Sender’s Note:
I am attaching herewith a copy of the Writ Petition numbered as W.P. (C) No. 27960 of 2011 admitted by the Honourable High Court of Kerala on 21-10-2011.
Division Bench comprising of Acting Chief Justice C.N. Ramachandran Nair and Justice P.S. Gopinathan admitted the Public Interest Litigation filed by two lawyers Yash Thomas Mannully and V.N. Haridas and has issued notice to the Union of India and other respondents.
I am one of the petitioners and atatching herewith a copy of the above Writ Petition and it is requested to kindly make arrangements to upload it in your website for the benefit of public.
In case of any clariifcation please free to contact me.
with regards
Yash Mannully
Advocate
[email protected]

BEFORE THE HONOURABLE HIGHCOURT OF KERALA, ERNAKULAM

W.P (C) No. 27960 of 2011

 Yash Thomas Mannully & Anr.                            … Petitioners

 Vs.

 

Union of India                                                 …Respondents

 

 

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.

   

V.M. Syam Kumar            (S- 1018)

Kripa Elizabeth Mathews  (K- 307)

                               

Advocates

High Court Road

Ernakulam

 

Counsel for the Petitioners

 

BEFORE THE HONOURABLE HIGHCOURT OF KERALA, ERNAKULAM

W.P (C) No. 27960 of 2011

 

Yash Thomas Mannully & Anr.                            … Petitioners

 

V.

 

UnionofIndia& 3                                                …Respondents

 

AFFIDAVIT

I, Yash Thomas Mannully, aged   years, S/o Thomas Mannully, residing at Mannully House, Chilavannoor, Cochin-682 020 do hereby solemnly affirm and state as follows:

1. I am the petitioner in the above case. I am fully conversant with the facts of the case. I am competent to swear to the contents of this affidavit.

2. The above WP is prepared under my instruction. The averments in the WP were read over to me and understood by me and is true to the best of my knowledge and belief. The WP may read as part of this Affidavit. Ext. P1 filed along with the WP is a true copy of its original. The interim prayer sought or in the WP may be allowed as prayed for. Irreparable loss and injury will be caused to the petitioners if the same is not allowed as prayed for.

3. I have not filed any other WP before thisHon’ble Courtseeking similar relief’s.

All the facts stated herein above are true to the best of my knowledge information and belief.

Dated this the  20th  day of October, 2011.

Sd/-

DEPONENT

Solemnly affirmed and signed before me by the deponent who is personally known to me on this the  20th day of October,2011 in my office at Ernakulam.

Sd/-

Advocate

 

BEFORE THE HONOURABLE HIGHCOURT OF KERALA, ERNAKULAM

W.P (C) No. 27960  of 2011

 

Yash Thomas Mannully & Anr.                            … Petitioners

 

V.

 

Union of India                                                …Respondents

 

I   N   D   E   X.

 

Sl.Nos.                                            Contents                                       Page Nos.

1. Synopsis                                                                                                      A

2. Memorandum of Writ Petition (Civil)                                                                     3. Affidavit

4.  Ext. P1– Copy of the copy of the Convention on Supplementary

Compensation for Nuclear Damage of 1997

————————————————————————————————-

 

Dated this the  20th day of October, 2011.

 

Sd/-

Counsel for the Petitioner.

 

 

BEFORE THE HONOURABLE HIGHCOURT OF KERALA, ERNAKULAM

W.P (C) No. 27960  of 2011

 

Yash Thomas Mannully & Anr.                            … Petitioners

 

V.

Union of India 3                                                …Respondents

 

 

SYNOPSIS.

 

Civil Liability for Nuclear Damage Act, 2010 is the legislation inIndiawhich deals with nuclear liability that might arise due to a nuclear incident. The objective of the Act is to provide a frame work for compensation to the victims of a nuclear incident.

However, the avowed goals of the legislation are rendered ineffective and futile by virtue of certain provisions of the Act which are per se unconstitutional. Persons who suffer damage due to a nuclear incident are rendered helpless and put at the mercy of the Nuclear Operator who would be the perpetrator of the nuclear incident due to the said provisions of the Act which clearly violate the basic structure of the Constitution of India.

A number of establishments which fall within the definition of ‘Nuclear Installations’ which could lead to a ‘Nuclear incident’ and consequent ‘Nuclear Damage’  function from within the State of Kerala.

This Public Interest Litigation is filed by the petitioners challenging the constitutional validity of sections 3 (1), 4(2) & proviso thereto, 4(4), 5), 6, 9(2), 15(2), 16(5), 18(b), 19, 20, 32(10), 35 and 38(1), of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010).

The rights guaranteed to the petitioners under Part III of the Constitution of India are violated by the said provisions of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010). Hence this Writ Petition.

 

Dated this the 20th day of October, 2011.

 

Sd/-

Counsel for the Petitioner.

BEFORE THE HONOURABLE HIGHCOURT OF KERALA, ERNAKULAM

W.P (C) No. 26960  of 2011

 

 

PETITIONERS:

1)   Yash Thomas Mannully, Advocate, S/o Thomas Mannully, Mannully House, Chilavannoor, Cochin-682 020.

 

2)   V.N. Haridas, Advocate, S/o Late V.T. Narayanan Namboodiri, Vadekadatthu Thamarappally Mana, Manalur P.O., Thrissur – 680 617.

 

 

RESPONDENTS:

1)   Union of India represented by the Cabinet Secretary, Government of India

New Delhi.

2)   Department of Atomic Energy represented by its Secretary, Department of Atomic Energy, Anusakthi Bhavan, CSM Marg, Mumbai – 400 001.

3)   Atomic Energy Regulatory Board represented by its Chairman, Niyamak Bhavan, Anusakthi Nagar, Mumbai 400 094.

 

 

 

WRIT PETITION FILED (C) UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.

Address for service of notices and processes to the Petitioners is that of their counsel V.M. Syam Kumar & Kripa Elizabeth Mathews, Advocates, II Floor, Infant Jesus Church Building, High Court Road, Ernakulam – 682 031.

Address for service of all notices and processes to the Respondents may be served on the addresses as shown above.

STATEMENT OF FACTS

Petitioners above named states as follows:-

1)   Petitioners are citizens of Indiaand residents of KeralaState. They are advocates by profession and the 1st petitioner is a member of the Working Group on Nuclear Liability and Compensation of International Nuclear Law Association,Brussels.

2)   This Writ Petition is filed by the petitioners inter alia challenging the constitutional validity of sections 3 (1), 4(2) & proviso thereto, 4(4), 5), 6, 9(2), 15(2), 16(5), 18(b), 19, 20, 32(10), 35 and 38(1), of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010). The said Act has been passed by both the Houses of Parliament and it has received the Presidential assent.

3)   The petitioners are in this WP inter alia challenging the specific provisions of the said Act as ultravires the Constitution of India, as seriously interfering with the right to life of the citizens guaranteed under Art. 21 of the Constitution of India, as interfering with the right of judicial review which is part of the basic structure of the Constitution of India and as violative of the arbitrariness facet of Art. 14 of the Constitution as it vests untrammelled powers on certain authorities without any appropriate checks and balances.   

4)   The Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) (herein after referred to as the ‘Act of 2010’) was enacted by the Parliament and has received the Presidential assent. As stated in the ‘Prefatory Note- Statement of Objects and Reasons’, of the Act, it was enacted since, “It was considered necessary to enact a legislation which provides for nuclear liability that might arise due to a nuclear incident and also on the necessity of joining an appropriate international liability regime.”

5)   The preamble of the Act provides that it is an “Act to provide for civil liability for nuclear damage and prompt compensation to the victims of a nuclear incident through a no-fault liability regime channelling liability to the operator, appointment of a Claims Commissioner, establishment of Nuclear Damage Claims Commission for matters connected therewith or incidental thereto”.

6)    It is respectfully submitted that though the Act thus professes to have been created with avowed objectives, the provisions thereof create a regime of law which clearly violates the constitutional mandates and also leaves the citizens in dire straits in case of a real nuclear calamity.

7)   In view of the nature of the contentions raised in this WP, a brief over view of the legal regime of nuclear liability under the International Law may be relevant. There are three major international agreements which form the international framework of nuclear liability. They are: (a) The 1960 Paris Convention on Third Party Liability in the field of Nuclear Energy, (b) The 1963 Vienna Convention on Civil Liability for Nuclear Damages, and (c) The Convention on Supplementary Compensation for Nuclear Damage of 1997.

8)   It is respectfully submitted thatIndiawas not a party to any of these three Conventions and subsequent to the passing of the Act of 2010,Indiahas signed the third Convention viz., Convention on Supplementary Compensation for Nuclear Damage of 1997. As regards the first and second Conventions, viz., the 1960 Paris Convention and the 1963 Vienna Convention along with their subsequent amendments, they are open only to initial member countries.

9)   It may be also be relevant to submit that the Convention on Supplementary Compensation for Nuclear Damage of 1997 (herein after referred to as the 1997 Convention) of which Indiais now a signatory was developed under the auspices of the International Atomic energy Agency (IAEA). The 1997 Convention, unlike the Paris and Vienna Conventions, is a free standing instrument open to all countries.  It offers a country the means to become part of the global regime without having to become a member of the Paris and Vienna Conventions. However all countries party to the 1997 Convention are expected to abide the basic principles of nuclear liability law.  For this reason the 1997 Convention sets out a number of Rules which are consistent with the general principles of both the Paris and Vienna Conventions. Any state willing to join the 1997 Convention will have to ensure that its national legislation is consistent with the provisions laid down in the Annex to the 1997 Convention. A true copy of the Convention on Supplementary Compensation for Nuclear Damage of 1997 is produced herewith marked as EXHIBIT P1. Since India had decided to sign the 1997 Convention, it became a mandatory prerequisite that a national legislation in lines with Ext. P1 is enacted and brought in force in India. Towards the said objective, Act of 2010 was enacted. This is clear from the ‘Prefatory Note- Statement of Objects and Reasons’ reproduced above which states the ‘necessity of joining an appropriate international liability regime’ as one of the Objects and Reasons for the enactment.

10)                Sections 3 (1), 4(2) & proviso thereto, 4(4), 5, 6, 9(2), 15(2), 16(5), 18(b), 19, 20, 32(10) and 38(1), of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) violates the constitutionally guaranteed rights of the citizens of India. They are ultra vires the Constitution of India, violates the basic structure doctrine as settled by law and is capable of denying to the citizens of India the right to be effectively compensated in case of a nuclear calamity.

Aggrieved by the said provisions of the enactment which are unconstitutional and thus illegal and left with no other equally efficacious alternate remedy, the petitioners approach thisHon’ble Courtinvoking Art.226 of the Constitution of India on the following among others:

GROUNDS

  1. A.   Sec. 3 (1) of the Civil Liability for Nuclear Damage Act, 2010 and the proviso to the said section are ultra vires the Constitution and is hence fit to be declared so by thisHon’ble Court.
  2. B.   Sec. 3 of the Act reads as follows:

“(1) The Atomic Energy regulatory Board constituted under the Atomic     Energy Act, 1962 shall, within a period of fifteen days from the date of occurrence of a nuclear incident, notify such nuclear incident:

Provided that where the Atomic Energy Regulatory Board is satisfied that the gravity of threat and risk involved in a nuclear incident is insignificant, it shall not be required to notify such nuclear incident.

(2) The Atomic Energy Regulatory Board shall, immediately after the notification under sub-section (1) is issued, cause wide publicity to be given to the occurrence of such nuclear incident, in such manner as it may deem fit.”

  1. C.   A claim for nuclear liability can be preferred by a person under the Act only in case of a ‘nuclear damage’ arising out of a ‘nuclear incident’. ‘Nuclear Damage’ has been defined under Sec.2 (g) of the Act as one of the losses or damages enumerated in the said section, caused by and arising out of a ‘Nuclear Incident’. The Act under Sec.2 (i) defines a Nuclear Incident as ‘any occurrence or series of occurrences having the same origin which causes nuclear damage or, but only with respect to preventive measures, creates a grave and imminent threat of causing such damage.’  By virtue of Sec.3 (1), the duty of notifying a nuclear incident, under the Act is vested on the 3rd respondent viz., the Atomic Energy Regulatory Board (herein after referred to as the AERB) constituted under the Atomic Energy Act, 1962. The AERB is to notify the ‘nuclear incident’ within fifteen days from the date of its occurrence and where the AERB is satisfied that the gravity of the threat and risk involved in a nuclear incident is insignificant, it shall not be required to notify such nuclear incident. Sec. 9 of the Act provides that who ever suffers ‘nuclear damage’ shall be entitled to claim compensation in accordance with the provisions of the Act.
  2. D.   In view of the above legal frame work provided by the Act, the notification of the nuclear incident by the AERB leading to Nuclear damage becomes the crucial factor before a claim can be preferred by a person. There are no standards or objective evaluation for the factors to be considered in notifying a nuclear incident as ‘nuclear incident’ as per the Act or any other legislation inIndia. AERB is the sole regulator and enforcement agency for the use of atomic energy inIndia and it grants consent for siting, construction, commissioning, operation and decommissioning of nuclear and radiation facilities. The majority of the members of the AERB are drawn from the Department of Atomic Energy under Government of India. AERB does not have independence as it comes within the organisational framework of the Department of Atomic Energy under Government of India and there is conflict of interest arising from its various function related to the use of nuclear energy in India.
  3. E.   Sec. 3 (1) of the Act though confers wide power on AERB to virtually decide what constitutes a nuclear incident that could lead to the initiation of claims pursuant to notification, it does not provide any mechanism in case AERB does not notify an incident as a ‘nuclear incident’. Under the proviso to Sec.3 though it has been provided that no notification need be made if the AERB is satisfied that the gravity of threat and risk involved in a nuclear incident is insignificant, no parameters are laid down by the Act as to how the satisfaction is to be exercised. Untrammelled powers have been vested in a body with out any checks and balances. The said vesting of powers is per se arbitrary and contrary to the settled principles and rule of law which is a basic structure of the Constitution of India.
  4. F.      It may be relevant to pint out that similar requirement regarding notification exists only under the United States Atomic Energy Act, 1954 under Sections 11 (j) and (q) dealing with “Extraordinary Nuclear Occurrence (ENO)”. The Convention on Supplementary Compensation for Nuclear Damage of 1997 to which India is a signatory and other modern national legislations like that of German Atomic Energy Act (Act on the Peaceful Utilisation of Atomic Energy and the Protection Against its Hazards, 1959 as amended in 2002), Austrian Atomic Liability Act 1999 (Federal Act on Civil Liability for Damage Caused by Radioactivity, 1999) and Japan enacted after the 1986 Chernobyl Disaster do not provide for notification of nuclear incident as “nuclear incident” by competent authority for claiming damages for nuclear damage suffered.
  5. G.    Section 3 of the Act thus stipulates a need for notification of nuclear incident by AERB for the application and operationalisation of the Act and remedies under it. Section 9(1) of the Act provides that; “Whoever suffers nuclear damage shall be entitled to claim compensation in accordance with the provisions of this Act.” No claim can be preferred unless a notification is made by the AERB. Sec. 3 thus confers arbitrary and unreasonable power on AERB especially in so far as the remedies under the Act of 2010 is possible only if AERB notifies within 15 days of occurrence of a nuclear incident as ‘nuclear incident’. Hence Sec. 3 (1) along with the proviso thereto is fit to be declared as ultra vires the Constitution.
  6. H.   It is submitted that Section 4 (2) of the Act reduces the liability of each operator from what has been specified under section 6 of the Act, in cases where more than one operator causes nuclear damage. Section 4(2) limits the liability of the operators of Nuclear Power Plants having thermal power equal to or above ten MW to Rupees one thousand five hundred crores in cases where more than one operator is liable for nuclear damage and the damage attributable to each operator is not separable. Section 4 (2) reads as follows:

“(2) Where more than one operator is liable for nuclear damage, the liability of the operators so involved shall, in so far as the damage attributable to each operator is not separable, be joint and several:

Provided that the liability of such operators shall not exceed the extent of liability specified under sub-section (2) of section 6.

  1. I.     Section 4 (2) of the Act, and the proviso thereto to the extent it joins together the liability of different operators and fixes a single total liability is arbitrary and illegal. Sec.6 (2) stipulates the liability of a single operator for each nuclear incident. But the proviso Sec. 4 (2) of the Act envisages that the liabilities of different operators can be clubbed together in such a way that each offending operator need not pay to the highest extend of the limit fixed but all the operators together need only pay to the extent of the limit as fixed for a single operator. The said benefit conferred by the proviso to Section 4 (2) on the operator clearly violates the rights guaranteed under Part III of the Constitution and also the express law as laid down by the Hon’ble Supreme Court in M.C. Mehta v. Union of India (AIR 1987 SC1086) wherein it had been laid down that “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results on account of accident in the operation of such activity resulting in for eg., any escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by accident and such liability is not subject to any of the exceptions which operate vis – a vis the tortuous principle of strict liability under the rulings made in Rylands v. Fletcher. Larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous and inherently dangerous activity of the enterprise.” It was further held by the Hon’ble Supreme Court in that case that: “An enterprise which is engaged in a hazardous and inherently dangerous industry which possesses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes absolute and non delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it is undertaking. If the enterprise is permitted to carry on hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost or any other expenditure arising on account of such hazardous or inherently dangerous activities as appropriate item of its overheads. The measure of compensation in the kind of cases referred to in the preceding paragraphs must be co related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect.” The law as laid down by the Hon’ble Supreme Court has become part of the basic structure of the Constitution of India and provisions of the Act of 2010 explained hereinabove and hereunder is violative of the same and is hence unconstitutional.
  2. J.       Section 4 (4) of the Act of 2010 to extent it provides that “The liability of the operator of the nuclear installation shall be strict and shall be based on the principle of no-fault liability” violates the rights guaranteed under Part III of the Constitution and also the express law as laid down by the Hon’ble Supreme Court in   M.C. Mehta v. Union of India (AIR 1987 SC1086).
  3. K.    Section 5 of the Act to the extent it provides that the operator shall not be liable in certain circumstances and Sec. 6 to the extent it fixes a limitation of liability of the operator violates the rights guaranteed under Part III of the Constitution and also the express law as laid down by the Hon’ble Supreme Court in M.C. Mehta v. Union of India (AIR 1987 SC1086).
  4. L.    At the international level, limitation with regard to time and amount for claiming damages for nuclear damage was introduced in the 1950’s to support private participation and to support the development of infant nuclear industry. Most of the national legislations enacted after the 1986 Chernobyl Disaster has deviated from the principle of limitation of time and amount for nuclear damage.
  5. M.   There is no limitation regarding time under civil liability legislations for nuclear damage in enacted in countries likeAustria andJapan. There is unlimited liability for the operator under the national legislation for liability for nuclear damage ofJapan,Germany andAustria. There is unlimited liability for state for nuclear damage under the national laws ofUnited States,Russia,South Korea,Ukraine andCanada.
  6. N.     The Civil Liability for Nuclear Damage Act, 2010 through limitation of amount under section 6 and time under 15(2) and 18(b) forces the victims of nuclear incidents to bear the burden of injury, whereas society as a whole benefits from the existence and development of nuclear power. It is submitted that Section 6(1) and 6(2) of Civil Liability for Nuclear Damage, 2010 violates article 14 of the Constitution of India and the ratio laid in M.C. Mehta v. Union of India by arbitrarily fixing the liability of the operator and by not rationally linking the maximum amount of liability with the financial capacity of the operator. Thus, Secs. 6(1) and 15(2) and 18 (b) to the extent it provides for limitation of liability of the operator violates the rights guaranteed under Part III of the Constitution and also the express law as laid down by the Hon’ble Supreme Court in M.C. Mehta v. Union of India (AIR 1987 SC1086).
  7. O.   A nuclear damage is peculiar in so far as it is capable of having impact on future generations and the Civil Liability for Nuclear Damage Act 2010 by providing time limitation under sections 15(2) and 18(b) takes away the rights of future generations for obtaining compensation for damages caused from a nuclear incident within the meaning of the Act. Section 18 (b) of the Act by laying down an arbitrary time period thus violates the right to life under Article 21 of the Constitution of India and it also violates the obligation of inter generational equity, sustainable development, polluter pays principle and precautionary principle as laid down by the Hon’ble Supreme Court of India in Vellore Citizens Welfare Forum v. Union of India [AIR 1996 SC 2715].
  8. P.      Chapter III of the Act provides for the appointment of a Claims Commissioner and whoever suffers nuclear damage shall be entitled to claim compensation in accordance with the provisions of the Act. The Claims Commissioner is person competent to adjudicating upon claims for compensation in respect of nuclear damage. Sec.10 provides for the qualifications for appointment as Claims Commissioner. There is no fixity of tenure and independence to Claims Commissioner appointed under Sections 9 (2), 10, 11 and 12 (1) of Civil Liability for Nuclear Damage Act, 2010. Sections 9 (2) and 12(1) of the Civil Liability for Nuclear Damage Act, 2010 provides adjudicative powers to Claims Commissioner constituted by the Government of India. There is no judicial independence to Claims Commissioner and the Chief Justice of India or Chief Justices of respective High Courts are not consulted in appointing the adjudicative authorities under the Act. As per Sec.10 it is possible for the Central Government to appoint an officer of the Government having specified qualifications as a Claims Commissioner. Though Sec.10 (a) provides for a choice of appointing a sitting or retired District Judge, the same is not mandatory. Appointment of  Government servant as Claims Commissioner (a quasi judicial body) who is to look in to the liability of the operator, who as per Sec.2 (m) of the Act is the Central Government or any authority or Corporation established by the Government or a Government Company is arbitrary and violative of the doctrine of judicial independence which is part of the basic structure of the Constitution of India as laid down by the Hon’ble Supreme Court in the Judgment of P. Sampath Kumar v. Union of India [(1987) 1 SCC 124].
  9. Q.     Similarly Chapter V Sec. 19 of the Act of 2010 envisages appointment of a Nuclear Damages Claims Commission if the Central Government is of the opinion that opinion that it is expedient in public interest that such claims for such damage be adjudicated by the Commission instead of a Claims Commissioner. Sec. 20 of the Act deals with the Composition of the Commission. There is no fixity of tenure and independence to Nuclear Damages Claims Commission. The Chief Justice of India or Chief Justice of respective High Courts is not consulted in appointing Nuclear Claims Commission as the adjudicative authority under the Act. Sec. 38 (1) of the Act inter alia lays down that where the central government considers it necessary or expedient to do so, it may dissolve the Commission. Thus the Nuclear Damages Claims Commission though an important body empowered with the question of liability for a nuclear incident and nuclear damages, by virtue of Sec. 38 (1) can be terminated on the whims and fancies of the Central Government. There is no fixity of tenure and independence to Nuclear Damages Claims Commission and hence is arbitrary and violative of the doctrine of judicial independence which is part of the basic structure of the Constitution of India as laid down by the Hon’ble Supreme Court in the Judgment of P. Sampath Kumar v. Union of India [(1987) 1 SCC 124].
  10. R.   The Hon’ble Supreme Court had in P. Sampath Kumar v. Union of India [(1987) 1 SCC 124] laid down the law to be followed in the case of appointment of quasi judicial bodies and the same ought to have been followed in the case of appointment, functioning and removal of important and pivotal bodies like the Nuclear Damages Claims Commission and the Claims Commissioner. “There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons as it likes as Chairman, Vice-Chairman and administrative members of the Administrative Tribunal. Now it may be noted that almost all cases in regard to service matters which come before the Administrative Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice-Chairmen and administrative members, if a judicial member or an administrative member is looking forward to promotion as Vice- Chairman or Chairman, he would have to depend on the good- will and favourable stance of the executive and that would be likely to affect the independence and impartiality of the members of the Tribunal. The same would be the position vis-a-vis promotion to the office of Chairman of the’ Administrative Tribunal. The administrative members would also be likely to carry a sense of obligation to the executive for having been appointed members of the Administrative Tribunal and that would have a tendency to impair the independence and objectivity of the members of the Tribunal. There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the independence of the Chairman, Vice-Chairmen and members of the Administrative Tribunal, if such power is absolute and unfettered. If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influence their decision-making process particularly since the Government would be a litigant in most of the cases coming before the Administrative Tribunal and it is the action of the Government which would be challenged in such cases. That is the reason why in case of appointment of High Court Judges, the power of appointment vested in the executive is not an absolute unfettered power but it is hedged in by a wholesome check and safeguard and the President cannot make an appointment of a High Court Judge without consultation with the Chief Justice of the High Court and the Chief Justice of India and a healthy convention has grown up that no appointment would be made by the Government which is not approved by the Chief Justice of India. This check or safe- guard is totally absent in the case of appointment of the Chairman, Vice-Chairmen and administrative members of the Administrative Tribunal and the possibility cannot be ruled out-indeed the litigating public would certainly carry a feeling–that the decision making process of the Chairman, Vice-Chairmen and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion. It can no longer be disputed that total insulation of the judiciary from all forms of interference from the coordinate branches of Government is a basic essential feature of the Constitution. The Constitution makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence. Obviously, therefore if the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal, the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice-Chairmen and members of the Administrative Tribunal. Or else the Administrative Tribunal would cease to be an equally effective and efficacious substitute for the High Court and the provisions of the impugned Act would be rendered invalid…
  11. S.   The above dictum which is part of the basic structure of the Constitution has not been adhered to in the procedure as laid down under Chapter III and Chapter V of the Act of 2010. The procedure for appointing such crucial officers and authorities as it stands now in the Act is not fair, transparent and is hit by the arbitrariness facet of Art. 14 of the Constitution ofIndia.
  12. T.    The Nuclear liability laws of countries like Germany, Japan and Austria does not provide for a separate adjudicatory mechanism for adjudicating nuclear damage claims. In all those countries nuclear damage claims are considered by the traditional civil courts. The Civil Liability for Nuclear Damage Act, 2010 on the other hand provides for totally separate adjudicative machinery for adjudicating on liability arising from nuclear incidents and Nuclear Damages. The said separate set up as examined herein before is only a limb of the Government, appointed by the Government and continuing office during the sweet pleasure and will of the Government.  The office of Claims Commissioner envisaged under Chapter III and the Nuclear Damages Claims Commission envisaged Chapter V totally lack no fixity of tenure and judicial independence. Hence the provisions in the said chapters have to be read down by this Hon’ble Court and sections conferring untrammelled powers on the Government without any confining and structuring are fit to be declared as ultra vires the Constitution and illegal.
  13. U.   Section 16 (5) of the Act stipulates that every award made by the Claims commissioner under the Act shall be final. Similarly Sec.32 (10) provides that every award made by the Nuclear Damages Claims Commission under the Act shall be final. Sec.35 excludes the jurisdiction of the civil courts (except the Hon’ble Supreme Court and the Hon’ble High Courts exercising jurisdiction  under Articles 226 and 227 of the Constitution) to entertain any suit or proceedings in respect of any matter which the Claims commissioner or the Nuclear Damages Claims Commission is empowered to adjudicate on and no injunction shall be granted by any court in respect of any action taken or to be taken in pursuance of any power conferred under the Act of 2010. Thus effectively all legal recourse against the awards of the Claims commissioner and the Nuclear Damages Claims Commission, except for the powers of Higher courts of the land, have been barred by  Sections 16 (5), Sec.32 (10) and Sec. 35 of the Act. In so far as the offices of the Claims commissioner and the Nuclear Damages Claims Commission lacks judicial independence, Section 16 (5) and Sec.32 (10) to the extent it prohibits challenge against the awards passed by the said authorities, violates the basic structure of judicial review as it provides that the awards passed there under shall be final. Untrammelled powers are conferred on the Claims commissioner and the Nuclear Damages Claims Commission under the Act in adjudicating the compensation claims for nuclear damage.
  14. V.   Section 38(1) is violative of Article 14 of the Constitution of India. Section 38(1) provides untrammelled powers to Central Government for the dissolution of commission established under section 19 of the Act, based on the subjective satisfaction of the Central Government.
  15. W.  The Civil Liability for Nuclear Damage Act 2010 takes away the right to appeal for a person suffered nuclear damage as a result of notified nuclear incident. Section 46 allows a person who suffered nuclear damage which is not notified as nuclear incident as per the Act to approach civil courts for damages together with the ability to invoke appellate jurisdiction.
  16. X.   The Civil Liability for Nuclear Damage Act, 2010 with regard to a) amount under section 6(1); b) time under sections 15(2) and 18(b); c) Claims Commissioner under sections 9 (2), 10, 11 and 12 (1); Claims Commission under sections 19, 20, 32(3) and 38(1) fails to provide a reasonable and just substitute for the civil law or tort law remedies it replaces.
  17. Y.   Sections 3 (1), 4(2) & proviso thereto, 4(4), 5, 6, 9(2), 15(2), 16(5), 18(b), 19, 20, 32(10), 35 and 38(1), of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) violates the constitutionally guaranteed rights of the citizens of India. They are ultra vires the Constitution of India, violates the basic structure doctrine as settled by law and is capable of denying to the citizens of India the right to be effectively compensated in case of a nuclear calamity.

For the reasons stated in the above grounds and for those to be submitted at the time of hearing, it is humbly prayed that thisHon’ble Courtbe pleased to:

(a)   declare that sections 3 (1), 4(2) & proviso thereto, 4(4), 5, 6, 9(2), 15(2), 16(5), 18(b), 19, 20, 32(10), 35 and 38(1), of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) are violative of the fundamental rights guaranteed under Part III of the Constitution of India and are contrary to the basic structure of the Constitution of India.

(b)  declare that sections 3 (1), 4(2) & proviso thereto, 4(4), 5), 6, 9(2), 15(2), 16(5), 18(b), 19, 20, 32(10), 35 and 38(1), of the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) are unconstitutional.

(c)   issue such other writ, order or direction including interim orders as may be necessary in the circumstances of the case and to allow this WP with costs.

Dated this the  20th day of October, 2010.

PETITIONERS:

 

1. Yash Thomas Mannully                Sd/-

 

2. V.N. Haridas                                 Sd/-

 

Sd/-

Counsel for the Petitioners

INTERIM RELIEF:

 

For the reasons stated in the writ petition and in the affidavit in support thereof it is humbly prayed that this Hon’ble Court may be pleased to direct the 1st and 2nd respondents not to make any appointment to the post of Claims Commissioner and to forbear from constituting a Nuclear Damages Claims Commission under the Civil Liability for Nuclear Damage Act, 2010 (No. 38 of 2010) pending final disposal of the writ petition.

Dated this the   20th day of October, 2011.

Sd/-

Counsel for the Petitioners.