South Asians Against Nukes | October 22, 2004

[India] The Hazardous Mix: A Peculiar Act and the Perilous Energy

by S. P. Udayakumar

(October 22, 2004)

Q: What is it that is benign in appearance but malignant in nature?

A: If cells, it is cancer. If law, it is Jim Crow legislation.

Both can hurt, harm and even kill if left unchallenged.

The Atomic Energy Act 1962 (33 of 1962) is supposed to serve a few specific purposes: enhancing the safety of the "ordinary citizens" of India; safeguarding India's natural resources and talents for the country's development; and controlling and using atomic energy for the welfare of Indians and for other peaceful uses.

In reality, this law has failed miserably on all counts. Instead, it is used for a few other anti-people purposes: to threaten the critics who disagree with the authoritarian Department of Atomic Energy (DAE); to undermine the democratic fabric of the Indian society, and soon to help private profiteers reap rich dividends at the cost of public safety and costs.

Enhancing Safety?:

Providing the basic regulatory framework for all activities related to atomic energy program and the use of ionizing radiation in India, Sections 3 (e) (i), (ii) and (iii), 16, 17 and 23 of the Atomic Energy Act, 1962 address the safety concerns. The regulatory body designated by the Central Government is the competent authority for granting, renewing, withdrawing and revoking consents for nuclear facilities. This body also exercises control over nuclear installations and the use of radioactive substances and radiation generating plants outside such installations. Section 16 and 17 of the Act refers to control over radioactive substance and special provisions for safety. Section 23 empowers the regulatory body with administration of Factories Act 1948, including enforcement of its provisions, appointment of inspection staff and making of rules in the nuclear installations.

The Central Government had appointed Chairman, Atomic Energy Regulatory Board (AERB) as the 'Competent Authority' to exercise the powers conferred on it in the rules such as <>Radiation Protection Rules, 1971; <>Atomic Energy (Working of the Mines, Minerals and Handling of Prescribed Substances) Rules, 1984; <>Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987; <>Atomic Energy (Factories) Rules, 1996; and <>Atomic Energy (Control of Irradiation of Food) Rules, 1996. As far as radioactive substances are concerned, AERB is empowered to enter any installation and take samples under the Environmental Protection Act, 1986 and to receive information on excess discharge of pollutants under the Environmental Protection (Amendment) Rules, 1987. Similarly, when it comes to radioactive air pollution and radioactive wastes, the provisions of Atomic Energy Act, 1962 and rules made thereunder cover these issues rather than the relevant rules and AERB becomes the authority to enforce directions and procedures as per the Atomic Energy Act, 1962 with respect to radioactive substances under Rules 2(b) and 3 of Manufacture, Storage and Import of Hazardous Chemical Rules (1989) under the Environmental Protection Act, 1986.

This all-powerful AERB with a wide range of functions to lay down safety standards and frame rules and regulations to carry out its mandate was set up in November 1983. When A. Gopalakrishnan, the AERB Chairman from 1993 to 1996, submitted the Safety Issues Report that ordered several procedures and corrective actions in Indian nuclear installations, "the BARC management refused outright to comply with [them]" (Frontline, June 24, 2000). In fact, in April 2000, Dr. R. Chidambaram, the then secretary of DAE, simply took away the authority of the AERB to oversee the safety of a large number of critical nuclear installations meant for the weapons program in the Bhabha Atomic Research Centre (BARC). An Internal Safety Committee set up by the BARC director became responsible for ensuring the safety of the public and the workers from dangers that could emanate from these facilities. Thus the safety norms and provisions of the Atomic Energy Act 1962 stood seriously compromised.

Safeguarding Natural Resources?:

The Atomic Energy Bill 1948 which Pandit Jawaharlal Nehru moved in the Constituent Assembly of India (Legislative) on April 6, 1948 ensured the state control of atomic minerals. The Parliament repealed the Atomic Energy Act 1948 when it passed the Atomic Energy Act 1962 and the new Act was quite comprehensive about the discovery of uranium or thorium (section 4), control over mining or concentration of substances containing uranium (section 5), disposal of uranium (section 6), power to obtain information regarding materials, plant or processes (section 7), power of entry and inspection (section 8), power to do work for discovering minerals (section 9), compulsory acquisition of rights to work minerals (section 10), compulsory acquisition of prescribed substances, minerals and plants (section 11), compulsory acquisition not sale (section 11-A), compensation in case of compulsory acquisition of a mine (section 12), and novation of certain contracts (section 13). Despite this painstaking coverage of all aspects of uranium and thorium discovery inside India, several private operators are mining the coastal sand in southern Kerala and southern Tamil Nadu indiscriminately. They extract thousands of metric tons of ilmenite, sillimanite, zircon, garnet, and most importantly, monosite that contains thorium, uranium and certium. The people of Kanyakumari and Tirunelveli districts in Tamil Nadu have been agitating against these sand barons whose unscrupulous activities have triggered massive sea-erosion, increased the amount of natural radiation, undermined fishing, and caused havoc in the overall environment. The enormity of the operation and the severity of the situation are so huge that the Member of Parliament of Nagercoil constituency has recently asked the DAE officials not to let private operators handle the rare earths that contain atomic minerals and insisted that the Central Government institutions alone process the atomic minerals (Dinamalar, Nov 2, 2004). But the Atomic Energy Act 1962 has simply been a paper tiger crouching in front of the big-money business and big-time corruption.

Using Atomic Energy for Indians' Welfare?:

The Atomic Energy Act 1962 is expected "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 matters connected therewith." The atomic adventurism of May 1998 and the subsequent weaponization hoopla that resulted in the 2002 Kargil war and the near nuclear annihilation in the subcontinent speak amply about the contribution of atomic energy "for the welfare of the people of India." The use of atomic energy "for other peaceful purposes" would become clear if one were to look into the track record of the DAE and the humongous amount of money, time, energies and natural resources it has swallowed over the past fifty years to spit out a meager two percent electricity of India's total power generation.

Threatening the Critics!:

One of the chief dangers of Jim Crow legislations is that they can be implemented in a manner that was violative of the Constitution and international treaty obligations of the concerned country. The Atomic Energy Act 1962 has indeed become a potent weapon for the DAE officials to threaten and silence the opponents and critics and shun any public dissension to their plans and projects. As a matter of fact, Dr. R. Chidambaram did warn openly and blatantly the anti-nuclear power activists in and around Koodankulam in southern India that the Atomic Energy Act 1962 would be used against those who spread "canards" against the upcoming nuclear power project there. All local Tamil dailies reported this public warning to the advantage of the DAE and there was no opposition to this highhandedness from any quarter.

Undermining India's Democracy!:

Section 3 of the Atomic Energy Act 1962 enables the Central Government "to declare as 'restricted information' any information not so far published or otherwise made public" and "to declare as 'prohibited area' any area or premises" where "production, treatment, use, application or disposal of atomic energy or of any prescribed substance" is carried out. Leaping much further, section 18 (restriction on disclosure of information) restrains nuclear information sharing even more stringently. To make matters worse, the Supreme Court ruled in January 2004 that the Central Government had every right to maintain secrecy about nuclear installations and deny public information about these in the interest of national security, which was paramount. Although our Constitution guarantees us the right to information vide Article 19(1)(A), these are, according to the court, subject to reasonable restrictions in the interest of national security. Rejecting a petition by the People's Union of Civil Liberties (PUCL) and the Bombay Sarvodaya Mandal for making public a government report on safety of nuclear installations, submitted by the Atomic Energy Regulatory Board (AERB) to the Delhi government in November 1995, the Court ruled that the petitioners were "not entitled" to get the document declared as "secret" by the Union Government under Section 18 of the Atomic Energy Act 1962.

It is important to note that the petitioners did not ask for any information about India's nuclear arsenal or its storage site or anything like that but expressed a genuine concern that there was not enough safety precautions in nuclear power stations in the country and any accident could have a disastrous affect on human beings, animals, environment and ecology. The petitioners had moved the Supreme Court after the Bombay High Court had rejected their petition in January 1997. The petitioners had also raised doubt about the safety aspect with regard to disposal of nuclear waste.

The Atomic Energy Act 1962 allows arbitrary suppression of all information --patently unconstitutional, according to V.R. Krishna Iyer, a widely respected legal luminary in India. The DAE is easily one of our most secretive departments and has much to hide: uranium mining hazards in Jadugoda, excessive irradiation of power-plant workers, waste mismanagement, and numbers regarding explosive yields. When a former Captain B.K. Subba Rao questioned the DAE's nuclear sub (Advanced Technology Vessel) project, a spectacular Rs. 2,000 crore failure, he was charged in 1988 with spying with the ludicrous evidence of his IIT-Bombay Ph.D. thesis for "espionage" and jailed for 20 months--until fully exonerated by three different courts. Without any transparency, accountability, parliamentary oversight or popular scrutiny and with unlimited funding, 'sacred cow' status, innocuous 'science and technology' label, and the 'national security' jingoism, the DAE is an undemocratic and anti-people department. By making it possible for the DAE parivar (family) to keep several 'incidents' and 'accidents' under wraps and to persist with the authoritarian tendencies and practices, the Atomic Energy Act 1962 clearly undermines India's democratic heritage too.

Helping Profiteers!:

There is an added danger now that the DAE is looking into ways of making amendments in the Atomic Energy Act 1962 in order to have private participation in the future nuclear power programs. Talking to reporters after inaugurating the Reverse Osmosis Plant and participating in the 'Bhoomipooja' for the construction of turbine building and other civil structure at Koodankulam on August 1, 2002, the chairman and managing director (CMD) of Nuclear Power Corporation of India Ltd (NPCIL) V. K. Chathurvedi said that NPCIL's proposal in this regard was under the consideration of the Central Government. The latest word is that amendment to the act is under consideration at various levels. Once the amendment is passed in the Parliament, rich power barons could invest in the nuclear power program and reap high dividends while the Indian state would subsidize nuclear research, enrichment of fuels, disposal of nuclear wastes, decommissioning of plants etc. with public funds. Thus the Atomic Energy Act 1962 would facilitate the fusion of secretive state, careerist DAE and greedy capitalists for private profit and the fission of Indian citizens' safety, health and futures for several generations to come. All this shouldn't be surprising to us after all. As is the department, so is the law. Instead of getting its act together, it all together gets into wrong acts.

Laws generally come from religion with clear notions of right and wrong, traditional customs and practices, and from the lawmakers. In the globalized world, laws also sneak in from corporate boardrooms, technocratic conclaves and other such caucuses of capitalist coolies. Knowing how to read and reinterpret these laws and to recover the human agency is a very crucial aspect of being a citizen of a democracy today. In that spirit, every Indian should be aware of the Atomic Energy Act 1962.

SACCER (South Asian Community Center for Education and Research)
promoting life-long, life-wide and life-deep education
S.P. Udayakumar, 42/27 Esankai Mani Veethy, Parakkai Road Jn,
Nagercoil 629 002, Tamil Nadu, India
Ph: 91-4652-240657/253295
See Also: Anushakthi Amma : A One-Act Play by S. P. Udayakumar (May 15-18, 2004)