Guest Post by Prashanth Reddy
Sometime later this year, Parliament is going to have yet another debate on the degree of ‘independence’ of an Indian regulatory body. The regulator in question is the nuclear regulator that has been proposed under the Nuclear Safety Regulatory Authority of India Bill, 2011 (NSRAI). The debate on the ‘independence’ of the nuclear regulator in India has been one of several contradictions. Despite the nuclear establishment repeatedly claiming that its regulator – the Atomic Energy Regulatory Board (AERB) – was independent, Rural Development Minister Jairam Ramesh very obviously contradicted the entire establishment when he publicly called for the creation of an ‘independent’ AERB.
In order to understand the differing versions of ‘independence’, it is necessary to understand the history of nuclear regulation in this country. At the time of its inception, soon after independence, the Indian nuclear industry was regulated mainly by ad-hoc safety committees of the Department of Atomic Energy (DAE). In 1972 the DAE passed an office order creating the institutionalized mechanism – DAE-Safety Review Committee (SRC), which would now be responsible for safety of Indian nuclear plants.
In 1979 the then Secretary of the DAE ordered the DAE-SRC to review its functioning and recommend any possible changes. This Committee was headed by M.V. Meckoni, Director BARC and its final report which was submitted in February 1981 came to be known as the Meckoni Committee Report and it is this report which formed the basis of the creation of the AERB. (The report can be downloaded over here.
A fatal error in this entire exercise was the composition of the Committee itself, which is not to say that the members of the Committee were incompetent but the fact that all seven of them were serving members of the nuclear establishment and would most likely not be capable of an objective assessment of independent regulatory requirements.
The final recommendations of the Committee called for an ‘autonomous’ AERB staffed by members of BARC and the ‘DAE Family’ therefore in effect creating another ‘in-house’ body. Most of these suggestions were followed by the DAE when it created the AERB through an Executive Order of the President in 1983. In the process the only useful suggestion of the Meckoni Committee, which was to create the AERB through a legislation of Parliament was ignored. The problem with Executive Orders is that they can be modified by the DAE itself, something which it demonstrated in the year 2000 when it excluded BARC, India’s principal nuclear weapons establishment, from the purview of the AERB.
The AERB created by this Presidential Order was a system mired in severe ‘conflict of interest’. As per this Order the AERB was responsible to the Atomic Energy Commission (AEC). The AEC itself was responsible for promoting the use of nuclear energy in India and is in itself headed by the Secretary of the DAE. The DAE is the department which controls BARC, India’s primary nuclear weapons establishment and more importantly, the Nuclear Power Corporation of India Ltd. (NPCIL) – the government company which operates all of India’s nuclear reactors. The AERB’s mandate was to regulate the nuclear reactors operated by the DAE but at the same time made responsible to the AEC which was headed by the Secretary of the DAE. Further, the Executive Order also stated that the DAE would control the AERB’s budget and be responsible for it before Parliament.
Any objective assessment of the above setup would lead to the logical conclusion that the AERB was anything but ‘independent’ of the DAE. Surprisingly however, the AERB in its yearly reports to the IAEA under the ‘Convention on Nuclear Safety’ (CNS) has consistently claimed that it is an ‘independent’ body.
Section 8(2) of the CNS defines independence in the following terms: Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.
In its latest Report to the IAEA, the AERB has stated the following: “The position of AERB in the government set up ensures administrative and financial independence in its functioning. Technical support is drawn from various national laboratories as well as from other national academic and research institutions. The Central Government provides the financial resource to AERB according to its proposed budget. There has never been shortage of finance towards fulfilling its mandate and responsibilities. The statutory and legal provision of the Act & various rules framed there under and the powers conferred by the gazette notification provides AERB with the authority for its independent and effective functioning. Hence, India complies with the intent and spirit of Article 8 of the Convention.”
Obviously, the nuclear establishment and the political establishment have differing version of ‘independence’. The question for future debate is whether India’s latest attempt to create an independent nuclear regulator is compliant with its treaty obligations under the CNS? Ideally the government should have released a white paper on the status of the AERB before it proceeded to create a new regulator. However as always we put the cart before the horse.
[ Prashant Reddy T. is an Advocate, blogger at SpicyIP and a co-founder of the Pre-Legislative Briefing Service (PLBS).]