Going Nuclear – Conformity of the Indian Nuclear Law with Constitutional Law and International Agreements
November 14, 2022
Although India is not a signatory to any of the Non-Proliferation treaties, it has declared that it would not deploy nuclear arms for the first time and is committed to the idea of non-proliferation. Nuclear energy legislation is largely based on the concepts of international customary law, which are inseparable from Indian law. India has complied with several of the International Atomic Energy Agency’s (hereinafter referred to as “IAEA”) requirements in terms of nuclear security and safety. The CSC, or the “customary principles”, such as rigorous responsibility, are heavily influenced by international law under Indian nuclear liability law.
However, public demonstrations against the construction of additional nuclear power facilities have jeopardized this goal. The nuclear power projects in Maharashtra, like the 9900 MW Jaitapur plant, and Tamil Nadu, like the 2000 MW Koodankulam plant, have witnessed unprecedented opposition. A 6000 MW facility in Haripur, West Bengal, has been denied approval due to safety reasons by the state government. For the Non-Proliferation Treaty’s signatories (hereinafter referred to as “NPT”), the availability of nuclear energy for peaceful purposes is a right and a duty that must be fulfilled. Nuclear exports, consisting of the reactors and fuel, are allowed under the Nuclear Suppliers Group Agreements as well, thanks to the IAEA’s stringent safeguards.
These pacts aim to prevent nuclear power from being channeled to weaponize projects for civilian use. Non-party India claims that the NPT is not aimed at ubiquitous and extensive non-proliferation, but rather at creating an exclusive group of nuclear possessors and a larger population that does not possess nuclear weapons by limiting the lawful possession of nuclear weapons to all those countries which tested them prior to 1967, which India is not a part of. Owing to geopolitical reasons, India has advocated for an action plan for a nuclear-free world and has further endorsed a voluntary ‘No First Use Policy’. There are essentially 4 layers of regulations in the Indian judicial system pertaining to atomic energy, as outlined by the IAEA.
Constitutional Provisions and Legislative Bodies
The “…exclusive power to make laws with respect to any of the matters…” associated with the “atomic energy and mineral resources necessary for its production” rests in the hands of the Parliament of India. The states have no authority or part to play in drafting the atomic energy laws. However, while the government can adopt and ratify international conventions and treaties, the Parliament is responsible for implementing those treaties, as stated in Article 253 of the Constitution of India.
Also, Article 51 of the Constitution states that India would strive to “foster respect for international law and treaty obligations”. Even after the adoption of the Indian Constitution in 1950, the country continues to operate under a system of common law, which was established during the British era and has been in place ever since.
Over and beyond the entries of List I of the 7th Schedule, Article 253 of the Indian Constitution was crucial in making clear that the Union Parliament may pass any law regardless of whether any items in the State List were attracted. As a result, the Constitution’s division of legislative authority between the Union and the States cannot obstruct the implementation of international law responsibilities through parliamentary legislation. Since the Parliament has passed no laws regarding treaty-making powers, the executive’s ability to make treaties will remain unrestrained. The Indian Atomic Energy Commission was established in 1948 by the Government of India as a result of its constitutional powers. Its diverse purposes included making decisions about atomic energy policy. With regard to atomic energy, a Presidential order established the Department of Atomic Energy, which is the nodal agency.
On November 15, 1983, the President of India established the Atomic Energy Regulatory Board in accordance with Section 27 of the Atomic Energy Act, 1962, to perform the regulatory and safety tasks under that Act. The Atomic Energy Act, of 1962, and the Environmental (Protection) Act, of 1986 provide AERB the jurisdiction to regulate nuclear power plants. Indian nuclear energy and ionizing radiation must not pose excessive harm to human health or the environment, according to the Board’s purpose. The Atomic Energy Regulatory Board now serves as India’s top nuclear energy regulating and oversight authority.
For the development, regulation, and utilization of atomic power for the benefit of the Indian people and for peaceful uses, the Atomic Energy Act was approved in both houses of the Indian Parliament and got the approval of the President of India on September 15, 1962. Ergo, The Atomic Energy Act of 1948 was nullified by this law. On September 21, 1962, the Government of India published this Act in its Official Gazette, bringing it into force immediately. In the legal context, managers of nuclear facilities are accountable for any damage they create, irrespective of their own negligence. T
here is a wide range of repercussions of this devastation, which extends beyond the immediate area of the accident. To a particular extent, the plant or nuclear plant owners are held responsible for the harm, which may be paid for through an insurance policy. In addition, under international law and practice, states assume the role of the last resort insurers.
International Agreements on Global Nuclear Liability
There are presently three significant international accords that create the foundation for global nuclear liability.Some of them are:
As a signatory to the Convention on Supplementary Compensation for Nuclear Damage, India has entered into several bilateral treaties with other nations, such as the United States, the United Kingdom, Russia, and France, for the use of nuclear power for defense purposes. For the compensation of harm caused by accidents, including nuclear resources and nuclear installations, the bilateral agreement between India, and France stipulates specifically that India must set up a framework of civilian nuclear responsibility.
Several key factors are considered for international cooperation. When it is about cooperation in the field of environment and safety, there is potential for cross-boundary harmonized policies and the development of cooperative programs. This is done to reduce the damage risk to the geopolitical boundaries, citizens, and global population. Additionally, experience in enhanced safety that works in one state can be important in improving the situation in other states. Secondly, the risks involved in the usage of nuclear material enhance the risk of damages that transcend international boundaries.
The need for high-level cooperation has been recognized at the international level for terrorist threats and acts due to the illicit trafficking of nuclear material. Another key aspect is the large international legal regulations that have been codified as the duty of states when it comes to the nuclear field. It is imperative for governments to adhere to good faith in these duties, but the regulations might limit the free will of the legislators when it comes to framing the national legislation in key matters.
Last but not the least, the increasingly multinational aspect of the nuclear industry, wherein the movement of nuclear equipment and material across national borders is a joint approach of private or public entities, is dependent on joint approaches. For all such reasons, legislation on national nuclear energy needs to make proper provisions for both public and private participation in nuclear energy on an international scale.
Ever since the legislation pertaining to atomic weaponry, as has been discussed before, came into effect, India has been putting in all possible efforts in order to comply with the Constitutional, as well as the international standards and guidelines to ensure that in the coming future, the world’s largest democracy will be able to meet the ever-increasing energy needs. The international policy of India to only utilize atomic weapons for peaceful purposes has been acknowledged by countries like Japan when it decided to sign a civil nuclear deal with India. It can thus be said that the Indian nuclear legislations and policies are well in conformity with international laws.
As stated above, albeit the fact that India is not a party to the non-proliferation treaties, it still propounds the policy of No First Use. India has signed and ratified several IAEA treaties with respect to nuclear safeguards. In contemporary times, India stands as a proud nation and is viewed as an apt example of how a nation, even with immense nuclear potential, stands as a symbol of world peace and harmony.