A nuclear regulator without teeth

A. Gopalakrishnan

The proposed Nuclear Safety Regulatory Authority will have fewer powers and less independence than the present authority.

On September 7, the government tabled in the Lok Sabha the much-awaited Nuclear Safety Regulatory Authority Bill, 2011. The Nuclear Safety Regulatory Authority (NSRA) is being created ostensibly to bring about much-needed independence and transparency in administering the safety oversight of nuclear operations in India. But even a cursory reading reveals that the Bill serves anything but these objectives. The government's intention in creating the NSRA in its present form appears to be merely to effect a “regulatory capture” of the nuclear sector. The NSRA will, in fact, have fewer powers and less independence than the existing Atomic Energy Regulatory Board (AERB).

In order to impress upon the public that the government attaches the highest level of significance to nuclear safety, it seeks to establish (Clause 5 of the Bill) a Council of Nuclear Safety (CNS) to oversee and review nuclear and radiation safety policies and connected matters (Clause 7). The CNS will be chaired by the Prime Minister and will have as its members five or more Cabinet Ministers, the Cabinet Secretary, the Chairman of the Atomic Energy Commission, and an assortment of “eminent experts” nominated by the Central government.

Details of the functions and powers of the CNS can be gleaned from the Bill. One of its first tasks will be to constitute two search committees, one to select the chairperson and the other to select the members of the NSRA (Clause 10). Based on such selection, the Central government will constitute the NSRA. Another responsibility of the CNS is to create, when necessary, an Appellate Authority (Clause 35) to hear appeals on any order or decision passed by the NSRA. Strangely, this Appellate Authority to be created by the CNS will also decide on appeals from the government (Clause 35-5) against the regulatory authority.

The Bill authorises the Central government to give formal directions and orders, some by means of notifications, to the NSRA, which the Authority has to mandatorily obey. At the same time, the government wants to generate a false public impression that it has generously granted total independence to the NSRA by not requiring the Authority or its chairperson to report administratively to any Ministry or government official. What the government is, however, surreptitiously trying to achieve through this Bill and the creation of a high-level council under the chairmanship of the Prime Minister is to have this council act de facto as the “Central government” for the purposes of controlling and curbing the freedom of choice and action of the regulatory authority. To understand the subservient and captive nature of this so-called independent, autonomous regulatory authority, one needs to only examine the Bill and see the ways in which the government intends to interfere with, order about, curb and coerce the NSRA.

International obligations

The NSRA is required to discharge its functions and powers in a manner that is consistent with the “international obligations of India” (Clause 20-q). This could mean, for example, that if the Prime Minister has promised the French President in 2008 that India would buy six European Pressurised Reactors (EPRs), without any safety or economic evaluation, that unilateral and personal commitment given by the Prime Minister will now get labelled as one of “India's international obligations.” Then, according to this Bill, the NSRA cannot question, even on strong safety grounds, the setting up of those six EPR units, since that will violate Clause 20(q) of this Bill. Similarly, the NSRA will be bound by this Bill to approve the setting up of U.S. reactors to be supplied for Indian sites, because under the Prime Minister's instructions the Foreign Secretary had in 2008 made an “Indian commitment” to the U.S. government to purchase at least 10,000 MWe of U.S. reactors, though that commitment was made unilaterally and without any safety or cost assessment. The Bill is thus drafted to give, post-facto, government-enforced safety approval from the NSRA for past acts of over-stepping by the government during 2007-2008. This could turn out to be extremely detrimental to public and environmental safety in the coming years.

Clause 20(e) states: “ – the Authority shall interact with other bodies -- engaged in activities relevant to the functions of the Authority, --- [the NSRA] shall not interact with bodies outside India, without the prior approval of the Government.” This implies that if an engineer or scientist of the regulatory authority wants to correspond on technical safety issues with an expert at the Massachusetts Institute of Technology, or the University of Cambridge in the U.K., he or she would first have to get the government's permission.

Sustained coercion

To intensify and sustain coercion on the NSRA, Clause 21 of the Bill requires that “the Regulatory Authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality.” This requirement is repeated in Clause 42, adding the threat that the government may issue directions to the NSRA from time to time as it may deem necessary, and the NSRA shall be bound to comply with any such directions. After the chairperson and members of the NSRA are selected with the direct involvement of the Prime Minister and his Cabinet, where is the need to hold out such threats and instructions on matters of good behaviour and responsible citizenship to them through an Act of Parliament? Is there any other regulatory Act in India that holds out similar forewarnings and threats to a regulatory authority, even as it is being created?

The coercion does not end there. The Bill goes on to state: “--- the Central Government may, by order, remove from office the Chairperson or any Member [of the NSRA], if he has so abused his position as to render his continuance in office prejudicial to the public interest” (Clause 14-1- e). Who should define “public interest” in such situations — the Prime Minister or Parliament?

Clause 48(1) states: “If, at any time, the Central Government is of the opinion --- that circumstances exist which render it necessary in the public interest to do so, the Central Government may, by notification, supersede the Regulatory Authority for such period not exceeding six months,---. Upon notification, the Chairperson and Members of the NSRA shall vacate their offices as such; --- all the powers, functions and duties --- shall, until the Authority is reconstituted, be exercised and discharged by the Central Government”.

These clauses in the Bill are strong enough reasons to insist that the final appointment of the chairperson and members of the regulatory authority should be made by Parliament, and not by the government. Thus, the removal of an NSRA chairperson or member, and any supersession of the NSRA, must be finally decided by Parliament.

Issues involving the public and national interest can no longer be left solely to the government to decide upon, especially because policy differences could arise between the regulator and the government in matters of life and death — such as the impartial administration of the country's nuclear safety.

(A. Gopalakrishnan is a former Chairman of the Atomic Energy Regulatory Board.)