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Indian Nuclear Law – Conformity with the Constitutional and International Law

Nuclear

The Constitution of India was formed by analyzing many laws followed in different parts of the globe. Similarly, in the case of the Indian Nuclear Law, we can see the influence of international law as they are derived from the customary practices of international law.  The international atomic energy agency has many rules that are even followed in India with regards to safety matters. Nuclear Law in India is also inspired by international law, that is, India also has certain customary principles.

Introduction

In matters related to the safety and liability of nuclear weapons and other nuclear items, there are several treaties and legal instruments that fight against nuclear weapons and bring sustainability to this world. The international environmental law focuses on the nuclear activities and the sustainability of the nation with respect to creating nuclear weapons and safety. The customary principles bind the states with formal obligations to focus on outcomes that are not harmful and gives responsibility to the state to reduce pollution and focus on the effective precautionary principles.

These principles mainly focus on the procedure, i.e., it has the duty to notify, negotiate and consult people in decision making. Along with the substantive and procedural principle, it also focuses on subsidiary principles of customary law, i.e., the principle of prevention, the principle of precaution, the principle of protection, and addressing the threats like pollution. The constitution is considered as the supreme power and law. It enhances the fundamental rights of people and protects the interests of the people. The constitution is bound to protect the people from any threat including the nuclear threat.

Constitutional Provisions

The Constitution of India encompasses several articles that deal with International Law –

  • Article 51 – This article promotes International Peace and Security. It maintains the relationships and fosters respect for other nations, i.e., international law and treaty obligations. The most common mode of settlement in case of dispute is arbitration.
  • Article 53 – This article states that the union has the Executive Power exercised by President directly or through his subordinate officers.
  • Article 73 – The executive power of union gives parliament the right to exercise powers in decision-making according to Constitution.
  • Article 253 – According to this article, the Parliament has the power to make law for the entire country or any territory of India in matters of agreements or treaties at International Conferences, Associations or other bodies. Unless the parliament passes it, the treaty cannot become law of the land. The power of the executive remains unfettered until parliament makes a law regarding it.
  • Article 372 – This article sustains pre-constitution laws in force until it is amended, repealed or altered. If the law is unconstitutional, it is considered void.
  • Article 246 – This article provides power distribution between state and centre.
  • Article 249 – Empowers Union to legislate in the State list due to national interest.
  • Article 252 – Parliament has the power to make legislation for the state on behalf of the state concerned by consent.

As to safeguard and sustain earth from getting exploited as the activities impact world as a whole; there are a number of acts implemented. These acts include The Atomic Energy Act, Civil Liability for Nuclear Damage Act, Radiation Protection Rules, and many more.

International Law Perspective

Nuclear Law

For nuclear safety and precautions, IAEA has laid down principles for all its member states. These include:

  • Safety Principle
    emphasize standards of safety and minimizing exposure to radiation. The two subsidiary principles under this principle are –
    • Prevention and Protection Principle – This principle is laid down to protect people through the method of prevention by increasing the standards of safety for radiation protection and handling the radioactive materials, waste disposal, and installations.
    • Precautionary Principle – This principle emphasizes precaution to avoid harm and the main priority is to protect the public and environmental health.
  • Permission Principle
    While performing any nuclear activity prior permission is required and to get the permission one should actually prove that there is no serious threat or injury to persons or the environment while doing these activities.
  • Security Principle
    This principle suggests the legal inclusion of provisions related to accidental and intentional radiation that is considered a threat to human life and property of the people. These legal provisions are precautions against the illegal accusations of nuclear materials.
  • Continuous Control Principle
    While performing nuclear activities, there should be continuous monitoring and safety advice providers for reviewing the safety practices for the installation and base disposal site and provide reassurance with safety inspection.
  • Sustainable Development Principle
    As there is a possibility of facing major problems during the nuclear activity due to some fossils being highly radioactive, it can lead to environmental and safety risks for a very long period.
  • Responsibility Principle
    The principle on non-discrimination and equal access to nuclear resources also has its own risk as to who takes the responsibility for the after effect. This principle facilitates trans boundary proceedings.
  • Compliance Principle
    While conducting a nuclear energy activity there is a risk of contamination by radioactive particles over national boundaries. The international legal regime should provide as to what extent a particular state has power.
  • Compensation Principle
    While conducting nuclear activities there is a higher risk of loss. To be more careful the state should create a common scheme for loss distribution and focusing liability of the said activity. It should also give compensation in these schemes.
  • Transparency Principle
    To enhance the public understanding and build confidence in technology in the public, the media, and the legislatures should provide possible information regarding the risks and benefits of using nuclear technology.
  • Independence Principle
    The authority on nuclear law is not supposed to be interfered with by the other branches of the state and entities involved in the development of promotion of nuclear energy.

Conclusion

Nuclear energy is an area that is growing rapidly and over the decade, the world is facing growing concerns about global warming. The Indian Nuclear Law needs to evolve with time at the same pace as nuclear development. Even though our constitution has implemented many statutes and various laws of international law, it still is not competent. It must also include definitions of terms that are associated with the aspects of nuclear export-import controls and activities and should not allow illicit trafficking or any malpractices in this arena. The laws must be enforced with a clear procedural framework.


Editor’s Note
India’s Nuclear Laws are highly borrowed from the international law regime on the subject. The author has scrutinized these international obligations and principles and analyzed how our constitution also supports their adoption. The author rightly points out that as the development of nuclear sciences evolves rapidly so should the laws on the subject to encompass all the possibilities. The author concludes by stating the need for more comprehensive legislation with unambiguous substantive and procedural aspects.

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