IMPORTANT POINTS
It is not for Courts to determine whether a particular policy or particular decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the Statute.
2. 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.
3. 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 country, which is the object and purpose of the Atomic Energy Act. Generation of nuclear energy is a necessity in a progressive modern State.
2. Delicate balance in other spheres may have some allowance but in the case of establishment of a nuclear plant, the safety measures would not tolerate any lapse.

Headnote:As per K.S. Radhakrishnan, J.
       Atomic Energy Act, 1962 -Nuclear power plant- Setting up of in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu-Challenge thereagainst-Plea of appellants that unless the seventeen recommendations made by the Task Force appointed by NPCIL were implemented before commissioning the plant, serious consequences may follow-Held 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, foundation conditions, water availability and various other factors- 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 granted- The Government of India, constituted a fifteen member experts group covering all fields technical, scientific, environment etc. to provide clarifications on the various issues raised by group of general public-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 Government of India - KKNPP had been set up and made functional on the touchstone of sustainable development and its impact on ecology had been taken care of following all national and international environmental principles- Experts Committees were of the unanimous opinion that there would not be any deleterious effects due to radiation from the operation of KKNPP, and that adequate safety measures had already been taken-NPCIL, while setting up the NPP at Kudankulam, satisfied the environmental principle like sustainable development, corporate social responsibility, precautionary principle, inter - intra generational equity and so on to implement National Policy to develop, control and use of atomic energy for the welfare of the people and for economic growth of the country -. The petitioner’s contention that establishment of nuclear power plant at Kudankulam would make an inroad into the right to live guaranteed under Article 21 of the Constitution, held to have no basis- On the contrary held that it would only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and would also achieve the object and purpose of Atomic Energy Act- Of the seventeen suggested safety measures, by AERB, LWR, twelve already had been implemented and the rest, in a phased manner had to be implemented which the experts said , were meant for extra security (Paras125, 159. 174, 179,189,190)
        Strict Liability Principle -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-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 while carrying on his activity- 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 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 (Para 83)
       Facts of the Case :
        Present appeals were concerned with an issue of considerable national and international importance, pertaining to the setting up of a nuclear power plant in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu.Contention of appellants that having seen the experience at Three Mile Island (USA), Chernobyl in Russia and Fukushina in Japan etc., safety of the people and 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. Appellants submitted that unless the seventeen recommendations made by the Task Force appointed by NPCIL are implemented before commissioning the plant, serious consequences may follow.
       Findings of the Court :
        The Supreme Court held that 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, foundation conditions, water availability and various other factors. 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 granted. The Government of India, constituted a fifteen member experts group covering all fields technical, scientific, environment etc. to provide clarifications on the various issues raised by group of general public-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 Government of India .
        B. KKNPP had been set up and made functional on the touchstone of sustainable development and its impact on ecology had been taken care of following all national and international environmental principles. Experts Committees were of the unanimous opinion that there would not be any deleterious effects due to radiation from the operation of KKNPP, and that adequate safety measures had already been taken.NPCIL, while setting up the NPP at Kudankulam, satisfied the environmental principle like sustainable development, corporate social responsibility, precautionary principle, inter - intra generational equity and so on to implement National Policy to develop, control and use of atomic energy for the welfare of the people and for economic growth of the country . The petitioner’s contention that establishment of nuclear power plant at Kudankulam would make an inroad into the right to live guaranteed under Article 21 of the Constitution, held to have no basis.
       Result : Appeals disposed of
       As per Dipak Misra, J.
        Atomic Energy Act, 1962 -Nuclear power plant- Setting up of in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu-Challenge thereagainst-Plea of appellants that unless the seventeen recommendations made by the Task Force appointed by NPCIL were implemented before commissioning the plant, serious consequences may follow-Held The words used in the Preamble of the 1962 Act 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 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- 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 large- AERB as the regulatory authority and the MoEF held obliged to perform their duty that safety measures were adequately taken before the plant commences its operation-While endorsing the view taken by Division Bench of High Court, specific directions issued (PARAS 228 TO 230)
       Facts of the Case :
        Issue that arose for consideration in present appeals was of considerable national and international importance, pertaining to the setting up of a nuclear power plant in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu. Contention of appellants that having seen the experience at Three Mile Island (USA), Chernobyl in Russia and Fukushina in Japan etc., safety of the people and 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.
       Findings of the Court :
        The Supreme Court held that 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 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 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 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. Hence held that delicate balance in other spheres may have some allowance but in the case of establishment of a nuclear plant, the safety measures would not tolerate any lapse. . 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 of some cannot be sacrificed for the purpose of the eventual larger good. While endorsing the view taken by Division Bench of High Court, specific directions issued in this regard.
       Result : Appeals disposed of

JUDGMENT

K.S. Radhakrishnan, J.:-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 tip of India, at Kudankulam in the State of Tamil Nadu. The incidents occurred in Three Miles Island 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 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 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.

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.

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 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, 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 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 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 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 atomic energy for the welfare of the people of India and for other peaceful purposes. The Central Government, in exercise of the 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 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 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

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2013 Supreme(SC) 450

Cases Referred (17)