Supreme Court of India
G. SUNDARRAJANversusUNION OF INDIA AND ORS.
- Citation
- 2013 INSC 314
- Decided
- 6 May 2013
- Disposal
- Disposed off
- Bench
- K S RADHAKRISHNAN
Holding
The Kudankulam Nuclear Power Project is justified under the Atomic Energy Act and national policy; its safety and environmental safeguards are adequate, but the remaining AERB recommendations and a permanent deep‑geological repository must be implemented before the plant becomes operational.
Summary
The Supreme Court examined the legality of the Kudankulam Nuclear Power Project (KKNPP) amid public opposition, focusing on whether the plant complied with environmental, coastal‑zone, and safety regulations. It held that the project was undertaken under the national nuclear policy reflected in the Atomic Energy Act, 1962, and that the plant’s design incorporates advanced safety features meeting AERB codes and international standards. The Court found that the environmental clearances, CRZ exemptions, and temperature‑discharge limits were valid and that the plant does not pose a significant risk to marine ecology or public health. While the Court rejected the petitioners’ demand for closure, it directed the authorities to implement the remaining AERB recommendations, establish a permanent deep‑geological repository for spent fuel, and ensure continuous monitoring and disaster‑management preparedness. The appeals were disposed of without any order as to costs.
Issues considered
- Whether KKNPP has obtained all requisite environmental clearances and complied with the Coastal Regulation Zone (CRZ) provisions.
- Whether the safety standards, including AERB recommendations and post‑Fukushima assessments, are sufficient to protect public health and the environment.
- Whether the Nuclear Liability Act, 2010 and related statutes are constitutionally valid in the context of KKNPP.
- Whether a permanent deep geological repository (DGR) for spent nuclear fuel must be established before commissioning.
- Whether the increase in condenser cooling water temperature from 5°C to 7°C violates environmental norms.
Legislation cited
- Air (Prevention and Control of Pollution) Act, 1981
- Atomic Energy Act, 1962s. Section 17, s. Section 3(e)
- Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987
- Civil Liability for Nuclear Damage Act, 2010
- Coastal Regulation Zone Notification, 1991 (as amended 2011)
- Disaster Management Act, 2005
- Environmental Protection Act, 1986s. Rule 84
- Hazardous Waste (Management and Handling) Rules, 1989
- Water (Prevention and Control of Pollution) Act, 1974
Subjects
nuclear power plantenvironmental clearanceAtomic Energy Actradiation safetydisaster managementradioactive wasteCoastal Regulation Zonecivil liabilitysustainable development
Judgment
[2013] 8 S.C.R. 631
G. SUNDARRAJAN A
V.
UNION OF INDIA AND ORS.
(Civil Appeal No. 4440 of 2013)
MAY 6, 2013
8
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Atomic Energy Act, 1962 - Nuclear Power Plant -
Safeguarding of plants, radioactive materials and ensuring its
physical security- Requirement of protecting life and property C
of people including the environment - Balance to be struck
b.etween developmental needs and environmental
degradation - Decision taken by the Government of India,
Nuclear Power Corporation of India (NPCIL) etc. for setting
up of KKNPP- a nuclear power plant (NPP) at Kudankulam, D
Tamil Nadu - Challenge to - Held: Nuclear energy is an
important element in India's energy mix - KKNPP was set up
as part of India's National Policy so as to develop, control and
use of atomic energy for welfare of the people of India - For
setting up the project, the project proponent has taken all E
safety requirements in site and off site and followed the code
of practices laid down by AERB, based on nationally and
internationally recognized safety methods - Disaster
Management Plan (DMP) is already in place, so also the
emergency preparedness plan, off site and on site and all F
programmes under Corporate Social Responsibility (CSR)
progressing in the right direction with co-operation and
assistance of the District Administration - NPCIL, also
received necessary environmental clearance from MoEF,
TNPCB, etc for Units 1 to 6 - No violation of Coastal G
Regulation Zone (CRZ) noticed - Desalination Plant
established after following rules and regulations - Experts of
the view that there will be no impact on the marine eco-system
and that radiation impact on the eco-system is within the
631 H
632 SUPREME COURT REPORTS [2013] 8 S.C.R.
A standard set by AERB, MoEF, Expert Appraisal Committee
(EAC), Pollution Control Board etc. - All expert teams
unanimous in their opinion of the safety and security of the
KKNPP both to life and property of the people and the
environment which includes marine life - Justification for
B establishing KKNPP at Kudankulam, therefore, vindicated -
Apprehension, however, legitimate, cannot override
justification of the project - However, directions given by
Supreme Court in regard to safety of the plant, impact on
environment, quality of various components and systems in
C the NPP plant - Atomic Energy (Safe Disposal of Radioactive
Wastes) Rules 1987 - The Hazardous Waste Management
and Handling Rules 1989 - Environmental (Protection) Act,
1986 - Disaster Management Act, 2005 - Water (Prevention
and Control of Pollution) Act, 1974 - Air (Prevention and
Control of Pollution) Act, 1981.
0
Government Policy - Nuclear Policy - Judicial review -
Scope - Held: It is not for Courts to determine whether a
particular policy or a particular decision taken in fulfillment of
a policy, is fair - Unless the policy framed is absolutely
E 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 - Courts· to respect national nuclear policy of the
country reflected in the Atomic Energy Act and the same to
F be given effect to, for welfare of the people and the country's
economic growth - Atomic Energy Act, 1962.
Civil Liability for Nuclear Damage Act, 2010 (Nuclear
Liability Act) - Purpose and object of - Held: Is to provide civil
liability for nuclear damage and prompt compensation to
G victims of a nuclear accident through No-Fault Liability to the
operators.
In the instant appeals, an issue of considerable
national and international importance, pertaining to the
H setting up of KKNPP- a nuclear power plant (NPP) at
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 633
Kudankulam, Tamil Nadu arose for consideration. There A
was large-scale agitation and emotional reaction to the
setting up of KKNPP and its commissioning, with the
nature of potential adverse effect of ionizing radiation,
adding to fears and unrest.
B
It was inter alia alleged that keeping in view the
earlier accidents at the Three Mile Island (USA),
Chernobyl in Russia and Fukushina in Japan etc., safety
of the people and the environment is of paramount
importance and if the units were allowed to be
commissioned before making sufficient safeguards on C
the basis of the recommendations made by the Task
Force of Nuclear Power Corporation of India (NPCIL), it
may lead to serious consequences which could not be
remedied. It was further submitted unless the seventeen
recommendations made by the Task Force appointed by D
NPCIL were implemented before commissioning the
plant, serious consequences may follow; and that the
Atomic Energy. Regulatory Board (AERB) and NPCIL are
legally obliged to implement the recommendations and
this Court sitting in this jurisdiction is bound to safeguard E
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. It was
further alleged that sufficient safeguards had not been
taken for safe disposal of the radioactive waste and no F
site had been identified for the safe handling of
radioactive waste, failing which it may cause serious
health hazard; and that even, at the plant site, there was
no proper facility for storage of spent fuel and high level
radioactive waste. It was contended that no adequate G
measures were taken to safeguard the life and property
of the people in case of any potential disaster, in
accordance with the Disaster Management Plan.
Disposing of the appeals with directions, the Court
H
634 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Per Radhakrishnan, J.
HELD:1.1. 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
8
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.
ltis not for Courts to determine whether a particular policy
C or a particular decision taken in fulfillment of a policy, is
fair. It is not the province of a court to scan the wisdom
or reasonableness of the policy behind the Statute.
Unless the policy framed is absolutely capricious,
unreasonable and arbitrary and based on mere ipse dixit
D of the executive authority or is invalid in constitutional or
statutory mandate, court's interference is not called
for. [Paras 11, 13] [664-G-H; 665-A-B, F-G]
. 1.2. This Court cannot sit in judgment over the
E decision taken by the Government of India, Nuclear
Power Corporation of India (NPCIL) etc. for setting up of
KKNPP at Kudankulam in view of the lndo-Russia
agreement. The Courts also cannot stand in the w_ay of
the Union of India honouring its Inter-Governmental
F Agreement entered into between India and Russia. This
Court may, however, focus 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
G conventions, covenants entered into by India with other
countries, Atomic Energy Regulatory Board (AERB) Code
of Practices and Safety Guides, Expert's opinion,
Environmental and other related laws. This Court is
deeply concerned with the safety and security of the
people of this country, its environment, its flora and
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 635
fauna, its marine life, ecology, bio-diversity and so on A
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. [Paras 13, 14 and 23) [665-H; 666-A-C; 670-B-C] B
M.P. Oil Extraction and Anr. v. State of M.P. and Ors.
(1997) 7 sec 592: 1997 (1) Suppl. SCR 671 - relied on.
Mis. Ugar Sugar Works Ltd. v. Delhi Administration &
Ors. (2001) 3 SCC 635: 2001 (2) SCR 630; Dhampur Sugar C
(Kashipur) Ltd. v. State of Uttranchal and Ors. (2007) 8 SCC
418: 2007 (10) SCR 199 and Delhi Bar Association v. Union
of India and Ors. (2008) 13 sec 628: 2008 (3) SCR 898 -
referred to.
D
Vacher & Sons v. London Society of Compositors, (1913)
AC107(118)HL; CCSU v. Min. (1984) 3 All ER 935 (954) HL
- referred to.
2.1. Safety and security of the people and the nation
are of paramount importance when a nuclear plant is E
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. [Para 24) [670-D-E] F
. 2.2. Various codes and safety standards issued by
the AERB, mainly deal with siting, design, construction,
operation, quality assurance, decommissioning etc.
Safety codes and safety standards are formulated on the G
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 H
636 SUPREME COURT REPORTS [2013] 8 S.C.R.
A to various international conventions on nuclear safety,
physical protection of nuclear material, nuclear accident,
radiological emergency and so on. India is also governed
by the safety and security standards laid down by
International Atomic Energy Agency (IAEA). [Para 34]
B [679-8-D]
2.3. India is not a signatory to the Nuclear Non-
Proliferation Treaty (NPT). India is, however, party to
various international conventions. Though, India is not a
party to any of the Liability Conventions, specifically,
C 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
D through No-Fault Liability to the operators. [Paras 35, 42]
[679-E-F; 681-E-F]
2.4. The effective functions of the nuclear power
plants are sensitive in nature. Various Codes of Practice,
E safety guidelines 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
F Constitution of India. [Para 46] [683-G-H; 684-A]
People's Union for. Civil Liberties and Another v. Union
of India and Others, (2004) 2 sec 476 - relied on.
3. The Government of India, following its national
G nuclear policy, decided to set up a NPP in the southern
part of the country. DAE, for that purpose constituted a
Site Selection Committee (SSC) for selecting a suitable
site in the coromandel coast of Tamil Nadu. The
Committee, after surveying various sites, selected
H Kudankulam in the Tirunelveli District of Tamil Nadu as
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 637
the most suitable place for locating NPP. NPCIL also A
made a detailed study of the selected site in the light of
the Code of Practice framed by AERB regarding safety
in NPP Siting. The SSC had taken care of all aspects
before making its recommendations to the Government.
NPCIL, Union of India and other statutory authorities had B
taken care to follow the practice laid down by AERB on
safety in NPP site. [Paras 47, 48) [684-B-D; 685-G-H]
4.1. Radioactive wastes is generated during
operation, maintenance and decommissioning of nuclear
and radiation facilities. The waste generated needs to be C
managed in a safe manner to ensure protection of human
health and the environment from the undue effects of
ionizing radiation now and in future without imposing
undue burden on future generations. Radioactive waste
is to be managed in a manner that ensures compliance D
with the fundamental principles of radiation. protection
and environmental safety. Monitoring ·and surveillance
programme helps to ensure radiation protection of the
occupational workers, public and the environment. [Para
50) [686-G-H; 687-A-B) E
4.2. The SNF (Spent Nuclear Fuel) from NPPs, after
an adequate storage period, is transported to
reprocessing facilities located within the country,
following the International and AERB guidelines and
standards. NPCIL, DAE and MoEF have maintained the F
stand that they are aware of the importance of safety and
security and have taken care to ensure that the
management and transportation of spent fuel is carried
out safely following the international recognized norms
and regulations and the same is being done under the G
observation of AERB and the Government of India. [Para
57] [694-D-F]
4.3. The AERB Safety Code on "Management of
Radioactive Waste" of 2007 does not deal with the
requirements for Deep Geological Repository (DGR). The H
638 SUPREME COURT REPORTS [2013] 8 S.C.R.
A problem of this nature is being faced by all the nuclear
plant operating countries, including India. Research is on
to handle SNF in DGR which, in the near future, may be
a reality, but that shall not deter in holding up of such a
project which has been established at KKNPP in
B implementation of the India's Nuclear Policy. [Para 65)
[697-F-G]
4.4. However, it is of utmost importance that the
Union of India, NPCIL etc. should find out a place for a
C permanent DGR. Storing of SNF at NPP site will, in the
long run, pose a dangerous, long term health and
environmental risk. NPCIL and the Union of India is
bound to look at the probabilities of potentially harmful
events and the consequences in future. Noticeably,
NPCIL does not seem to have a long term plan, other
D than, stating and hoping that in the near future, it would
establishes a DGR. The Atomic Energy Act, especially
Section 17, envisages present and future safety of our
NPPs and the lives and environment around. NPCIL and
the Union of India must have a hard look at the
E environmental consequences of its action of setting up
of NPPs, hence a permanent DGR is of utmost
importance, which they should plan now. [Paras 65, 66)
[697-G-H; 698-A-C)
F Human Rights (Environmental Pollution in Baluchistan)
PLO 1994 SC 102 and State of New York, ETAL v. NRG and
USA daJed 8-6-2012 [Judgment of the US Court of
Appeals] - referred to.
5.1. The Prime Minister of India ordered a fresh review
G of all safety of NPPs, on 11.3.2011, immediately after the
accident at Fukushima NPP, Japan with respect to
external events. NPCIL, the operating agency, constituted
separate task forces to review safety of NPPs depending
on types of reactor designs and their vintages in India.
H The task force ·found that KKNPP had already
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 639
incorporated all safety standards, including passive A
systems to ensure reactor shutdown. The AERB, in
pursuance of the direction of Prime Minister, constituted
a high level committee (AERBSC-EE) to review safety of
NPPs against external events of natural origin (post
Fukushima accident) with national level experts in the B
areas of (i) design, safety analysis and NPP operation and
(ii) external events in the field of seismology, hydrology
and earthquake engineering to carry out a
comprehensive review of capability of NPPs to deal with
external events within and beyond design basis.
AERBSC-EE s.ubmitted its report on 31.08.2011. The C
expert committee of AERB, LWR in its final report dated
31.8.2011 gave 17 safety measures by way of abundant
caution. A comparative chart giving the status and
implementation of Post Fukushima AERB
Recommendations has been filed by NPCIL in its affidavit D
dated 3.12.2012, which indicate that twelve
recommendations have already been complied with.
[Paras 68, 69, 70 and 72] [699-C-E; 700-C-E, H; 701-E-G]
5.2. This Court is convinced that· KKNPP design
incorporates advanced safety features complying with E
the current standards of redundancy, reliability,
independence and prevention of common cause failures
in its safety systems. The design also takes care of
Anticipated Operational Occurrences (AOO), Design Basis
Accidents (OBA) and Beyond Design Basis Accidents F
(BDBA) like Station Black Out (SBO), Anticipated
Transients Without Scram (ATWS), Metal Water reaction
in the water core and provision of core catcher to take
care of core degradation. The design also includes the
provisions for withstanding external events like G
earthquake, tsunami/storm, tidal waves, cyclones, shock
waves, aircraft impact on main buildings and fire. The
possibility of tsunami hitting at Kudakulam, as the one
that hit Fukushima, seems to be very remote. [Para 73]
[704-G-H; 705-A-C]
H
640 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 5.3. The Government of India, in order to allay various
apprehensions raised by the people's movement against
the production of nuclear energy as well as against
commissioning of KKNPP, constituted a 15 Member
Expert Group to provide clarifications on the issue raised
B by the agitators by interacting with the forum provided
by State Government comprising of 2 State Government
nominees and 4 representatives of the people. Public
hearing was held and views and suggestions made for
and against the project were heard. The Committee
C specifically examined the safety features of KKNPP in the
wake of the accidents occurred at TMI, Chernobyl,
Fukushima etc. [Para 74] [705-D-F]
5.4. The Government of Tamil Nadu also appointed
an Expert Committee headed by Former President of the
D AEC along with three other experts. The Committee
submitted its report after assessing that the project has
a unique passive safety feature which provides cooling
to the nuclear fuel without the need for operator action
or power supply, namely a Passive Heat Removal System,
E which is a novel safety feature. In addition to the various
reports, the Russian Nuclear Safety Authority also known
as GosAtomNadzor (GAN) reviewed and cleared the
Safety Analysis Report of KKNPP Units 1 and 2, which
forms the basis of the licensing safety review. [Para 77]
F [707-E-G]
6.1. Developing modern sources for energy through
NPPs carry the problem of potential damage, which might
flow from a nuclear catastrophe. Several Nuclear Energy
G Generating countries have adopted their own Legislation
on the issue of Civil and Criminal Liability. Few of such
legislations followed the basic principle of imposing legal
liability on a strict liability basis on the operator of a
nuclear installation coupled with the limitation on liability.
H [Para 78] [707-H; 708-A-C]
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 641
6.2. Currently, there are two main conventions on A
third-party liability in the field of nuclear energy. The first
is the Paris Convention of 1960, which was
supplemented by the Brussels Supplementary
Convention Act, 1963. IAEA's Vienna Convention on Civil
Liability for Nuclear Damage, 1963 is yet another B
convention. India's Civil Liability for Nuclear Damage Act,
2010 or the Nuclear Liability Act mainly rests on the above
Conventions, though India is not a signatory to those
conventions. India's Nuclear Liability Act aims to provide
a civil liability for nuclear damage and prompt c
compensation to victims of a nuclear incident through a
No Fault Liability to the operator, appointment of Claims
Commissioner, establishment of Nuclear Damage Claims
Commission, Nuclear Liability Fund and other matters
connected therewith. [Para 79] [708-C-F] D
M. C. Mehta v. Union of India AIR 1987 SC 1086: 1987
(1) SCR 819; Indian Council for Enviro-Legal Action v. Union
of India (1996) 3 SCC 212: 1996 (2) SCR 503; Ve/lore
Citizens Welfare Forum v. Union of India (1996) 5 SCC 647:
1996 (5) Suppl. SCR 241; Union Carbide Corporation v. E
Union of India (1989) 2 SCC 40; Union Carbide Corporation
v. Union of India AIR 1992 SC 248: 1991 (1) Suppl. SCR 251
- referred to.
Duke Power Company v. Carolina Environmental Study F
Group 438 US 59 (1978) - referred to.
7. Disaster Management Plan (DMP) is of paramount
importance. After the accidents in Three Mile Island,
Chernobyl and Fukoshima, there has been an uproar all
over the world including India for adopting sufficient G
safety measures for handling nuclear/radiological
emergencies which may likely to occur in various NPPs
situated in the country. Any radiation incident resulting
in or having a potential to result in exposure and/or
contaminatiol'l in excess of the respective permissible H
642 SUPREME COURT REPORTS [2013] 8 S.C.R.
A limits can lead to a nuclear/radiological emergency.
Situations are, of course, not bound to occur quite often,
but one must be prepared to face nuclear/radiological
emergencies because of high population density in a
country like India. Nuclear/radiological emergencies can
B occur due to factors beyond the control of the operating
agencies, for example, human error, system failure,
sabotage, earthquake, cyclone, flood etc. [Paras 86, 87]
[711-C, D-G]
8. Sustainable Development and Corporate Social
c Responsibility (CSR) are inseparable twins, integrated
into the principles of Inter and Intra-Generational Equity,
not merely human-centric, but eco-centric. CSR is much
more when the Project proponent sets up NPPs, thermal
power plants, since every step taken for generation of
energy from such hazardous substances, is bound to
D have some impact on human beings and environment,
even though it is marginal. The Department of Public
Enterprises (OPE), recently, issued a Comprehensive
Guidelines on CSR for Central Public Sector Enterprises,
which includes NPCIL, to create, through the Board
E Resolution, a CSR budget as a specific percentage of net
profit of the previous year. CSR is envisaged as a
commitment to meet its social obligations by playing an
active role to improve the quality of life to the
communities and stake-holders on a sustainable basis,
F preferably, in the project area where it is operating. NPCIL
has allocated funds for providing health, education,
infrastructural development under CSR at Kudankulam.
[Paras 104, 105] [727-8-E, H] ,
BanwasiSeva Ashram v. State of UP. AIR 1987 SC 374:
G 1987 (1) SCR 336 - referred to.
9. Public opinion, national policy, economic growth,
sustainable development, energy security are all
intrinsically interlinked. One cannot be divorced from
other, all the same, a balance has to be struck. Nuclear
H energy is co1!5idered to be a viable source of energy_ and
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 643
it is necessary to increase country's economic growth. A
India cannot afford to be a nuclear isolated nation, when
most of the developed countries consider it as a major
source of energy for their economic growth. [Para 109)
[729-E-G]
10.1. With regard to the location of KKNPP within the 8
prescribed 500 mtr. within the Coastal Regulation Zone
(CRZ), an exemption had already granted as per the then
existing norms even prior to 1991 by the then Prime
Minister of India by the communication dated 19.4.1989.
Over and above, paragraph 2(1) of 1991 CRZ Notification C
as amended by Notification dated 12.4.2011, exempted
projects of Department of Atomic Energy. A cumulative
reading of the permission dated 19.04.1989 accorded by
the then existing norms read with paragraph 2(1) of 1991
Notification, as amended by Notification dated 12.4.2011, D
makes it clear that the KKNPP Units 1 and 2 have not
violated the 1991 CRZ Notification. (Para 132) [751-B-D]
10.2. Environmental clearance or NOC was granted
to KKNPP units 1 and 2 as early as 26.12.1988 though the
TNPCB had granted 'consent to establish' under Section E
25 of the Air (Prevention and Control of Pollution) Act,
1981 on 25.02.2Q04 and 'consent to operate' under the
Water (Prevention and Control of Pollution) Act, 1974 on
28.08.2012. The "environmental clearance" or "No
Objection Certificate" cannot be equated to "consent to F
establish" under Section 25 of the Air Act and "consent
to operate" under Section 21 of the Water Act, which
were granted on 25.2.2004 and 28.8.2012 respectively.
NPCIL had undertaken various activities with respect to
KKNPP subsequent to the environment clearance G
granted by TNSEC on 26.12.1988, sµbsequently modified
on 13.2.1989. TNSEC had on 15.12.1988 had already
cleared the project, which tantamount to No Object
Certificate (NOC). Only after clearance or NOC, the
question of 'establishing' or 'operating' a plant arises. H
644 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Explanatory Note 8 to the Environment Notification dated
27 .01.1994 speaks of exemption for projects already
initiated that is land has been acquired and clearance of
the State Government including NOC, from Pollution
Control Board had been obtained before 27th January
B 1994, for which no fresh environmental clearance would
be required from Impact Assessment Agency (IAA).
KKNPP units 1 and 2 is, therefore, entitled to get the
benefit of the Explanatory Note 8 to EIA notification dated
27.01.1994. [Para 148 and 149) [760-E-H; 761-A-C]
c 10.3. Also, there has been no expansion or
modernization of units 1 and 2, which has resulted in
increase of pollution load. Plant capacity remained the ·
same i.e. 1000 MWs X2, till date and there is no
substantial difference in plant model and the
o specifications envisaged in the 1988 agreement and 1998
supplement agreement. Plant model remains as V-412,
consequently the 1994 EIA notification will not apply qua
KKNPP units 1 and 2. [Para 150) [761-C-D]
10.4. The EIA for the expansion of KKNPP i.e. for
E setting up Units 3 to 6 included the environment impact
on Units 1 and 2 and the cumulative effect of all the six
units definitely formed the base line for the clearance
granted by the MoEF on 23.9.2008 and 31.12.2009. The
concern of the public regarding safety, livelihood,
F radiation, impact on marine life, rehabilitation, impact on
the sea shore etc. were also considered and following that
necessary clearance was granted. [Para 159) [769-H; 770-
A-B]
10.5. On facts, it is seen that the KKNPP has been set
up and is made functional on the touchstone of
G sustainable development and its impact on ecology has
been taken care of following all national and international
environmental principles. [Para 174] [776-B-C]
11. While balancing the benefit of establishing
H KKNPP Units 1 to 6, with right to life and property and
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 645
the protection of environment including marine life, one A
has to strike a balance, since the production of nuclear
energy is of extreme importance for the economic growth
of our country, alleviate poverty, generate employment
etc. While setting up a project of this nature, one has to
have an overall view of larger public interest rather than B
smaller violation of right to life guaranteed under Article
21 of the Constitution. [Para 175) [776-D-F]
12. Problems highlighted, while setting up a nuclear
plant, are not unique to this nation, because other
countries are also grappling with those situations. Much C
hue and cry has been raised by some sections of the
people about the possible impact of radiation from
KKNPP Units 1 and 2, a point which has been addressed
by the AERB, NPCIL, MoEF and all the Expert
Committees constituted to go into the impact and effect D
of radiation from the units not only on humans but also
on ecology. Experts Committees are of the unanimous
opinion that there will not be any deleterious effects due
to radiation from the operation of KKNPP, and that
adequate safety measures have already been taken. E
NPCIL, while setting. up the NPP at Kudankulam, have
satisfied the environmental principle like sustainable
development, corporate social responsibility,
precautionary principle, inter - intra generational equity
and so on to implement our National Policy· to develop, F
control and use of atomic energy for the welfare of the
people and for economic growth of the coll(ltry. Larger
public interest of the community should give way to
individual apprehension of violation of human rights and
right to life guaranteed under Article 21. [Para 176, 178 and G
179) [776-F-G; 778-H; 779-A-B, E-G]
R. v. Inspectorate of Pollution, ex p Greenpeace Ltd
(1994) ALL ER 321; R. v. The Secretary of State for the
Environment, exp Greenpeace Ltd. (1994) 4 All England
Reports 352; R. v. Secretary of State for Environment, Food H
646 SUPREME COURT REPORTS [2013] 8 S.C.R.
A and Rural Affairs, ex p Friends on the Earth Ltd (2002)
Environmental Law Review 24; Marchiorii v. Environment
Agency (2002) EWCA Civ 3; R. (Greepeace Ltd) v. Secretary
of State for Trade and Industry, (2007) Environmental Law
Reports 29; S.V. France 3RUOH (1991) (decision by
B European Commission of Human Rights); Metropolitan
Edison Co. v. People Against Nuclear Energy 460 US 766
(1983); Alberta Wilderness Association v. Express Pipelines
Ltd. 137 "DLR (4th) 177 (Canada); lnverhuron District
Ratepayers' Assn v. Canada (Minister of the Environment)
c 2001 FCA 203 - referred to.
13. Public money running into crores and crores
rupees have already been spent for the development,
control and use of atomic energy for the welfare of the
people and hence, one has to put up with such "minor
D inconveniences", "minor radiological detriments" and
minor environmental detriments" in our lives because the
benefits from KKNPP are enormous since Nuclear energy
remains as an important element in India's energy mix
which can replace a significant part of fossil fuels like
E coal, gas oil etc. [Para 180] [779-G-H; 780-A-B]
14. Justification for establishing KKNPP at
Kudankulam has been vindicated and all safety and
security measures have already been taken, necessary
permissions and clearances have been obtained from all
F statutory authorities. Apprehension expressed by some
sections of the public that if the units are commissioned
or put into operation, it will have far reaching
consequences, not only on the present generation, but
also on the future generation, of the possible radioactive
G effects of the units has no basis. Few of them raised the
apprehension that it might repeat accidents like the one
that had happened at Three Miles Island, Chernobyl,
Union Carbide and Fukushima etc. Apprehension,
however, legitimate it may be, cannot override the
H justification of the project. Nobody on this earth can
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 647
predict what would happen in future and to a larger A
extent we have to leave it to the destiny. But once the
justification test is satisfied, the apprehension test is
bound to fail. Apprehension is something we anticipate
with anxiety or fear, a fearful anticipation, which may vary
from person to person. [Para 181) [780-8-F] B
15. Nuclear power plant is being established not to
negate right to life but to protect the right to life
guaranteed under Article 21 of the Constitution. The
petitioner's contention that the establishment of nuclear C
power plant at Kudankulam will make an inroad into the
right to live guaranteed under Article 21 of the
Constitution, has no basis. On the other hand it will only
protect the right to life guaranteed under Article 21 of the
Constitution for achieving a larger public interest and will
also achieve the object and purpose of Atomic Energy D
Act. [Para 184) [781-G-H; 782-A]
Chameli Singh and others v. State of U. P. and another
(1996) 2 SCC 549: 1995 (6) Suppl. SCR 827 - referred to.
E
16. AEC, DAE, BARC, AERB, NPCIL, TNPCB the
expert bodies, are all unanimous in their opinions that
adequate safety and security measures have already
taken at KKNPP which are to be given due weight that
they deserve. Further, NPCIL Task Force Report on
Security of all NPPs including KKNPP dated March 2011, F
11.5.2011, AERB-EE Expert Opinion on Design Committee
Safety dated 31.8.2011, 15 Member Expert Team
Committee Report (post Fukishama) dated December
2011, Supplementary Report dated 31.2.2012 on the
Grievances raised by some of the agitators, report G
submitted by Sri R. Srinivasan, Former President, Atomic
Energy Commission appointed by the State of Tamil
Nadu are all unanimous in their view on the safety and
security of KKNPP. MoEF, EAC, TNPCB, Report of IOM,
Anna University dated July 2008 on Impact of NPP on H
648 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Marine Eco-system, Committee on Conservation of Sea-
Shore of the State of Tamil Nadu, Report of Engineers
India Limited with CHFRI dated August 2011, NEERI dated
May 2002 and January 2003 on the Impact on Air, Water,
Land, Eco-system etc. are all unanimous that the radiation
8 as well as the discharge of water from NPP to the sea
shore will not have serious impact on the marine ecology
or on marine life. [Paras 185 and 186] [782-B-F]
17. Normally, Court should be slow to interfere with
the opinion expressed by the Experts and it would
C normally be wise and safe for the courts to leave the
decisions to experts who are more familiar with the
problems which they face than the courts generally can
be which has been the consistent view taken by this
Court. The Court cannot sit in judgment on the views
D expressed by the Technical and Scientific Bodies in
setting up of KKNPP plant at Kudankulam and on its
safety and security. [Paras 187, 188] [782-G-H; 783-F]
University of Mysore v. C. D. Govinda Rao AIR 1965 SC
E 491: 1964 SCR 575 - followed.
State of Bihar v. Asis Kumar Mukherjee (Dr.) (1975) 3
SCC 602:1975 (2) SCR 894; Dalpat Abasaheb Solunke v.
B. S. Mahajan (1990) 1 SCC 305; Central Areca Nut & Cocoa
Marketing & Processing Coop. Ltd. v. State of Karnataka
F (1997) 8 SCC 31; Dental Council of India v. Subharti K. K.
B. Charitable Trust & Another (2001) 5 SCC 486: 2001 (3)
SCR 149; Basavaiah (Dr.) v. Dr. H. L. Ramesh (2010) 8 SCC
372: 2010 (9) SCR 227; Avishek Goenka v. Union of India
(2012) 5 SCC 275: 2012 (5) SCR 547 - referred to.
G
Woon Tankan and Seven Others v. Asian Rare Earth
Sdn. Ehd. CLJ (1992) 2 207 - referred to.
Conclusion
H 18. KKNPP has been set up as part of India's National
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 649
Policy so as to develop, control and use of atomic A
energy for the welfare of the people of India. Policy
makers consider nuclear energy as an important element
in India's energy mix for sustaining economic growth of
natural and domestic use. For setting up the project, the
project proponent has taken all safety requirements in B
site and off site and has followed the code of practices
laid down by AERB, based on nationally and
internationally recognized safety methods. Safeguarding
the nuclear plants, radioactive materials and ensuring its
physical security have become a central part of Nuclear c
Law. Adequate measures have, therefore, to be taken for
storage of NSF at site, and also for the physical safety
of stored NSF. Of the seventeen suggested safety
measures, by AERB, LWR, twelve have already been
implemented and the rest, in a phased manner have to
0
be implemented which the experts say, are meant for
extra security. Disaster Management Plan (DMP) is
already in place, so also the emergency preparedness
plan, off site and on site and all programmes under CSR
are progressing in the right direction with the co-
operation and assistance of the District Administration. E
NPCIL, has also received necessary environmental
clearance from MoEF, TNPCB, etc for Units 1 to 6. No
violation of CRZ is also noticed. Desalination Plant is also
established after following rules and regulations and
there is no violation of CRZ. Experts say that there will F
be no impact on the marine eco-system due to discharge
of +7°CC, CCW over and above the ambient temperature
of the sea. Radiation impact on the eco-system is also
within the standard set by AERB, MoEF, EAC, Pollution
Control Board etc., so opined by the Experts. In other G
words, all the expert teams are unanimous in their
opinion of the safety and security of the KKNPP both to
life and property of the people and the environment
which includes marine life. Court has to respect national
nuclear policy of the country reflected in the Atomic H
650 SUPREME COURT REPORTS [2013) 8 S.C.R.
A Energy Act and the same has to be given effect to for the
welfare of the people and the country's economic growth
and it is with these objectives in mind KKNPP has been
set up. [Paras 189, 190) (783-G-H; 784-A-G)
Per Dipak Misra, J. [Concurring]
8
HELD: 1. The conception of the parens patriae theory
is the obligation of the State to protect and it takes into
custody the rights and the privileges of its citizens for
discharging its obligation. The maxim salus populi
C suprema lex - regard for public welfare - is the highest
law. Another maxim is salys republicae supreme lex, i.e.,
safety of the State is the supreme law and in case of any
conflict, an individual must yield to the collective interest.
But, it should not be done at the cost of safety. At all times
D and at all quarters, sincere efforts are to be made to
maintain and sustain the safety of the people. True it is,
there are exceptions, but the exceptions are to remain in
the realm of exceptions only and should not be brought
into play either at the whim or fancy of the executive. The
E purpose of saying is that the law has many a mansion
and the mosaic of law covers many spectrums so that
both the maxims, namely, solus populi supreme lex and
salus republicae supreme lex, can harmoniously coexist.
The present case is one where there is need for nuclear
F energy for the welfare of the public and for other welfare
of the people of India and for peaceful purpose. Ot!finitely,
the interest of the economy and the interest of safety are
to be the real concerns of a Welfare State. (Paras 211, 216)
[799-D-E; 801-A-E]
G Charan Lal Sahu v. Union of India (1990) 1 SCC 613:
1989 (2) Suppl. SCR 597; Union Carbide Corporation v.
Union of India and others (1989) 3 SCC 38: 1989 (3) SCR
128; Pritam Pal v. High Court of Madhya Pradesh, Jabalpur
through Registrar ~993 Supp (1) SCC 529 and State of
H Kamataka and others v. Dr. Praveen Bhai Thogadia (2004)
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 651
4 SCC 684: 2004 (3) SCR 652 ....: referred to. A
Anderson v. Dunn, 19 U.S. (6 Wheat) 204 (1821)
[decision of U.S. Supreme Court] - referred to.
2. The concept of welfare State is a facet of Article
38 of the Constitution of India. It is the obligation of the B
State to see that the welfare of the people is appositely
promoted. The words used in the Preamble of the Atomic
Energy Act, 1962 are "welfare for the people" and
"peace". There is a necessity for generation of electrical
energy and regard being had to the hazards, there has C
to be guidance which the Acts, Rules and Notifications
provide. The collective interests should not totally be
thrown overboard for the development of the power
sector. If the safety measures are adequately not taken
and the apprehensions are not removed and the fear is D
not totally ostracized from the minds of the people of the
locality, posterity may not recognize the same as a
development or a progressive step. The conscientious
and conscious policy decisions by the Government are
to be taken with due care and consideration, keeping in E
mind the welfare of the people at large. [Para 217) [801-
H; 802-A-D]
3. The safety of the people residing in Kudankulam
and the areas in its vicinity and also the people who are
likely to be affected because of radioactive generation F
has to be respected, for their human dignity is their
divinity. This Court has not directed for closure of the
plant on the basis of the asseverations made before this
Court. But, it is the highest concern of this Court that a
devastating disaster should be avoided at all costs by the G
people who are in-charge of looking after the safety
measures. The statutory regulatory authority should
responsibly keep the vigil and no one, who has the
responsibility, should be complacent. The tragedy that
has occurred at Fukushima shall remain as one of the H
652 SUPREME COURT REPORTS [2013] 8 S.C.R.
A darkest elements of history. The catastrophe of the
·Bhopal Gas Leak Disaster has not been erased or
effaced from the minds of the public. The moan and
mourns of the affected people of Bhopal who have been
injured or lost their kith and kin are still heard and
8 humane sensitivity would not permit one to ignore it. The
nuclear scientists, the administrators and other
authorities cannot remain oblivious or totally insensitive
to the possible hazards when the nuclear plant operates.
[Para 220] (806-E-H; 807-A]
c 4. When one thinks of safety in the context of
establishment of a nuclear plant, the inevitable thought
that gets into the depth of mind is security. Safety and
security, in this context, are insegregably inter-twined
commencing the planning, quality of construction,
D committed efforts to avoid operational jeopardy and
monitoring and all are bound to remain in a singular
chain. All endeavours are to be made to prevent, monitor
and control. The concept of disaster management cannot
be allowed to remain on paper. Taking care of the
E situation of the present alone is not the solution. All
concerned with the same are required to look to the
future because that elevates the real concern. The
protection of the environment and the safety for the
present generation in its connotative sense covers the
F posterity. [Para 221] [807-B-C, D, F-G]
5.1. Promotion of development and protection of
environment are to be harmonized at the same time. What
is required to be prescribed is the principle of sustainable
development and find a balance between the
G developmental needs and the environmental degradation.
[Para 222] [808-A-B]
5.2. This Court has emphasized on striking a balance
between the ecology and environment on one hand and
H the projects of public utility on the other. The trend of
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 653
authorities is that a delicate balance has to be stru;;k A
between the ecological impact and development. The
other principle that has been ingrained is that if a project
is beneficial for the larger public, inconvenience to
smaller number of people is to be accepted. It has to be
respectfully accepted as a proposition of law that B
individual interest or, for that matter, smaller public
interest must yield to the larger public interest.
Inconvenience of some should be bypassed for a larger
interest or cause of the society. But, a pregnant one, the
present case really does not fall within the four corners c
of that principle. It is not a case of the land oustees. It is
not a case of "some inconvenience". It is not comparable
to the loss caused to property. Ouster from land or
deprivation of some benefit of different nature relatively
would come within the compartment of smaller public 0
interest or certain inconveniences. But when it touches
the very atom of life, which is the dearest and noblest
possession of every person, it becomes the obligation of
the constitutional courts to see how the delicate balance
has been struck and can remain in a continuum in a
E
sustained position. Unless adequate care, caution and
monitoring at every stage is taken and there is constant
vigil, life of "some" can be in danger. That will be totally
shattering of the constitutional guarantee enshrined
under Article 21 of the Constitution. It would be
guillotining the human right, for when the candle of life F
gets extinguished, all rights of that person perish with it.
Safety, security and life would constitute a pyramid
within the sanctity of Article 21 and no jettisoning is
permissible. Therefore, the delicate balance in other
spheres may have som·e allowance but in the case of G
establishment of a nuclear plant, the safety measures
would not tolerate any lapse. The grammar has to be
totally different. However, the proportionality of risk may
not be "zero" regard being had to the nature's
unpredictability. All efforts are to be made to avoid any H
654 SUPREME COURT REPORTS [2013) 8 S.C.R.
A man-made disaster. Though the concept of delicate
balance and the doctrine of proportionality of risk factor
gets attracted, yet the same commands the highest
degree of constant alertness, for it is disaster affecting
the living. The life of some cannot be sacrificed for the
B purpose of the eventual larger good. [Para 228] [811-B-
H; 812-A-D]
5.3. The AERB as the regulatory authority and the
MoEF are obliged to perform their duty that safety
measures are adequately taken before the plant
C commences its operation. That is the trust of the people
in the authorities which they can ill afford to betray, and
it shall not be an exaggeration to state that safety in a case
of this nature in any one's hand has to be placed on the
pedestal of "Constitutional Trust". [Para 229] [812-G-H]
D
Intellectuals Forum, Tirupathi v. State of A.P. and others
(2006) 3 SCC 549: 2006 (2) SCR 419; Bombay Dying & Mfg.
Co. Ltd. (3) v. Bombay Environmental Action Group and
others (2006) 3 SCC 434: 2006 (2) SCR 920; M.C. Mehta v.
E Union of India and others (2004) 12 SCC 118: 2004 (3) SCR
128; A. P. Pollution Control Board v. Prof. M. V. Nayudu
(1999) 2 SCC 718; Tirupur Dyeing Factory Owners
Association v. Noyya/ River Ayacutdars Protection
Association and others (2009) 9 SCC 737: 2009 (14) SCR
F 1051; T.N. Godavarman Thirumulpad (104) v. Union of India
(2008) 2 SCC 222: 2007 (12) SCR 447; M.C. Mehta v. Union
of India (2009) 6 SCC 142; T.N. Godavarman Thiruma/pad
(through K.M. Chinnappa) v. Union of India and others (2002)
10 SCC 606: 2002 (3) Suppl. SCR 541; Narmada Bachao
G Ando/an v. Union of India and others (2000) 10 SCC 664:
2000 (4) Suppl. SCR 94 - referred to.
Case Law Reference:
In the judgment of Radhakrishnan, J.
H (1913) AC 107 (118) HL referred to Para 11
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 655
(1984) 3 All ER 935 (954) HL referred to Para 12 A
1997 (1) Suppl. SCR 671 relied on Para 13
2001 (2) SCR 630 referred to Para 13
2007 (10) SCR 199 referred to Para 13
B
2008 (3) SCR 898 referred to Para 13
(2004) 2 sec 476 relied on Para 46
1994 SC 102 referred to Para 60
c
438 us 59 (1978) referred to Para 82
1987 (1) SCR 819 referred to Para 83
1996 (2) SCR 503 referred to Para 83
1996 (5) Suppl. SCR 241 referred to Para 83 D
(1989) 2 sec 40 referred to Para 84
1991 (1) Suppl. SCR 251 referred to Para 84
1987 (1) SCR 336 referred to Para 106 E
(1994) ALL ER 321 referred to Para 176
(1994) 4 All ER 352 referred to Para 176
(2002) ELR 24 referred to Para ·116
F
(2002) EWCA Civ 3 referred to Para 176
(2007) Environmental Law referred to Para 176
Reports 29
3RUOH (1991) referred to Para 176 G
460 us 766 (1983) referred to Para 176
137 DLR (4th) 177 referred to Para 176
2001 FCA 203 referred to Para 176
H
656 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 1995 (6) Suppl. SCR 827 referred to Para 177
1964 SCR 575 followed Para 187
1975 (2) SCR 894 referred to Para 187
(1990) 1 sec 305 referred to Para 187
B
(1997) 8 sec 31 referred to Para 187
2001 (3) SCR 149 referred to Para 187
2010 (9) SCR 227 referred to Para 187
c 2012 (5) SCR 547 referred to Para 187
CLJ t1992) 2 207 referred to Para 187
In the judgment of Dipak Misra, J.
D 1989 (2) Suppl. SCR 597 referred to Para 211
1989 (3) SCR 128 referred to Para 213
1993 Supp (1) sec 529 referred to Para 215
E 2004 (3) SCR 652 referred to Para 215
2006 (2) SCR 419 referred to Para 222
2006 (2) SCR 920 referred to Para 223
2004 (3) SCR 128 referred to Para 224
F
2009 (14) SCR 1051 referred to Para 225
2007 (12) SCR 447 referred to Para 225
(2009) s sec 142 referred to Para 225
G
2002 (3) Suppl. SCR 541 referred to Para 226
2000 (4) Suppl. SCR 94 referred to Para 227
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 4440 of 2013. .
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 657
From the Judgment & Order dated 31/08/2012 of the High A
Court of Madras in WP No. 22253/2012.
WITH
C.A. Nos. 4441, 4442 and 4443 of 2013.
Mohan Parasaran, Gourab Banerji, ASG, Rakesh Diwedi, B
S. Guru Krishna Kumar, Subramonium Prasad, A.A.G.,
Prashant Bhushan, Pranav Sachdeva, N.L. Ganapathi, Sanjay
Parikh, Rashmi Nandakumar, Bushra Parveen, A.N. Singh,
Mamta Saxena, Anitha Shenoy, D.L. Chidananda, N.
Meyyappan, D.S. Mahra, S.N. Terdal, Sameer Parekh, Faisal C
Sherwani, (for Parekh & Co.), Yogesh Kanna, A. Santha
Kumaran, B. Balaji, A. Prasanna Venkat, D. Nagasalla, Gautam
Narayan, Asmita Singh for the appearing parties.
The Judgment of the Court was delivered by D
K.S. RADHAKRISHNAN, J. 1. Leave granted.
2. We are in these 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 E
tip· of India, at Kudankulam in the State of Tamil Nadu. The
incidents occurred in Three Miles lslaftd 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 F
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 G
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.
H
658 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 3. 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.
B GENERAL
4. 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 Act envisaged the constitution of an Atomic
C 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,
D 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
E 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
F energy in the country and matters connected therewith were then
regulated by Act 29 of 1948.
5. 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
G 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
H atomic energy for the welfare of the people of India and for other
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 659
[K.S. RADHAKRISHNAN, J.]
peaceful purposes. The Central Government, in exercise of the A
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 B
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 c
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 corporation or a Government company was also
decided to be set up which would design, construct and D
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 E
of India undertaking which functions under the administrative
control of DAE.
NATIONAL POLICY:
6. The Parliament in unequivocal terms has pronounced F
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 G
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 H
660 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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
B 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
c (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.
0
7. 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 coordinate such policy with the
Central Electricity Authority (CEA) and the State Electricity
E 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
F as follows:
"22. Special provision as to electricity.-
(1) Notwithstanding anything contained in the Electricity
(Supply) Act, 1948 (54 of 1948 ), the Central
G 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
H Electricity Authority and the State Electricity
G. SUNDARRAJAN v. UNION OF INDIA AN.D ORS. 661
[K.S. RADHAKRISHNAN, J.]
Boards constituted under section.s 3 and 5 A
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 B
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 c
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[ , D
either by itself or through any authority or
corporation established by it or a
Government company, in consultation with]
the Central Electricity Authority;
E
(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 F
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] G
and 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.
H
662 ' SUPREME COURT REPORTS (2013] 8 S.C.R.
A (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.
B
(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 )."
c
8. 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
D 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
E 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
F 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
G 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
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 663
[K.S. RADHAKRISHNAN, J.]
units 1-4) and Rawatbhata in Rajasthan (RAPS Units 3-6). India A
in 1990s undertook the design and development of 540 MWe
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 char.nels.
The construction of four such units was almost completed at B
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 c
of WER 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.
9. India draws bulk of its electricity, above 64%, from
thermal sources, especially coal. Hydro power comes second D
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 E
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 F
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 G
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 H
664 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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
B policy, India has already entered into various collaborations witn
most of the developed countries which have proved expertise
and experience in the field of establishment and production of
nuclear energy.
10. Economic growth and energy support have to go hand
C in hand, for the country's development for which India has
entered into various collaboration agreements with U.SA,
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
D lndo-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 lndo-France Joint Statement in
E 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
F 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
G Policy.
11. 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
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 665
[K.S. RADHAKRISHNAN, J.]
and for other peaceful purposes. NPP has been set up at A
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 B
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 C
dangerous to the community ...... But a Judicial tribunal has
nothing to do with the policy 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." D
12. 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 E
which those decisions have been taken, if that manner is unfair,
the decision will be tainted with that Lord Diplock labels as
'procedural impropriety'.
13. This Court in M.P. Oil Extraction and Anr. v. State of F
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 Mis. Ugar Sugar Works Ltd. v. Delhi Administration G
& 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, H
666 SUPREME COURT REPORTS [2013] 8 S.C.R.
A NPCIL etc. for setting up of KKNPP at Kudankulam in view of
the Inda-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.
14. We may, however, focus our attention on various other
8
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
C 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, OMA, CSR and other related issues and
in Part II, we mainly focus on the environmental issues, CRZ,
D Desalination Plant, Impact of Radiation on Eco-system, Experts
opinions etc.
PART I
E 15. KKNPP has been set up by NPCIL based on the lndo-
Russia Joint Agreement under the guidance and supervision
of AEC, BARG, AERB, MoEF, TNPCB, Central and State
Governments etc.
ARGUMENTS - FOR AND AGAINST
F
16. 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
G 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
H unless the seventeen recommendations made by the Task
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 667
[K.S. RADHAKRISHNAN, J.]
Force appointed by NPCIL are implemented before A
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 B
is a fundamental right guaranteed to them under Article 21 of
the Constitution of India.
17. 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 C
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. D
Learned counsel also pointed out that no adequa~e 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.
E
18. Learned Attorney General appearing for AERB
submitted that the plant has been set up after following all the
safety standards laid down by AERB. The design of KKNPP
incorporates advance safety features complying with current
standards of redundancy, reliability, independence and F
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 G
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
H
668 SUPREME COURT REPORTS (2013] 8 S.C.R.
A 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
8 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
C 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
D 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
E 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
F the 17 recommendations made out of abundant caution by
AERB. Learned Solicitor General submitted that the 17
recommendations of AERB would also be complied with in a
phased manner, out of which 7 have already been
implemented.
G 20. Shri Mohan Parasaran, learned Additional Solicitor
General of India, appearing on behalf of responde"nt 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
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 669
[K.S. RADHAKRISHNAN, J.]
being reused, the remaining 3% of the spent fuel consists of A
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 B
are temporary storage facilities for recyclable fuel and are
essentially water filled concrete vaults with SS lining, having the
c:irrangement 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 C
'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. F1i1rther, 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 D
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 importan:e of safety and security
and takes utmost care to ensure that the management and E
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 F
at Kudankulam, as already stated, cannot be questioned before
this Court being part of a National Policy. Lot of scientific
litei atures, 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 G
generation but on future generation as well. Further, it was also
pointed out that due to growing nuclear accidents and the
resultant ecological and other dangers, many countries have
started retreating from their forward nuclear programmes.
H
SUPREME COURT REPORTS [2013] 8 S.C.R.
670
A 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
8 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,
C 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
D l
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
E 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
F 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
G 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
H 26. AERB, as already indicated, was constituted by the
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 671
[K.S. RADHAKRISHNAN, J.]
Central Government in exercise of powers conferred under A
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: B
(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 C
.recommendations and local requirements and
develop safety policies in both radiation and
ir:idustrial safety areas.
(ii) Ensure compliance by DAE and non-DAE
installations of safety codes and standards during D
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, E
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 F
commissioning I operation of the plant I project is
granted, the AERB will be satisfied by appropriate
review of: ··
(a) Final design Analysis Report prepared by the G
project plant;
(b) Commissioning reports and results thereof; and
(c) Proposed operating procedures and
operational limits and conditions; that the plant/ H
672 SUPREME COURT REPORTS [2013) 8 S.C.R.
A 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.
B (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
c 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
D _policies.
(vii) Prescribe acceptable limits of radiation exposure
to occupational workers and members of the public
and approve acceptable limits of environmental
E 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
F 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
G fulfilling the above functions and responsibilities.
(x) Review the training programme, qualifications and
licensing policies for personnel by the projecU
plants.
H (xi) Prescribe the syllabi for training of personnel in .
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 673
[K.S. RADHAKRISHNAN, J.]
safety aspects at all levels. A
(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 B
DAE.
(xiii) Maintain liaison with statutory bodies in the country
as well as abroad regarding safety matters.
(xiv) Take such steps as necessary to keep the public c
informed on major issues of radiological safety
significance.
(xv) Perform such other functions as may be assigned
to it by the Atomic Energy Commission.
D
(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 E
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 F
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 G
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' H
674 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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
B 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
c 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 various leading
countries. The Code of Practice on Safety in Nuclear Power
0 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
E 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
F 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
G 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
H document to facilitate preparation of specific site manuals by
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 675
[K.S. RADHAKRISHNAN, J.]
the responsible organization for emergency response plans at A
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 B
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 c
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 D
installation. Radiological emergencies at the nuclear installations
are mainly categorized as Plant emergency alert; Plant
emergency; Site emergency and Off-site emergency. The
operating organization is responsible for handli11g the first.three
categories of emergencies, while the off-site emergencies E
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:
F
(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 G
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 H
676 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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
B
emergencies.
(iv) To indicate guidelines on off-site related factors,
which may influence management of off-site
emergencies.
c
(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,
D Regulatory Body and the state public authorities for
prompt and effective use in times of off-site
emergency.
30. The AERB has also issued the document
"Preparedness of the Operating Organization for handling
E Emergencies" at Nuclear Power Plants in March 2000. This
document supplemented the Code of Practice on Safety 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
F 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;
G (b) To focus on the contents offhe emergency manuals
in respect of resources and procedures to help
respond adequately to emergency situations;
(c) To emphasize the responsibilities of plant
H management regarding personnel, plant and site
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 677
[K.S. RADHAKRISHNAN, J.]
emergency and responsibilities of the State A
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 8
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
c
(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 D
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 E
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
F
Plants" (50-C-G}.
The main objectives of the Code are to ensure that:-
(a) Only such practices are permitted which are justified
in terms of their societal and/or individual benefits, G
(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, H
678 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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
B 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
C 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.
D
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
E 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
F 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
G 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 guide also addresses the
safety aspects in fuel handling control and instrumentation and
auxiliary equipment related to the fuel handling system. Design
H provisions to facilitate inspection and testing of fuel handling
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 679
[K.S. RADHAKRISHNAN, J.]
and storage systems are also covered in that guide. The same A
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
B
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, C
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 D
standards laid down by IAEA. A brief reference to those
conventions, treaties and IAEA may be apposite.
INTERNATIONAL CONVENTIONS. BILETERAL
TREATIES ETC.: E
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 F
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 G
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.
H
680 SUPREME COURT. REPORTS [2013) 8 S.C.R.
A 36. The Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency was adopted by
the General Conference at its 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.
B
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.
c 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.
D
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
E 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
F 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.
G 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
H Co-operation on Peaceful Uses of Radioactive Minerals and
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 681
[K.S. RADHAKRISHNAN, J.]
Nuclear Energy by senior officials of the Department of Atomic A
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. B
India-Kazakhstan have also signed a pact on nuclear co-
operation in April 2011 and agreed to have collaboration in
nuclear energy for peaceful purposes. Discussions are on to
execute a civil nuclear agreement with Argentina.
42. lndia-U.S. issued an Inter U.S. Joint Statement at C
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, D
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 E
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 F
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 G
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 H
682 SUPREME COURT REPORTS [2013] 8 S.C.R
A 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
B 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
C nuclear technologies to human well being while minimizing their
risks. Few facts 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
D 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
E 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
F 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.
G
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
H management of nuclear waste. India is in partnership with the
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 683
[K.S. RADHAKRISHNAN, J.]
IAEA and has incorporated many of its directives in the code A
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 B
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 C
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 D
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 E
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. F
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 G
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 H
684 SUPREME COURT REPORTS [2013) 8 S.C.R.
A meant to protect the life and property of people including the
environment, guaranteed under Article 21 of the Constitution of
India.
KKNPP Project
B 47. The Government of India, following its national nuclear
policy, decided to set up a NPP in the southern part of the
country. DAE, for that purpose constituted a Site Selection
Committee (SSC) for selecting a suitable site in the
coramandel coast of Tamil Nadu. The Committee, after
C surveying various sites, selected Kudankulam in the Tirunelveli
District of Tamil Nadu as the most suitable place for locating
NPP. NPCIL also made a detailed study of the selected site
in the light of the Code of Practice framed by AERB regarding
safety in NPP Siting. Kudankulam, the site located, is situated
D on the Shore of Gulf of Mannar near the South-Eastern tip of
India in the coastal track at an elevation of +3 to +45m above
MSL forming the southern fringe of soil covered plains. Most
of the rivers in the area are seasonal and there are no major
lakes, dams or ponds existing within 20 km radius around
E project site. The climate in the area is arid and is similar to
other coastal regions. As per IMO Station at Kanyakumari, the
wind speed is in the range of 6 to 30 km/hr. The ambient
temperature varies in the range of 21°c - 34°C, while the
relative humidity ranges from 68% to 80%. Geologically, the site
F is made up of the Archean super group of crystalline rocks,
sedimentary rocks of Precambrian origin and recent quaternary
deposits. The geological profiles studied up to 80m depth
indicates that the site comprises of highly metamorphosed
rocks with granulated and amphibolites faces of charnokites
G belonging to the archean super group. NPP site is situated in
the South of Pandian movable belt, the metamorphic rocks of
which are the foundations of ancient platform.
48. The NPP site is situated in an are_'a~:·with expected
earthquake intensity of up to V on the modifi~d intensity scale.
H The site area falls within the seismic zone II whfCh is a
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 685
[K.S. RADHAKRISHNAN, J.]
moderately stable area as per Seismic Zoning Map (SZP) of A
India. The strongest earthquake near this area and within the
Indian peninsula was Coimbatore earthquake of February
1900. The epicentre of this earthquake was situated at a radial
distance of 300 km from the proposed NPP site. The site of
the plant lies in zone II of the SZP of India, where shocks of B
intensity VI or magnitude 5 can occur. In the region, no shock
of magnitude 5 is known to have occurred at less than 100 km
distance from the plant site. Within the distance of 300 kms.,
some 27 earthquakes of intensity IV to VIII or a magnitude
ranging between 4 to 5.7 are known to have occurred from c
1341 to 1972. A detailed study was also conducted as to
whether a site-plant interaction would reduce any radiological
risk or others of an unacceptable magnitude. Radiological risk
to nuclear plant due to external events should not exceed the
range of radiological risk associated with accidents of internal
0
origin and the possible radiological impact of a NPP on the
environment should be acceptably low for normal operation and
accident conditions and within the stipulated criteria for
radiological safety. In evaluating the suitability of a site for
locating a NPP, the effect of external events (natural and man- E
induced) on the plant; effect of plant on environment and
population; and implementation of emergency procedures
particularly protective counter-measures in the public domain,
had to be addressed. SSC study also included the assessment
of seismicity, location of faults, geology, foundation conditions,
meteorology, potential of flooding (from tsunami, storm surge F
etc. at coastal sites and from rain, upstream dam break, etc.
at inland sites), proximity to airports, military installations,
facilities storing explosive and toxic substances etc. The
environmental setting comprising of bio-diversity including flora
and fauna, marine ecology etc. in the region was also evaluated. G
SSC had taken care of all those aspects before making its
recommendations to the Government. NPCIL, Union of India
and other statutory authorities had taken care to follow the
practice laid down by AERB on safety in NPP site.
H
686 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 49. KKNPP consists of two WER-1000 types of units
having 1000 MWe rating each. VVER reactors being
established at KKNPP belong to the family of Advance
Pressurized Water Reactors (PWRs) and presently 439
nuclear reactors are under operation in the world and about 209
B of them belong to PWR family, including 55 WERs. The
construction activities had started at the site on 31.3.2002 and
two units are being implemented with the technical assistance
of Russian Federation as per the Inter Government Agreement
(IGA) between India and Russia. As per the agreement, design
C and supply of major equipments are done by Russian
Federation, while construction, erection, commission and
operation are being carried out by NPCIL. KKNPP is of a most
modern design. PWR cooled and moderated by light, water and
its core containing the nuclear fuel is located inside a pressure
D vessel. There are no pressurizing tubes, no graphite moderator
and no boiling of water in the core. The reactor is located inside
an air tight primary containment building which is surrounded
by secondary containment. There are other design features in
NPP which assure adequate core cooling under deconceivable
off-normal conditions including total loss of electric power. Even
E for the hypothetical case of a core melt down, a core catcher
is provided where the molten core is retained and cooled and
the double containment ensures that there will be no significant
radiological impact in the public domain. NPP, has been
divided into three stages, first stage comprises of building
F PHWR's and using natural uranium. The second stage includes
setting up 'Fast Breeder Reactor's backed by reprocessing
plants and plutonium based fuel fabrication plants. The third
stage is based on the thorium-uranium-233 cycle.
G Nuclear Spent Fuel CNSF)
50. Radioactive wastes is generated during operation,
maintenance and decommissioning of nuclear and radiation
facilities. The waste generated needs to be managed in a safe
manner to ensure protection of human health and the
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 687
[K.S. RADHAKRISHNAN, J.]
environment from the undue effects of ionizing radiation now A
and in future without imposing undue burden on future
generations. Radioactive waste is to be managed in a manner
that ensures compliance with the fundamental principles of
radiation protection and environmental safety. Monitoring and
surveillance programme helps to ensure radiation protection of B
the occupational workers, public and the environment. The
Central Government in exercise of powers conferred by sub-
section (1) read with clause (i) of sub-section (2) of Section 30
and clause (b) of sub-section (1) of Section 17 of the Act framed
the Atomic Energy (Safe Disposal of Radioactive Wastes) c
Rules 1987, which provide requirements for the safe disposal
of radioactive wastes in the country. The disposal has to be
done in accordance with terms and conditions specified in the
authorization which include the process materials and
equipments generating radioactive wastes in the installations, D
environment around the installation, safety devices and other
equipments in the installation for conditioning, treatment and
disposal of radioactive wastes, estimates of annual releases,
discharges and leakages in normal conditions and its
anticipated environment impact, potential accidents, design E
features and monitoring equipment to control the release of
radio activity and procedure to be followed in the safe collection
of radioactive wastes. The Hazardous Waste Management and
Handling Rules 1989 provide that these rules will not apply to
radioactive wastes (Rule 2e). The radioactive wastes are
covered under the provisions of Atomic Energy Act, 1962 and F
rules framed thereunder. Further, Rules 2(b) and 3 of
Manufacture, Storage an~ Import of Hazardous Chemical Rules
1989 under the Environmental (Protection) Act, 1986 has
notified AERB as the authority to enforce directions and
procedures as per the Atomic Energy Act, 1962 with respect G
to radioactive materials.
51. The AERB issued a code "Management of
Radioactive Waste" on June 22, 2007, the objective of that is
to establish the requirements, which shall be fulfilled for the safe H
688 SUPREME COURT REPORTS [2013] 8 S.C.R.
A management of solid, liquid and gaseous radioactive waste
from generation through disposal. The code specifies basic
requirements for the safe management of radioactive waste
from nuclear and radiation facilities such as mining and milling
and processing of uranium and thorium ores; fuel fabrication;
B nuclear power plants; research/experimental reactors; fuel
reprocessing; medical, industrial, agriculture and research
facilities using radionuclides; and other facilities handling
radioactive materials. The safety code also deals with the
requirements for radiation protection aspects in design,
c construction and operation of waste management facilities and
the responsibilities of different agencies involved. The code is
also applicable to the management of radioactive waste
containing chemically and biologically hazardous substances
even though other specific requirements may additionally be
applicable as per relevant standards. The specific
0
requirements pertaining to management of radioactive waste
from application of sealed/unsealed sources, mining and milling
of uranium/thorium ores and site remediation are covered in
Appendices A, B and C respectively of that code. Appendix D
provides requirements of transportation/transfer for radioactive
E solid and liquid waste. Annexures I and II of the Code deals with
the principles, philosophy and basic steps of management of
radioactive waste. The code specifically states that deep
geological disposal methodology of high level radioactive solid
waste requiring long time isolation of thousands of years from
F biosphere is presently under development. Para 2.2 of the code
specifically refers to Protection of Human Health and the
Environment. The said para is of considerable importance,
hence given below in detail:
G "2.2 Protection of Human Health and the Environment
2.2.1 Radioactive waste shall be managed within the dose
constraints and other safety requirements prescribed by
the regulatory body.
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 689
[K.S. RADHAKRISHNAN, J.]
2.2.2 Radiation exposure to workers and the public from A
radioactive waste shall be kept as low as reasonably
achievable, social and economic factors being taken into
account. A well-defined radiation protection programme
shall be established for radioactive waste management.
Approved procedures and control measures shall be used B
for radiation protection.
2.2.3 Radiation exposures to workers. and the members
of public shall not exceed the limits prescribed by the
regulatory body.
c
2.3 Effluent Release Criteria, Control and Monitoring
2.3.1 Radioactive waste shall be characterized, monitored
segregated, treated and conditioned, as necessary, prior
to disposal. o
2.3.2 Radioactive discharges to the environment (aquatic,
atmospheric and terrestrial route) shall not exceed the
limits prescribed by the regulatory body.
2.3.3 At a given site, facility specific disposal schemes for E
radioactive solid, liquid and gaseous wastes to the
environment shall be established and got approved by the
regulatory body prior to the commencement of operation.
2.3.4 The facility shall assess the adequacy of controls on F
release of activity into the environment and demonstrate
compliance with the regulatory requirements. The facility
shall obtain approval from the regulatory body, if the
discharges exceed the authorized limits.
2.3.5 For all non-radiological releases/discharges, the G
relevant clearances shall be obtained from respective
statutory agencies and stipulations therein shall be
complied with.
2.4 Environment Monitoring and Surveillance H
690 SUPREME COURT REPORTS [2013) 8 S.C.R.
A 2.4.1 The facility shall implement approved environmental
monitoring a, ,d surveillance programme for the identified
exposure pathways to meet the requirements set by the
regulatory body. The programme shall include pre-
operational, operational, closure, and post-closure
B monitoring and surveillance.
2.4.2 The facility shall implement approved quality
assurance programme on sampling, monitoring and
analysis to ensure a reliable data.
c 2.5 Safety Assessment
2.5.1 A Safety assessment report shall be prepdred for
waste management facilities including waste disposal
facilities/repositories to demonstrate compliance with the
D regulatory requirements.
2.5.2 Assessments shall be made to identify various
possible sequences of internal or external events that may
lead to incidents or accidents and to evaluate their impact
on workers, the public and the environment.
E
2.5.3 Assessments shall be made to identify, describe and
analyse the potential non-radiological impact of releases
from radioactive waste management facilities on human
beings, the environment (soil, water, air, and non-human
F biota) and natural resources.
2 .5.4 The safety assessments of the long-term
performance of a waste disposal facility/repository shall
take account of the radionuclide content, physic-chemical
characteristics of the waste/waste form and the
G effectiveness of engineered I natural barriers."
52. Responsibilities associated with the Radioactive
Waste Management are also dealt with in the Code. Safe
management of radioactive waste requires clear allocation of
H responsibilities of the agencies involved which may involve
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 691
[K.S. RADHAKRISHNAN, J.]
transfer of the responsibility of the management of radioactive A
waste from one facility to another or to a different agency other
than the one responsible for the operation of the facility. The
continuity of responsibility required to be ensured through
regulatory control by a licence or a sequence of licences
according to the procedures laid down by the regulatory body. B
The code provides that the waste generator I manager or both
shall be responsible for identifying on an appropriate time-
scale, a destination for the waste in accordance with the
regulatory requirements and for seeking any necessary
authorization. The waste generator/manager shall dispose of C
the radioactive waste in an approved manner or transfer it in
an authorized manner to another waste manager for
processing, storage or disposal. Para 3.2.6 of the code
specifically refers to the publication of the waste generator/
manager.
D
53. Para 4 of the code specifically deals with predisposal
measures to be taken by Predisposal Management of
Radioactive Waste. Para 5 of the code deals with near surface
disposal of solid waste which says that solid waste disposal
deals with emplacement of waste in approved facilities. Further, E
it also stated that disposal may be in a Near Surface Disposal
facility (NSDF) or a Deep Geological Repository (DGR). The
design, construction, operation and post-operation of the NSDF
has to meet necessary safety requirements. Appendix II of the
code deals with the principles and philosophy of radioactive F
waste management.
NSF AND MANAGEMENT OF WASTE:
54. Serious apprehension has been voiced by the
appellants that huge amounts of radioactive waste are G
generated with the use of nuclear energy which, unless handled,
treated, transported, stored and disposed off safely without any
leaks, can cause serious contamination of land, water, food,
air and the ecosystems. Further, it was also the case of the
appellants that during the nuclear fission process, nuclear H·
692 SUPREME COURT REPORTS (2013] 8 S.C.R.
A plants convert almost all of their fuel into radioactive waste with
little reduction in mass and even re-processing creates its own
high-level waste. Further, it was also pointed out that mariy of
the repositories designed to be temporary ones are turning into
permanent ones and the interim storage is by its very nature
storage for a small period, which can never be a substitute for
8
permanent geologic repository. Appellants further pointed out
that, as on today, no sustainable solution has been found or
implemented worldwide so as to do away with nuclear waste.
Appellants also submitted that, under the earlier Agreement of
1988 with Russia, nuclear waste had to be shifted back to
C Russia and the site clearance and environment clearance are
based on this factor. However, a new agreement was signed
in the year 1998 under which nuclear waste had to be retained
and stored in India.
D 55. Management of radioactive waste includes all types
of radioactive waste generated from the entire fuel cycle right
from mining uranium fuel fabrication through reactor operations,
and whole re-processing spent fuel. A coherent, comprehensive
and consistent set of principles by way of IAEA document titled
E "Storage and Disposal of Spent Fuel and High Level ·
Radioactive Waste", AERB Safety Guide to AERB
Management of Radioactive Waste Code 2007 are already in
place. Further, the 15 member team in its report, in December
2011, has to say this on spent fuel management.
F
"6.3 Spent Fuel Management:
First and foremost it should be remembered that Spent
Fuel is not a waste in the Indian Nuclear Progra~me. A
closed fuel cycle is followed, where the valuable fissile
G materials like Uranium and Plutonium which are present
in the Spent Fuel are recovered to reuse.
(1) Spent fuel is therefore an asset that needs to be
preserved. At Kudankulam, Spent Fuel from the
Reactors will be carefully stored in Storage Pools,
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 693
[K.S. RADHAKRISHNAN, J.]
which are always filled with pure, demineralised A
borated water which is constantly recirculated.
These pools are high integrity concrete pools which
are additionally lined with stainless steel sheets, to
ensure effective containment for extended periods
of time. The Department of Atomic Energy has long B
experience and expertise of a high order in the safe
management of Spent Fuel.
(2) There is no plan to do the reprocessing of the
Spent Fuel at Kudankulam site. As such the storage C
of Spent Fuel at Kudankulam is to be considered
only as an interim measure till they are transported
to a Reprocessing Facility.
(3) Adequate Technology and years of experience are
available with Department of Atomic Energy for D
transporting Spent Fuel from one site to another
through both Railways and by roadways, in a safe
manner without any public hazard. This is done as
per stipulations of AERB, regarding Transport
Regulations that govern safety." E
56. NPCIL, MoEF and the Department of Atomic Energy
(DAE) have filed a detailed counter affidavit on the various
issues posed by the appellants. NPCIL, DAE submitted that
even though, as per the earlier agreement of 1988 between
F
India and USSR, spent fuel had to be transported to Russia, in
a subsequent agreement in 1998 signed between two
countries, Government of India had insisted that it should be
allowed to retain the spend fuel in India, so that it could be
recycled and used. Spent fuel, it is stated, discharged from the
reactor contains materials suitable for recycling and hence G
could be reused to produce electricity. The spent fuel contains
minerals, both uranium and plutonium, which constitutes about
96% and 1% of the spent fuel respectively. The remaining 3%
contains other components that are normally not recyclable.
Further, it has also been pointed out that KKNPP had adequate H
694 SUPREME COURT REPORTS [2013] 8 S.C.R.
A provisions for safe storage of spent fuel. In KKNPP, Spent Fuel
Pool (SFP) is located inside the primary containment, adjacent
to reactor cavity which has the capacity to store fuel equivalent
to 7 years of full power operation of the plant plus one full core
load. AERB Safety Guide "Design of fuel handling and storage
B systems for pressurized heavy water reactors - AERB/SG/D-
24" deals with the safety in design of storage of spent fuel.
NPCIL submitted that they are scrupulously following the safety
guidelines issued by AERB. However, the Nuclear Recycle
Group of the BARG has got an overall view of radioactive waste
c management in India and has developed certain guidelines for
management of nuclear fuel.
NSF WASTE - TRANSPORTATION:
57. The SNF from NPPs, after an adequate storage
D period, is transported to reprocessing facilities located within
the country, following the International and AERB guidelines and
standards. NPCIL, DAE and MoEF have maintained the stand
that they are aware of the importance of safety and security and
have taken care to ensure that the management and
E transportation of spent fuel is carried out safely following the
international recognized norms and regulations and the same
is being done under lhe observation of AERB and the
Government of India.
58. SNF poses a dangerous, long-term health and
F environmental risk and it is often said that it remains dangerous
"for time spans seemingly beyond human comprehension."
Issue, needless to say, is of great concern. It may be noted,
twenty years of work on establishing a 'geologic repository' at
Yucca Mountain, USA, had to be abandoned when the
G Department of Energy decided to withdraw its licence
application for the facility. NPCIL has maintained SNF is being
kept at the site for re-processing or transported to a permanent
repository and how save it is, if not properly kept, as we have
already indicated, can cause serious health hazard not only to
H the present generation but to the future generation as well, to
G SUNDARRAJAN v. UNION OF INDIA AND ORS. 695
[K.S. RADHAKRISHNAN, J.)
whom we owe a responsibility. A
59. India has got the capability for re-processing SNF,
experts say. Currently, India has three operating processing
plants based on solvent extraction process - one each at
Trombay, Tarapur and Kalpakkam. Trombay plant reprocesses
8
the spent fuel from research reactors with the capacity of 60
tons per year. The plants at Tarapur and Kalpakkan process
off-site fuels from PHWRs with operating capacity of 100 tons
per year each. Additional re-processing facilities are being set
up with the active participation of the Indian industry to C
accelerate the programme.
60. We notice that with the limited resources of uranium
available in India, the indigenous achievable NP is estimated
to be 10,000 MWe by PHWR, without re-processing. With the
help of re-processing, the achievable capacity could go up to D
63000 MWe imported LWR and recycling LWR fuel to 275,000
MWe, by 2052. NPCIL has, therefore, taken up the stand that
re-processing of spent fuel is the key to the country's three
stage nuclear power programme. 97% of the SNF is capable
of being re-used, but what has to be done with regard to the E
remaining 3% SNF, is a moot question, since it is not re-
useable, which consists of various fission products and minor
actinides. This 3% waste comprises of minor actinides which
have a long half-life of lakhs of years. Experts, however, say that
if the minor actinides are "partitioned" or removed, the rest of F
the waste is dominated by FP's having a half-life of about 30
years and so in 10 half-lives (300 years) will have negligible
activity and the partitioned minor actinides can then be
"transmuted" or burnt by inducing fission in Fast Breeder
Reactors or in Accelerator Driven Systems (ADS).
G
Facts mentioned above would indicate that certain
percentage of SNF will have long life of lakhs of years and will
have some impact on the environment, but how to contain that?
The Supreme Court of Pakistan in Human Rights H
696 SUPREME COURT REPORTS [2013] 8 S.C.R.
A (Environmental Pollution in Baluchistan) PLO 1994 SC 102,
took suo mote notice of a paper report of dumping nuclear
waste along the Coast of the province of Baluchistan. The Court
directed that provisional Government to investigate the claim
and ruled that such dumping of Nuclear Waste is in violation of
B the fundamental rights to life enshrined in Article 9 of the
Constitution.
61. We may, in this connection, refer to the judgment of
the US Court of Appeals in State of New York, ETAL v. NRG
and USA dated 8.6.2012. In that case, the Court was dealing
C with the issue regarding temporary storage and permanent
disposal of nuclear waste. The Court held that the Nuclear
Regulatory Commission's evaluation of the risks of spent
nuclear fuel is deficient in two ways: First, in concluding that
permanent storage will be available "when necessary," the
D Commission did not calculate the environmental effects of
failing to secure permanent storage - a possibility that cannot
be ignored. Second, in determining that spent fuel can safely
be stored on site at nuclear plants for sixty years after the
expiration of a plant's license, the Commission failed to
E property examine future dangers and key consequences.
62. We notice that the above decision would not directly
apply to the facts of the present case. United States is following
"open fuel cycle" process where spent fuel is not reprocessed,
F but disposed of treating the same as waste but, in India, we
follow "close fuel cycle" process, where reprocessing of SNF
to obtain uranium and plutonium is an essential step.
63. AERB, way back in 1989, had recommended to have
an Away from Rector Storage (AFR) facility at KKNPP for
G prolonged storage of SNF while granting siting clearance.
Design-Safety aspects of AFR, it is stated, would be reviewed
by AERB, one such facility is already available at Tarapur,
where it is reported that there has been no adverse impact on
the environment issue of such storage. AERB, in subsequent
H r~views, made recommendations with respect to AFR facilities.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 697
[K.S. RADHAKRISHNAN, J.)
In ACPSR 126th Meeting held on 15/16.9.2011, the issue A
related to AFR was reviewed and it was recommended that
AFR should be finalized well before 5 years of operation.
DEEP GEOLOGICAL REPOSITORY CDGR):
8
64. Permanent DGR, India may require, after a few
decades, states NPCIL. Research and development work, we
are informed, are in progress over three decades in the field
of in-situ experiments, natural barrier characterisation,
numerical modelling, conceptual design and natural analogue
of waste forms and repository processes. Keeping in line with C
the international developments, initial focus of work in 80's
centred mainly on setting up of generic Underground Research
Laboratory (URL}, in one of the abandoned mines in India and
resulted in the development of an underground chamber in Kolar
goldmine located in South India. Current efforts within the Indian D
geological repository programme are directed towards granite
based URL. The experts feel that setting up of a DGR is not
much of a technological challenge, but as is the case
internationally everywhere, the issue·is more of a socio-political
issue. E
65. We are of the view that these issues have to be dealt
with by the Experts in the field, evidently, without much delay.
The AERB Safety Code on "Management of Redioactive
Waste" of 2007 does not deal with the requirements for DGR. F
The problem of this nature is being faced by all the nuclear plant
operating countries, including India. Research is on to handle
SNF in DGR which, in the near future, let us hope, would be a
reality, but that shall not deter us in holding up of such a project
which has been established at KKNPP in implementation of the
India's Nuclear Policy. G
66. We may, however, caution that it is of utmost
importance that the Union of India, NPCIL etc. should find out
a place for a permanent DGR. Storing of SNF at NPP site will,
in the long run, poses a dangerous, long term health and H
698 SUPREME COURT REPORTS [2013] 8 S.C.R.
A environmental risk. NPCIL and the Union of India is bound to
look at the probabilities of potentially harmful events and the
consequences in future. Noticeably, NPCIL does not seem to
have a long term plan, other than, stating and hoping that in the
near future, it would establishes a DGR. The Atomic Energy Act,
B especially Section 17, envisages present and future safety of
our NPPs and the lives and environment around. NPCIL and
the Union of India must have a hard look at the environmental
consequences of its action of setting up of NPPs, hence a
pennanent DGR is of utmost importance, which they should plan
C now.
Radioactive material
67. We are all exposed to the naturally occurring radiation
in our daily lives. Cosmic radiation from outside the solar
D system is also common phenomenon. Earth's crust is
radioactive, so also above the earth's surface where we fly by
aeroplane, we also get doses of radiation. Medical diagnostic
treatment such as X-Ray, CT-Scan, angiography, angioplasty
also radiates radioactive dose. However, the development of
E nuclear reactors which, for the first time, made possible the
production of radioisotopes of many different elements,
expanded the field of radioactive materials. Production and use
of it, therefore, is bound to create a little bit of marginal radiation
which seldom can be prevented. The Atomic Energy (Radiation
F Protection) Rules, (Radio Protection Rules now) were initially
framed and revised in 2004. According to the Rules no person
could handle radioactive material or operate any radiation
generating equipment except in accordance with the terms and
conditions of a licence. The Atomic Energy (Control of
Irradiation of Food) Rules, 1990 (revised in 1996) seeks to
G regulate the irradiation of foods in the country. Provisions of the
Act, statutory rules and regulations, various codes, safety
standards etc. issued by the AERB buttressed by the technical
assistance provided by IAEA, NEA, The World Association of
Nuclear Operations (WANO) etc. are being followed in India in
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 699
[K.S. RADHAKRISHNAN, J.]
respect of 20 operating power reactors which are existing in A
this country. Safeguarding the nuclear plants, radioactive
materials and ensuring its physical security have therefore
become a central part of nuclear law. Risks arising from NPP,
do affect not merely the country which choose to use that
technology but can have catastrophic consequences to the B
neighboring countries as well. Non-proliferation, disarmament
and peaceful use are stated to be the three pillars of all the
international conventions. Nuclear technologies and techniques,
it is well accepted, can offer vital benefits for improving human-
well being, like health care, radio-therapy, food security, c
agricultural advantages to the present and generation.
68. The Prime Minister of India, as already indicated,
ordered a fresh review of all safety of NPPs, on 11.3.2011,
immediately after the accident at Fukushima NPP, Japan with
respect to external events. The Prime Minister of India had D
emphasized that the safety of nuclear power plants was a
matter of highest priority for the Government and called for
safety audits of all the NPPs. NPCIL, the operating agency,
constituted separate task forces to review safety of NPPs
depending on types of reactor designs and their vintages in E
India. NPCIL constituted broad categories of Indian NPPs to
make an assessment of :
- Boiling Water Reactors (BWR) (TAPS 1&2).
- Pressurized Heavy Water Reactors (PHWRs) at RAPS F
1&2
- PHWRs at MAPS 1&2
- Standard PHWRs from NAPS onwards G
69. The Task Forces reviewed safety of the NPPs with a
postulated scenario of non-availability of off-site and on-site
electric power and water supply sources. The reports of the task
forces are summarized in a document titled "Safety Evaluation
of Indian NPPs Post Fukushima Incident" to provide an H
700 SUPREME COURT REPORTS [2013] 8 S.C.R.
A integrated assessment of strength of Indian NPPs to withstand
extreme external events. Report was submitted by the end of
March 2011. Over and above, two more task forces were
constituted for VVERs one of which was for the VVER,
Presssurised Water Reactors (PWR), under construction at
B KKNPP, and another for 700 MWe PHWRs. NPCIL also
constituted task forces on safety evaluation of the systems of
KKNPP Post Fukushima which gave Hs interim report on
11.os.2p11. The task force found that KKNPP had already
incorporated all safety standards, including passive systems to
c ensure reactor shutdown.
70. The AERB, in pursuance of the direction of Prime
Minister, constituted a high level committee (AERBSC-EE) to
review safety of NPPs against external events of natural origin
(post Fukushima accident) with national level experts in the
D areas of (i) design, safety analysis and NPP operation and (ii)
external events in the field of seismology, hydrology and
earthquake engineering to carry out a comprehensive review
of capability of NPPs to deal with external events within and
beyond design basis. The committee constituted specialist
E working groups and they reviewed the following major areas:
- External events in relation to the safety of NPPs
- Safety of electrical, control and instrumentation systems
against external events
F
- Safety of NPPs under prolonged Station Black Out
(SBO) and loss of Ultimate Heat Sink
- Safety of spent fuel storage facilities at NPPs against
G external events
- Severe Accident Management provisions and guidelines
(SAMG)
AERBSC-EE submitted its report on 31.08.2011. The AERB
H has also taken cognizance of self-assessment carried out by
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 701
[K.S. RADHAKRISHNAN, J.] .
the NPCIL and the site specific focused regulatory inspections. A
The NPCIL and AERB report indicate that the overall
assessment of safety of Indian NPPs following Fukushima
Nuclear accident and the actions taken/planned based on the
lessons learnt are enumerated in the report. The following
aspects were addressed : B
(i) External Events
(ii) Design
(iii) Severe Accident Management and Recovery C
(Onsite)
(iv) National Organisations
(v) Emergency Preparedness and Response and
Post-Accident Management (Offiste) D
(vi) International Cooperation
71. The Government of India also submitted a National
report in May 2012 on the actions taken for Indian NPPs,
E
subsequent to Fukushima Nuclear Accident to the Convention
on Nuclear Safety in the Second Extraordinary Meeting of
contracting parties, held in August 2012 at Vienna.
72. The expert committee of AERB, LWR in its final report
dated 31.8.2011 gave 17 safety measures by way of abundant F
caution. We have directed NPCIL to file a status report with
respect to the completion date of implementation of all the 17
recommendations made by AERB in Annexure-A of the Post
Fukushima AERB Recommendations. A comparative chart
giving the status and implementation of Post Fukushima AERB G
Recommendations has been filed as Annexure-A by NPCIL in
its affidavit dated 3.12:2012, which will indicate that twelve
recommendations have already been complied with, except the
following:
H
702 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Sr. Recommendations Status Completion
No. Schedule
3. Mobile self-power.ed Two fire tenders April 2013
pumping equipment with diesel
for emergency use. operated pump
B is available at site.
To augment the
capacity, two
additional fire
tenders are being
c procured and-made
available. Chassis
has been procured
and fabrication of
the fire tender is in
D progress.
4. Facility for Present design of April 2013
monitoring safety KKNPP envisages
parameters using 24 hour battery
portable power bank for monitoring
E packs. parameters and 2
hour battery bank
for valve operation
during an event
of station blackout.
F In order to extent
the duration of the
monitoring for not
less than 7 days,
portable DG sets
will be connected
G
to the instruments
for monitoring safety
parameters. One
portable DG set is
readily available for
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 703
[K.S. RADHAKRISHNAN, J.]
use at site.
Portable mGasuring
devices are also
available at site for
local monitoring.
6. Primary Containment Based on design Long Term. B
to be assessed for margins available, Under
Ultimate Load it has been progress.
Bearing Capacity assessed that for
(ULBC). primary contain-
ment, Ultimate c
Load Baring
Capacity (ULBC)
is at least 1.5
times Design Basis
Accident (DBA) D
value.
Detailed analysis
for Ultimate Load
Bearing Capacity
(ULBC) will E
be carried out
progressively.
8. Ensuring that highly The required Long term.
active water used analysis Under
for cooling the core covering dose progress. F
catcher vessel under estimation, equip-
Beyond Design basi~ ment qualification
Accident (BDBA) is assessment of
contained inside the containing pressure
primary containment. is being carried out.
G
12. Adequacy of All the important April 2013
instrumentation parameters of the (Adequacy
for monitoring plant reactor such as of instrum-
status during Design neutron flux, entation
basis Accident pressure above the ensured.
H
704 SUPREME COURT REPORTS [2013) 8 S.C.R.
A (BDBA) core, containment Provision to
pressure, Hydrogen extend
concentration, power
reactor coolant supply to
level, radiation these
B levels in instruments
containment, will be
coolant impleme-
temperatures nted under
in hot and cold legs item 4
c level of fuel above.)
pool, and
accumulators etc.
will be monitored
during Design
D basis Accident
(BDBA).
Please refer item -
4 also.
17. Provision of One portable April 2013.
E additional backup DG set is
power supply readily available
sources for for use at site.
performing essential Another mobile
safety functions, like Diesel
F air cooled Diesel Generator
Generator (DG) (DG) set is
located at a high being made
elevation, should be available
considered. for redundancy.
G 73. We are convinced that KKNPP design incorporates
advanced safety features complying with the current standards
of redundancy, reliability, independence and prevention of
common cause failures in its safety systems. Design also takes
care of Anticipated Operational Occurrences (AOO), Design
H Basis Accidents (OBA) and Beyond Design Basis Accidents
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 705
[K.S. RADHAKRISHNAN, J.]
(BDBA) like Station Black Out (SBO), Anticipated Transients A
Without Scram (ATWS), Metal Water reaction in the water core
and provision of core catcher to take care of core degradation.
The design also includes the provisions for withstanding external
events like earthquake, tsunami/storm, tidal waves, cyclones,
shock waves, aircraft impact on main buildings and fire. The B
17 recommendations were made after Fukushima accident the
cause of which is natural phenomenon. The facts would indicate
that Tsunami-genie zone along East Coast of India is more than
1300 km away from the nearest NPP site (Madras/Kalpakkam)
and about 1000 km. away from Kudakulam. The possibility of c
hitting tsunami at Kudakulam, as the one that hit Fukushima,
seems to be very remote.
Response to People's Resistance:
74. The Government of India, in order to allay various D
apprehensions raised by the people's movement against the
production of nuclear energy as well as against commissioning
of KKNPP, constituted a 15 Member Expert Group to provide
clarifications on the issue raised by the agitators by interacting
with the forum provided by State Government comprising of 2 E
State Government nominees and 4 representatives of the
people. Public hearing was held and views and suggestions
made for and against the project were heard. The Committee
specifically examined the safety features of KKNPP in the wake
of the accidents occurred at TMI, Chernobyl, Fukushima etc. F
75. The radiation around the NPP and impact on the public
health were also effectively addressed. The reactor design and
safety of the plant was also examined. Principles and Practices
taken for radioactive waste and spent fuel management were
also examined. Ecological effects of the project in question on G
marine ecology and fish protection, impact on land, agriculture,
livestock, and food, impact on flora and fauna were also
examined. The effect of a possible, though remote, impact of
earthquake and Tsunami was also examined. The committee
concluded as follows: H
706 SUPREME COURT REPORTS [2013] 8 S.C.R.
A "Conclusions:
EG observes that KKNPP is designed and
engineered to the state of art of nuclear reactors in line with
the current international safety requirements and principles.
KK site related aspects such as seismic, tsunami, tropical
B
storms are taken into consideration at design stage. More
than 20 WER-1000 are operating in Russian Federation
and in other countries. While finalizing the contract for
KKNPP, additional safety features were specified which
have been incorporated and their functionality is being
c established during commissioning. The radiological
releases during the plant operation are expected to be well
below prescribed limits. This fact is borne out by the
experience from operating NPPs in India and abroad.
Based on the national and international studies and
D experience, such radiological releases have no adverse
effects on public health, environment and plant personnel.
Safety of KKNPP was examined in relation to the TMI,
Chernobyl and Fukushima accidents. It is seen that based
on the advanced design safety features, safe grade level
E and high elevation of safety related equipment and the fact
that all key operating personnel are graduate engineers
who also receive intensive training, it is not conceivable
that any accident of these types can take place at KKNPP.
EG also notes that clearances for various stages of
F
the project are given by the Atomic Energy Regulatory
Board after an elaborate and exhaustive safety review at
each stage. Similarly, other statutory-bodies have also
conducted detailed and in depth reviews before according
clearances pertaining to areas relevant to their purview.
G This clearly indicates that all applicable safety aspects of
the project have been subjected to careful scrutiny by the
concerned statutory bodies in the country.
In particular, safety of KKNPP has been thoroughly
H evaluated against external event:; of natural origin viz ..
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 707
[K.S. RADHAKRISHNAN, J.]
earthquakes and possible flooding of the site from cyclonic A
storms and tsunamis. It is seen that the seismic design of
its SSCs and location of safety related components
provide high level of safety against such events. Possibility
of volcanic eruptions in the vicinity of the site has also been
examined and no active volcanism has been identified. B
The magnitude of any possible tsunami that can be
generated from submarine landslides in the Gulf of Mannar
has been found to be much smaller than tsunamis that may
get generated from the submarine active seismic faults,
which has already been taken into consideration. c
In view of the above, the EG would like to conclude
that the fears of the local population are unfounded and
design of KKNPP meets the current safety standards."
76. The Committee prepared a detailed report in D
December 2011. The report was later presented to Tamil Nadu
Government nominees and people representatives. The Expert
Group submitted another supplementary report dated
31.02.2012.
E
77. The Government of Tamil Nadu also appointed an
Expert Committee headed by Former President of the AEC
along with three other experts. The Committee submitted its
report after assessing that the project has a unique passive
safety feature which provides cooling to the nuclear fuel without
the need for operator action or power supply, namely a Passive
F
Heat Removal System, which is a novel safety feature. In
addition to the various reports mentioned herein before, the
Russian Nuclear Safety Authority also known as
GosAtomNadzor (GAN) reviewed and cleared the Safety
Analysis Report of KKNPP Units 1 and 2, which forms the basis G
of the licensing safety review.
CIVIL LIABILITY FOR NUCLEAR DAMAGE:
78. Developing modern sources for energy through NPPs H
708 SUPREME COURT REPORTS [2013] 8 S.C.R.
A carry the problem of potential damage, which might flow from
a nuclear catastrophe. Several Nuclear Energy Generating
countries have adopted their own Legislation on the issue of
Civil and Criminal Liability. The U.S. Price-Anderson Act, 1957,
the German Atomic Energy Act (1959), the Swiss Federal Law
B on the Exploitation of Nuclear Energy for Peaceful Purposes
and Protection from Radiation (1959) and the Japanese Law
on the Compensation of Nuclear Damage (1961) are some of
them. Few of such legislations followed the basic principle of
imposing legal liability on a strict liability basis on the operator
c of a nuclear installation coupled with the limitation on liability.
79. Currently, there are two main conventions on third-party
liability in the field of nuclear energy. The first is the Paris
Convention of 1960, which was supplemented by the Brussels
Supplementary Convention Act, 1963. IAEA's Vienna
D Convention on Civil Liability for Nuclear Damage, 1963 is yet
another convention. India's Civil Liability for Nuclear Damage
Act, 2010 or the Nuclear Liability Act mainly rests on the above
Conventions, though India is not a signatory to those
conventions. India's Nuclear Liability Act aims to provide a civil
E liability for nuclear damage and prompt compensation to
victims of a nuclear incident through a No Fault Liability to the
operator, appointment of Claims Commissioner, establishment
of Nuclear Damage Claims Commission, Nuclear Liability
Fund and other matters connected therewith. The constitutional
F validity of the said Act is under challenge before this Court in
Writ Petition (Civil) No. 464 of 2011. Various prayers have been
made in the above mentioned writ petition, but this Court
issued the notice only with regard to the prayer clause no. (e),
i.e. to declare the act as unconstitutional and void ab initio.
G
80. NPCIL had undertaken the task of constructing the two
IGW reactors of VVER-1000 Model in collaboration with
Atomstroyexport, a wholly owned Russian Government
Company. Safety features of the NPP as well the quality
reql!irements for the plant equipment are part of the detailed
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 709
[K.S. RADHAKRISHNAN, J.]
specifications agreed between the vendor and the purchaser, A
and as per the Quality Assurance Plan. NPCIL, AERB also
should ensure that there can be no compromise on the quality
of plant equipment, components and other systems.
81. The India's Nuclear Liability Act states that the liability 8
of the operator to the tune of Rs.1500 crores and the maximum
liability to rupee equivalent of 300 millions SDR's, though the
Act, speaks of no fault liability. It is unnecessary to examine the
scope of various provisions contained in the Act, for our
purpose, especially when the constitutional validity of the Act C
is under challenge.
82. We may, in this connection, point out that the
constitutional validity of the Price-Anderson Act, 1957 of U.S.
which was challenged in the year 1978 before the U.S.
Supreme Court in Duke Power Company v. Carolina D
Environmental Study Group 438 US 59(1978). It was urged
before the U.S. Supreme Court that the Act did not ensure
adequate compensation for victims of accidents and it violated
Equal Protection Clause of the 14th Amendment by treating the
nuclear accidents differently from other accidents etc. The U.S. E
Supreme Court upheld the validity of the Act holding that it was
lawful, in that there was adequate justification for treating
nuclear accidents different to other claims; that Act provides a
reasonably just substitute for the common law or state tort law
remedies it replaces and that it cannot be said that the Act F
encouraged irresponsibility in the matter of safety and
environmental protection.
83. Strict Liability Principle has been examined by this
Court in the environmental point of view in several judgments.
In M. C. Mehta v. Union of India AIR 1987 SC 1086 (Oleum G
Gas Leakage case), this Court held that the industries which
are engaged in hazardous or inherently dangerous activity,
possess serious threat to health and safety of persons and have
an absolute and non-delegable duty to ensure that no harm is
caused to the life and safety of the people. In Indian Council H
710 SUPREME COURT REPORTS [2013J 8 S.C.R.
A for Enviro-Legal Action v. Union of India (1996) 3 SCC 212,
this Court held that once the activity carried on in hazardous or
inherently dangerous, the person carrying on such activity is
liable to make good losses caused to any other person by his
activity, irrespective of the fact that he took reasonable care
8 while carrying on his activity. In Ve/lore Citizens Welfare Forum
v. Union of India (1996) 5 SCC 647, this Court held that once
the activity carried on is hazardous or potential hazardous, the
person carrying on such activity is liable to make good the loss
caused to any other person by his activity, irrespective of the
c fact that he took reasonable care. The absolute liability extends
not only to compensate the victims of pollution, but also the cost
of restoring environmental degradation. In Ve/lore Citizens
Welfare Forum (supra), this Court reiterated the "polluter pays
principles". It is unnecessary to multiply the authorities on the
principle of strict liability, precautionary principle, polluter pays
0
etc., which find their expression in Articles 21, 47, 48-A, 51-
A(g) of the Constitution of India.
84. We have examined the above principles only to
highlight the importance of the Act and the steps taken for its
E effective implementation. People in this country have not
forgotten the incidents which had happened in the Union
Carbide Pesticides Plant in Bhopal in the night of 24.12.1984.
This Court in Union Carbide Corporation v. Union of India
(1989) 2 sec 40, based on an earlier settlement, directed the
F Union Carbide to pay US$ 470 million to the Union of India in
full and final settlement of all claims, rights and liabilities related
to and arising out of Bhopal Gas Tragedy. Following that, it was
ordered that all civil proceedings arising out of Bhopal Gas
Disaster, shall stand concluded in terms of the settlement and
G all criminal proceedings related to and arising out of the
disaster shall stand quashed, wherever they were pending.
Later, this Court modified that order upholding the settlement
except the condition of quashing criminal charges in Union
Carbide Corporation v. Union of India AIR 1992 SC 248.
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 711
[K.S. RADHAKRISHNAN, J.]
85. Considering India's population density and our National A
Policy for setting up various NPPs in the country, safety and
security of the plants are of extreme importance, lest a nuclear
accident can cause immense damage both in terms of human
life as well as environmental destruction. Provisions have also
to be made for remedying or comp~nsating environmental B
damage caused by the accidents, without merely limiting it to
personal injury and damage to property.
DISASTER MANAGEMENT PLAN:
86. Disaster Management Plan (DMP) is of paramount C
importance, since we are dealing with a substance which has
huge potential of causing immense damage to human beings
and to the environment, which may cross over generations after
generations.
D
87. After the accidents in Three Mile Island, Chernobyl and
Fukoshima, there has been an uproar all over the world
including India for adopting sufficient safety measures for
handling nuclear/radiological emergencies which may likely to
occur in various NPPs situated in the country. Any radiation E
incident resulting in or having a potential to result in exposure
and/or contamination in excess of the respective permissible
limits can lead to a nuclear/radiological emergency. Situations
are, of course, not bound to occur quite often, but one must be
prepared to face nuclear/radiological emergencies because of F
high population density in a country like India. Nuclear/
radiological emergencies can occur due to factors beyond the
control of the operating agencies, for example, human error,
system failure, sabotage, earthquake, cyclone, flood etc.
Noticing the above factors, the Central Government decided to
enact a law on Disaster Management to provide for requisite G
institutional mechanisms for drawing up and monitoring the
implementation of the disaster management plans, ensuring
measure by various wings of Government for prevention and
mitigating affects of disasters and for undertaking a holistic,
coordinated and prompt response to any disaster situation. H
712 SUPREME COURT REPORTS [2013] 8 S.C.R. ·
A 88. The Parliament enacted the Disaster Management Act,
2005 (DM Act), following that, the National Disaster
Management Authority (NDMA) was constituted with the Prime
Minister as the Chairperson. Similar authorities have been
created in various States with their Chief Ministers as the
B Chairpersons. NDMA has assumed the responsibility of
strengthening the existing nuclear/radiological emergency
management framework by involving all stake holders in a
holistic approach through a series of mutually interactive,
reciprocal and supplementary actions to be taken on the basis
c of a common thread - the National Guidelines. Following that,
NDMA, after conducting a detailed discussion with all the stake
holders, issued the National Disaster Management Guidelines,
2009, which has the concurrence of the DAE, ARES. The
guidelines recommended a series of actions on the part of
0 various stake holders at different levels of administration that
would (i) mitigate the accident at source; (ii) prevent
deterministic health effects in individuals and limit the probability
of stochastic effects in the population; (iii) provide first aid and
treatment of injuries; (iv) reduce the psychological impact on
the population; and (v) protect the environment and property.
E The guidelines have been prepared to provide direction to the
central Ministries/departments, State Governments and local
authorities for preparing detailed action plans to ensure inbuilt
capabilities to handle nuclear and radiological emergencies as
part of an all-hazard Disaster Management plan in the public
F domain.
89. The National Guidelines consist of 10 chapters.
Chapter 1 deals with the introduction which provides a brief of
all possible scenarios of nuclear and radiological emergencies.
G These emergencies have been broadly classified into the
following five categories:
(i) An accident taking place in any nuclear facility of
the nuclear fuel cycle including the nuclear reactor,
or in a facility using radioactive sources, leading to
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 713
[K.S. RADHAKRISHNAN, J.]
a large-scale release of radioactivity in the A
environment.
(ii) A 'criticality' accident in a nuclear fuel cycle facility
where an uncontrolled nuclear chain reaction takes
place inadvertently, leading to bursts of neutrons 8
and gamma radiations.
(iii) An accident during the transportation of radioactive
material.
(iv) The malevolent use of radioactive material as a C
Radiological Dispersal Device by terrorists for
dispersing radioactive material in the environment.
(v) A large-scale nuclear disaster, resulting from a
nuclear weapon attack (as had happened at
Hiroshima and Nagasaki) which would lead to mass D
casualties and destruction of large areas and
property.
90. Chapter 2 deals with the Approach to Nuclear and
Radiological Emergency Management, which spells out a four- E
pronged strategy to be adopted for a holistic management of
nuclear/radiological emergencies. Chapter 3 deals with the
Present Status and Situation Analysis, which highlights some
of the technical and administrative issues yet to be addressed
in a holistic approach, besides analysing the present status. F
Chapter 4 deals with the Prevention of Nuclear/Radiological
Emergencies, which enumerates how nuclear and radiological
emergencies are prevented in nuclear facilities by adopting the
defence-in-depth approach, where the safety systems are
inbuilt with adequate redundancy and diverse working G
principles. Chapter 5 of the Guidelines deals with the Mitigation
of Nuclear/Radiological Emergencies, which explains the
various engineered safety features and accident management
procedures that are in place in a nuclear plant as accident
mitigation measures for minimising the impact of a nuclear H
714 SUPREME COURT REPORTS [2013] 8 S.C.R.
A emergency by keeping the radioactivity release in the
environment to levels as low as possible. Chapter 6 deals with
the Preparedness for Nuclear/Radiological Emergencies and
covers various aspects of preparedness. Chapter 7 deals with
the Capacity Development for Nt•clear/Radiological
B Emergencies and deals with the capacity development for
coping with nuclear/radiological emergency situations. Chapter
8 deals with the Response to Nuclear/Radiological
Emergencies and describes the action to be taken in nuclear/
radiological emergencies. Chapter 9 deals with the
c Implementation of the Guidelines which spells out the
preparation of action plans by various levels of stakeholders.
Such plans should indicate the detailed work plan and
milestones with recommended time-frame and suitable
indicators to enable monitoring and review of the actual
progress made. Chapter 10 deals with the Summary of Action
0
Points and sums up the major recommendations that have been
made in the text of the National Guidelines.
91. NOMA, established under Section 3 of the OM Act, is
responsible for each of the three phases of disaster
E management continuum with six major responsibilities, namely,
pre-disaster (prevention, mitigation and preparedness), during
disaster (rescue and relief) and post-disaster (rehabilitation and
reconstruction) scenarios. NOMA will be assisted by the
National Executive Committee, which is the executive arm of
F NOMA. The National Crisis Management CommitteeJNational
Executive Committee has to take on relief operations on a war
footing. The District Management Authorities of the States/
Union Territories will be responsible for implementing the
nuclear/radiological disaster risk mana~ement programmes in
G their respective areas and each State has to develop a
detailed micro-level action plan in a mutually interactive and
supplementary mode with its district level plans.
92. DAE, as a nodal agency, has to provide the necessary
technical inputs to the national or local authorities for responding
H to any nuclear or radiological emergency in the public domain.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 715
[K.S. RADHAKRISHNAN, J.]
In the event of a nuclear/radiological emergency in the public A
domain, the basic regulatory framework for safety of all
activities related to the atomic energy programme and the use
of ionising radiation in India is derived from the Atomic Energy
Act, 1962 (AE Act). Para 3.6 of the Guidelines dealing with
Public Awareness is of some importance and the same is B
extracted hereunder for our easy reference:·
"3.6 Public Awareness:
Public awareness plays a key role in the emergency
preparedness and response plans for any type of C
· emergency/disaster where the participation/role of the
public is of prime importance. The fact that one cannot see,
feel or smell the presence of radiation, coupled with a
general lack of credible and authentic information to the
public at large about radiation and radiation emergencies D
and the wide publicity given to any nuclear/radiation-
related incident, has resulted in several erroneous
perceptions about nuclear technology. Not surprisingly,
most people perceive ~hat any small nuclear/radiation-
related incident will lead to a situation like Hiroshima or E
Nagasaki, or the Chernobyl accident.
To educate the people about the beneficial aspects .
of nuclear radiation and to remove their misgivings about
it, the authorities of nuclear fuel cycle facilities in general,
F
and that of nuclear power stations in particular, are actively
involved in carrying out regular public awareness
programmes for people living in the vicinity of these
facilities. People are invited and taken on guided tours of
the nuclear power stations, made conversant with the
basics of radiation protection, safety limits, safety G
practices, and the dos and don'ts during a nuclear
emergency. The station authorities also make visits to the
surrounding villages and population centres to create
awareness of the same. Good coordination is also
maintained with the district officials. Prior to any off-site H
716 SUPREME COURT REPORTS [2013) 8 S.C.R.
A emergency exercise, awareness programmes are
specially conducted for the public official'>, making them
conversant with their responsibilities during any off-site
emergency."
93. NPCIL and the State of Tamil Nadu should take
8
adequate steps to educate the public of the need for generation
of power through NPP, since it is part of India's National Policy
and also how to deal with nuclear/radiological emergencies.
Para 3.9.1 of the Guidelines specifically refers to Education and
Knowledge Management, which reads as follows:
c
"3.9 Institutions for Education, Knowledge
Management, Public Awareness and Training:
3.9.1 Education and Knowledge Management:
D At present, practically no education is imparted at
any level on nuclear/radiological emergencies in the
national educational system. It goes against one of the
basic concepts of good emergency response, which
envisages that the culture of preparedness has to be
E imbibed right from childhood in all sections of the society.
The basics of radiation, radioactivity and the use of nuclear
radiation in day-to-day life (with its beneficial aspects)
should be taught in schools and colleges. Once people are
sensitised about this subject, it will help in removing
F prejudices/misconceptions of the general public about
nuclear radiation/programmes and they will treat a nuclear/
radiological emergency like any other type of natural or
man-made emergency."
G 94. The necessity for Enhancing Public Awareness about
Nuclear/Radiation Hazards has also been dealt with in para
3.9.2, which reads as follows:
"3.9.2 Enhancing Public Awareness about Nuclear/
Radiation Hazards:
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 717
[K.S. RADHAKRISHNAN, J.]
In general, there is very limited public awareness A
about radiation emergencies. Even the intelligentsia have
misconceptions about nuclear energy in general. Ever
since the reactor accidents at Three Mile Island and
Chernobyl, any news of a clear/radiological emergency has
always been of great interest that generates B
misconceptions in the minds of the public. The
sensationalisation of such news by the media has also
erroneously caused a perception that any radiation or
nuclear emergency will result in cancer or death.
Such lack of public awareness is a major constraint
c
in handling and objectively responding to these
emergencies. To overcome this, sincere and concerted
efforts are needed to create awareness amongst the
general public with the target audience of school and
college students, teachers, technocrats and government D
officials.
The fear in the minds of the public that even a small ·
accident in nuclear facilities will lead to a situation like
Hiroshima/Nagasaki, can be removed only through proper E
awareness generation and training programmes
(Appendix 1)."
95. The necessity to accord proper training to the
personnel involved in the management of radiation
F
emergencies, which includes education of senior public
functionaries like the district or state-level officials who would
manage a radiation emergency as well as the first responders,
needs special emphasis. This would also include RSOs, civil
defence personnel and home guards, police and fire and
emergency services personnel and medical professionals. The G
guidelines also highlight the necessity of a proper network of
roads and transport system. An off-site emergency situation,
the emergency response plans envisage evacuation of the
public from the affected zone which requires well-defined routes
and evacuation strateQies. The availability of both adequate H
718 SUPREME COURT REPORTS [2013) 8 S.C.R.
A transport and good roads, which would provide the evacuation
routes, is of paramount importance. Further, certain radiation
emergency scenarios envisage a sheltering requirement for a
large number of people. Normally, community centres, schools,
colleges, religious places, marriage halls, etc. are chosen for
B this purpose. SDMAs/DDMAs should identify those places
during a non-emergency period, with assistance from DAE/
DRDO.
96. It is also highly necessary to identify alternate sources
C of food, water and hygiene facilities. Because of the assembly
of a large number of persons at the emergency shelters, poor
hygiene facilities may lead to the spread of diseases, including
epidemics. In addition to providing good hygiene facilities, good
medical care with adequate stock of medicines, should be
made available in all areas of possible nuclear emergencies/
D disasters.
97. Major highlights indicated in para 3.20 of the Guidelines
are of prime importance. Para 3.20 is extracted hereunder for
easy reference:
E
"3.20 Highlights:
Some of the highlights of this chapter are given
below:
F (i) In the event of any nuclear/radiological emergency in the
public domain, CMG is immediately activated and it
coordinates with the local authority in the affected area and
all the concerned authorities at the centre (NCMC/NEC/ •
NOMA) to ensure that the necessary technical/
G administrative inputs are available to respond to the
nuclear/radiological emergency.
(ii) The AERB, which oversees nuclear and radiological
safety in the country, has been playing a very crucial role
in the prevention of nuclear/radiological accidents by
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 719
[K.S. RADHAKRISHNAN, J.]
ensuring that proper safety design features and operating A
procedures in all nuclear and radiation facilities are in
place. The AERB has the power to not only licence the
operation of a facility but also to order the partial or full
shutdown of any facility that violates its guidelines.
B
(iii) As per statutory requirements, the local district
administration is responsible for drawing up and
rehearsing the off-site emergency plan in coordination with
the facility operator.
(iv) It is also mandatory for the power plant operators to C
periodically rehearse various emergency preparedness
plans by way of exercises, and based on the feedback and
experience, take corrective measures. As the first stage
of the trigger mechanism, CMG, DAE and the resource
agencies are alerted even when a plant or site emergency D
exercise is conducted.
(v) The basic training for NDRF teams, 'first responders'
and TOT is being imparted by BARC in addition to training
of QRTs of the paramilitary forces and defence CBRN
E
officers.
(vi) Emergency preparedness exists at all nuclear and
radiation facilities to respond to any on-site or off-site
emergency in their areas. A network of 18 units of ERCs
has been established by BARC to handle radiological F
emergencies arising from a transport accident or the
movemenVhandling of 'orphan sources' or any malevolent
act like the explosion of an ROD, RED or IND at any time
or anywhere in the country.
G
(vii) The fact that one cannot see, feel or smell the presence
of radiation, coupled with a general lack of credible and
authentic information to the public at large about radiation
and radiation emergencies and the wide publicity given to
any nuclear/radiation related incident, has resulted in
H
720 SUPREME COURT REPORTS (2013] 8 S.C.R.
A several erroneous perceptions about nuclear radiation/
technology. Not surprisingly, most people perceive that any
small nuclear/radiation related incident will lead to a
situation like Hiroshima/Nagasaki or the Chernobyl
accident.
B
To remove such misgivings, the authorities of nuclear
fuel cycle facilities in general, and that of nuclear power
stations in particular, are actively involved in carrying out
regular public awareness programmes for people living in
the vicinity of these facilities.
c
(viii) The AERB, the national regulatory authority, has been
regulating the nuclear and radiation facilities in the country
very effectively and has, over the years, issued a large
number of codes, standards and guides.
D
(ix) In the event of the private sector getting involved in the
nuclear power programme, it might be required for the
regulatory authority to ensure that the necessary knowledge
base does exist in the concerned private industry for
building and operating the nuclear facility as per the
E
stipulated safety standards of the AERB.
(x) In case of a nuclear/radiological emergency, the rescue
and relief measures will be highly demanding in terms of
availability of adequate trained manpower as well as
F advanced instruments/equipment. In this case, the nature
of relief measures would be different in many ways from
those carried out in natural disasters like fire, floods,
earthquakes, etc. (where there is very little detrimental
effect to the health of the personnel involved in the relief
G work). In a nuclear emergency/disaster, however, the
persons carrying out the relief work are also likely to be
exposed to both high doses of radiation and/or high levels
of contamination which, if not controlled, may affect their
health including their potential to carry out the relief work
H effectively.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 721
[K.S. RADHAKRISHNAN, J.]
(xi) Several major metros and other vulnerable locations A
will need to have ERCs established in their areas. Local
civil defence, police, fire brigade, hospitals and other
agencies also need to develop liaison with these ERCs.
(xii) Facilities using radioactive sources need to 8
strengthen their physical protection systems along with
proper inventory and control procedures of the radiation
sources.
(xiii) In the current security threat scenario, there is a need
for enhancing the security of the sources at radiation C
facilities and during their transportation, to ensure that they
do not go 'out of control' by any deliberate acts of theft and/
or sabotage and become a potential radiation hazard to
the public.
D
(xiv} In the context of large-scale radiation disasters, the
involvement of civil defence personnel and home guards
is usually considered highly desirable.
(xv) Because of their preoccupation in defending the
country from the enemy, the armed forces are normally not E
always available to respond to a nuclear disaster scenario.
However, for any major nuclear accident where the
situation is beyond the coping capability of the civil
administration, the services of the armed forces may be
· called for to take over several critical operations related F
to response (i.e., rescue and relief}, rehabilitation (i.e.,
evacuation and sheltering} and reconstruction activities,
including the immediate restoration of essential
infrastructures like communication, electrical power,
transportation, etc. Civil-military coordination will be G
developed for such purposes so that specially trained and
rehearsed teams of the Army can be inducted to assist the
civil administration, as and when called for and are
available.
H
722 SUPREME COURT REPORTS [2013] 8 S.C.R.
A (xvi) To start with, the SDMAs, SECs and DDMAs
concerne~ will aim to cover all cities with a population of
20 lakh or more, that may be affected by a major nuclear/
radiological emergency in respect of the preparedness for
response to a nuclear/radiological emergency. This cover
B will be progressively extended to other cities.
(xvii) Presently, there is no network of hospitals in the
country which can handle radiation induced injuries on a
large scale. The establishment of such a network is
essential for handling nuclear emergencies/disasters. This
c will also include the establishment of a nationwide
capability for utilisation of the services of a large number
of RSOs for managing both ROD-related scenarios and
largescale nuclear disasters on priority. There will also be
a dedicated and reliable communication facility among
D hospitals so that, whenever required, they can pool their
resources.
(xviii) There can always be a possibility of some
radioactive sources going 'out of control' in some country
E and from there, entering into our country inadvertently or
deliberately. Such unnoticed entry has the potential of the
end products of steel mills being contaminated or, in the
worst scenario, the source being used in an ROD. Hence
the strengthening of border controls will need to be
F addressed on priority by MHA.
(xix) In an off-site emergency situation in a nuclear facility,
emergency response plans envisage the evacuation of the
public from the affected zone. This requires well-defined
routes and evacuation strategies, taking into account the
G topology of the site. Problems related to the availability of
well-defined routes, transport facilities, food, drinking
water, shelters, etc. also need to be addressed by the
concerned DDMAs/SDMAs as part of the preparedness/
response programme in an all-hazards approach.
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 723
[K.S. RADHAKRISHNAN, J.]
(xx) In the emerging security threat scenario, there is a A
possibility of 'orphan' sources (stolen or misplaced
sources that may go out of regulatory control of the AERB)
falling into the wrong hands and being used for malevolent
purposes through an ROD (also called a 'dirty bomb').
8
At present, there is no mobile monitoring system
available with law and order authorities which can warn
· them of any significant/abnormal rise in background
radiation levels in the public domain. The establishmenV
strengthening of monitoring and detection systems of such
sources on priority is considered highly desirable, to detect C
any unauthorised presence or movement of radioactive
material in the public domain.
(xxi) With the increasing incidences of terrorists activities
and impending threat of RDD, it is imperative that the D
police, which in all probability will be the first to reach the
site of an explosion, should have some simp!e portable
monitoring instruments (at each police station within the
areas with radiological threat perception) which will warn
them as they approach the radiation source (from, say, a E
blast of RDD).
(xxii) The values of the radiation dose levels at which
intervention is required for various actions (like sheltering,
iodine prophylaxis, evacuation, etc.) and the action levels F
that will be needed to control the consumption of
contaminated food items in the affected areas are
presently not available either for any ROD or nuclear
emergency/disaster and are needed to be generated
because these are essential in respect of both (i) the
members of the relief and rescue teams and (ii) the public. G
(xxiii) The lack of public awareness is a major constraint
in handling and objectively responding to nuclear and
radiological emergencies. Further, presently there is no
mechanism for maintaining a knowledge base or case H
724 SUPREME COURT REPORTS [2013] 8 S.C.R.
A studies in the public domain on the events of previous
emergencies and their consequences. As a result, the
lessons that should have been learnt from the handling of
those emergencies have been lost sight of. To overcome
this, sincere and concerted efforts are needed to create
B awareness amongst the general public with the target
audience of school and college students, teachers,
technocrats and government officials."
98. 2009 Guidelines issued by AERB are very exhaustive
which have to be implemented and attended to forthwith. AERB,
C in the Code of Practice on Safety in NPP Siting, also has dealt
with the term "Exclusion Zone". Para 5.5.3 and 5.5.4 are
relevant and extracted below:
"5.5.3. An exclusion area of appropriate size (at least 1.5
D km radius from the reactor centre) shall be established
around the reactor and entry to this is to be restricted to
authorised personnel only.
5.5.4. A sterilised area up to 5 km around the plant shall
be established by administrative measures where the
E
growth of population will be restricted for effective
implementation of emergency measures. National growth,
however, is allowed in this zone."
99. Facts presented indicate that there is no population
F in the "Exclusion Zone" of KKNPP. "Exclusion Zone" is under
the exclusive control of the plant operator NPCIL, guarded by
CISF, where no public habitation is permitted. The property wall
at a distance of 2 km from the reactor buildings existing at
KKNPP, which encloses the exclusion zone, and no people
G reside permanently inside the property wall. A sterilised area
around the exclusion area covering an area of up to 5 km radius
from the plant has also been established. As per AERB Citing
Code, the desirable population within the sterilised zone is
about 20000. As per the documents available, 3 villages are
H within· SZ of KKNPP, namely, Kudankulam, Vijayapathi
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 725
[K.S. RADHAKRISHNAN, J.]
(ldinthikarai) and lrrukkand1,1rai. As per 2001 census, the A
population residing with SZ consisting of these three villages
is approximately 23960, which has been taken care of while
preparation of the Emergency Preparedness Plan (EPP) of
KKNPP.
B
100. NPCIL, after due concurrence with AERB, as already
indicated, has prepared the Emergency Preparedness Plan
Vol. V for off-site emergency at KKNPP. The EPP has listed
the composition of Off-Site Emergency Response Co-
ordination Committee (OERCC) comprising of 14 disrict C
administration officials for implementing counter measures in
public domain in case of an emergency. The District Collector,
Tirunelveli is the Off-Site Emergency Director and the members
are District Revenue Office, Site Director, KKNPP,
Superintendent of Police, District Forest Officer, Joint Director
(Fisheries), Deputy Controller (Civil Defence), Divisional Fire D
Officer, Executive Engineer (Irrigation), Joint Director
(Agriculture), Deputy Director (Animal Husbandry), District
Supply Officer, Regional Transport Officer, Deputy Director
(Health Services). The overall responsibility of OERCC and
individual responsibilities of the members o the Committee E
have been chartered in the Emergency Preparedness Plan for
effective implementation of counter measures. Eleven
Emergency response reams such as warning and advise Team,
Emergency Response Teams, Traffic Control Team,
Prophylactics Distribution Team, Evacuation Advice Team, F
Convoy Team, Decontamination Team, Rallying Post Team,
Patrolling Team, Information Team and Services Support Team
have also been formed and are in place as well.
EMERGENCY EXERCISE - ON AND OFF-SITE G
101. KKNPP site comprises of two units along with their
auxiliary facilities. In the Plant or the Site, an unplanned event
at a particular unit may result in an emergency situation which
may affect either the offending unit alone (Plant Emergency) or
the other facilities as well within the site Exclusion Zone of the H
726 SUPREME COURT REPORTS [2013] 8 S.C.R.
A KKNPP (Site Emergency). Site emergency may result in off-
site emergency which may affect the public personnel living
beyond 1.6 km radius of the plant boundary. NPCIL, therefore,
prepared an Emergency Preparedness Plan for KKNPP. Vol.
1 contains the on-site emergency plan and Vol. 2 contains the
s off-site emergency plan. The off-site emergency preparedness
procedures was issued in July 2010 after incorporating the
comments and instructions made by NPSD and AERB. Final
revised plain was incorporated on recommendations made by
OPSD and SARCOP. We have gone through the Emergency
c Preparedness Plan Vol. II (off-site Emergency Plan) which is
very comprehensive and deals with almost all eventualities.
102. The Off-Site Emergency Exercise was carried out as
per the requirements of AERB Safety Guide on Consenting
Process for NPPs. Off-Site Emergency Exercise is required to
D be carried out once in two years and that NPCIL and State
Authorities would conduct such exercises in other nearby
villages frequently. Such mock-drills are conducted to educate
the public not to scare them away, but make them understand
that the Project is part of the National Policy, participatory in
E nature, and hence we cannot remain as a nuclear isolated
Nation. We have to find out a substitute for other sources of
energy. Such exercise was carried out annually to assess
whether plant management and the local authorities, including
the communication and infrastructure facilities, are geared up
F for tackling with a real emergency situation, in case it arises.
103. We heard Shri Rakesh Diwedi, learned senior
counsel appearing for the State of Tamil Nadu, who gave an
overall view of the steps taken by the State Government and
G the District Collector, Tiruvelveli for implementing the
Neighbourhood Development Scheme relating to housing,
steps taken for off-site emergencies, awareness programme,
other infrastructural facilities. We have also gone through the
detailed affidavit filed by the District Collector, Tirunelveli District
on December 2012 and noticed the steps taken by the District
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 727
[K.S. RADHAKRISHNAN, J.]
Administration and the State to meet the Off-Site emergencies, A
awreness programmes and the other steps taken to provide
infrastructural facilities like up-gradation of Primary Health
Centres, opening of New Primary Health Centres, setting up
of Desalinate place at Uvari, solar energy lighting system etc.
B
CORPORATE SOCIAL RESPONSIBILITY (CSR):
104. Sustainable Development and CSR are inseparable
twins, integrated into the principles of Inter and Intra-
Generational Equity, not merely human-centric, but eco-centric.
CSR is much more when the Project proponent sets up NPPs, C
thermal power plants, since every step taken for generation of
energy from such hazardous substances, is bound to have
some impact on human beings and environment, even though
it is marginal. The Department of Public Enterprises (OPE),
recently, issued a Comprehensive Guidelines on CSR for D
Central Public Sector Enterprises, which includes NPCIL, to
create, through the Board Resolution, a CSR budget as a
specific percentage of net profit of the previous year. CSR is
envisaged as a commitment to meet its social obligations by
playing an active role to improve the quality of life to the E
communities and stake-holders on a sustainable basis,
preferably, in the project area where it is operating. CSR
strategy has to be put in practice in line with the millennium
development goals as lodged by United Nations and adopted
by the Government of India in the 11th Five Year Plan i.e. 2007- F
2012, which could cover the areas of education, health, drinking
water/sanitation, environment, solar. lighting system,
infrastructure for backward areas, community development and
social empowerment, promotion of sports and traditional forms
of arts and culture, generation of employment opportunities and G
livelihood to be a part of the National/Local initiatives to provide
reliefs/rehabilitation in terms of natural disaster, calamities etc.
105. NPCIL has allocated funds for providing health,
education, infrastructural development under CSR at
Kudankulam. The allocation and utilization of funds by NPCIL H
728 SUPREME COURT REPORTS [2013] 8 S.C.R.
A during the last three years and the current year are enumerated
below:
Financial Year Funds Allocated Funds Utilized
(rupees in lakhs) (rupees in
lakhs)
B
2009-10 14.50 14.47
2010-11 120.00 45.20
2011-12 160.00 18.67
2012-13 800.00 13.91 (up to
c July 2012)
We notice that, apart from the above, Rs.500 crores has been
allocated for Neighbourhood Development Programme (NDP)
around the nuclear plant at Kudankulam, which would be utilized
D for taking up various development works like setting up of cold
storage and fishing marketing area, Public board motor works,
housing facilities, levelling of roads, upgradation of health
services, grownes and drinking water etc. The Chief Secretary
of Tamil Nadu convened a meeting on 15.5.2012 following
E CSR, in which it was decided to set up a fund of Rs.300 crores
for the housing scheme for a projected period from 2012 to
2015. The proposal is to construct 10000 houses in the housing
project with a unit cost of Rs.3,00,000/- per house with a plinth
area of 300 sq. Feet under NDS. Various other development
activities are also being undertaken as part of CSR, like
F upgradation of public health centres, establishment of new
public health centres etc.
106. This Court in Banwasi Seva Ashram v. State of U.P.
AIR 1987 SC 374 allowed the construction of NPP in a
G, displaced forest area, but ordered inter alia that every family
of forest dwellers be provided with a housing plot of specified
dimensions elsewhere, that health, education, sanitation
services and the like, be provided there, as part of CSR.
107. NPCIL in association with the District Collector,
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 729
[K.S. RADHAKRISHNAN, J.]
Tirunelveli should take effective steps to discharge their CSR A
in accordance with the OPE Guidelines. Needless to say, there
must be an effective and proper monitoring and supervision of
the various projects undertaken under CSR, to the fullest benefit
of the people who are residing in and around the NPP.
B
PART II
108. Environmental impact on setting up of a nuclear plant
anywhere in the world is bound to generate some
apprehension, at least in the minds of the ordinary people, of
its possible impact on environment, life and property, flora and C
fauna, marine life, radiation, nuclear waste and its disposal and
other related issues.
"Royal Commission on Environmental Pollution,
Sixth Report, 'Nuclear Power and the Environment.' o
There are few subjects in the field of environmental
pollution to which people react so emotionally as they do
to radioactivity."
(Cmnd 6618 1976 para 5) E
109. Public opinion, national policy, economic growth,
sustainable development, energy security are all intrinsically
interlinked. One cannot be divorced from other, all the same, a
balance has to be struck. National policy of this country, as
already stated, is that atomic energy has a unique position in F
the emerging economics in India. Nuclear energy is, therefore,
considered to be a viable source of energy and it is necessary
to increase country's economic growth. Nuclear energy is now
considered in India as a sustainable source of energy and India
cannot afford to be a nuclear isolated nation, when most of the G
developed countries consider it as a major source of energy
for their economic growth. Renewed momentum against the
setting up of NPPs picked up fast after accidents at the Three
Miles Island Power Plant in USA, Chernobyl in Ukraine and
Fukoshima in Japan. Primary reason for such opposition H
730 SUPREME COURT REPORTS [2013] 8 S.C.R.
A seems to be on the issues of the impact of nuclear installations
on life and property, environment, flora and fauna, marine life,
nuclear waste disposal, health, displacement of people etc.
which has a direct link with Article 21 of the Constitution of India
and the environmental laws of the country.
8
110. Learned counsel appearing for the appellants mainly
contended so far as this project is concerned, the Regulatory
Authorities have consistently legalized the fait accompali
violations presented by the project proponent. Further, it was
alleged that the plant standards had been relaxed, statutory
C violations such as construction without permission, unauthorized
setting up and commissioning of discharge outlets had not only
merely been condoned but justified by the TNPCB, MoEF etc.
Learned counsel also submitted that the environment clearance
granted by the MoEF on 9.5.1989 was not only vague but with
D imprecise conditions and that no environmental impact study
or public hearing was conducted. Further it was stated that no
construction was started after getting the above clearance, but
only in the year 2002, by the time 1994 EIA Notification came
into force, consequently, fresh environmental clearance had to
E be obtained. Reference was made to a circular dated
27.3.1998 issued by the MoEF, which stated that the
environmental clearance issued prior to 1994 would not be valid
in the case of projects which did not commence work before
1.8.1998. Referring to explanation 8 to the E!A Notification of
F 1994, it was submitted that the project did not obtain all
clearances including NOC from the State Pollution Control
Board, which was required under the Water Act of 1974 and
Air Act Q! 1981. Project, therefore, did not have NOC, from the
Pollution· Control Board, when 1994 Notification came into
G effect. No fresh environmental clearance was obtained from
MoEF as per the 1994 Notification and even if obtained, the
same would be valid only for five years of the construction or
operation of the project. Further, it is also pointed out that the
environmental clearance granted on 9.5.1989 was revalidated
H by a letter dated 6.9.2001, when EIA Notification of 1994 was
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 731
[K.S. RADHAKRISHNAN, J.]
in force. A
111. Appellants pointed out that the refusal of Russia in
accepting the spent-Fuel also brought about complete change
in the project, since it expanded the activities of transportation
of spent fuel for reprocessing, reprocessing of spent fuel,
B
generation, storage and disposal of nuclear waste. These
changes, according to the appellants would amount to
expansion and modernization of the project, which required
fresh environmental clearance and revalidation of 1989
clearance, according to the appellants, was impermissible in C
law. Learned counsel, therefore, pointed out that all those
factors would indicate that KKNPP Units 1 and 2 required fresh
environmental clearance which the project proponent did not
obtain. KKNPP, it was submitted, is located within 500 metres
of HTL and therefore was a prohibited activity under CRZ
notification 1991. It was pointed out that the project of NPCIL D
is not a project of DAE and that only those construction
activities are allowed for which foreshore facilities are
essential. Construction of KKNPP is therefore not allowed
under CRZ notification. Further, it was pointed out that no
environmental clearance was obtained from MoEF before E
setting up the desalination plant and the same is also situated
in the CRZ zone. NPCIL, it was submitted, had not followed
the CRZ Notifications dated 21.5.2002, 19.10.2002 etc. which
have got serious impact on marine life and also on the coastal
area. The discharge of water from the plant into the sea also F
causes serious environment impact, especially on the marine
life. Appellants submitted that all those factors were not taken
into consideration when the environmental clearance was
granted by the TNPCB as well as the MoEF. The appellants
submitted that the discharge of radioactive liquid from the two G
units if not adequately treated and will affect the quality of
marine life and bio-diversity of flora and fauna and marine
resources found in the Marine National Park and the wedge
bank of Gulf of Mannar. Further, it was contended that as per
the stipulation of MoEF of the year 1980 temperature of the H
732 SUPREME COURT REPORTS [2013] 8 S.C.R.
A coolant water should not exceed 5°C. However, NEERI has
unilaterally increased it to 7°C which will have serious effect on
marine life apart from changes in salinity levels.
112. NPCIL, AERB, MoEF as well as TNPCB have filed
detailed counter affidavits and explained the steps they have
8
taken for getting environmental clearance for the project at
various levels. Counter affidavits state that comprehensive
studies have been conducted on all issues by environmental
experts and scientists and permissions have been granted
taking into consideration of all safety measures under the
C Environmental Protection Act, Notifications issued thereunder
and also following/taking into consideration guidelines laid down
by well-known International organizations.
113. NPCIL submits that it had submitted its application
D for grant of environmental clearance for the project on
12.12.1988. Clearance for installation of NPP was granted by
the Department of Environment and Forests, Government of
Department of Tamil Nadu on 26.12.1988. The Department of
Environment and Forest, Government of Tamil Nadu also
E accorded amended clearance to the project vide letter dated
13.2.1989 with certain stipulations. The MoEF also accorded
its approval to Unit 1 and 2 subject to certain conditions stated
therein on 9.5.1989. After the receipt of Government clearance,
process of land acquisition was initiated and land acquisition
F was completed during the period 1991 to 1993. Pre-project
activities like construction of bpundary wall, roads and some
buildings were also initiated and completed during the said
period. AERB on 10.11.1989 granted clearance for locating the
plant at Kudankulam after the evaluation of the site by the Site
Selection Committee. Environment Impact Assessment (EIA)
G Notification came into force on 27 .1.1994 which provided an
exception for the project which had commenced the pre-project
stage activities vide exception clause 8. Notification of 1994,
therefore, it was pointed, would not apply to Units 1 and 2 for
which environmental clearance was already granted on
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 733
[K.S. RADHAKRISHNAN, J.]
9.5.1989. Further, it was pointed out that the environmental A
clearance dated 9.5.1989 stipulated that temperature of the
Coolant Water should not exceed 5°C, however, in the light of
paragraph 5 of the clearance dated 9.5.1989 and the
amendment of Rule 84 of the Environmental (Protection) Rules,
1986 and Notification dated 22.12.1988 stipulation of 5°C B
contained in the clearance can be varied. Further, it was stated
that since the discharge from Units 3 to 6 is essentially in the
same area, the temperature of discharge from Units 1 and 2
can also be limited to 7°C, which according to NPCIL, will have
no impact on marine life. c
114. NPCIL, further pointed out that the report of the
studies conducted by the Institute of Ocean Management (IOM),
Anna University, would indicate that there would be no impact
on marine ecosystem due to such discharge and opined that
the temperature differential of the discharged water with respect D
to the receiving water should not exceed 7°C. The
environmental clearance was accorded to Units 3 to 6 on the
same design as Units 1 and 2 which stipulated the Condenser
Cooling Water Discharge limit as 7°C. Further it was also
pointed out that during the appraisal of CRZ clearance for Units E
3 to 6 before the grant of CRZ clearance on 25. 7.2012 the
Expert Appraisal Committee (EAC) considered the marine
impact assessment and opined that there would be no impact
on water qualities due to the proposed discharge. Further, the
TNPCB has also accorded consent to operate on 28.8.2012 F
for Units 1 and 2 stipulating the condenser cooling water
discharge limit as 7°C. NPCIL, also submitted that the EIA of
units 3 to 6 includes the impact of units 1 and 2 as a baseline
for computing the additional impact of units 3 to 6. The concern
of the public, it was submitted, regarding safety, livelihood, G
radiation etc. have been adequately addressed during the
public hearings on units 3-4 and 5-6 which was granted on
23.09.2008 and 31.12.2009 respectively. Procedure required
to be followed under the EIA notification, 2006 had also been
strictly followed. Further, it was also pointed out that no H
734 SUPREME COURT REPORTS [2013] 8 SC R
A environmental clearance is required for establishing the
desalination plant since the same has not been included in the
schedule to either 1994 notification or 2006 notification and
there is no prohibition in establishing the plant in the CRZ area.
115. MoEF has filed detailed counter affidavits and also
B
submitted their written submissions on various aspects. MoEF
submitted that at the relevant point of time, when KKNPP Units
1 & 2 were sought to be established, there was no regulatory
requirement of Coastal Zone Regulations (except 500 meter
norm). Everything was based on the letter written by the then
C Prime Minister in November, 1981 to the Chief Ministers of
coastal States regarding necessity to keep clear of all activities
at least up to 500 metres from the water at the Maximum High
Tide (MHT). Further, it was also urged that pollution from
industrial and town wastes should also be avoided totally.
D Following the letter of the then Prime Minister, a working group
was constituted which formulated some environmental
guidelines for the development of beaches in the year 1983.
The permission for location of NPP at Kudankulam was granted
on 25.02.1988 by the Committee on Conservation of Seashore,
E State of Tamil Nadu. Later, the Tamil Nadu State Environmental
Committee (TNSEC) also met on 15.12.1988 and cleared the
KKNPP project subject to further monitoring by a Special
Committee. The decision was communicated vide letter dated
26.12.1988 which was later modified by the Committee on
F 13.02.1989 subject to certain conditions mentioned therein.
MoEF had also stated that the DAE, Government of India had
sought for relaxation in respect of the project from 500 metres.
On 19.04.1989, the Prime Minister approved an exemption of
500 metres norm especially for the Kudankulam project subject
G to the MoEF prescribing and ensuring sufficient safeguards for
preserving the ecology, for which MoEF accorded approval to
KKNPP Units 1 & 2 subject to the conditions stipulated therein.
116. MoEF issued the CRZ Notification on 19 02.1991
imposing restrictions on the setting up and expansion of
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 735
[K.S. RADHAKRISHNAN, J.]
it.dustries, operation or processes etc. in the coastal zone. This A
notification, it was pointed out, did not prohibit the project
already in operation, granted clearance prior to the date of the
issue of Notification. Later, by an amendment dated
12.04.2001, S.0.329(C) amended paragraph 2 on "prohibited
activities" of the Notification dated 19.02.1991 by substituting B
a new clause which exempted the projects of DAE. EIA came
into force on 27.10.1994 but MoEF issued a Circular dated
23.07.1998 conveying its decision that the environmental
clearances granted prior to 1994 would be valid in the case of
projects where work had commenced before 01.08.1998. On c
31.08.2001, the Director of MoEF visited the Kudankulam plant
site and found that the land acquisition was completed and
construction of Township, Environment and Health Research
Centre and RO plant was in progress.
117. MoEF took up the stand that 1994 notification would D
not apply qua Units 1 & 2 in view of the fact that the
environmental clearance was already granted in the year 1989.
Further, it was also submitted that subsequently while granting
the environmental clearance for Units 3 to 6, public hearing was
conducted as per EIA Notification, 2006. Consequently, it was E
submitted that the EIA for the expansion of KKNPP i.e. for
setting up of Units 3 to 6 included the environmental impact on
account of Units 1 & 2. Environmental clearance, it was pointed
out, for the Units 3-4 and 5-6 was granted on 23.09.2008 and
31.12.2012 respectively after following due procedures required F
under EIA Notification, 2006.
118. MoEF also maintained the stand that prior
environmental clearance is required only for those activities
which are listed in Schedule to the EIA Notification dated G
27.01.1994 or the subsequent Notification dated 14.09.2006,
which superseded the notification dated 27.01.1994.
Desalination plant, it was submitted, did not find a place in the
above mentioned notifications, hence prior environmental
clearance for establishment of a desalination plant was not H
736 SUPREME COURT REPORTS [2013] 8 S.C.R.
A required. Further, it was pointed out that the same would not
preclude MoEF from considering the issue of desalination plant
from the CRZ point of view. Referring to CRZ amended
notification dated 19.02 .1991, it was submitted that the
desalination plant could be established within CRZ area except
B CRZ-l(i)-i.e. eco-sensitive areas viz. mangroves, sand dunes
reserve forests etc. Reference was also made to CRZ
notification dated 06.01.2011, which superseded the CRZ
Notification dated 19.02.1991. MoEF therefore. maintained the
stand that in view of the legal position desalination plant could
c be established within the CRZ area. However, it was pointed
out that even though the desalination plant is a permissible
activity within the CRZ area, MoEF would again take into
account the establishment of the desalination plant from the
CRZ point of view and ensure that it would continue to function
to the full satisfaction of MoEF.
0
119. MoEF has also in the affidavit dealt with the issue of
change in the temperature limit of condenser cooling water
discharge and its impact on marine environment. It was pointed
out that at the time of grant of environmental clearance on
E 09.05.1989, the standard temperature difference between the
inlet and outlet of condensed cooling water for discharge for
temperature was fixed at 5oC. However, vide notification dated
22.12.1998, Environment (Protection) Rules, 1986 were
amended. Rule 84 dealing with the thermal power plant, the limit
F prescribed therein would equally apply to NPPs as the
technology for condenser cooling in both thermal as well as
NPPs are the same. The environmental impact on the marine
ecosystem due to +7oC Condenser Cooling Water (CCW) has
been considered by MoEF through the EAC before giving the
G environmental clearances for the units 3-4 and 5-6 by stipulating
that the temperature differential of the discharged water with
respect to the receiving water would not exceed 7oC. MoEF
therefore concluded that during the appraisal of the CRZ
clearance for units 3-6 of KKNPP before grant of CRZ
H clearance on 25.07.2012, the EAC considered the marine
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 737
[K.S. RADHAKRISHNAN, J.]
impact assessment, thermal dispersion modeling studies A
conducted for condenser cooling water discharge considering
the CCW discharge from all the 6 units i.e. KKNPP 1-6. Further,
it was also pointed out that TNPCB has also accorded consent
to operate on 28.08.2012 for KKNPP units 1 & 2 by stipulating
the CCW discharge limit as 7oC as per the amended B
Environmental Protection Rules. MoEF also maintained the
stand that it will continue to monitor the environmental standards
of KKNPP and periodically inspect as to examine whether
KKNPP units conform to the safety of environment set by MoEF.
120. Shri Guru Krishna Kumar, learned senior counsel C
appearing for TNPCB submitted that it had vide its letter dated
21.06.2001 requested the DAE to apply and obtain a fresh
environmental clearan~ from the MoEF. MoEF, at that time,
maintained the stand that NPCIL had already taken steps to
implement the project and hence there was no necessity of a D
fresh environmental clearance. TNPCB's officials then inspected
the site of KKNPP on 19.09.2001 and found that it had started
construction of the NPP without valid consent for establishment
as required under the Water (Prevention and Control of
Pollution) Act, 1974 and the Air (Prevention and Control of E
Pollution) Act, 1981, consequently, show cause notices vide
proceedings No. DEE/TNPCB/TNV/F.NPP-RDF/W/2001 dated
11.10.2001 and DEE/TNPCB/TNV/F.NPP-RDF/A/2001 dated
11.10.2001 were issued calling for explanation. NPCIL later
filed applications dated 20.12.2001 for consent of the TN PCB F
for the NPP of capacity 2X1000 MW. The TNPCB issued
consent for Establishment vide proceeding dated 25.02.2004.
NPCIL had a proposal to use sea water for cooling, Pechiparai
reservoir for fresh water and ground water for construction.
Later, they applied for revised consent which included additional G
facilities for desalination plant using sea water as an input, in
place of water supply from Pechiparai dam. The TN PCB later
issued Consent to Operate vide proceedings dated
23.07.2012 with tolerance limits prescribed for trade effluent
discharge, as per Board Proceeding dated 21.02.1984, which H
738 SUPREME COURT REPORTS [2013] 8 S.C.R.
A included-the tolerance limit for temperature as 45oC at the
point of discharge. Later, TNPCB vide proceedings dated
22.08.2012 altered the condition to be read as "not to exceed
7oC over and above the ambient temperature of sea for trade
effluents".
B
121. Appellants filed detailed common rejoinder affidavit
traversing the various statements made by AERB, NPCIL,
MoEF.
122. Appellants urged that all facilities related to nuclear
C fuel and nuclear waste required an environment clearance
under the EIA notifications of 1994 and 2006. Further, it is
pointed out that when the supplemental agreement with Russia
was entered into in the year 1998 that envisaged this critical
change and hence NPCIL ought to hive applied for a fresh
D clearance from the MoEF. But MoEF had consistently condoned
such violations of law. Desalination plant, it was pointed, is
bound to cause serious environmental implications and
significant impact on marine life. It was pointed out that plant
has been constructed without mandatory previous "Consent to
E Establish" from the TNPCB under the Water Act. The TNPCB
consent to establish was given in the year 2004 while the
desalination plant was envisaged only in the year 2006 and the
construction of the plant has also violated in provisions of the
Water Act since any activity that discharges anything in water
F required PCB clearance. Fresh environmental clearance was
therefore not just required for the desalination plant, but for the
nuclear plant as a whole because the desalination plant
introduced a significantly different dimension to pollution,
especially given the fact that highly concentrated salty water is
G being released into the eco-sensitive Gulf of Mannar Biosphere
Reserve. Further, without any legal sanction, NPCIL has
unilaterally increased the temperature from 5oC to 7oC. The
appellant, therefore maintained the stand that unless and until
the plant conforms to the environmental protection laws, the
same shaM not be allowed to be commissioned which gives
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 739
[K.S. RADHAKRISHNAN, J.]
threat to the life and property of the people who are staying in A
and around the plant and it will have adverse effect on the
environment as well as marine life.
Judicial evaluation
123. We will first examine the question whether NPCIL, the B
project proponent while establishing the KKNPP, had obtained
all necessary environmental clearance and other requisite
permission from the authorities. No plant specifically the one
dealing with radioactive materials can be allowed to function
or commission even if it has been cleared by AEC, AERB, C
NPCIL etc. unless it strictly conforms to the standards set by
the statutory authorities like MoEF, TNPCB etc. and follow the
environmental laws. Most of the issues referred to hereinbefore,
as already indicated, are inter-related and inter-connected,
therefore, there are bound to be some overlapping while D
examining Jhe same. Before examining various legal issues
raised before us, let us first examine the factual foundation on
which they rest. ·
124. The G.overnment of India after due deliberation with
AEC, AERB, NPCIL and other organizations decided, in E
principle, to set up a NPP, for which Site Selection Committee
of DAE was constituted and the Committee examined various
sites in the Coramandel Coast of Tamil Nadu and selected the
site at Kudankulam as the most ideal for selling up of NPP on
scientific, technical, safety, security and environmental point of F
view. No regulatory requirement of CZR (except 500 metres
norm) at the sea coast was in force at that time. The Prime
Minister of India had written a letter in November 1981 to all
the Chief Ministers of Coastal States in which it was stated as
under: G
"The degradation and misutilization of beaches in the
coastal states is worrying as the beaches have aesthetic
and environmental value as well as other values. They have
to be kept clear of all activities at least up to 500 metres H
740 SUPREME COURT REPORTS [2013] 8 S.C.R.
A from the water at the maximum high tide. If the area is
vulnerable to erosion, suitable trees and plants have to be
planted on the beaches without marring their beauty
Beaches must be kept free from all kinds of artificial
development. Pollution from industrial and town wastes
8 must also be avoided totally."
125. Following the letter of the Prime Minister, a nine
Member Working Group comprising experts in the fields of
marine biology, nature conservation, tourism, pollution control
and human settlements was constituted to formulate guidelines
C for the development of beaches. The Committee formulated the
environment guidelines for development of beaches in July
1983. Before selecting the site at Kudankulam, a detailed study
was conducted as to the suitability of the site, safety,
radiological impact and its assessment, external natural events,
D foundation conditions, water availability and various other
factors. Following that, an application was submitted in the year
1988 by the NPCIL before the State of Tamil Nadu for location
of NPP at Kudankulam. The application was considered by the
Committee on conservation of seashore of Government of
E Tamil Nadu since the plant had to be set up at the sea shore.
The committee after considering the proposal accorded
clearance for the location of the plant at Kudankulam which is
reflected in the letter dated 25.02.1988 sent by the Secretary
to the Government, State of Tamil Nadu.
F
126. NPCIL later submitted its application to the
Government of Tamil Nadu for grant of environmental clearance
vide its application dated 12.12.1988. As per the then existing
practice, applications for environmental clearance of a project
like NPP had to be placed before TNSEC which consisted of
G high ranking officials including the Chairman and Secretary of
TNPCB etc. Application was placed before the Committee
which met on 15.12.1988 and discussed various issues. The
Executive Director of the project NPCIL explained the project
in detail to the Committee with particular reference to safety
H
G. SUNDARRAJAN v. UNION OF INDIAAND ORS. 741
[K.S. RADHAKRISHNAN, J.]
measures. It was also pointed out that a disaster management A
plan had already been prepared and submitted by them to the
Government of India and that no rehabilitation of the people
around the site would be necessary. Some of the Members
expressed the apprehension that cyclone condition might affect
nuclear plant, which was allayed by the Executive Director, B
NPCIL stating that the proximity of Srilanka would deactivate
the cyclone. The Additional Director (Public Health and
Preventive Medicines) expressed the apprehension that the
project might pollute the sea water thereby affecting the fish and
the consumers. The Executive Director, NPCIL had assured that c
an Environmental Survey Laboratory (ESL) would be set up 30
km away from Kudankulam and samples of water and fish
would be analysed to find out the amount of radioactivity on the
flora and fauna. Safety issues were also discussed in that
meeting. After detailed discussions on various aspects, the D
Committee decided to clear the project subject to the
monitpring by a Special Committee, which Committee, it was
stated,. would go into the details of safety and rehabilitation
measures proposed in the areas communicated in the project
report.
E
127. The decision of the TNSEC dated 15.12.1988 was
communicated to NPCIL vide letter dated 26.12.1988 followed
by another letter dated 30.12.1988. On 13.02.1989, TNSEC
modified the environmental clearance contained in its letter
dated 26.12.1988 and decided that environmental clearance F
accorded for the installation of KKNPP would be subject to the
thirty one conditions specified in the annexure to the letter dated
13.02.1989.
128. The DAE, Government of India sought relaxation in G.
respect of proposed KKNPP of the guidelines that the coastal
beaches should be kept clear from all building activities upto
500 metres from the HTL. At that point of time only the
Environment Protection Act, 1986 was in force and the letter
of the Prime Minister of 1981 and 1983 Environmental H
742 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Guidelines for Development of Beaches. On 19.04.1989, the
then Prime Minister approved an exemption of 500 metre norm
specifically for KKNPP project subject to the MoEF prescribing
and ensuring sufficient safeguards for preserving the ecology
of the beach. The MoEF vide its Office Memorandum dated
B 09.05.1989 accorded approval to KKNPP -Units 1 & 2
(2x1000 MW} subject to following conditions which are given
below:
"2. Approval of this Ministry from environmental angle
is accorded subject to the following conditions:-
c
(i) Special exemption from the present ban on
undertaking any construction within 500 metres from
high tide line (HTL) is accorded to this project
subject to the condition that: ·
D
(a) In such area only the plant and essential
associated structures may be put up and nothing
else should come up in this area;
(b) Attempts should be made to keep such
E construction within 500 metres of high tide line as
far way from high tide line as possible;
(c) Adequate measures and environmental
safeguards will be taken for ensuring preservation
F of the ecology of the beach;
(d) Since this area has been declared as a bio-
sphere reserve, the project authorities should take
special precautions to avoid any damage to the
coral reefs or changes in the water quality near the
G shore; and
(e) At Environmental Management Plant (EMP) for
the area upto 500 metres from HTL should be
submitted to the Ministry for review.
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 743
[K.S. RADHAKRISHNAN, J.]
(ii) The temperature of the condenser water should not A
exceed 5oC over and above the ambient
temperature of the water at the point of discharge
in the sea.
(iii) The liquid effluents emanating from the different
B
plants of the power station should be treated to
conform to the standards stipulated by Central/
State Pollution Control Board and International
Commission for Radiological Protection (ICRP)/
AERB. Steps should be taken to prevent ground
water pollution. Adequate number of coastal water c
quality monitoring stations should be setup.
(iv) Radio-active wastes (solids and semi-solids)
generated during various operations, both low level
and high level, should be properly treated and D
disposed of after proper containment to fix the
radio-activity as per the standards/guidelines
prescribed by ICRP/AERB.
(v) No radio-active emissions, fugitive or otherwise, will
be permitted beyond the safety standards E
prescribed by AERB.
(vi) The location/alignment of the off-shore berth/jetty
should be selected in such a way that no damage
is caused to the coral reefs. Such construction F
should be kept at the minimum.
(vii) The route of the pipeline from P,echiprai reservoir
to the power station should preferably be so
selected that it does not affect forest areas.
G
(viii) Efforts should be made to avoid forest areas to be
affected due to the proposed transmission corridors
and power evacuation system.
(ix) Adequate precautionary measures should be taken H
744 SUPREME COURT REPORTS [2013] 8 S.C.R.
A in transportation of radioactive fuel/ spent fuel/
radioactive wastes, in/out of the country.
(x) p·eriodical environmental surveillance and
monitoring for radioactive emissions should be
undertaken for measuring radioactivity and record
B maintained.
(xi) Necessary steps may be taken for educating local
people about the project to allay their apprehension
due to the proposed power station.
c
(xii) All the vacant lands within the project zone should
be afforested with a tree density of 1000 per acre.
The type of tree species should be so selected that
they will be able to give maximum density of
canopy.
D
(xiii) From the initial stages of the project the
environmental surveillance and monitoring of this
particular area including the health status of the
population around the power station location should
E be carried out and records maintained. This activity
should continue in future also.
(xiv) On-site and Off-site Disaster Management Plan
(DMP) should be prepared as per the 9l!idelines
F stipulated by ICRP/AERB and approved by the
National Emergency Response Committee (NERC)
of Department of Atomic Energy, Government of
India.
(xv) Necessary approval under the Forest
G (Conservation) Act, 1980 and the Wildlife
(Protection) Act, 1972 will be obtained, when
applicable.
(xvi) A committee will be set up by the Department of
H Atomic Energy consisting of Additional Secretary,
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 745
[K.S. RADHAKRISHNAN, J.]
Department of Atomic Energy, Additional Secretary, A
Ministry of Environment and Forests, Project
Director, Kudankulam Atomic Power Project,
representative of AERB, Director NEERI,
representative of Government of Tamil Nadu and
two prominent public persons for review of the B
rehabilitation programmes, environmental
protection measures and public awareness
concerning the project.
(xvii) A detailed rehabilitation plan should be prepared C
covering the affected persons within a radius of 2
kms exclusion zone. It will also be necessary to
provide for some package of benefits for the
people residing in the sterilized zone as there will
be some restriction on the activities of this area.
These should be submitted to this Ministry for D
review after examination by the Committee.
3. There should be an environmental cell with suitable
personnel and a laboratory in the project.
E
4. Adequate financial provisions should be made for
implementation of the above conditions.
5. Conditions may be varied or new conditions
imposed in the interest of environmental protection.
F
6. The stipulations will be implemented among others,
under the Water (Prevention and Control of Pollution) Act,
1974, the Air (Prevention and Control of Pollution) Act,
1981 and the Environment (Protection) Act, 1986."
129. MoEF has a duty to see that the above-mentioned G
conditions are fully complied; which has also dealt with the
exemption from the ban which was at that point of time only a
norm prohibiting any construction within 500 metres of the HTL.
Permission granted also dealt with the temperature of the
condenser and also with radioactive rays, solid and semisolid H
746 SUPREME COURT REPORTS [2013] 8 S.C.R.
A generated during various operations including proper
containment to fix the radio activity as per the standards I
guidelines prescribed by ICRB I AERB. Condition for
periodical environmental surveillance was also stipulated so
also the necessity of educating the people, monitoring the health
s and also the provisions for onsite and offsite disaster
management plan and the need for framing a detailed
rehabilitation plan. After the receipt of the nuclear clearance,
the process of land acquisition was initiated and the land
acquisition was completed during the period 1991-1993.
c Project activities like construction of boundary was initiated and
completed during the said period. AERB on 10.11.1989
granted clearance for locating nuclear power plant at
Kudankulam after evaluation of the site by the Site Selection
Committee of DAE with stipulations given in the Annexure
alongwith that letter. Following are the stipulations laid down by
0
AERB:
1. Stipulations made by various State and Central
authorities in giving clearance, should be met. In
addition, plantation in the area under control of the
E project should be taken up along with site
development. Studies to assess thermal pollution
by making appropriate models should be carried
out. '
F 2. An exclusion zone of 1.6 km radius from the NPP
stack should be established with access control.
The Dose limits specified by AERB will be complied
with at this boundary.
3. The Board noted that Vairavikinaru quarry,
G ldinthikarai and Kudankulam settlements are
beyond 2 km distance but within sterilized zone.
Suitable legislative and administrative control
measures should be taken through state authorities
to prevent increase in population within the
H sterilized zone beyond natural growth. Also
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 747
[K.S. RADHAKRISHNAN, J.]
arrangements must be made to terminate the lease A
of the lime stone quarry in 1994.
4. Facility to store at site adequate quantities of water
should be provided to meet the make up
requirements of uninterrupted cooling of core and 8
other safety related systems on a long term basis.
Facilities engineered at site should meet the
requirements even in the event of possible
disruption of piped water supply from Pechiparai
Dam. Ground water sources in the site area should
be surveyed and developed to serve as an
c
additional back up source to meet the safety needs
of the plant, if water supply from the Pechiparai dam
is interrupted due to any contingency.
5. The Board requires that the safety of the long D
pipeline from Pechiparai dam should be ensured
by appropriate security arrangement.
6. NPCIL should take up the water management
schemes with the state government so that water E
supply to NPP is ensured all the time. The intake
well at the dam should be provided at lower
elevation than the minimum draw down level of the
reservoir.
The Board desires that the structure stability of the F
Pechiparai dam should be assessed taking into
account the recent work of strengthening the dam.
7. In the unlikely event of the br.each of the dam
alternative sources of water supply should be G
available for the site within a reasonable time.
NPCIL should conceptualize schemes at the
Detailed Project Report (DPR) stage for utilization
of the water from upper Kodiyar storage reservoir
for such eventuality.
H
748 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 8. Site related design considerations such as seismic
aspects etc. are to be established before
submission of PSAR. Design should be engineered
to meet site related design basis events.
B
9. The Board noted that as per the estimate of Health
Physics Division, Maximum Flood Level (MFL)
should be + 7.5 m after considering a return period
of 1000 years for the maximum storm. This was
reviewed against the estimated figure of 5.9 m
given by the CWPRS. The Board SU!Jgested that
c MFL must be re-evaluated by CWPRS conforming
with the requirements of IAEA Safety Guide 50-SG-
S1 OB on "Flooding on Coastal Sites". Revised
Report of CWPRS should be submitted to Design
Safety Committee.
D
10. Bore-hole investigations are to be carried out at the
proposed location of various buildings and
structures. The report should be forwarded to
design group for taking into account at the time of
E actual design.
11. Radiological impact should be assessed with
proper source terms, consideration of topography
and relevant dispersion characteristics of the site.
Dose limits prescribed should be met at a distance
F
of 1.6 km by incorporating design features in the
plant. The radioactivity releases should be
maintained in line with ALARA principle.
12. The typical radioactivity emission rates used in
G evaluation of the site should be compared with the
releases from similar reactors and should be
suitably adjusted taking into consideration
acceptable failed fuel rates during evaluation by the
design safety committee.
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 749
[K.S. RADHAKRISHNAN, J.]
13. The Board desires that the adequacy of stack A
height of 100 m should be confirmed by NPC at the
design stage, specifically in view of the change in
the ground level of about 40 m on the north side of
the plant.
B
14. Environmental Survey Laboratory should be set up
at site and instruments are to be installed at site to
collect meteorological data and background
radiation.
15. Two independent reliable sources of start up power c
connected to two points in the electrical network
located in different regions of the grid should be
made available. Availability of a dedicated source
of reliable start up power should be examined.
D
16. Power evacuation studies particularly that influence
the plant-grid interaction should be pursued.
Feasibility of operation on islanding mode may be
studied in collaboration with CEA.
17. Studies on Biofouling and Jelly-fish etc. that may E
affect the water supply should be taken up.
18. Studies on accretion/erosion rate around the plant
site should be carried out. If required, proper
protection should be provided. F
19. At least two evacuation routes from plant site during
an emergency should be provided.
20. The Board recommends that NPCIL shall consider
the possibility of providing an additional facility for G
spent fuel storage in future (Away from Reactor
Storage AFR). The site for this should be reserved
after considering the transportation and handling
requirement of spent fuel.
H
750 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 21. Over Dimension Consignment (ODC) committee of
NPCIL should evaluate suitability of transportation
of ODC at design stage.
22. Analysis for the quality of construction water is to
be carried out.
B
23. This approval is given only for the location of two
units of WER of 1000 MWe capacity each. at the
proposed site. Other detailed investigations are
necessary and NPCIL will have to apply and obtain
C permission of AERB before construction at the site
begins.
Coastal Regulation Zone (CRZ)
130. India is a gifted country which has coastal seas, bays,
D estuaries, creeks, rivers, backwaters. Critical importance of sea
coast in a country like India need not be over emphasized, the
protection of the same calls for scientific care and diligence and
following Tsunami, Cyclone, earthquake etc., the protection of
the sea coast has assumed added importance.
E
131. MoEF in exercise of powers conferred under Section
3(i) and 3(2)(v) of the Environmental (Protection) Act, 1986 and
Rule 5(3)(d) of the Environmental (Protection ) Rules, 1986
issued a Notification dated 19.2.1991 declaring coastal
F stretches as Coastal stretches of seas, backwaters, creeks,
rivers and backwaters which are influenced by tidal action (in
the landward side) upto 500 Mtrs. from the HTL and the land
between the low tide line (LTL) and the HTL are called coastal
regulation zone and regulating activities in the CRZ, both
G prohibited and permitted activities. However, it did not prohibit
the project already in operation and granted clearance prior to
the date of the issue of notification. Later by an amendment
dated 12.4.2001 S.0.329(C) amended paragraph 2 on
"prohibited activities" and the notification dated 19.2.1991 by
H substituting clause ( 1) to the following effect "setting up of new
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 751
[K.S. RADHAKRISHNAN, J.]
industries and expansion of existing industries except (a) those A
directly related to water front or directly needing foreshore
facilities (b) projects of Department of Atomic Energy''.
132. We find with regard to the location of KKNPP within
the prescribed ·500 mtr. within the CRZ an exemption had
B
already granted as per the then existing norms even prior to
1991 by the then Prime Minister of India by the communication
dated 19.4.1989. Over and above, paragraph 2(1) of 1991
CRZ Notification as amended by Notification dated 12.4.2011,
exempted projects of Department of Atomic Energy. A
cumulative reading of the permission dated 19.04.1989 C
accorded by the then existing norms read with paragraph 2(1)
of 1991 Notification, as amended by Notification dated
12.4.2011, we are of the view the KKNPP Units 1 and 2 have
not violated the 1991 CRZ Notification.
D
EIA Notification 1994 and Environmental clearance:
133. MoEF in exercise of powers conferred under sub-
section (1) and clause (v) of sub-section (2) of Section 3 of the
Environment (Protection) Rules, 1986 read with clause (d) of E
sub-rule(3) of Rule 5 of the Environment (Protection) Rules,
1986, issued a Notification dated 27.1.1994 directing that on
and from the date of publication of that notification in the Official
Gazette expansion or modernization of any activity (without
pollution load is to exceed the existing one) or a new project
F
listed in Schedule 1 of that Notification shall not be undertaken
in any part of India unless it has been accorded environmental
clearance by the Central Government in accordance with the
procedure specified in the Notification. The Notification
contains an explanatory note regarding the impact of the
assessment Notification dated 27 .1.1994. Relevant portions of G
the notification are given below for easy reference:
Expansion and modernization of existing projects:
"A project proponent is required to seek H
752 SUPREME COURT REPORTS [2013] 8 S.C.R.
A environmental clearance for a proposed expansion/
modernization activity if the resultant pollution load is to
exceed the existing levels. The words 'pollution load" will
in this context cover emission, liquid effluents and solid or
semi-solid wastes generated. A project proponent may
B approach the concerned State Pollution Control Board
(SPCB) for certifying whether the proposed modernization/
expansion activity as listed in Schedule-I to the notification
is likely to exceed the existing pollution load or not. If it is
certified that no increase is likely to occur in the existing
c pollution load due to the proposed expansion or
modernization, the project proponent will not be required
to seek environmental clearance, but a copy of such
certificate issued by the SPCB will have to be submitted
to the Impact Assessme'nt Agency (IAA) for information.
The IAA will, however, reserve the right to review such
D
cases in the public interest if material facts justifying the
need for such review come to light."
134. The Note also deals with exemption for project already
initiated under the explanatory Note 8 which reads as follows:
E
Exemption for projects already initiated:
"For projects listed in Schedule-I to the notification
in respect of which the required land has been
acquired and all relevant clearances of the State
F Government including NOC from the respective
State Pollution Control Boards have been obtained
before 27th January, 1994, a project proponent will
. not be required to seek environmental clearance
from the IAA. However, those units who have not as
G yet commenced production will inform the IAA."
135. Schedule 1 of the Notification refers to Nuclear power
project and related projects such as heavy water plants, nuclear
fuel complex, rare earths etc. and the same also deals with
H Thermal Power Plant as well.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 753
[K.S. RADHAKRISHNAN, J.]
136. The Central Government, later in exercise of the A
powers conferred under Section 23 of Environment Protection
Act, 1986 issued a Notification S.0.318(E) dated 10.4.1997,
whereby inter alia introduced Schedule IV into the 1994
Notification prescribing the procedure for public hearing. MoEF
later issued Circular dated 23. 7 .1998 after reviewing the B
progress of cases which were accorded environmental
clearance prior to 27 .1.1994 Notification and it had been
observed that a large number of projects had not commenced
constructions or other operations due to various reasons like
non-availability of financial resources, non-availability of forestry c
clearance, inter-State water disputes and non-availability of
essential infrastructure like land, electricity, road etc. Further it
was also noticed that certain projects which were
environmentally appraised even as early as 1980 had not
commen.ced construction activities. MoEF felt there might have 0
been significant changes during those years which would have
implications to the environment and ecology of the area. MoEF
issued the above Circular pointing out that the environment
clearance issued prior to 1994 would not be valid in the cases,
where work did not commence before 1.8.1998. Further it was
E
also clarified in all. such cases fresh environmental clearance
would be required, if those come in the 29 categories listed in
the EIA Notification. Further it was also clarified that projects
which were not listed in Schedule 1 in EIA Notification would
not require environmental clearance.
F
137. MoEF later inspected the site of the plant on
31.8.2001 and found that land acquisition had been completed
and the construction work on various components such as
township, Environmental and Health Research Centre and RO
plant was in progress. Further, it was noticed that afforestation G
programme was undertaken by M.S. Swaminathan Research
Foundation and that till August 2001, Rs.377.30 crore was
spent for KKNPP on various activities.
138. MoEF, noticing the above facts, vide its letter dated
H
754 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 6.9.2001 clarified that environmental clearance granted on
9.5.1989 stands valid and that there is no need to conduct
public hearing and seek fresh environmental clearance. A chart
giving the details of land acquisition and compensation amount
paid reads as follows:
B LAND ACQUISITION DETAILS OF KKNPP
S.No. Name of Private land Puramboke Total
Village (in hectares) land (in (in
hectares) hectares)
c For Plant site
1 Kudankulam 862.775 112.945 975.720
2 lrukkundarai -- 2.675 2.675
3 Vijayapathi 66.750 1.815 68.565
Sub Total 929.525 117.435 1046.960
D
For Township
1 Chettikulam 153.905 24.300 178.205
Total Land acquired 1225.165
Hectares
E Land and Acquisition completed 1991-
and awards pronounced 1993
Number of displaced persons Nil
Type of acquired land Dry
F Compensation details
S.No. Village Amount paid (Rs.)
Kudankulam 62,02,332.00
lrukkundarai 31,09,727.00
G Vijayapathi 6,09,834.00
Total 99,21,893.00
139. We are of the view that the EIA Notification of 1994
would not apply to KKNPP Units 1 and 2 for which
H environmental clearance was granted on 19.5.1989. 1994
G. SUNDARRAJAN v. UNION OF INDIAAND ORS. 755
[K.S. RADHAKRISHNAN, J.]
notification, in our view, would be operative only prospectively A
except in the case of expansion and modernization of any
activity (if the pollution load is to exceed the existing one) as
on the date of publication of that notification or a new project
listed in Schedule 1 for which environmental clearance is
necessary as per the notification dated 27 .01.1994. So far as B
KKNPP units 1 and 2 are concerned, they had the relevant
clearance from the State Government including the NOC from
the State Pollution Control Board. Facts stated above would
indicate that the land acquisition process for the plant site and
township had commenced during the year 1990-1991 and c
awards were pronounced during the period 1991-1993 by the
Land Acquisition Officer and Special Tehsildars (Land
Acquisition) Government of Tamil Nadu. Annexure R-15
produced along with the affidavit filed by the MoEF dated
18.10.2012 indicates the details of total land acquired, the
0
awards pronounced and the details of the compensation paid.
Further sites surveys, infrastructure design, construction of
boundary wall, roads and some buildings etc. had been
completed between 1989 to 1994. The Committee on
Conservation of Seashore of Government of Tamil Nadu had
also granted clearance on 25.2.1988 and the TNSEC had also E
granted clearance C?n 15.12.1988, modified on 13.2.1989.
Above facts clearly indicate that the EIA Notification dated
27.1.1994 would not apply to KKNPP Unites 1 and 2 since
these units stood exempted from the Notification and the
Explanatory Note 8 to the Notification and also the Circular F
issued by the MoEF on 23.7.1998 make it more explicit.
140. We may now examine whether there has been any
expansion or modernization of units 1 and 2 resulting in
increase in pollution loads. Plant capacity, we have noticed, G
always remained 1000 MWs X2, and the plant model V-412
remained to be as envisaged in 1988 Agreement and 1998
supplementary agreement of 1988. Further, for the purpose of
cooling the steam generated in the steam generator sea water
is required which goes through the steam turbine which runs H
756 SUPREME COURT REPORTS [2013] 8 S.C.R.
A the electrical generator to produce electricity. Sea water
consumption is 2,40.000 m3/Hr and the water is to be drawn
from the sea and pass through the condenser for both Units 1
and 2 and once the cooling process is over, it is to be released
to the sea, a process, which has undergone no change from
B what was envisaged before obtaining clearance from MoEF in
9th May, 1989 till date and hence we find no necessity for a
fresh clearance.
Desalination Plant
C 141. We may now examine whether prior environmental
clearance is a pre-requisite for the establishment of a
desalination plant in terms of EIA Notification dated 27.1.1994
or in terms of the subsequent Notification dated 14.9.2006
which superseded the Notification dated 27.1.1994. Further we
D may also examine whether establishment of desalination plant
is permissible in CRZ. We have already indicated that prior
environmental clearance is required only for those activities
which are listed in Schedule 1 to the EIA Notification dated
27.1.1994 or the subsequent Notification dated 14.9.2006
E which superseded earlier Notification dated 27.1.1994.
Desalination plant is not seen listed under the above-mentioned
notifications. The decision to establish desalination plant for the
purpose of domestic water requirement was taken by the
NPCIL in the year 2004. Earlier when environmental clearance
F was granted on 9.5.1989 the proposal was to take fresh water
from the Pachipari Dam, situated at about 65KM away from
the plant site. The same had to be given up in view of the
involvement of forest land as well as the apprehensions
expressed by the local villagers that the withdrawal of water
from the Dam would deplete the scarce natural resource,
G especially at the time of drought. Desalination plant functions
on distillation (Mechanical Vapour Compression) principle. Sea
water would be drawn and would be fed to the plant which
consists of four streams each having capacity of 106.66 cubic
mtr. p.h. Cumulative feed flow of all three operating streams is
H 670 cubic.mtr p.h. and cumulative reject flow is 350 cubic mtr
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 757
[K.S. RADHAKRISHNAN, J.]
ph., balance 320 cubic mtr. p.h. is purified water. Facts would A
indicate that there is no generation of air emission, solid waste
and effluent are flowing from the desalination process except
rejects (which also called brine) which is nothing but
concentrated sea water which remains after desalination
process and does not contains external elements. The rejects B
will have concentration of 69000 parts per million which would
be mixed with the sea water 1,20,000 cubic mtr. p.h. and
discharged through the outlet channel into the sea which would
give dilution 343 times and reduce the reject to the ambient sea
water concentration of 35000 parts per million. Experts say the c
process would not cause any increase in pollution load due to
desalination.
142. CRZ Notification of 1991, though prohibited, the
setting up of new industries as well as expansion within CRZ,
it had permitted the laying of pipeline and conveying system. D
1991 Notification was amended on 21.05.2002 and it was
provided that the desalination plants could be established in
the notified special economic zone, for non-polluting industries
within CRZ. On 19.10.2002, it was again amended and it was
provided that the desalination plants could be established within E
CRZ except CRZ - 1 (i) - i.e. eco-sensitive areas viz.
mangroves, sand dunes, reserve forests etc. MoEF later issued
another notification dated 06.01.2011 superseding 1991
notification, as per that para 3(i)(c) and as per para 4(ii)(h) (of
06.01.2011 notification) makes provisions for the establishment F
of desalination plants within CRZ area except CRZ - 1(i).
143. NPCIL informed TNPCB for the inclusion of
desalination facility which was not earlier included in the original
application for 'Consent to Operate'. TNPCB considered the G
request and accorded "Consent to Operate' on 20.08.2012
which included desalination plant. The establishment of
desalination plant, therefore, would not require any fresh
environmental clearance, especially when the same has not
been included in the Schedule 1 to the EIA Notification dated
H
758 SUPREME COURT REPORTS [2013) 8 S.C.R.
A 27.1.1994 or in the subsequent Notifications dated 14.9.2006,
06.01.2011 etc. except within CRZ - 1(i).
Change in Temperature Limit
144. We may now examine whether, in the light of
B paragraph 5 of the clearance dated 9.5.1989 and the
amendment to Rule 84 of the Environment (Protection) Rules
1986 by Notification dated 22.12.1988, the stipulation of 5°C
contained in the clearance can be varied. Environment
(Protection) Rules, 1986 was amended vide notification dated
C 22.12.1988 as Environment (Protection) Second Amendment
Rules, 1~88. Rule 84 deals with the temperature limit for
discharge of condensed cooling water which reads as follows:
"84. Temperature limit for Discharge of Condenser
D Cooling Water from Thermal Power Plant:
A. New thermal power plants, which will be using water
from rivers/lakes/reservoirs, shall install cooling
towers irrespective of location and capacity.
Thermal power plants which will use sea water for
E cooling purposes, the condition below will apply.
B. New projects in coastal areas using sea water:
The thermal power plants using sea water should
adopt suitable system to reduce water temperature
F
at the final discharge point so that the resultant rise
in the temperature of receiving water does not
exceed 7°C over and above the ambient
temperature of the receiving water bodies.
_,
G C. Existing thermal power plants:
Rise in temperature of condenser cooling water
from inlet to the outlet of condenser shall not be
more than 10°C.
H
G SUNDARRAJAN v. UNION Or INDIA AND ORS. 759
[K.S. RADHAKRISHNAN, J.]
D. Guidelines for discharge point: A
The discharge point shall preferably be located at
the bottom of the water body at mid-term for proper
dispersion of thermal discharge.
In case of discharge of cooling water into sea, B
proper marine outfall shall be designed to achieve
the prescribed standards. The point of discharge
may be selected in consultation with concerned
State Authorities/NIO.
c
No cooling water discharge shall be permitted in
estuaries or near ecologically sensitive areas such
as mangroves, coral reefs/spawning and breeding
grounds of aquatic flora and fauna."
145. Rule 84, of course, deals with the Thermal Power D
Plant, which states that the resultant rise in temperature of
receiving water shall not exceed 7°C over and above. 'the
ambient temperature of the receiving water body. F,ai;:ts
indicate that the limit prescribed under Rule 84 will equally·be
applicable to Nuclear Power Plant as well since the tech-nolegy E
for condenser cooling in both, thermal as well as Nuclear Power
Plant is the same. In both systems condenser is cooled by using
water, therefore, the limit on temperature of discharged water
will have to be the same.
F
146. Let us also examine whether there will be any •mpact
on the marine eco-system due to +7oC CCW water, for which
detailed study was conducted by the Institute of Ocean
Management, Anna University, which has submitted its report
in July 2008 and the Engineers India Ltd. along with CHFRI G
submitted its report in August 2011. Environmental Impact was
analysed in desalination and the experts are unanimous in their
views, that there would be no impact on the marine ecosystem.
Reports were also considered by the MoEF through the EAC
before giving environmental clearance for the units 3 to 6 on H
760 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 23.09.2008 and 31.12.2009 and the CRZ clearance on
25.07.2012. TNPCB has also accorded consent to operate on
28.08.2012 for KKNPP Units 1 and 2 by stipulating that
condenser cooling water discharge limit as 7oC as per the
amended Environmental Protection Rules. Therefore, the
B contention raised by the appellants that the rise in temperature
of receiving water due to rise in temperature of condenser
cooling water would affect marine eco-system and cannot be
sustained.
147. Appellants have also raised a contention under the
C EIA Notification of 1994 that those projects where "all
clearances" including "NOC" from State "PCBs" had not been
obtained required fresh environmental clearance from MoEF
in accordance with the said notification. Reference was made
to Explanation 8 of the EIA Notification of 1994. Further it was
D pointed out that all projects having environmental implications
"required previous consent" to establish and "to operate" under
the Water Act, 1974 and Air Act, 1981 from the State Pollution
Control Board and unless those consents are existing, plant
cannot said to have "all clearances from the State PCBs as
E required by the Explanation 8 of the EIA Notification of 1994".
148. We are of the view that the "environmental clearance"
or "No Objection Certificate" cannot be equated to "consent to
establish" under Section 25 of the Air Act and "consent to
F operate" under Section 21 of the Water Act, which were granted
on 25.2.2004 and 28.8.2012 respectively. NPCIL had
undertaken various activities with respect to KKNPP
subsequent to the environment clearance granted by TNSEC
on 26.12.1988, subsequently modified on 13.2.1989.
G 149. TNSEC had on 15.12.1988 had already cleared the
project, which tantamount to No Object Certificate (NOC). Only
after clearance or NOC, the question of 'establishing' or
'operating' a plant arises. Environmental clearance or NOC was
granted to KKNPP units 1 and 2 as early as 26.12.1988 though
H the TNPCB had granted 'consent to establish' under Section
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 761
[K.S. RADHAKRISHNAN, J.]
25 of the Air Act on 25.02.2004 and 'consent to operate' under A
the Water Act on 28.08.2012. Explanatory Note 8 to the
Environment Notification dated 27 .01.1994 speaks of
exemption for projects already initiated that is land has been
acquired and clearance of the State Government including
NOC, from Pollution Control Board had been obtained before B
27th January 1994, for which no fresh environmental clearance
would be required from Impact Assessment Agency (IAA).
KKNPP units 1 and 2 is, therefore, entitled to get the benefit
of the Explanatory Note 8 to EIA notification dated 27.01.1994.
150. We also notice that there has been no expansion or C
modernization of units 1 and 2, which has resulted in increase
of pollution load. Plant capacity remained the same i.e. 1000
MWs X2, till date and there is no substantial difference in plant
model and the specifications envisaged in the 1988 agreement
and 1998 supplement agreement. Plant model remains as V- D
412, consequently the 1994 EIA notification will not apply qua
KKNPP units 1 and 2.
151. NPCIL, as part of the continuous process to ensure
safety of environment made a Rapid Environmental Impact E
Assessment (REIA) of KKNPP Units 1 and 2 in the year 2001.
The National Environmental Engineering Research Institute
(NEERI) retained by NPCIL for conducting their assessment.
REIA report of NEERI examined the baseline data collected
during summer season 2001 within the impact zone for air, F
noise, water, land, biological and socio economic environment
including data on radiological parameters which has formed the
basis for predicting, evaluating the potential impact due to
proposed two units of KKNPP at Kudankulam. NEERI
submitted its report in May 2002. In the year 2003 there was G
yet another comprehensive EIA by NEERI of KKNPP units 1
and 2 which took into account the entire season i.e. 12 months.
Assessments were made as part of the continuous process to
monitor the safety of the environment as well as to establish
an existing base-line status with respect to various H
762 SUPREME COURT REPORTS [2013] 8 S.C.R.
A environmental points like air, noise, water, land, biological and
socio-economic for identifying, predicting and evaluating the
environmental potential impact as also to formulate an effective
Environmental Management Plan (EMP). Report was submitted
in January 2003 which was later implemented under the expert
B guidance of MS Swaminathan Research Foundation.
Environmental Clearance for KKNPP Units 3 to 6
152. NPCIL consent letter dated 18.2.2007, for grant of
environmental clearance for expansion of the then existing
C Nuclear Project (2 x 1000 MW, by adding 2x1000 MW Units 3
& 4), pointed out that the land acquired for locating the
proposed units was already available within the NPP Complex
and no additional land would be required for expansion of the
project. Further it was stated that water for condenser cooling
D system would be drawn from the sea and sweet water
requirement would be met from the desalination plant. Further
it was pointed out that no forest land was involved in the project.
The Gulf of Mannar Marine National Park is about 87 KM from
the site, though the Gulf of Mannar Biosphere Reserve Boundary
E is at a distance of about 20-50 mtr. Further it was pointed out
that no displacement of population was envisaged. Project, it
was stated, was to be located in the CRZ-111 and that exemption
from 500 mtr. norm in respect of CRZ for Units 1 and 2 was
obtained from the Government of India as far as back in 1989.
F Further it was also stated that public consultation was held on
2.6.2007 and that the total cost of the project would be
Rs.14,000 crores which included 307.50 crore for environmental
protection measures.
153. MoEF considered the above-mentioned proposal in
G accordance with paragraph 12 of the EIA Notification 2006
read with paragraph 2.2 sub-clause 2.2.1 (i)(a) of Circular dated
13.10.2006 and MoEF accorded clearance vide communication
dated 23.09.2008 under the provisions of EIA Notification of
2006 subject to the implementation of several conditions, which
H read as follow:
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 763
[K.S. RADHAKRISHNAN, J.]
(i) On-line continuous monitoring of the temperature of A
the discharged cooling water shall be carried out
at the discharged point. It shall be ensured that the
temperature differential of the discharged water
w.r.t. the receiving water does not exceed 7°C at
any given point of time. B
(ii) Necessary prior clearance under the provisions of
CRZ Notification, 1991 for the activities to be
located in CRZ shall be obtained from the
Competent Authority.
c
(iii) No additional land shall be acquired for any activity/
facility of project.
(iv) AERB clearance for the site shall be obtained
before starting any construction work and a copy of D
the same shall be provided to the Ministry of
Environment & Forests.
(v) A scheme for rain water harvesting shall be
prepared in consultation with an expert agency/
State Ground Water Board and details furnished E
within 3 months of the issue of the environment
clearance letter.
(vi) Greenbelt shall be developed all around the project
boundary covering an area of 180 ha preferably F
with local species.
(vii) Noise levels shall be limited to 75dBA. For people
working in the high noise area, requisite personal
protective equipment like earplugs/ear muffs etc.
shall be provided. G
(viii) Regular monitoring of conventional gaseous
pollutants, radioactive pollutants in the air as well
in the discharged water shall be monitored
regularly as per AERB standards. H
764 SUPREME COURT REPORTS [2013] 8 S.C.R.
A (ix) Regular monitoring of ambient air quality shall be
carried out in and around the power plant and
records maintained. The location of the monitoring
stations and frequency of monitoring shall be
decided in consultation with SPCB. Periodic
B reports shall be submitted to the Regional Office of
this Ministry. Besides air quality, water, food
samples and soil shall also be monitored regularly
for radioactive levels in the surrounding areas and
records maintained.
c (x) A Disaster Management Plan and Emergency
Preparedness Plan shall be prepared and put in
place as per the norms of AERB. Regular mock
drills shall be undertaken and based on the same,
any modification required, if any, shall also be
D incorporated.
(xi) The radioactive waste shall be managed as per the
norms prescribed by AERB.
(xii) The non-radioactive waste water generated from
E
the plant premises will be suitably treated in STP
and the treated effluents shall be recycled and
reused within the plant premises for greenbelt etc.
(xiii) The radioactive liquid waste emanating from the
F plant will be treated and managed as per the
guidelines of AERB/ICRD in this regard.
(xiv) Provision shall be made for the housing of
construction labour within the site with all necessary
infrastructure and facilities such as fuel for cooking,
mobile toilets, mobile STP, safe drinking water,
medical health care, creche etc. The housing may
be in the form of temporary structures to be
removed after the completion of the project.
H (xv) The project proponent shall advertise in at least two
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 765
[K.S. RADHAKRISHNAN, J.]
local newspapers widely circulated in the region A
around the project, one of which shall be in the
vernacular language of the locality concerned within
seven days from the date of this clearance letter,
informing that the project has been accorded
environmental clearance and copies of clearance B
letter are available with the State Pollution Control
Board/Committee and may also be seen at
Website of the Ministry of Environment and Forest
at http://envfor.nic.in
(xvi) A separate environment management cell with
c
qualified staff shall be set up for implementation of
the stipulated environment safeguards.
(xvii) Half yearly report on the status of implementation
of the stipulated conditions and environmental D
safeguards shall be submitted to this Ministry/
Regional Office/CPCB/SPCB.
(xviii) Regional Office of the Ministry of Environment &
Forests located at Bangalore will monitor the E
implementation of the stipulated conditions. A
complete set of documents including Environmental
Impact Assessment Report and Environment
Management Plan along with the additional
information submitted from time to time shall be
forwarded to the Regional Office for their use
F
during monitoring.
(xix) Separate funds shall be allocated fo·r
implementation of environmental protection
measures along with item-wise break-up. These G
cost shall be included as part of the project cost.
(xx) Full cooperation shall be extended to the Scientists/
Officers from the Ministry /Regional Office of the
Ministry at Chandigarh/the CPCB/ the SPCB who H
766 SUPREME COURT REPORTS [2013] 8 S.C.R.
A would be monitoring the compliance of
environmental status."
154. Notification also stated that the environmental
clearance would be valid for a period of five years to start the
operation of the power plant and that in case of any deviation
8
or alteration in the project proposed and already submitted to
the MoEF for clearance, a fresh reference should be made to
the MoEF to assess the adequacy of the conditions imposed
and to add additional protection measures required, if any.
C Further it was also pointed out that the above stipulations would
be in force amongst others under the Water Act, 1974, The Air
Act, 1981 and the Environment (Protection) Act, 1986 and the
Rules thereunder, Hazardous Wastes (Management and
Handling) Rules, 1989 and its Rules, the Public Liability
Insurance Act, 1991 and its amendment.
D
155. NPCIL submitted yet another application dated
19.11.2009 for environmental clearance for KKNPP expansion
Units 5 & 6 (2 x 1000MW). Environmental clearance was
granted by the MoEF vide its communication dated 31.12.2009
E incorporating all the conditions which were stipulated in respect
of Units 3 and 4 in the Notification dated 23.9.2008 and also
with additional conditions which reads as under:
I. "Environmental clearance is subject to obtaining
prior clearance from wildlife angle as applicable
F due to proximity of Gulf of Mannar Biosphere
Reserve.
II. The grant of environmental clearance does not
necessarily implies that wildlife clearance shall be
G granted to the project and that their proposal for
wildlife clearance will be considered by the
respective authorities on their merits and decision
taken. The investment made in the project, if any,
based on environmental clearance so granted, in
H anticipation of the clearance from wildlife angle shall
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 767
[K.S. RADHAKRISHNAN, J.]
be entirely at the cost and risk of the project A
proponent and Ministry of Environment and Forests
shall not be responsible in this regard in any
manner.
Ill. Environmental clearance is subject to final order of
B
the Hon'ble Supreme Court of India in the matter
of Goa Foundation v. Union of India in Writ Petition
(Civil) No.460 of 2004, as may be applicable to this
project.
IV. First aid and sanitation arrangements shall be c
made for the drivers and the contract workers
during construction phase.
v. A sewage treatment plant shall be provided and the
treated sewage conforming to the prescribed D
standards shall be used for raising green belt/
plantation.
VI. The proponent shall upload the status of compliance
of the stipulated EC conditions, including results of
monitored data on their website and shall update E
the same periodically. It shall simultaneously be sent
to the Regional Office of MoEF, the respective
Zonal Office of CPCB and the SPCB. The criteria
pollutant levels (stack and ambient levels) indicated
for the project shall be monitored and displayed at F
a convenient location near the main gate of the
company in the public domain.
VII. The project proponent shall also submit six monthly
reports on the status of compliance of the stipulated G
EC conditions including results of monitored data
(both in hard copies as well by e-mail) to the
respective Regional Office of MoEF, the respective
Zonal Office of CPCB and the SPCB.
VIII. A copy of the clearance letter shall be sent by the H
768 SUPREME COURT REPORTS [2013] 8 S.C.R.
A proponent to concerned Panchayat, Zila Parishad/
Municipal Corporation, urban local Body and the
Local NGO, if any, from whom suggestions/
representations, if any, were received while
processing the proposal. The clearance letter shall
B also be put on the website of the Company by the
proponent.
IX. The Environment statement for each financial year
ending 31st March in Form-Vas is mandated to be
submitted by the project proponent to the
c concerned State Pollution Control Board as
prescribed under the Environment (Protection)
Rules, 1986, as amended subsequently, shall also
be put on the website of the company along with
the status of compliance of EC conditions and shall
D also be sent to the respective Regional Offices of
MoEF by e-mail.
This issues with the approval of the Competent
Authority."
E
156. As provided under EIA 2006 Notification before
applying for environmental clearance for Units 3 to 6 a
comprehensive EIA study was conducted for Units 3 to 6 which
included the impact of Units 1 and 2 aspect as a base-line for
computing additional impacts of Units 3 to 6. Concern of the
F public regarding safety, livelihood, radiation etc. had been
addressed during the public hearing on units 3 to 6 held on
2.6.2007. Issues raised in the public hearing were:
1. Use of water from Pachi Pari Dam
G
2. Effect of temperature of discharge water on marine
life
3. Radiation emission
H 4. Solid waste and fuel management
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 769
[K.S. RADHAKRISHNAN, J.]
5. Welfare activities of the nearby villagers A
6. Compliance with MoEF, IEA and AERB guidelines
7. Environmental impact and monitoring and
8. Site location criteria. B
157. It was discussed in the meeting that sea water intake
!>tructure would be located at a depth of 10 mtr. from the Main
:Sea Level (MSL ) and at a distance of 1.2 Kms. off shore from
the shore line. The temperature differential of cooling water at C
the discharge point would be limited to 7°C with respect to the
;ambient temperature. Discharge of all units, including the
'existing two units will be let off into a common discharge channel
parallel to the shore bound and release at the two extreme ends
of the channel. Gates will be provided on East and West side D
of the channel, which will be operated depending upon the
ocean current direction in different season. The modeling was
done for all the units of 1OOOMW each taking into consideration
the futuristic plan of expansion at the.proposed site. The impact
zone was shown to be 5 KM.
E
158. The Environmental Appraisal Committee (EAC) after
holding the public meeting on 02.06.2007 again met on
22.8.2008 and made its recommendations for environmental
clearance for Units 3 and 4 subject to their obtaining CRZ
clearance. We have already indicated that the proposal of EAC F
was approved by the MoEF on 23.9.2008 with respect to Units
3 and 4. Later after getting the administrative approval from the
Competent Authority for Units 5 and 6, the same was also
reported by NPCIL to the MoEF and MoEF vide its letter
accorded clearance on 31.12.2009 for Units 5 and 6 as well. G
159. Appellants, therefore, cannot contend that the
procedure laid down under the 1994 and 2006 Notifications had
not been followed. In our view, the EIA for the expansion of
KKNPP i.e. for setting up Units 3 to 6 included the environment
imoact on Units 1 and 2 and the cumulative effect of all the six H
770 SUPREME COURT REPORTS [2013] 8 S.C.R.
A units definitely formed the base line for the clearance granted
by the MoEF on 23.9.2008 and 31.12.2009. The concern of the
public regarding safety, livelihood, radiation, impact on marine
life, rehabilitation, impact on the sea shore etc. were also
considered and following that necessary clearance was
B granted.
160. KKNPP 3 to 6, after having got environmental
clearance from MoEF in September 2008 and December
2009 entrusted the task of updation of EIA study to M/s
Engineers India Ltd. (Ell), Gurgaon (a Govt. of India
C Undertaking). Ell, accordingly carried out the study along with
the Central Marine Fisheries Research Institute (CHFRI) for the
expansion of projects on air, water, land, noise, biological and
socio-economic aspects within a radius of 1O km from the
proposed location. Detailed study was conducted on the
D Reactor system of KKNPP 3 to 6, impact on environment
existing environmental status, its prediction and on
environmental management plan report was submitted in
August 2011. The report has also analysed the environmental
impact on the marine ecosystem due to +7oC CCW water and
E concluded that it will have no impact on the marine ecosystem.
EIA was considered EAC, while granting CRZ clearance for the
additional reactors 3 to 6 at KKNPP along with sea water
intake and outfall facilities for cooling purpose. CRZ clearance
was granted by MoEF on 25.07.2012 after.following the
F procedure laid down in the CRZ notification of 2011. TNPCB,
as already indicated, has also accorded consent to operate
vide proceeding dated 28.08.2012 incorporating stringent
standard of 7oC over and above the ambient temperature of
sea for the discharge of effluents, through the cooling water and
G trade effluent and included permission for discharge of effluents
from desalination plant.
Sustainable Development and impact on eco-system
161. The Government of India, as already stated,
H constituted a fifteen member experts group covering all fields
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 771
[K.S. RADHAKRISHNAN, J.]
technical, scientific, environment etc. to provide clarifications A
on the various issues raised by group of general public. Efforts
were made by the group to have interaction with the agitators
but met with little success. Group elaborately discussed apart
from safety features of the plant, its ecological effects on
environment and marine life and a Report was submitted to the B
Government of India on December 2011. The Government of
Tamil Nadu also appointed an Expert Committee headed by
the former President of AEC Prof. R. Srinivasan along with three
other experts to review the safety features. There has been
consensus among all the expert committee on safety and c
security of the plant as well as on the effect on marine ecology,
high protection, impact on land, agriculture, livestock, food,
impact on flora and fauna, biosphere, environmental clearance,
CRZ clearance, fresh water supply, desalination plants,
emergency preparedness etc. Detailed studies have been 0
conducted on various occasions of the effect of the NPP on air,
water, noise, land, environment and also on biological, marine
and socio-economic environment; to allay the apprehension
voiced by a section of the people and its worth.
162. Royal Commission on Environmental pollution (UK) E
in its very first report, 4(1971) stated as follows:
"The problem we face is how to strike a balance between
the benefits of rising standard of living and its costs in
terms of deteriorations of the physical environment and the F
quality of life. In the past, the danger of polluting the air,
water and land was not fully recognized, but now there is
no doubt that it is a matter of great concern".
163. Royal Commission had said so in the year 1971. Next
year 1972, the international community convened the United G
Nations Conference on Human Environment at Stockholm
(Stockholm Conference) of which India is a signatory.
164. Stockholm Conference not only brought into focus the
human rights approach to the problem of environmental H
772 SUPREME COURT REPORTS (2013] 8 S.C.R.
A protection but also recognized the linkage between the
development and environment from which the concept of
"sustainable development" has emerged. The Conference
noticed that while man is both creature and moulder of this
environment, rapid advances in science and technology had
B invested man with the potent power to transform his
environment in countless ways and on an unprecedented scale.
The benefits of development and opportunity to enhance quality
of life, if wrongly or carelessly used, man could do incalculable
harm to human beings and to the environment. The
c responsibility of the people to protect and improve the
environment for the present and the future generations was also
recognized. Later the Nairobi Conference and Declaration
1982 re-stated the principles of Stockholm Conference and
high-lighted the importance of intensifying the efforts at the
D global, regional and national levels to protect and improve
environment. The United Nations General Assembly (UNGA) in
October 1982 adopted "The World Charter For Nature" and laid
down general principles of environmental protection, action plan
and implementation of scheme which high-lighted the
conservation principles. New Delhi hosted the Delhi
E International Conference on Environmental Education 1982
where the International Community called for massive
programme of environmental research and monitoring. The
Conference suggested that environmental education should
start from childhood and it should be both formal and informal.
F
165. The United Nations General Assembly vide
Resolution 38/161, in the year 1983 suggested the creation of
"The World Commission on Environment and Development" for
suggesting and recommending legal principles based on
G Stockholm Conference and Nairobi Conference and many
other, then existing International Conventions and General
Assembly Resolutions. The World Commission submitted its
report in year 1987 which indicated that politicians, industrial
leaders and environmental groups around the world had
H endorsed "sustainable development" i.e. meeting the needs of
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 773
[K.S. RADHAKRISHNAN, J.]
the present without compromising the ability of future A
generations to meet their own needs. United Nations convened
a conference in the year 1983 at Vienna for protection. of Ozone
layer which provided foundation for global multilateral
undertakings to protect the environment and public health from
the potential adverse effects of depletion of Stratospheric B
Ozone.
166. United Nations Environmental Programme (UNEP)
convened a Conference at Plenipotentiaries in Montreal in the
year 1987, called the Montreal Protocol 1987, which high- C
lighted the necessity of limiting and reducing the use of
chlorofluro carbons and other chemicals that deplete ozone.
India has acceded to both the Vienna Convention 1985 and the
related Montreal Protocol, 1987, in the year 1992.
167. Following the Stockholm Conference the second D
landmark on environmental protection and development was
"United Nations Conference on Environment and Development
(UNCED), 1992 (Rio Summit). The Conference was held at Rio
(Brazil) in the year 1992 which addressed the twin problems
of environment and development. Rio declaration sets out E
general non-binding commands for "sustainable development"
i.e. "human beings who are at the centre of sustainable
development concerns have to exercise their right to healthy
and productive life in harmony with nature·. The Rio Conference
also high-lighted the principle of inter generational equity. F
Principles like "precautionary principle" so as to prevent the
environmental degradation and the principle of "polluter pays•
i.e. to bear the cost of pollution with due regard to public
interest" were high-lighted. The Conference resulted in
conclusion of a treaty. on climate change with a general G
recognition of the importance of curbing emission of green
house gases, another treaty on bio-diversity aiming at the
preservation of flora and fauna was also concluded. The Rio
Conference also adopted Agenda 21. Section II of that Agenda
deals with topics like protection of the atmosphere, land
H
774 SUPREME COURT REPORTS [2013] 8 S.C.R.
A resources, deforestation, sustainable agriculture and rural
development, conservation of biodiversity, protection of oceans,
fresh water, toxic chemicals management, hazardous waste
management, solid waste management and radioactive waste
management.
B
168. An international instrument expressing international
concern for the protection of global environment was the
convention on the Climate Change (UNFCCC) 1992. The
Convention high-lighted the necessity to reduce emissions of
green-house gases believed to be contributing to global
C warming. Yet another, convention was The Biodiversity
Convention, 1992 which sought to ensure that animals, plants
and micro-organisms as well as genetic variety and ecosystem,
water, land and air, in which they live are property protected. It
obligates the countries to promote the protection of eco-
D systems, natural habitat and the maintenance of viable
populations of species in natural surroundings. Following the
Rio Summit a Special Session of UNFA held in June 1997 in
New York to review the progress of Rio Earth Summit called
"Earth Summit+5" which adopted a comprehensive document
E titled "Programme For Further Implementation of Agenda 21".
The Conference noticed that since the Rio Conference, global
environment had continued to deteriorate with rising level of
polluting emissions, notably of green house gases, toxic
substances and waste volumes and at operational levels,
F including the lowest administrative levels.
169. UN Millennium Declaration, 2000 articulated that
prudence must be shown in the management of all living
species and natural resources, based on the principle of
G "sustainable development" and that only then, can the
immeasurable riches provided to us by the nature be preserved
for posterity. Further it was declared that current unsustainable
pattern of production and consumption must be changed in the
interest of our future welfare and that of our descendants.
H 170. United Nations General Assembly (UNGA) following
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 775
[K.S. RADHAKRISHNAN, J.]
the Rio Declaration and Agenda 21 created a Commission on A
Sustainable Development under the United Nations Economic
and Social Council to ensure the effective implementation at
the local, national, regional and international levels of what had
been agreed at the Rio Conference, to ensure follow up of Rio
Summit, to enhance adequate intern·ational, scientific and B
technological cooperation to catalyse inter-governmental
decision making capacity to ensure regular and effective
reporting on the Agenda 21 and at the national, regional and
global levels.
171. The Delhi Sustainable Development Summit (DSDS) C
held in February 2002 at New Delhi, examined and elaborated
the dynamics of concept of sustainable development, with a
view to make recommendations for consideration at the World
Summit at sustainable development to be held in
Johannesburg. Delhi Summit sought to focus on poverty D
alleviation as the overriding concern to achieve sustainable
development.
172. The World Summit on Sustainable Development
(Johannesburg Summit) 2002 convened under the auspices of E
commission of sustainable development recommended various
steps for further implementation of Rio Principles and Agenda
21. The Summit recognized that the reduction of poverty is the
greatest global challenge facing the world, for which the World
Solidarity Fund was required to be established to eradicate F
poverty and to promote social and human development in
various developing countries. Further, Conference also noticed
that since oceans, seas, islands and coastal areas form an
integrated and essential component of earth's ecosystem and
are crucial for global food security and for sustaining economic G
prosperity and the well-being of many national economies,
particularly, developing countries, it is necessary to ensure
sustainable development of the oceans.
173. United Nations Conference on Sustainable
Development, Rio +20 took place in Rio de Janeiro in June H
776 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 2012, which also took forward looking decisions on a number
of thematic areas including energy, food security, oceans, cities
etc. Conference also focused its attention on green economy
in the context of sustainable development, poverty eradication
and an institutional framework for sustainable development.
B
174. We have already found on facts that the KKNPP has
been set up and is made functional on the touchstone of
sustainable development and its impact on ecology has been
taken care of following all national and international
environmental principles.
c
Public Interest and Human Rights
175. We have to resolve the issue whether the
establishment of NPP would have the effect of violating the right
0 to life guaranteed under Article 21 to the persons who are
residing in and around Kudankulam or by establishing the NPP,
it will uphold the right to life in a larger sense. While balancing
the benefit of establishing KKNPP Units 1 to 6, with right to life
and property and the protection of environment including marine
E life, we have to strike a balance, since the production of nuclear
energy is of extreme importance for the economic growth of our
country, alleviate poverty, generate employment etc. While
setting up a project of this nature, we have to have an overall
view of larger public interest rather than smaller violation of right
F to life guaranteed under Article 21 of the Constitution.
176. Problems highlighted, while setting up a nuclear plant,
are not unique to this nation, because other countries are also
grappling with those situations. In R. v. Inspectorate of Pollution,
exp Greenpeace Ltd (1994) ALLER 321, the Court of Appeal
G in England had occasion to examine the correctness of the
decision taken by Her Majesty's Inspectorate of Pollution
(HMIP) and Ministry of Agriculture, Fisheries and Food (MAFF)
for allowing testing of new Thermal Oxide reprocessing plant
THORP at Sellafield, HMIP and MAFF had concluded that the
H radiological impact of emissions from THORP would be very
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 777
[K.S. RADHAKRISHNAN, J.]
small, a plea which was accepted by the court. In R. v. The A
Secretary of State for the Environment, ex p Greenpeace Ltd.
(1994) 4 All England Reports 352, the Greenpeace and
Lancashire Country Council sought to quash the decision to
grant authorization for the disposal of radioactive waste from
THORP. Overall, Potts J. concluded that Minister had acted B
correctly in considering fir$t the human issues related to
acceptability of risk and then examining the wider issue of
justification as if they were relevant even though Minister
(incorrectly) believed that they were not relevant, they had, in
fact, weighed the benefits and detriments and were entitled to c
reach the conclusion that balance"came down on the side of
justification. In R. v. Secretary of State-for Environment, Food
and Rural Affairs, ex p Friends on· th.e Earth Ltd (2002)
Environmental Law Review 24, the Court of Appeal in England
had to consider the application of the prinCiple of justification 0
to the substantive decision in October 200.1 with the proposed
practice by the British Nuclear Fuels L.imi~ed (BNFL) of
manufacturing mixed oxide fuel (MOX) ~t Sellafield.
Government's stand was that the "economic b~nefits" were
sufficient to justify "the very minor radiological detriments" which E
would result from the manufacture of MOX. The Cqurt of Appeal
accepted the stand of the Government. In M,archiorii v.
Environment Agency (2002) EWCA Civ 3, the Coun of Appeal
examined the validity of the authorization granted by the
environment agency for the discharge of liquid wastes .from the
Atomic Weapons Establishment (AWE) on the basis of that F
they could not be justified having regard to the humanitarian and
international law objections to the use of nuclear weapons. The
environment agency took the stand that the practic.e of
designing, constructing, maintaining and dismantling nuclear
weapons at the AWE justified in the light of the government's G
defence policy. The Court of Appeal rejected the suggestion
that the government decisions on matters such as the national
nuclear deterrent should be subjected to review by the Courts
on merits. However, in R. (Greepeace Ltd) v. Secretary of State
for Trade and Industry (2007) Environmental Law Reports 29, H
778 SUPREME COURT REPORTS [2013) 8 S.C.R.
A Sullivan J. high-lighted the importance of 'public participation
in decision making and access to justice' in environmental
matters and held that the government was obliged to honour
the promise that it had made of the fullest public consultation,
even if it had made no such promise which was difficult to see
B how anything less could have been consistent with the
obligations to provide opportunities for public participation
accepted by the Government under the United Nations
Economic Commission of Europe (UNECE). In S.V. France
3RUOH (1991), the European Commission of Human Rights
c found that noise, night time illumination of the power plant,
nuclear risk and changes in the micro climate while interfering
with the applicant's private life had to be weighed with the
general interests of the community.
177. The United States Supreme Court in Metropolitan
D Edison Co. v. People Against Nuclear Energy [460 US 766
(1983)) was called upon to determine whether psychological
health damage flowing directly from the perceived risk of a
nuclear accident, in the context of restarting the second reactor
at Three Mile Island, following the accident affecting the other
E reactor fell within the scope of environmental impact
assessment under the National Environmental Policy Act. The
Court regarded the perceived risk of a nuclear accident as "a
pervasive element of modern life" and held that such risk was
not an effect on the physical environment. In Alberta Wilderness
F Association v. Express Pipelines Ltd. 137 DLR (4th) 177, in
Canadian Court held that no information about probable future
effects of a project can ever be complete or exclude all
possible future outcomes. This principle has been endorsed by
the Federal Court of Appeal, Canada in lnverhuron District
G Ratepayers' Assn v. Canada (Minister of the Environment)
2001 FCA 203 in a case involving a dry storage facility for used
nuclear fuel.
178. Much hue and cry has been raised by some sections
of the people about the possible impact of radiation from
H
G. SUNDARRAJAN v. UNION OF INDIA AND -ORS. 779
[K.S. RADHAKRISHNAN, J.]
KKNPP Units 1 and 2, a point which has been addressed by A
the AERB, NPCIL, MoEF and all the Expert Committees
constituted to go into the impact and effect of radiation from
the units not only on humans but also on ecology. Experts
Committees are of the unanimous opinion that there will not be
any deleterious effects due to radiation from the operation of B
KKNPP, and that adequate safety measures have already been
taken. We cannot forget that there are many potential areas of
radiation reflected in many uses of radioactive materials.
Radioactive materials are used in hospitals, surgeries and so
on. Mobile phone use, though minor, also causes radiation. In c
a report of the Department of Telecommunication "Mobile
Communication - Radio Wave and Safety released in October
2012, it has been stated that a human body is exposed to more
electromagnetic field radiation in case of a call from mobile
phone in comparison to the radiation from a mobile tower.
D
179. We have, therefore, to balance "economic scientific
benefits" with that of "minor radiological detriments" on the
touchstone of our national nuclear policy. Economic benefit, we
have already indicated has to be viewed on a larger canvas
which not only augment our economic growth but alleviate E
poverty and generate more employment. NPCIL, while setting
up the NPP at Kudankulam, have satisfied the environmental
principle like sustainable development, corporate social
responsibility, precautionary principle, inter - intra generational
equity and so on to implement our National Policy to develop, F
control and use of atomic energy for the welfare of the people
and for economic growth of the country. Larger public interest
of the community should give way to individual apprehension
of violation of human rights and right to life guaranteed under
Article 21. G
180. Public money running into crores and crores rupees
have already been spent for the development, control and use
of atomic energy for the welfare of the people and hence, we
have to put up with such "minor inconveniences", "minor H
780 SUPREME COURT REPORTS [2013) 8 S.C.R
A radiological detriments" and minor environmental detriments"
in our lives because the benefits we reap from KKNPP are
enormous since Nuclear energy remains as an important
element in India's energy mix which can replace a significant
part of fossil fuels like coal, gas oil etc.
B
181. The necessity of establishing KKNPP at Kudankulam
has elaborately been discussed in the earlier part of the
judgment, hence not repeated. Justification for establishing
KKNPP at Kudankulam, therefore has been vindicated and all
safety and security measures have already been taken,
C necessary permissions and clearances have been obtained
from all statutory authorities. Apprehension expressed by some
sections of the public that if the units are commissioned or put
into operation, it will have far reaching consequences, not only
on the present generation, but also on the future generation, of
D the possible radioactive effects of the units, in our view has no
basis. Few of them raised the apprehension that it might repeat
accidents like the one that had happened at Three Miles Island,
Chernobyl, Union Carbide and Fukushima etc. Apprehension,
however, legitimate it may be, cannot override the justification
E of the project. Nobody on this earth can predict what would
happen in future and to a larger extent we have to leave it to
the destiny. But once the justification test is satisfied, the
apprehension test is bound to fail. Apprehension is something
we anticipate with anxiety or fear, a fearful anticipation, which
F may vary from person to person.
182. Power generation through a nuclear plant set up after
following all safety standards, rules and regulations, is for the
welfare of the people and for the economic growth of the
G country, which is the object and purpose of the Atomic Energy
Act. Nuclear energy assumes as an important element in India's
energy mix for sustaining economic growth of natural and
domestic use which in future has to replace a significant part
of fossil fuel like coal, oil, gas etc. Electricity is the heart and
soul of modern life, a life meant not for the rich and famous
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 781
[K.S. RADHAKRISHNAN, J.]
alone but also for the poor and down trodden. They should also A
have an adequate means of livelihood, job opportunities for
which we have to set up Industries and commercial undertakings
in the public as well as private sector and also have to invite
foreign investment. Generation of electricity is of extreme
importance for their establishment and functioning and also for B
domestic consumption. Power generation with the traditional
means, through hydro, thermal electric project, coal etc are not
effective substitution to the power generation through Nuclear
Plant. India has a mammoth population unlike developed
countries, and the consumption of electricity in domestic, c
industries, agricultural sector etc. is going up day-by-day. Most
of the States are in the grip of power cut; day and night, for a
number of hours, which has adverse effect on their economic
and industrial growth. To sustain rapid economic growth, it is
necessary to double the supply of energy. Energy tariff is also 0
increasing, nuclear power in the long run will be much cheaper
than other forms of energy.
183. This Court in Chameli Singh and others v. State of
U.P. and another (1996) 2 sec 549 held that an organized
society right to live as a human being is not ensured by meeting E
only the animal needs of man, but secured only when he is
assured of all facilities to develop himself and is freed from
restrictions which inhibit his growth. Right to shelter includes
adequate living space, safe and decent structure, clean and
decent surroundings, sufficient light, pure air and water, F
electricity, sanitation and civil amenities like road etc. so as to
have easy access to his daily avocation.
184. Nuclear power plant is being established not to
negate right to life but to protect the right to life guaranteed G
under Article 21 of the Constitution. The petitioner's contention
that the establishment of nuclear power plant at Kudankulam
will make an inroad into the right to live guaranteed under
Article 21 of the Constitution, is therefore has no basis. On the
other hand it will only protect the right to life guaranteed under H
782 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Article 21 of the Constitution for achieving a larger public
interest and will also achieve the object and purpose of Atomic
Energy Act.
EXPERTS' VIEWS -TECHNICAL AND SCIENTIFIC
B 185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert
bodies, are all unanimous in their opinions that adequate safety
and security measures have already taken at KKNPP which are
to be given due weight that they deserve. Further, as already
indicated NPCIL Task Force Report on Security of all NPPs
C including KKNPP dated March 2011, 11.5.2011, AERB-EE
Expert Opinion on Design Committee Safety dated 31.8.2011,
15 Member Expert Team Committee Report (post Fukishama)
dated December 2011, Supplementary Report dated
31.2.2012 on the Grievances raised by some of the agitators,
D report submitted by Sri R. Srinivasan, Former President, Atomic
Energy Commission appointed by the State of Tamil Nadu are
all unanimous in their view on the safety and security of KKNPP.
186. MoEF, EAC, TNPCB, Report of IOM, Anna University
dated July 2008 on Impact of NPP on Marine Eco-system,
E Committee on Conservation of Sea-Shore of the State of Tamil
Nadu, Report of Engineers India Limited with CHFRI dated
August 2011, NEERI dated May 2002 and January 2003 on
the Impact on Air, Water, Land, Eco-system etc. are all
unanimous that the radiation as well as the discharge-Of water
F from NPP to the sea shore will not have serious impact on the
marine ecology or on marine life.
187. A Constitution Bench of this Court in University of
Mysore v. C. D. Govinda Rao AIR 1965 SC 491, held that,
G normally, Court should be slow to interfere with the opinion
expressed by the Experts and it would normally be wise and
safe for the courts to leave the decisions to experts who are
more familiar with the problems which they face than the courts
generally can be which has been the consistent view taken by
H this Court. Reference may be made to the judgments of this
G SUNDARRAJAN v. UNION OF INDIA AND ORS. 783
[K.S. RADHAKRISHNAN, J.]
Court in State of Bihar v. Asis Kum_ar Mukherjee (Dr.) (1975) A
3 SCC 602, Dalpat Abasaheb SQlunke v. B. S. Mahajan
(1990) ,1 SCC 305, Central Areca Nut & Cocoa Marketing &
Processing Coop. Ltd. v. State of Karnataka (1997) 8 SCC
31, Dental Council of India v. Subharti K. K. B. Charitable
Trust & Another (2001) 5 SCC 486, Basavaiah (Dr.) v. Dr. H. B
L. Ramesh (2010) 8 SCC 372 and Avishek Goenka v. Union
of India (2012) 5 SCC 275. In Wo_9n Tankan and Seven
Others v. Asian Rare Earth Sdn. Ehct. CLJ (1992) 2 207, the
Supreme Court of Malaysia vide its judgment dated 23.12.1993
examined the effect of low-level radioactive waste on the health c
of the population. The Supreme Court upheld the plea of the
company, placing reliance on the expert opinion expressed by
the Atomic Energy Licensing Board (AELB) and took the view
that since the company has been operating under license
granted by AE:LB, an expert body, it will be taken that the expert D
body had the expertise to speak on the radiation level of the
radioactive waste, on the health of the population.
188. We have noticed that, so far as this case is
concerned, from the safety and security point of view of life and
property, on environment and all that related aspects, all the E
Expert Bodies are unanimous in their opinion that KKNPP has
fully satisfied all safety norms to safeguard the human life,
property and environment which, we are sure, will allay the fears
and apprehensions expressed by the people living in and
around Kudankulam. The Court, in our view, cannot sit in F
judgment on the views expressed by the Technical and Scientific
Bodies in setting up of KKNPP plant at Kudankulam and on
its safety and security.
CONCLUSION
G
189.KKNPP has, therefore been set up as part of India's
National Policy so as to develop, control and use of atomic
energy for the welfare of the people of India. Policy makers
consider nuclear energy as an important element in India's
energy mix for sustaining economic growth of natural and H
784 SUPREME COURT REPORTS [2013] 8 S.C.R.
A domestic use. For setting up the project, the project proponent
has taken all safety requirements in site and off site and has
followed the code of practices laid down by AERB, based on
nationally and internationally recognized safety methods.
Safeguarding the nuclear plants, radioactive materials and
B ensuring its physical security have become a central part of
Nuclear Law. Adequate measures have, therefore, to be taken
for storage of NSF at site, and also for the physical safety of
stored NSF. Of the seventeen suggested safety measures, by
AERB, LWR, twelve have already been implemented and the
C rest, in a phased manner have to be implemented which the
experts say, are meant for extra security. DMP is already in
place, so also the emergency preparedness plan, off site and
on site and all programmes under CSR are progressing in the
right direction with the co-operation and assistance of the
District Administration.
0
190. NPCIL, has also received necessary environmental
clearance from MoEF, TNPCB, etc for Units 1 to 6. No violation
of CRZ is also noticed. Desalination Plant is also established
after following rules and regulations and there is no violation of
E CRZ. Experts say that there will be no impact on the marine
eco-system due to discharge of+ 7°CC, CCW over and above
the ambient temperature of the sea. Radiation impact on the
eco-system is also within the standard set by AERB, MoEF,
EAC, Pollution Control Board etc., so opined by the Experts.
F In other words, all the expert teams are unanimous in their
opinion of the safety and security of the KKNPP both to life and
property of the people and the environment which includes
marine life. Court has to respect national nuclear policy of the
country reflected in the Atomic Energy Act and the same has
G to be given effect to for the welfare of the people and the
country's economic growth and it is with these objectives in
mind KKNPP has been set up.
Dipak Misra, J.
H 191. I have my respectful concurrence with the views and
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 785
[DIPAK MISRA, J.]
conclusions expressed by my respected learned Brother A
Radhakrishnan on all aspects. However, I propose to add a few
words in addition to what has been eruditely stated by my
learned Brother.
Prologue B
192. At the very inception, I may state that in the cases at
hand, we are faced with a situation whether to interfere in the
establishment, operation and functionalism of a nuclear plant
coming up at Kudankulam and interdict its operation because
of numerous grounds assiduously urged in voluminous C
pleadings encompassing the broad canvas, namely, statutory
violations of the entire gamut of environmental law, exhibition
of non-chalant attitude towards public opinion, show of total
disrespect towards nature's inconsistencies, keeping at bay the
constant apprehension and threat of the known and the D
unknown, absolute contempt for predictable danger that has
surfaced on certain parts of the Globe and the unpredictable
disaster that may be faced by the populace of the locality and,
most importantly, the public safety in praesenti and in futuro,
or take cognizance of the needs and necessities of the public E
at large, the concept of public policy and the scope of judicial
review, the precautions already undertaken and further assured
to be taken within a specific time span, the opinion of the
- experts, the impossible avoidance of certain facets of existence
in today's world, the global phenomena of requirement of F
electricity as a source of energy and various innovative methods
to meet the same, the safety measures carried out and the
steps undertaken to manage the disaster in case it occurs and
finally to march ahead with life allaying all apprehensions with
a scientific mindset accepting the nature's unpredictability to G
survive on the planet earth on the bedrock of the doctrine -
survival of the fittest.
The concern for safety under the Atomic Energy Act,
1948:
H
786 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 193. Bearing in mind the broad scenario, few aspects are
required to be harped upon. Independent India perceived the
need and use of nuclear energy in this country. The Atomic
Energy Act, 1948 conceived the constitution of the Atomic
Energy Commission which came into being in 1954. After the
B repeal of the 1948 Act and coming into force of the Atomic
Energy Act, 1962 (for brevity "the 1962 Act"), a larger field was
covered. The 1962 Act was 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 and for
c matters connected therewith. The dictionary clause as
contained in Section 2 takes into consideration many an aspect
pertaining to equipment, substance, radiation and radioactive
substance, etc.
194. Certain provisions of the 1962 Act may be usefully
D referred to. Section 3 of the 1962 Act deals with general
powers of the Central Government. Sub-section (e) of Section
3 reads as follows:-
"3. General powers of the Central Government
E
Subject to the provisions of this Act, Central Government
shall have power -
(e) to provide for control over radioactive substances or
radiation generating plant in order to-
F
(i) prevent radiation hazards:
(ii) secure public safety and safety of persons
handling radioactive substances or radiation
generating plant: and
G
(iii) ensure safe disposal of radioactive wastes:"
[Emphasis supplied]
195. Section 17 deals with special provisions for safety
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 787
[DIPAK MISRA, J.]
which reads as follows :- A
Special provisions as to safety
(1) The Central Government may, as regards any class or
description of premises or places, being premises or
places, in which radioactive substances are manufactured, B
produced, mined, treated, stored or used or any radiation
generating plant, equipment or appliance is used, make
such provision by rules as appear to the Central
Government to
c
be necessary -
(a) to prevent injury being caused to the health of
persons employed at such premises or places or
other persons either by radiations. or by the
ingestion of any radioactive substance: 0
(b) to secure that any radioactive waste products
resulting from such manufacture, production,
mining, treatment, storage, or use as aforesaid are
disposed of safely; E
(c) to prescribe qualifications of the persons for
employment at such premises or places and the
regulation of their hours of employment, minimum
leave and periodical medical examination. and the
F
rules may, in particolar and without prejudice to the
generality of this subsection provide for imposing
requirements as to the erection or structural
alterations of buildings or the carrying out of works.
(2) The Central Government may, as respects the transport G
of any radioactive substance or any prescribed substance
specified by an order issued under this Act as being
dangerous to health, make such rules as appear to be
necessary to prevent injury being caused by such transport
to the health of persons engaged therein and other H
788 SUPREME COURT REPORTS · [2013] 8 S.C.R.
A persons.
(3) Rules made under this section may provide for
imposing requirements, prohibitions and restrictions on
employers, employed persons and other persons.
B (4) Any person authorised by the Central Government
under this section, may, on producing, if so required, a duly
authenticated document showing his authority, enter at all
reasonable hours any premises, or any vehicle, vessel or
aircraft for the purpose of ascertaining whether there has
c been committed, or is being committed, in or in connection
with the premises, vehicle, vessel or aircraft, any
contravention of the rules made under this section.
(5) In the event of any contravention of the rules made under
D this section, the Central Government shall have the right
to take such measures as it may deem necessary to
prevent further injury to persons or damage to property
arising from radiation or contamination by radioactive
substances including, without prejudice to the generality of
the foregoing provisions, and to the right to take further
E
action for the enforcement of penalties under section 24,
the sealing of premises, vehicle, vessel, or aircraft, and the
seizure of radioactive substances and contaminated
equipment."
F [Emphasis added]
196. I have referred to the aforesaid provisions to highlight
the emphasis laid on the public safety and safety of persons
handling radioactive substances and to control the
G repercussions by the legislature. Before I dwell upon in detail
with regard to the necessity of safety, the measures taken and
the constant vigil for future, it is apt to scan the anatomy of the
Preamble, which has already been referred to. The preamble
can be segregated into three parts namely, (i) development,
H control and use of atomic energy, (ii) for the welfare of the
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 789
[DIPAK MISRA, J.]
people of India and (iii) for other peaceful purposes. Thus, on A
one hand, the need was felt to get into the global arena for
producing nuclear energy and, on the other, which is as
important as the first one, for the welfare of the people. The
necessity to generate energy from various sources in India was
and still is a felt necessity. It has been submitted by the learned B
counsel for the appellant with immense emphasis that apart
from violation of the Environment (Protection) Act, 1986 and the
notificati.ons framed thereunder, the study would reflect that
there would be multiple ecological problems and further the
safety of the local people would be absolutely in peril. My c
learned brother has already dealt in detail with regard to the
submissions pertaining to the violations of the statutory
provisions, the Rules and the Notifications relating to various
environmental issues. I do not intend to add anything in that
regard. My deliberation shall be: on the concept of welfare and 0
safety relating to the use of nuclear energy fer the purpose of
development. Needless to say, it has to be totally guided by
the conception of public safety and welfare of the citizens. The
term 'welfare' is always related to the living generation and
generations to come. It has been contended before us by the
learned counsel for the appellant that the basic care has not E
been taken to make the nuclear plant at Kudankulam a safe
one and further when the entire globe has been shaken by the
Fukushima tragedy, the Government of India, without taking
recourse to the participative process of public hearing and
showing scant respect for public safety, has plunged into such F
an activity. That apart, it is highlighted that the radioactive
substances have the real potentiality to gravely affect the
present generation and that, in turn, will usher in immense
disaster and suffering for the future generations. Per contra,
learned counsel for the respondents would urge that the plant G
is based and founded on sophisticated technology and there
are more than three layers of protection for safety which is not
available in other nuclear plants in other parts of the world. In
essence, it is submitted that all possible measures have been
ta~en to avoid any kind of calamity. H
790 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 197. It is borne out from the material on record that two
aspects have weighed with many a nation while thinking of a
nuclear energy plant, namely, the caution and circumspection
at the time of operation and how to deal with radioactive waste.
We have been apprised how the re-use of radioactive waste
B is done by a sophisticated method and the danger is kept at
bay. On one hand, there is requirement of energy and the need
of progress and development and, in a way, to compete with
the progressive phenomenon of the other countries in many a
sphere and, on the other, the likelihood of danger to be caused
c to the people of the locality and the effect-potentiality to affect
the larger section of public because of disposal of radioactive
waste and transportation.
Certain Conventions pertaining to safety:
D 198. At this juncture, I may profitably refer to the
Convention on Nuclear Safety adopted on 17th June, 1994 in
the Conference convened by the International Atomic Energy
Agency at its Headquarters. India is a signatory to the said
Convention. The Preamble of the Treaty reads as follows: -
E
i. "Aware of the importance to the international
community of ensuring that the use· of nuclear
energy is safe, well regulated and environmentally
sound;
F ii. Reaffirming the necessity of continuing to promote
a high level of nuclear safety worldwide;
iii. Reaffirming that responsibility for nuclear safety
rests with the State having jurisdiction over a
G nuclear installation;
iv. Desiring to promote an effective nuclear safety
culture;
V. Aware that accidents at nuclear installations have
H the potential for transboundary impacts;
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. · 791
[DIPAK MISRA, J.]
vi. Keeping in mind the Convention on the Physical A
Protection of Nuclear Material (1979), the
Convention on Early Notification of a Nuclear
Accident (1986), and the Convention on Assistance
in the Case of a Nuclear Accident or Radiological
Emergency (1986); s
vii. Affirming the importance of international co-
operation for the enhancement of nuclear safety
through existing bilateral and multilateral
mechanisms and the establishment of this incentive
Convention; C
viii. Recognizing that this Convention entails a
commitment to the application of fundamental
safety principles for nuclear installations rather than
of detailed safety standards and that there are
internationally formulated safetv guidelines which D
are updated from time to time and so can provide
guidance on contemporary means of achieving a
high level of safetv:
ix. Affirming the need to begin promptly the E
development of an· international c;:onvention on the
safety of radioactive waste management as soon
as the ongoing process to develop waste
management safety fundamentals has resulted in
broad international agreement;
F
x. Recognizing the usefulness of further technical work
in connection with the safety of other parts of the
nuclear fuel cycle, and that this work may, in time,
facilitate the development of current or future
international instruments;" G
[Emphasis supplied]
199. Article 10 deals with priority to nuclear safety. It reads
as follows: -
"Each Contracting Party shall take the appropriate steps H
792 SUPREME COURT REPORTS (2013] 8 S.C.R
A to ensure that all organizations engaged in activities
directly related to nuclear installations shall establish
policies that give due prioritv to nuclear safety."
[Emphasis added]
B 200. Article 14 provides for assessment and verification
of safety. It is as under: ~
"(i) comprehensive and systematic safetv assessments are
carried out before the construction and commissioning of
a nuclear installation and throughout its life. Such
c assessments shall be well documented. subsequently
updated in the light of operating experience and significant
new safety information, and reviewed under the authority
of the regulatory body;
(ii) verification by analysis, surveillance, testing and
D inspection is carried out to ensure that the physical state
and the operation of a nuclear installation continue to be
in accordance with its design, applicable national safety
requirements, and operational limits and conditions."
[Emphasis supplied]
E
201. Article ,16 stipulates emergency preparedness. It
reads as follows: -
"1. Each Contracting Party shall take the appropriate steps
to ensure that there are on-site and off-site emergency
F plans that are routinely tested for nuclear installations and
cover the activities to be carried out in the event of an
emergency.
For any new nuclear installation, such plans shall be
G prepared and tested before it commences operation
above a low power level agreed by the regulatory body.
2. Each Contracting Party shall take the appropriate steps
to ensure that, insofar as they are likely to be affected by
a radiological emergency, its own population and the
H competent authorities of the States in the vicinity of the
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 793
[DIPAK MISRA, J.]
nuclear installation are provided with appropriate A
information for emergency planning and response.
3. Contracting Parties which do not have a nuclear
installation on their territory, insofar as.they are likely to be
affected in the event of a radiological emergency at a
nuclear installation in the vicinity, shall take the appropriate B
steps for the preparation.and testing of emergency plans
for their territory that cover the activities to be carried out
in the event of such an emergency."
202. Article 19 deals with operations. It is as follows: - c
"Each Contracting Party shall take the appropriate steps
to ensure that:
(i) the initial authorization to operate a nuclear
installation is based upon an appropriate safety D
analysis and a commissioning programme
demonstrating that the installation, as constructed,
is consistent with design and safety requirements;
(ii) operational limits and conditions derived from the
safety analysis, tests and operational experience E
are defined and revised as necessary for identifying
safe boundaries for operation;
(iii) operation, maintenance, inspection and testing of
a nuclear installation are conducted in accordance
with approved procedures; F
(iv) procedures are established for responding to
anticipated operational occurrences and to
accidents;
(v) necessary engineering and technical support in all G
safety-related fields is available throughout the
lifetime of a nuclear installation;
{vi) incidents significant to safety are reported in a
timely manner by the holder of the relevant licence
to the regulatory body: H
794 SUPREME COURT REPORTS [2013] 8 S.C.R
A (vii) programmes to collect and analyse operating
experience are established, the results obtained
and the conclusions drawn are acted upon and that
existing mechanisms are used to share important
experience with international bodies and with other
B operating organizations and regulatory bodies;
(viii) the generation of radioactive waste resulting from
the operation of a nuclear installation is kept to the
minimum practicable for the process concerned.
both in activity and in volume. and any necessary
c treatment and storage of spent fuel and waste
directly related to the operation and on the same
site as that of the nuclear installation take into
consideration conditioning and disposal."
[Underlining is mine]
D
203. The aforesaid Convention, as is demonstrable from
the various Articles, lays down the priority to nuclear safety,
comprehensive and systematic safety assessments at all
stages including the life span of the plants, verification by
E analysis, surveillance, testing and inspection, regard being had
to the safety requirements, emergency planning and
preparedness to take care of the people in the vicinity of the
nuclear installation, necessary engineering and technical
support in all safety related fields available throughout the life
F time of the nuclear installation, constant reporting by the
operator to the regulatory body pertaining to safety and the
handling of radioactive waste resulting from the operation and
the measures of safety carried thereon.
204. In this regard, I may refer with profit to another
G Convention, namely, the Joint Convention on the Safety of Spent
Fuel Management and on the Safety of Radioactive Waste
Management dated 5th September, 1997. I may hasten to add
that India is not a signatory to the same but the said Convention
is worth referring to in order to understand and appreciate the
H world-wide concern for public safety. Chapter 2 deals with
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 795
[DIPAK MISRA, J.]
safety of spent fuel management, Chapter 3 deals with safety A
of Radioactive Waste Management and Chapter 4 deals with
General safety provisions. Article 4 occurring in Chapter 2
deals with general safety requirements. Clauses (v) and (vii)
read as follows: -
"Article 4. General Safety Requirements B
Each Contracting Party shall take the appropriate
steps to ensure that at all stages of spent fuel management,
individuals, society and the environment are adequately
protected against radiological hazards.
c
In so doing, each Contracting Party shall take the
appropriate steps to:
(v) take into account the biological, chemical and other
hazards that may be associated with spent fuel
management; D
(vii) aim to avoid imposing undue burdens on future
generations. n
205. Article 11 in Chapter 3 pertains to General Safety
Requirements. It is reproduced below: - E
"Each contracting Party shall take the appropriate steps
to ensure that at all stages of radioactive waste
management individuals, society and the environment are
adequately protected against radiological and other
hazards. F
In so doing, each Contracting party shall take the
appropriate steps to:
(i) ensure that criticality and removal of residual heat
generated during radioactive waste management G
are adequately addressed;
(ii) ensure that the generation of radioactive waste is
kept to the minimum practicable;
(iii) take into account interdependencies among the H
796 SUPREME COURT REPORTS [2013] 8 S.C.R.
A different steps in radioactive waste management;
(iv) provide for effective protection of individuals.
society and the environment. by applying at the
national level suitable protective methods as
approved by the regulatory body. in the framework
B of its national legislation which has due regard to
internationally endorsed criteria and standards:
(v) take into account the biological, chemical and other
hazards that may be associated with radioactive
waste management;
c
(vi) strive to avoid actions that impose reasonable
predictable impacts on future generations greater
than those permitted for the current generation:
(vii) aim to avoid imposing undue burdens on future
D generations."
[Emphasis added]
206. Article 15 deals with Assessment of Safety of
facilities. The relevant clauses are as under: -
E "Each Contracting Party shall take the appropriate steps
to ensure that:
(i) before construction of a radioactive waste
management facility, a systematic safety
F assessment and an environmental assessment
appropriate to the hazard presented by the facility
and covering its operating lifetime shall be carried
out;
(ii) in addition, before construction of a disposal
G facility, a systematic safety assessment and
environmental assessment for the period following
closure shall be carried out and the results
evaluated against the criteria established by the
regulatory body;
H
G SUNDARRAJAN v. UNION OF INDIA AND ORS. 797
[DIPAK MISRA, J.]
(iii) before the operation of a radioactive waste A
management facility, updated and detailed versions
of the safety assessment and of the environmental
assessment shall be prepared when deemed
necessary to complement the assessments
referred to in paragraph (i)." B
207. Article 22 that occurs in Chapter 4 deals with Human
and Financial Resources. It is apt to reproduce the same: -
"Each Contracting Party shall take the appropriate steps
to ensure that: c
(i) qualified staff are available as needed for safety-
related activities during the operating lifetime of a
spent fuel and a radioactive waste management
facility;
(ii) adequate financial resources are available to D
support the safety of facilities for spent fuel and
radioactive waste management during their lifetime
and for decommissioning;
(iii) financial provision is made which will enable the E
appropriate institutional control and monitoring
arrangements to be continued for the period
deemed necessary following the closure of a
disposal facility."
208. Article 23 deals with quality assurance. It reads as F
follows:-
"Each Contracting Party shall take the necessary steps to
ensure that all appropriate quality assurance programmes
concerning the safety of spent fuel and radioactive waste
management are established and implemented.~ G
209. The aforesaid Convention, as is seen, lays emphasis
on ecological hazards, avoidance of undue burden on future
generations, management of radioactive waste, adequate
protection against radiological and other hazards, application
H
798 SUPREME COURT REPORTS [2013] 8 S.C.R
A of suitable protective methods approved by the regulatory body
keeping in view the interest of the individual and the society,
to avoid actions that impose reasonable predictable impact on
future generations, the systematic safety assessment and
environmental assessment appropriate to the hazards
B presented by the facility and covering its operating lifetime, the
institutional control and mandatory arrangements and ensuring
of appropriate quality assu_rance programmes concerning the
safety from spent fuel and radioactive waste. I am absolutely
conscious that India has not ratified the said Convention but the
C safety concern at any level is a fundamental human concern. I
have referred to the same, to repeat at the cost of repetition,
to show the concern of many countries, especially, relating to
safety measures taken at all times. The 1962 Act and the
Convention which has been ratified by India speak eloquently
about that. The conception of public safety, at no stage, can
D be brushed aside or ignored. It has to be treated with
paramount primacy and highest priority for the simon pure
reason life delights every person and creates an innate desire
to live.
E Necessity of Electrical Energy by the State and Concept
of Public Safety:
210. In Anderson v. Dunn\ the U.S. Supreme Court, in a
different context, long back had stated about the role of the
State and the safety of the citizens: -
F "No one is so visionarv as to dispute the assertion. that
the sole end and aim of all our institutions is the safety and
happiness of the citizen. But the relation between the
action and the end, is not always so direct and palpable
as to strike the eye of every observer. The science of
G government is the most abstruse of all sciences; if, indeed,
that can be called a science which has but few fixed
principles, and practically consists in little more than the
exercise of a sound discretion, applied to the exigencies
H 1. 19 U.S. [6 Wheat] 204 (1821)].
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 799
[DIPAK MISRA, J.]
of the state as they arise. It is the science of experiment." A
After so stating, the U.S. Supreme Court proceeded to
observe as follows: -
''That 'the safety of the people is the supreme law', not only
comforts with, but is indispensable to, the exercise of those B
powers in their public functionaries, without which that
safety cannot be guarded."
211. In Charan Lal Sahu v. Union of lndia 2 , this Court,
while dealing with the constitutional validity of the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985, observed that C
the said enactment was passed as a sequel to a grim tragedy
that occurred on the night of December 2, 1984. This Court
treated it to be the most tragic industrial disaster in recorded
human history. While discussing the concept of parens patriae,
the learned Chief Justice observed that the conception of the D
parens patriae theory is the obligation of the State to protect
and it takes into custody the rights and the privileges of its
citizens for discharging its obligation. While dealing with the
said concept, it has been opined that the maxim salus populi
suprema lex - regard for public welfare - is the highest law. E
212. I have referred to the said pronouncement solely to
emphasize on the role of the State to act in the greater welfare
of the collective and how the public welfare has been treated
to be at the zenith of law.
213. In Union Carbide Corporation v. Union of India and F
others3, a Constitution Bench regarded the Bhopal Gas Leak
Tragedy as a horrendous industrial mass disaster, unparalleled
in its magnitude, and the devastation and remains a ghastly
monument to the dehumanizing influence of inherently
dangerous technologies. While dealing with the justness and G
reasonableness of the quantum of settlement, the Constitution
Bench adverted to the problems emerging from the pursuit of
such dangerous technologies for economic gains by
2. (1990) 1 sec 613.
3. (1989) 3 sec 38. H
800 SUPREME COURT REPORTS (2013] 8 S.C.R.
A multinationals, availability of cheap labour, captive markets and
the facets of economic exploitation in developing countries
where the matters of concern were propounded before the court
and in that context, it has been observed as follows: -
"32. These issues and certain cognate areas of even
B wider significance and the limits of the adjudicative
disposition of some of their aspects are indeed questions
of seminal importance. The culture of modern industrial
technologies, which is sustained on processes of such
pernicious potentialities, in the ultimate analysis, has
c thrown open vital and fundamental issues of technology
options. Associated problems of the adequacy of legal
protection against such exploitative and hazardous
industrial adventurism, and whether the citizens of the
country are assured the protection of a legal system which
D could be said to be adequate in a comprehensive sense
in such contexts arise. These, indeed, are issues of vital
importance and this tragedy, and the conditions that
enabled it happen, are of particular concern."
214. Thereafter, the Court referred to the technology in
E agriculture that has given a big impetus to enterprises of
chemical fertilizers and its serious problems. Thereafter, it has
been stated thus: -
"34. Indeed, there is also need to evolve a national policy
to protect national interests from such ultra-hazardous
F pursuits of economic gains. Jurists, technologists and other
experts in economics, environmentology, futurology,
sociology and public health etc. should identify areas of
common concern and help in evolving proper criteria which
may receive judicial recognition and legal sanction."
G
215. In Pritam Pal v. High Court of Madhya Pradesh,
Jabalpur through Registrar4, the maxim salus populi suprema
lex, i.e., welfare of the people is the supreme law, was again
emphasised upon, though in a different context.
H 4. 1993 Supp (1) sec 529.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 801
[DIPAK MISRA, J.]
216. At this juncture, I must also refer to the other maxim A
salys republicae supreme lex, i.e., safety of the State is the
supreme law and in case of any conflict, an individual must yield
to the collective interest. But, it should not be done at the cost
of safety. At all times and at all quarters, sincere efforts are to
be made to maintain and sustain the safety of the people. That B
has been spoken by the ancients when the Kings ruled and the
same reigns supreme in a democratic set-up. True it is, there
are exceptions, but the exceptions are to remain in the realm
of exceptions only and should not be brought into play either at
the whim or fancy of the executive. The purpose of saying is C
that the law has many a mansion and the mosaic of law covers
many spectrums so that both the maxims, namely, solus populi
supreme lex and salus republicae supreme lex. can
harmoniously coexist. The present case is one where there is
need for nuclear energy for the welfare of the public and for
other welfare of the people of India and for peaceful purpose. D
Definitely, the interest of the economy and the interest of safety
are to be the real concerns of a Welfare State. In this regard, I
may usefully refer to the following observations made by this
Court, though in a different context, in State of Kamataka and
others v. Dr. Praveen Bhai Thogadia 5 :- E·
"Welfare of the people is the ultimate goal of all laws, and
State action and above all the Constitution. They have one
common object, that is to promote the well-being and
larger interest of the society as a whole and not of any
F
individual or particular groups carrying any brand names.
It is inconceivable that there can be social well-being
without communal harmony, love for each other and hatred
for none. The core of religion based upon spiritual values,
which the Vedas, Upanishads and Puranas were said to
reveal to mankind seem to be: "Love others, serve others, G
help ever, hurt never" and "sarvae jana sukhino
bhavantoo". •
217. The concept of welfare State is a facet of Article 38
s. (2004) 4 sec 684. H
802 SUPREME COURT REPORTS [2013] 8 S.C.R.
A of the Constitution of India. It is the obligation of the State to
see that the vvelfare of the people is appositely promoted. It is
the obligation passed by the Constitution of the State to
establish a welfare State. The words used in the Preamble of
the 1962 Act are "welfare for the people" and "peace". There
B is a necessity for generation of electrical energy arid regard
being had to the hazards, there has to be guidance which the
Acts, Rules and Notifications provide. The collective interests
should not totally be thrown overboard for the development of
the power sector. If the safety measures are adequately not
C taken and the apprehensions are not removed and the fear is
not totally ostracized from the minds of the people of the locality,
posterity may not recognize the same as a development or a
progressive step. The conscientious and conscious policy
decisions by the Government are to be taken with due care and
consideration, keeping in mind the welfare of the people at
D large. True it is, when such policies are framed, especially for
establishment of nuclear plants or such big projects, the safety
measures become the primary concern and the same have to
be adequately addressed to and taken care of. However, the
Courts, in exercise of power of judicial review, cannot assume
E the role of approving authority for laying safety measures, but,
a significant one, what the regulatory authorities have stated are
to be regarded as the primary and principal concern.
AERB Report:
F 218. In this context, I may refer to the report of the AERB
to review the safety of Indian Nuclear Power Plants against
External Events of Natural Origin. For the sake of necessity and
completeness, it is reproduced below: -
"SAFETY ASSESSMENT OF KUDANKULAM NUCLEAR
G POWER PLANT UNITS-1&2 (KK NPP1&2) IN THE
WAKE OF FUKUSHIMA ACCIDENT
Two Units of WER Pressurized Water Reactors (Model
V-412) each of 1000 MW rating are being built at the
Kudankulam Site in Tamil Nadu. Initial commissioning
H
G SUNDARRAJAN v. UNION OF INDIA AND ORS. 803
[DIPAK MISRA, J.]
activities for Unit # 1 have started with AERB issuing A
clearance for "Hot-Run" on June 30, 2011. Construction of
Unit# 2 is in an advanced stage of completion.
The design of KK NPP incorporates a number of
engineered safety features (ESFs} for catering to design
basis accident (DBAs} and beyond design basis B
accidents (BDBAs}, and several other design safety
features.
ESFs for catering to DBA.
a. Emergency Core Cooling System (ECCS} C
b. Secondary circuit protection against over-
pressurisation
c. Emergency Gas Removal System
d. Fission Products Removal and Control Systems D
e. Emergency Safety Boron Injection System
f. Quick Boron Injection System (QBIS}
ESFs for catering to E
BDBA
* Passive Heat Removal System (PHRS}
* Additional System for core passive flooding
·F
* Annuls passive filtering system (APFS}
* System for retaining and cooling of molten core
Other salient design safety
Features G
* 4 x 100% active safety system trains and 4 x 33%
passive safety system trains
* Large water inventory in I and II stage ECCS hydro-
accumulators
H
804 SUPREME COURT REPORTS [2013] 8 S.C.R.
A * Automatic Reactor Scram on seismic signal
* Battery banks with 24 hrs capacity
* Sea water pumps located at more than 2.2m above
design basis flood level (DBFL)
B * Safety related buildings and structures located at
least 3.0m above DBFL
* A shore protection rubble wall
Post-Fakushima safety Assessment
c A Task Force (TF) constituted by NPCIL carried out safety
assessment of KKNPP-1&2 in the light of Fakushipa
accident and its findings were reviewed by the AERB's
Advisory committee on Project safety review of light water
reactors (ACPSR-LWR) and the AERB Committee on
D safety review of Indian NPPs in the light of Fukushima
accident. Salient points emerging from the assessment
and its reviews are given below: -
* Back up provisions from alternate sources should be
made for
E
Charging water to secondary side of SGs
Make-up of borated water to spent fuel pools
Injection of borated water in the reactor coolant
F system.
* Sciesmic qualification of emergency water storage
facility and augmentation of its storage capacity for
core decay heat removal for a period of at least one
week.
G
* Mobile self powered pumping equipment for
emergency use
* Facility for monitoring safety parameters using
portable power packs
H
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 805
[DIPAK MISRA, J.]
* Finalization of emergency operating procedures for A
BDBA conditions
* Primary Containment to be assessed for ultimate
load bearing capacity.
* Doors and barrels of airlocks to be qualified for B
proof test pressure.
* Ensuring that highly active water used for cooling
the core catcher vessel under BDBA is contained
inside the primary containment.
c
* Reconfirmation of design adequacy of hydrogen
management system.
* Environmental qualification of core catcher
temperature monitoring system
* · Adequacy of design provision for remote water D
addition to core catcher
* Adequacy of instrumentation for monitoring plant
status during BDBA.
* Details of margin available on location of various E
safety related SSCs above DBFL should be
reviewed again,
* Need for design provision for containment venting,
that has been deleted, should be re-examined.
F
* The backup sources for water injection to SG
secondary side should be seismically qualified.
* Provisions for addition of water to core catcher
require a detailed study, to ensure that there is no
possibility of any steam explosion. G
* Provision of additional backup power supply
sources for performing essential safety functions,
like air cooled DGs located at a high elevation,
should be considered. H
806 SUPREME COURT REPORTS [2013) 8 S.C.R.
A The recommendations are being examined and
NPCIL's response would be reviewed in ACPSR-
LWR before initial fuel loading in unit-1.
219. A status report has been filed by NPCIL. An affidavit
has been filed on 3.12.2012 and it is asserted therein that most
B of the recommendations have already been complied with. It
has been dealt with by my respected learned Brother that there
is substantial compliance of the same and dates or fixed time
frame has been given for compliance of certain
recommendations which have not yet been complied. This
C Court has been apprised of the fact that the AERB and, in turn,
the MoEF are in total control of things and scrutiny is made and
the same shall be looked into from time to time and all possible
measures shall be taken to avoid any kind of accident. As
advised, at present, I have noted the categorical assurance 9f
o the Statutory Authority.
Nuclear Energy development and doctrine of balance
and proportionality vis-a-vis safety:
220. It must be stated that the safety of the people residing
E in Kudankulam and the areas in its vicinity and also the people
who are likely to be affected because of radioactive generation
has to be respected, for their human dignity is their divinity. This
Court has not directed for closure of the plant on the basis of
the asseverations made before this Court. But, it is the highest
concern of this Court that a devastating disaster should, be
F avoided at all costs by the people who are in-charge of looking
after the safety measures. The statutory regulatory authority
should responsibly keep the vigil and no one. who has the
responsibility, should be complacent. The tragedy that has
occurred at Fukushima shall remain as one of the darkest
G elements of history. The catastrophe of the Bhopal Gas Leak
Disaster has not been erased or effaced from the minds of the
public. The moan and mourns of the affected people of Bhopal
who have been injured or lost their kith and kin are still heard
and humane sensitivity would not permit one to ignore it. The
H nuclear scientists, the administrators and other authorities
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 807
[DIPAK MISRA, J.]
cannot remain oblivious or totally insensitive to the possible A
hazards when the nuclear plant operates.
221. When one thinks of safety in the context of
establishment of a nuclear plant, the inevitable thought that gets
into the depth of mind is security. Safety and security, in this
context, are insegregably inter-twined commencing the planning, B
quality of construction, committed efforts to avoid operational
jeopardy and monitoring and all are bound to remain in a
singular chain. All endeavours are to be made to prevent,
monitor and control. The concept of disaster management
cannot be allowed to remain on paper. Its procrastination itself C
rings the bell of peril. The administration has to be alive to the
said situation and the awakening to manage the disaster in
case of an unfortunate incident has to be founded on scientific
and sophisticated methods. Taking care of the situation of the
present alone is not the solution. All concerned with the same o
are required to look to the future because that elevates the real
concern. The danger of the future should be seriously taken note
of and should not be veiled in the guise of thought for the
present. Not for nothing, it has been said that he who prepares
for the future and remains prepared for the future has a good E
control over the present, and if one remains in a state of
blindness thinking the future to be uncertain, he suffers the
agony of the present and the anguish of the future. This is not
only the truth in respect of an individual life but also the
paramount truth for the collective of the present generation and
the future generations. The present generation has no right to F
enjoy by eating away the time of the future generation. The
protection of the environment and the safety for the present
generation in its connotative sense covers the posterity.
222. I have already discussed about the signification of the G
safety needed in respect of nuclear plants. Generation of
nuclear energy is a necessity in a progressive modern State.
As has been stated earlier, there is an enactment and
notifications governing the field in various aspects. A policy
decision has been taken to establish the nuclear plant at H
808 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Kudankulam. Promotion of development and protection of
environment are to be harmonized at the same time. In
Intellectuals Forum, Tirupathi v. State of A.P and others6, it
has been held that merely asserting an intention for development
will not be enough to sanction the destruction of local ecological
B resources. What is required to be prescribed is the principle
of sustainable development and find a balance between the
developmental needs and the environmental degradation.
223. In Bombay Dying & Mfg. Co. Ltd. (3) v. Bombay
Environmental Action Group and others7 , while dealing with
C the concept of sustainable development and planned
development vis-a-vis Article 21 of the Constitution, a two-
Judge Bench has opined thus: -
"It is often felt that in the process of encouraging
development the environment gets sidelined. However,
D with major threats to the euvironment, such as climate
change, depletion of natural resources, the eutrophication
of water systems and biodiversity and global warming, the
need to protect the environment has become a priority. At
the same time, it is also necessary to promote
E development. The harmonisation of the two needs has led
to the concept of sustainable development, so much so
that it has become the most significant and focal point of
environmental legislation and judicial decisions relating to
the same. Sustainable development, simply put, is a
F process in which development can be sustained over
generations. Brundtland Report defines "sustainable
development" as development that meets the needs of the
present generations without compromising the ability of
the future generations to meet their own needs. Making the
concept of sustainable development operational for public
G
policies raises important challenges that involve complex
synergies and trade offs."
6. c2000) 3 sec 549.
H 7. c2000) 3 sec 434.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 809
[DIPAK MISRA, J.]
224. In M.C. Mehta v. Union of India and others8 , while A
stating about sustainable development and the needs of the
present without compromising the ability of the future generation
to meet their own needs, this Court has expressed thus: -
"The definition of "sustainable development" which
Brundtland gave more than 3 decades back still holds B
good. The phrase covers the development that meets the
needs of the present without compromising the ability of
the future generation to meet their own needs. In Narmada
Bachao Ando/an v. Union of lndia 9 this Court observed
that sustainable development means the type or extent of C
development that can take place and which can be
sustained by nature/ecology with or without mitigation. In
these matters, the required standard now is that the risk
of harm to the environment or to human health is to be
decided in public interest, according to a "reasonable D
person's" test. [See Chairman Barton: The Status of the
Precautionary Principle in Australia (Vol. 22, 1998, Harv.
Envtt. Law Review, p. 509 at p. 549-A) as referred to in
para 28 in A.P. Pollution Control Board v. Prof. M. V.
Nayudu 10 .]" E
225. In Tirupur Dyeing Factory Owners Association v.
Noyya/ River Ayacutdars Protection Association and others11 ,
while dealing with the concept of sustainable development, the
Court has observed as under: -
"The concept of "sustainable development" has been
F
explained that it covers the development that meets the
needs of the person without compromising the ability of the
future generation to meet their own needs. It means the
development, that can take place and which can be
sustained by nature/ecology with or without mitigation. G
8. c2004) 12 sec 118.
9. c2000) 10 sec 664.
10. (1999) 2 sec 118.
11. c2009) 9 sec 737. H
810 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Therefore, in such matters, the required standard is that
the risk of harm to the environment or to human health is
to be decided in public interest, according to a "reasonable
person's" test. The development of the industries, irrigation
resources and power projects are necessary to improve
B employment opportunities and generation of revenue,
therefore, cannot be ignored. In such eventuality, a balance
has to be struck for the reason that if the activity is allowed
to go on, there may be irreparable damage to the
environment and there may be irreparable damage to the
economic interest. A similar view has been reiterated by
c this Court in T.N. Godavarman Thirumulpad (104) v.
Union of lndia 12 and M.C. Mehta v. Union of lndia 13 ."
226. In T.N. Godavarman Thirumalpad (through K.M.
Chinnappa) v. Union of India and others14 , this Court observed
o that it cannot be disputed that no development is possible
without some adverse effect on the ecology and environment,
and the projects of public utility cannot be abandoned and it is
necessary to adjust the interest of the people as well as the
necessity to maintain the environment. A balance has to be
E struck between the two interests. Where the commercial venture
or enterprise would bring in results which are far more useful
for the people, difficulty of a small number of people has to be
bypassed. The comparative hardships have to be balanced and
the convenience and benefit to a larger section of the people
F has to get primacy over comparatively lesser hardship.
227. In Narmada Bachao Ando/an v. Union of India and
others15 , a three-Judge Bench, while dealing with the public
projects and policies, has opined that the court does not
become the approving authority of such policies. Thereafter, the
G Bench observed thus: -
"Normally such decisions are taken by the Government
12. c2oos) 2 sec 222.
13_ c2009) 6 sec 142.
14. c2002) 10 sec 606.
H 15. c2000) 10 sec 664.
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 811
[DIPAK MISRA, J.]
after due care and consideration. In a democracy welfare A
of the people at large, and not merely of a small section
of the society, has to be the concern of a responsible
Government.·
228. I have referred to the aforesaid pronouncements only
to highlight that this Court has emphasized on striking a B
balance between the ecology and environment on one hand
and the projects of public utility on the other. The trend of
authorities is that a delicate balance has to be struck between
the ecological impact and development. The other principle that
has been ingrained is that if a project is beneficial for the larger C
public, inconvenience to smaller number of people is to be
accepted. It has to be respectfully accepted as a proposition
of law that individual interest or, for that matter, smaller public
interest must yield to the larger public interest. Inconvenience
of some should be bypassed for a larger interest or cause of o
the society. But, a pregnant one, the present case really does
not fall within the four comers of that principle. It is not a case
of the land oustees. It is not a case of "some inconvenience". It
is not comparable to the loss caused to property. I have already
emphasized upon the concept of living with the borrowed time E
of the future generation which essentially means not to ignore
the inter-generational interests. Needless to emphasize, the
dire need of the present society has to be treated with urgency,
but, the said urgency cannot be conferred with absolute
supremacy over life. Ouster from land or deprivation of some
benefit of different nature relatively would come within the F
compartment of smaller public interest or certain
inconveniences. But when it touches the very atom of life, which
is the dearest and noblest possession of every person, it
becomes the obligation of the constitutional courts to see how
the delicate balance has been struck and can remain in a G
continuum in a sustained position. To elaborate, unless
adequate care, caution and monitoring at every stage is taken
and there is constant vigil, life of "some" can be in danger. That
will be totally shattering of the constitutional guarantee enshrined
under Article 21 of the Constitution. It would be guillotining the H
812' SUPREME COURT REPORTS [2013] 8 S.C.R
A human right, for when the candle of life gets extinguished, all
rights of that person perish with it. Safety, security and life would
constitute a pyramid within the sanctity of Article 21 and no
jettisoning is permissible. Therefore, I am obliged to think that
the delicate balance in other spheres may have some
B allowance but in the case of establishment of a nuclear plant,
the safety measures would not tolerate any lapse. The grammar
has to be totally different. I may hasten to clarify that I have not
discussed anything about the ecology and environment which
has been propounded before us, but I may particularly put that
C the proportionality of risk may not be "zero" regard being had
to the nature's unpredictability. All efforts are to be made to
avoid any man-made disaster. Though the concept of delicate
balance and the doctrine of proportionality of risk factor gets
attracted, yet the same commands the highest degree of
constant alertness, for it is disaster affecting the living. The life
D of some cannot be sacrificed for the purpose of the eventual
larger good .
•
229. Before proceeding to issue certain directions, it is
required to be stated that the appellant, by this Public Interest
E Litigation, has, in a way, invoked and aroused the conscience/
concern of the court to such an issue. True it is, the prayer is
for the total closure of the plant and the Court has not acceded
to the said prayer but his noble effort is appreciated to put forth
the grievance of the local people and the necessity of adequate
safety measures as is perceived. When such cause comes up
F before this Court, it is the bounden duty to remind the authorities
"Be alert, remain always alert and duty calls you to nurture
constant and sustained vigilance and nation warns you not to
be complacent and get into a mild slumber". The AERB as the
regulatory authority and the MoEF are obliged to perform their
G duty that safety measures are adequately taken before the plant
commences its operation. That is the trust of the people in the
authorities which they can ill afford to betray, and it shall not be
an exaggeration to state that safety in a case of this nature in
any one's hand has to be placed on the pedestal of
H "Constitutional Trust".
G. SUNDARRAJAN v. UNION OF INDiA AND ORS. 813
[DIPAK MISRA, J.]
230. We, therefore, fully endorse the view taken by the A
Division Bench of the High Court, however, in the facts and
circumstances of the case, we are inclined to give the following
directions:
DIRECTIONS:
B
1. The plant should not be made operational unless
AERB, NPCIL, DAE accord final clearance for
commissioning of the plant ensuring the quality of
various components and systems because their
reliability is of vital importance.
c
2. MoEF should oversee and monitor whether the
NPCIL is complying with the conditions laid down,
while granting clearance vide its communication
dated 23.9.2008 under the provisions of EIA
Notification of 2006, so also the conditions laid D
down in the environmental clearance granted by the
MoEF vide its communication dated 31.12.2009.
AERB and MoEF will see that all the conditions
stipulated by them are duly complied with before the
plant is made operational.
E
3. Maintaining safety is an ongoing process not only
at the design level, but also during the operation for
the nuclear plant. Safeguarding NPP, radioactive
materials, ensuring physical security of the NSF are
of paramount importance. NPCIL, AERB, the
F
regulatory authority, should maintain constant vigil
and make periodical inspection of the plant at least
once in three months and if any defect is noticed,
the same has to be rectified forthwith.
4. NPCIL shall send periodical reports to AERB and G
the AERB shall take prompt action on those reports,
if any fallacy is noticed in the reports.
5. SNF generated needs to be managed in a safe
manner to ensure protection of human health and
environment from the undue effect of ionizing H
814 SUPREME COURT REPORTS [2013) 8 S.C.R.
A radiation now and future, for which sufficient
surveillance and monitoring programme have to be
evolved and implemented.
6. AERB should periodically review the design-safety
aspects of AFR feasibly at KKNPP so that there will
B be no adverse impact on the environment due to
such storage which may also allay the fears and
apprehensions expressed by the people.
7. DGR has to be set up at the earliest so that SNF
could be transported from the nuclear plant to DGR.
c NPCIL says the same would be done within a
period of five years. Effective steps should be taken
by the Union of India, NPCIL, AERB, AEC, DAE
etc. to have a permanent DGR at the earliest so
that apprehension voic~d by the people of keeping
D the NSF at the site of Kudankulam NPP could be
dispelled.
8. NPCIL should ensure that the radioactive
discharges to the environmental aquatic
atmosphere and terrestrial route shall not cross the
E limits prescribed by the Regulatory Body.
9. The Union of India, AERB and NPCIL should take
steps at the earliest to comply with rest of the
seventeen recommendations, within the time
stipulated in the affidavit filed by the NPCIL on
F 3.12.2012.
10. SNF is not being re-processed at the site, which
has to be transported to a Re-Processing facility.
Therefore, the management and transportation of
SNF be carried out strictly by the Code of Practices
G
laid down by the AERB, following the norms and
regulations laid down by IAEA -
11. NPCIL, AERB and State of Tamil Nadu should take
adequate steps to implement the National Disaster
H Management Guidelines, 2009 and also carry out
G. SUNDARRAJAN v. UNION OF INDIA AND ORS. 815
[DIPAK MISRA, J.)
the periodical emergency exercises on and off site, A
with the support of the concerned Ministries of the
Government of India, Officials of the State
Government and local authorities.
12. NPCIL, in association with the District Collector,
Tiruneveli should take steps to discharge NPCIL B
Corporate Social Responsibilities in accordance
with DPE Guidelines and there must be effective
and proper monitoring and supervision of the
various projects undertaken under CSR to the
fullest benefit of the people who are residing in and c
around KKNPP.
13. NPCIL and the State of Tamil Nadu, based on the
comprehensive emergency preparedness plan
should conduct training courses on site and off site
administer personnel, including the State D
Government officials and other stake holders,
including police, fire service, medicos, emergency
services etc.
14. Endeavour should be made to withdraw all the
criminal cases filed against the agitators so that E
peace and normalcy be restored at Kudankulam
and nearby places and steps should be taken to
educate the people of the necessity of the plant
which is in the largest interest of the nation
particularly the State of Tamil Nadu. F
15. The AERB, NPCIL, MoEF and TNPCB would
oversee each and every aspect of the matter,
including the safety of the plant, impact on
environment, quality of various components and
systems in the plant before commissioning of the G
plant. A report to that effect be filed before this Court
before commissioning of the plant.
The appeals are accordingly disposed of without any order
as to costs.
B.B.B. Appeals disposed of. H
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