Balancing Safety and Energy: Kudankulam Nuclear Plant VerdictG. Sundarrajan v. Union of India (2013) 6 SCC 620

1. Sundarrajan v. Union of India (2013) 6 SCC 620

Supreme Court of India, Constitutional Bench (Justices K.S. Radhakrishnan and Dipak Misra)

Judgment dated

May 6, 2013.

Court and Parties

Supreme Court of India heard this as a public interest litigation (PIL) under Article 32.

Petitioners

1. Sundarrajan and other activists/NGOs representing coastal communities near Kudankulam, Tamil Nadu.

Respondents

Union of India, Nuclear Power Corporation of India Ltd (NPCIL), Atomic Energy Regulatory Board (AERB), Tamil Nadu government.

Facts of the case

1. The Kudankulam Nuclear Power Plant (KNPP) project, set up in Tirunelveli district, Tamil Nadu, originally grew out of a 1988 Indo-Russian inter-governmental agreement for the supply of two pressurized water reactors of the VVER-1000 type.
2. The plot was cleared for the plant in 1989 and subsequent approval for setting up the plant came from the MoEF in 1999, following a series of government and public hearings.
3. The foundation for KNPP has now been laid and KNPP is set to be a major steppingstone for the nuclear program of India, due to a constantly increasing need for nuclear energy for satisfying the power.
4. The 2011 Daiichi nuclear power plant catastrophe at Fukushima, Japan, due to a 9.0-magnitude earthquake and tsunami, brought international attention to nuclear power plant safety, consequently stopping fuel loading at the KNPP because of massive demonstrations by local fishermen, farmers and social activists.
5. More than 100,000 villagers from a 30 km area around the plant feared a radioactive spill, considering how close it was to tectonic lines, Seismic Zone III and tsunamis, having already been established because of the 2004 Indian Ocean tsunami. 
6. The objectors pointed out 1.5 lakhs within a 30 km area, environmental sensitivity (mangrove jungles, fishing activities) and weaknesses such as lack of earthquake-design standards (0.18g of PGA, whereas 0.25g was necessary), improper ECCS and no evacuation plan.
7. Lesson By October 2012, Unit 1 was close to operationalization and started fuel loading and writ petitions were filed under Article 32.
8. Cases were referred to the Supreme Court by the Madras High Court and the Supreme Court decided to assign amicus curiae and scientists to scrutinize the matter.

Issues raised in court

The Court framed five principal issues, reflecting constitutional, environmental and administrative law intersections:

1. Whether KNPP’s commissioning and operation violate Article 21’s right to life, health and clean environment, given catastrophic nuclear risks post-Fukushima?
2. Do environmental clearances under Environment (Protection) Act 1986, Coastal Regulation Zone (CRZ) notifications and safety audits comply with precautionary principles, polluter pays and sustainable development under Articles 48A and 51A(g)?
3. Is Atomic Energy Regulatory Board’s (AERB) regulatory framework independent and robust enough for judicial deference in nuclear safety?
4. Adequacy of on-site and off-site emergency preparedness, including National Disaster Management Act-compliant (NDMA) disaster plans?
5. Scope of judicial review over executive policy on nuclear energy mix and technical assessments by experts.

Argument of Petitioners

1. Petitioners contended that any developmental activity must take a backseat to the right to life under Article 21. Even a small chance of a severe nuclear accident (say 0.1%) has immense, irreparable consequences, making the project unacceptable. 
2. They cited Chernobyl (1986) and Fukushima (2011) for deaths, illnesses and mass evacuations. Kudankulam’s coastal location heightens tsunami, earthquake and cyclone risks. 
3. With 94 villages within 30 km, safe evacuation in hours is impossible, rendering emergency plans unreliable. They urged the Court to rule such grave risks unconstitutional despite low probability.
4. Petitioners attacked AERB’s lack of independence under DAE, creating conflict of interest and arbitrary clearances.
5. They demanded fresh CRZ clearance with updated data and IAEA review. Citing weak regulators and defective procedures mean safety clearances lack credibility. No credible spent fuel management plan risks permanent contamination. 
6. Thermal pollution harms marine life and fishermen. Citing Vellore Citizens (1996) and M.C. Mehta cases, they invoked precautionary principle: serious risk + uncertainty = State must pause project. Demanded decommissioning or halt until independent safety audit certifies safety.
7. If development endangers life/environment, it is not sustainable and must stop or be re-examined.

Arguments of Respondents

1. Respondents argued Kudankulam is part of national policy for energy security and development.
2. India faces surging electricity demand for industry, agriculture, hospitals and services, needing reliable base load, not just intermittent solar/wind. 
3. Nuclear power offers cleaner, low-carbon alternative to coal, reducing pollution. They linked this to Article 21: right to life includes electricity access, growth and decent living; energy poverty harms dignity. Without Kudankulam, India’s right to life and development cannot be realized.
4. Respondents showed stringent safety systems make the plant low-risk. AERB issued 40+ codes aligning with IAEA/WANO standards.
5. Kudankulam withstands earthquakes (PGA ~0.25g) and tsunamis (10.9m height, with 11.5m breakwater). Post-Fukushima upgrades: passive cooling (works without power), hydrogen recombiners (prevent explosions), other international lessons.
6. Emergency plans tested: off-site covers 30km with sirens, iodized tablets, NDMA/state mock drills. It followed national/international standards, upgraded post-Fukushima, detailed plans, so safe as reasonably possible.
7. They also stressed courts’ limits in technical/policy matters. Energy policy, design, citing best for experts/government, not judges. Cited Bhopal/Oleum Gas precedents, courts check illegality/fraud/procedural failure, not technical details like reactor design/stress calculations. 
8. No proof of mala fide or non-compliance; petitioners just opposed nuclear policy. Protests are partly politically motivated; courts should not let public fear veto national projects.

Legal Reasoning

The Supreme Court expansively interpreted Article 21 to include the right to a clean environment but balanced it with the right to development/right to access to energy and dismissed the “zero-risk” society.

It upheld AERB’s regulatory framework, as robust, incorporating IAEA standards; post-Fukushima reviews confirmed KNPP safety: seismic design 0.25g, tsunami modeling.

Also, applied sustainable development-nuclear benefits (low-carbon, 2000MW capacity) outweighed managed risks via monitoring; precautionary principle, requiring mitigation not prohibition.

Ratio Decendi

Nuclear initiatives would not contravene Article 21 if they are supported by authentic safety norms and disaster plans; courts would not second-guess governments on matters of state policy.

The precautionary principle obliges the State to establish reasonable safety precautions for high-risk activity, mediating between environment and development as the doctrine of sustainable development seeks to do.

Obiter Dicta

Advocated appropriate statutory Nuclear Safety Regulatory Authority for ensuring AERB autonomy, international best practices on similar lines. Public interaction, audits, education for overcoming ‘fear psychosis.’ Nuclear liability under the 2010 Act appeared as accountability but not the core.

Judgement and outcome

1. The Supreme Court upheld the validity and continued operation of the Kudankulam Nuclear Power Project, refusing to stop fuel loading or decommissioning the plant.
2. It held that safety requirements on offsite had been met and that AERB’s code of practice, grounded in national and international norms, had been followed by NPCIL.
3. However, the Court issued a set of directions to further strengthen safety and public confidence, including:
   • continued monitoring by regulators.
   • improvements in emergency preparedness and evacuation planning; and
   • robust implementation of disaster management measures.

Implications and Conclusion

It enunciates a dual aspect approach to the interpretation of Article 21, wherein the aspects of environmental protection and development-led energy policy are both part and parcel of the right to life and hence, the need for reconciliation and not merely prioritization. Also, a chain of cases where the Court holds that there are institutional limitations to review of extremely technical policy, which emphasizes process review (whether experts have applied their mind) rather than outcome review and judicial opinion substitution.

It delicately readjusts the precautionary principle to suggest that, in the presence of effective regulation and scientific consensus, the precautionary principle does not carry the same weight as veto power on high-risk technologies. For nuclear law, this case heralds a judicial openness to the development of nuclear capacity based on a tangible level of regulatory oversight.

Reference(S):

Cases

1. G Sundarrajan v Union of India (2013) 6 SCC 620.
2. Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647.
3. MC Mehta v Union of India (1987) 1 SCC 395.
4. Narmada Bachao Andolan v Union of India (2000) 10 SCC 664.
5. Subhash Kumar v State of Bihar (1991) 1 SCC 598.
6. AP Pollution Control Board v Prof MV Nayudu (1999) 2 SCC 718. 

Legislation

1. Atomic Energy Act 1962.
2. Environment (Protection) Act 1986.
3. Civil Liability for Nuclear Damage Act 2010.

Constitutional Provisions

1. Constitution of India 1950, arts 21, 32, 48A, 51A(g)