It’s no-risk, all-profit business for four firms

Brahma Chellaney

The Economic Times, August 24, 2010

It is a reflection of the murky politics in the country that the government was able to cut a deal with the main opposition party on the nuclear-accident liability bill, ignoring concerns that the legislation would weaken nuclear safety and deprive potential Indian victims of accidents the very rights American citizens have.

This is not the first time that unscrupulous politics has come to the aid of Prime Minister Manmohan Singh’s obsessive focus on the nuclear deal with the US. In July 2008, his government survived the “cash-for-votes” scandal over the nuclear deal with the help of the Samajwadi Party.

Today, thanks to the shadowy deal with the morally and intellectually bankrupt BJP, the political debate on the accident liability bill has boiled down to a secondary issue — the “right of recourse” of the state operator in India after an accident — while the main issue has been allowed to go by default. The primary issue is whether it is sensible for a poor country like India, where the “operator” of nuclear-power plants will remain the Indian state, to assume all liability on behalf of foreign reactor vendors.

What India has set out to do is unparalleled: Without inviting global bids or having first negotiated the price and terms of reactor supply, the government has earmarked a nuclear park exclusively for each of the four foreign vendors, GE, Westinghouse, Areva and Atomstroyexport. It is acquiring land on their behalf at these designated parks, where each vendor is to erect multiple reactors. The government, however, will run the reactors through its state operator, subsidizing the high-priced electricity generated.

Now, through the proposed accident-liability law, the suppliers also are being indemnified, with all liability (financial and legal) being channelled to the Indian state. In effect, India is offering no-risk, all-profit business opportunities to the four vendors to build 28 reactors worth some $76 billion.  

Given the high liability capacity being assumed — which could entail an average annual premium of nearly $1 million to be paid by the Indian taxpayer for each twin-reactor, foreign-built nuclear plant — foreign insurers are to be invited in. In case India in the future allows private players to also operate nuclear plants, the government has proposed an amendment to its own liability bill for the Indian republic to “assume full liability for a nuclear installation not operated by it.”

Yet few questions are being asked as to why the government is in an unseemly rush to pass such legislation and join the Convention on Supplementary Compensation, which hasn’t even come into force.

With the fundamental issues having been eclipsed from the debate, the focus has fallen on the right to recourse in the operator’s fiduciary liability policy. The government’s repeated attempts to dilute the right-to-recourse provisions against suppliers have exposed a disturbing dimension of the relationship between the executive branch and Parliament. First, a key word, “and”, was mysteriously added to the parliamentary standing committee’s text to water down those provisions.

When a furor greeted that surreptitious insertion, the government simply decided to supplant the committee’s agreed text with a new formulation that sets the right-to-recourse bar so high (“the nuclear incident has resulted as a consequence of an act of supplier or his employees, done with the intent to cause nuclear damage…”) as to render that right infructuous. All this raises troubling questions about the executive branch’s persistent moves to nullify a parliamentary committee’s work.

Broadly, the nuclear deal, which was pushed through without building “the broadest possible national consensus” that the PM had promised, has come to symbolize the decline of Indian politics, with self-aggrandizement replacing principles as the guiding philosophy for parties and national interests taking a back seat.

 (c) The Economic Times, 2010.