations between
the two countries. Though, India is not a party to any of the Liability
Conventions, specifically, IAEA Vienna Convention on Civil Liability for
Nuclear Damage, India has enacted the Civil Liability for Nuclear Damage
Act, 2010 (Nuclear Liability Act) which aims to provide a civil liability for
nuclear damage and prompt compensation to the victims of a nuclear
accident through No- Fault Liability to the operators.

International Atomic Energy Agency (IAEA)

43. IAEA is an independent international organization situated in Vienna,

Austria is related to the United Nations system, its relationship with the
United Nations is regulated by special agreement. The IAEA reports
annually to the United Nations General Assembly and when appropriate, to
the Security Council regarding non-compliance by States with their
safeguards obligations as well as on matters relating to international
peace and security. The IAEA works with its member States and multiple
partners worldwide to promote safe, secure and peaceful nuclear
technologies. The IAEA has the responsibility to help member States to
put in place the necessary infrastructure needed to develop nuclear
energy safely, securely and peacefully and it works with member States to
coordinate research to design reactors that are economical, safe and
proliferation-resistant.

44. The IAEA’ s object is to maximize the contributions from nuclear

technologies to human well being while minimizing their risks. Few facts

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and trends highlighted in the report prepared by an independent

commission at the request of the IAEA in May 2008 highlights the ten key
facts and trends which frame the nuclear opportunities and challenges
the world now faces. The report highlights that to sustain rapid global
economic growth, it is necessary to double the supply of energy and
tripling supply of electricity by 2050. Further, it is stated billions of poor
people need energy and other life saving and job creating technologies.
The report also noticed that energy prices are increasing, a broader
reliance on nuclear energy whose prices are much less dependent on its
fuel costs conceivably could help to ameliorate those tensions and risks.
The report highlights that the world still dependent on burning coal, oil and
natural gas for 80% of its energy supply surging energy use causes
surging emissions of greenhouse gases disrupting the climate with
potentially catastrophic results. Nuclear energy, it is stated, is a readily
expandable source of low-carbon baseload electricity and in the future
might also help to meet other energy needs such as hydrogen production
and water desalination.

45. The IAEA’ s International Project on Innovative Nuclear Reactor and

Fuel Cycles (INPRO) brings many States together to consider approaches
to safer, cheaper, more secure and more proliferation-resistant nuclear
systems with effective management of nuclear waste. India is in
partnership with the IAEA and has incorporated many of its directives in
the code of practice framed by the AERB, hence there could be no
compromise on safety and security of the NPPs in the country. We have
elaborately discussed the Safety and Security Code of Practices laid down
by AERB, IAEA and its supports so as to allay the apprehension or fears
expressed from various quarters on the safety and security of KKNPP and
its effect on human life, property and environment and we notice that
adequate and effective protection measures are in place.

46. Parliament, as we have already indicated, is very much concerned with

the safety and security of its people and its environment. The Preamble of
the Act pronounces in an eloquent terms that it has been enacted for the
development, control and use of atomic energy for the “ welfare of the
people of India” . People’ s comfort, happiness, prosperity and the
economic growth of the nation is always the concern of their
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representatives in the Parliament. Safety and security of people in that

process have to be in the uppermost mind of the legislature. Keeping in
mind that concern, special provisions have been incorporated for the
safety and security. Reference has already been made to Section 17 of the
Act which casts an obligation on the Central Government to ensure proper
rules with regard to the safety, which we have already examined at length.
We have also examined both nationally as well as internationally accepted
guidelines for safety and security of the people of the Nation and notice
that those are being followed. In People’ s Union for Civil Liberties and
Another v. Union of India and Others, (2004) 2 SCC 476, the Court held
that the Atomic Energy Act deals with a sensitive subject. Statutory
scheme contained in the provisions of the Act, the Rules framed
thereunder, composition of the AEC and AERB leave no manner of doubt
that the effective functions of the nuclear power plants are sensitive in
nature. Various Codes of Practice, safety guidelines, extensively
discussed above and the decision taken in various international
conventions and the guidelines laid down by various international
agencies followed by India are meant to protect the life and property of
people including the environment, guaranteed under Article 21 of the
Constitution of India

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PRAYER

Therefore the respondent humbly prays that this Hon’ ble Court may be

pleased to pass order in favour of respondent and it could not violent any fundamental

rights and the petition is not maintainable and thus render justice.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT

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