# G. SUNDARRAJAN v. UNION OF INDIA AND ORS

- **Citation:** [2013] 8 S.C.R. 631
- **Court:** Supreme Court of India
- **Decided:** 2013-05-06
- **Case number:** Civil Appeal No. 4440 of 2013
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-sundarrajan-v-union-of-india-and-ors-29367
- **Pages:** 185

## Headnote

A
8
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
0
Control of Pollution) Act, 1981.
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.
It was inter alia alleged that keeping in view the
earlier accidents at the Three Mile Island (USA),
Chernobyl in Russia and Fukushin

## Text

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[2013] 8 S.C.R. 631
G. SUNDARRAJAN
V.
UNION OF INDIA AND ORS.
(Civil Appeal No. 4440 of 2013)
MAY 6, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
A
8
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
0
Control of Pollution) Act, 1981.
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.
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
B
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
8
the country is to develop control and use of atomic
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.
Vacher & Sons v. London Society of Compositors, (1913)
AC107(118)HL; CCSU v. Min. (1984) 3 All ER 935 (954) HL
- referred to.
D
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 NonProliferation 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 (A TWS), 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]
M. C. Mehta v. Union of India AIR 1987 SC 1086: 1987
(1) SCR 819; Indian Council for Enviro-Legal Action v. Union
D
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; 770A-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
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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]
F
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
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.
16. AEC, DAE, BARC, AERB, NPCIL, TNPCB the E
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
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[2013] 8 S.C.R.
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Marine Eco-system, Committee on Conservation of SeaShore 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.
G
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.
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 cooperation 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
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[2013) 8 S.C.R.
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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)
8
Per Dipak Misra, J. [Concurring]
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) [801H; 802-A-D]
F
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
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.