CRITICAL ANALYSIS OF ATOMIC ENERGY ACT, 1962

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This article is written by Swayam Nigam, Graduate of Rani Durgawati University, an intern under Legal Vidhiya

ABSTRACT-

The atomic energy sector is on a boom in the world and the reason is increasing pollution and energy demands. India understood its importance and made the Atomic Energy Act, of 1962 to regulate this sector. The act has many provisions granting a lot of powers, concerning atomic substances, to the central government like; stopping the publication of certain information, declaring restricted areas, and power to impose restrictions on activities related to atomic energy. The central government also holds the power to grant licenses for such activities. Apart from this, the act provides many safeguards for the sector, and the central government holds the responsibility to make rules in this regard. There are different punishments prescribed for the offences under the act. There is a strict need for the Atomic Energy Regulatory Board (AERB) to be empowered.

Keywords: Atomic Energy, Central Government, Restrictions, Atomic Energy Regulatory Board.

INTRODUCTION –

The term “Atomic Energy” reminds us of the nuclear accidents at Hiroshima and Nagasaki, Chernobyl, Church Rock, Three Mile Island etc, but very few people remember that it is a good source of clean energy as well. In present times, clean energy is a fundamental requirement of every society or nation. It possesses the potential to become the cheapest, greenest and safest known source of energy.[1] At a time when India aspires to become a five trillion dollar economy, there will be an increasing need for energy and due to the increasing pollution we must find alternatives for coal. Hence, we all must understand the importance of atomic energy.

In the 1950s, the leaders of India understood the importance of the same and they proceeded with taking steps to use atomic energy for power generation. In this direction, a Three-stage nuclear power program was formulated by Dr Homi Bhabha and Jawahar Lal Nehru. The main aim of this program was to secure energy independence for the country. The exploration of nuclear energy is a good option but it has some problems like safety and waste management, Land acquisition and selection of location for Nuclear Power Plant, sanctions against India for not being a signatory to the Non-proliferation Treaty and advanced technology.[2]

After considering the importance of nuclear energy it becomes very essential to regulate the activities of this sector. Hence, the countries have started to develop their separate legal frameworks to address issues like nuclear liability, compensation to the victims of nuclear accidents, third-party damages, and setting limitations and safeguards for nuclear accidents. Apart from these, there is also a need for rules to give a push to increase investment in the nuclear energy sector.

ABOUT THE ATOMIC ENERGY ACT, 1962 –

This act has an objective to provide for the development, control and use of atomic energy for the welfare of Indian people and other peaceful purposes. The act was passed by both houses of the parliament and received the assent of the president of India on 15 September 1962.[3] This legislation has repealed the earlier Atomic Energy Act of 1948.[4] The present statute has 32 sections with its authority extending over the whole of India. The act was published by the government of India in its official gazette on 21st September 1962, which is the date when the act came into force. The act has been amended three times till the date i.e. 1986, 1987 and 2015.

DEFINITIONS UNDER THE ACT –

Under the act, Atomic energy is defined as ‘energy that is released from atomic nuclei as a result of any process, including the fission or fusion processes’.[5] The act also defines “Fissile Materials” as ‘Uranium 233, Uranium 235, Plutonium or any material containing these substances or any other material that may be declared as such by notification by the Central Government.’ [6] Further the act defines Radiation, It says that “radiationmeans gamma rays, X-rays, and rays consisting of alpha particles, beta particles, neutrons, protons and other nuclear and sub-atomic particles, but not sound or radio waves, or visible, infrared or ultraviolet light” [7]

DOES RADIATION FROM CELLULAR PHONE TOWERS COME WITHIN THE DEFINITION OF RADIATION UNDER THE ACT?

A case [8] was instituted before the Bombay High Court, to determine this question. The court constituted an expert committee which stated in its report that there is no clear proof that mobile phone base stations are harmful to our health. The radio waves that they emit are much weaker than what is considered safe. However, the committee also said that we should be careful until we have more information. The Atomic Energy Regulatory Board also filed a report before the high court wherein it was stated that ‘Radio Frequency waves’ used for mobile phones are not covered under the definition of radiation under the act as they can’t ionize the matter with which they interact. Based on these recommendations the court held that mobile phone towers as such do not pose any health risk but before any such tower is constructed, a necessary licence from the concerned authority is required.[9]

POWERS OF CENTRAL GOVERNMENT UNDER THE ACT –

The act provides the central government with following powers:

1.1. To produce, develop, use and dispose of atomic energy. The act also permits any other authority, Corporation or Company established by the government, conducting research into any matters connected therewith, to exercise the same power.[10]

1.2.To manufacture or produce any prescribed or radioactive substance for production, development or use of atomic energy or for research of atomic energy.[11]

1.3.To destroy or dispose of such produced or manufactured radioactive substances or any other article. [12]

1.4.To buy, acquire, store, transport or dispose of any prescribed or radioactive substance for the production, development or use of atomic energy. [13]

1.5.To declare any information as “restricted information” and prohibit its publishing or making it available to the public. Restricted information about substances essential for atomic energy may include information about their location, usage, quantity, purchase, and disposal. It may also include information about the extraction and manufacturing of fissile materials, and the theory and design of nuclear reactors.[14]

1.6.To designate any area or building as a “restricted area” where any work related to research, design, or development of atomic energy or related material is conducted.[15]

1.7.To manage and control radioactive substances and subsequent plants generating radiation to prevent radiation hazards, secure the safety of the public, and ensure safe disposal of radioactive wastes.

1.8.To require information about any prescribed substance or plant designed for mining or processing minerals used for the production of atomic energy or any other information, by sending a notice in writing.[16] If any person fails to comply with any notice served to him or makes an untrue statement in return of any notice under this section, he shall be punished with imprisonment for a term, which may extend up to one year or with fine or with both.[17]

1.9.To authorize any person to enter and inspect any mine, premises or land if he has reason to believe that any work is being carried out in connection with any prescribed substances used for the production of atomic energy. If a person obstructed such an authorized person, the punishment prescribed is imprisonment, which may extend to one year with a fine or with both.[18]

WHAT HAPPENS IF SOMEONE DISCOVERS URANIUM OR THORIUM?

According to the Act, if a person discovers uranium or thorium, he/she is obliged to report the discovery to the Central Government or any person authorized by the Central Government within three months of such discovery.[19] Further the act states that even if a person has reason to believe that Uranium or thorium occurs at any place in India, he is bounded by the same obligation.[20] The contravention of this obligation shall be punished with imprisonment for a term, which may extend to one year or with fine or with both.[21]

CONTROL OF MINING OR CONCENTRATION OF SUBSTANCES CONTAINING URANIUM

The central government has the authority to set rules and regulations for those who mine materials from which uranium can be separated or extracted. Additionally, the government may forbid him from managing the mining operations, handling, or refining the aforementioned material.[22]

The Government can decide as to whether to pay or not to pay compensation to the person whose activities are restricted or prohibited by the government. So there may be the following cases:

If the central government decides not to give any compensation the reasons for such a decision shall be recorded in writing.[23]
If the central government decides to give compensation, it will be paid according to the principles of section 21 of the act. But in calculating the amount of compensation the value of the Uranium shall not be taken into account.[24]
Compensation is obligatory if the mining operation etc. is prohibited and the compensation amount shall be determined according to section 21, but here also the value of uranium shall not be taken into account in calculating the amount of compensation.[25]

Failure to comply with any notice served under these provisions or violation of any terms and conditions that are imposed shall be punished with imprisonment for a term which may extend to one year or with a fine or with both.[26]

HOW TO DISPOSE OF URANIUM OR MATERIALS CONTAINING URANIUM IN ITS NATURAL STATE?

Whenever uranium in its natural state is found in any material, prior permission from the government is made mandatory for its disposal. [27] The Central Government has the power to acquire Uranium produced by any person by serving a notice to him. Once the notice is served it shall become the property of the Central government. In this case as well the government will have to provide compensation to the person.[28]

Compensation shall be determined according to section 21 of the Atomic Energy Act. Here the value of uranium shall not be taken into consideration while calculating the amount of compensation. The offences and punishments are similar to section 4.[29]

THE POWER OF CENTRAL GOVERNMENT TO WORK FOR DISCOVERY OF MINERALS

The Central Government can conduct any work under or below the surface of any land as it deems fit for discovering minerals in its natural state or the form of disposed waste material. Provided that before taking any action the government has to give a notice and opportunity to be heard to the owner, lessee or occupier of the land .[30] The person has to be given Compensation in respect of such acquisition in accordance with section 21.

After this initial work, if the Central Government believes that any prescribed minerals are present or can be obtained from that land or premise, it may by order compulsorily acquire that land. In connection with this, the Central Government can also acquire any ancillary rights such as conveyance or drainage or supply of water etc.[31]

ACQUIRING A MINE

Under section 12 of the Act, the Central Government is empowered to acquire any mine or part of it from which, in its opinion, any of the prescribed substances can be obtained. The compensation of such acquisition shall be paid in accordance with section 21 and no account shall be taken of the value of uranium.[32]

CONTROL OVER PRODUCTION AND USE OF ATOMIC ENERGY

The Central Government, subject to such rules as may be made in this behalf, has power to prohibit the working of any mine, plant or minerals from which any prescribed substances can be obtained. It can also prohibit Acquisition, production, possession, use, disposal, export or import of the prescribed substances or any minerals from which any prescribed substances can be obtained.[33]

However, the Central Government can permit these activities through a licence. Any contravention to the terms of the license is punished with imprisonment, which may extend to five years or with a fine or both. The information shared with a person who is granted a license falls within the ambit of restricted information and the extent of the area considered under the license has to be regarded as a prohibited area.[34] The Central Government may also prescribe the fees payable for the issuance of license.

SAFETY PROVISIONS

Under section 17 of the act, the Central Government may establish regulations for any location or property where radioactive materials may be mined, produced, stored, or used. Regulations may also be made concerning a radiation-generating plant or appliance, to prevent accidents and health risks for those working there, to secure any radioactive waste products, to establish qualifications for those working there, and other related matters. When it comes to the transportation of radioactive materials or any other materials specified by the Act, the Central Government has the authority to establish regulations that guard against health risks and injuries of this nature. [35]

RESTRICTION ON DISCLOSURE OF INFORMATION

The Act grants the central government the authority to limit the dissemination of any material about nuclear plants, their operations, goals, and procedures—whether it be found in documents, drawings, photos, plans, models, or other formats. It also imposes a duty on people not to disclose information.

There have been various cases of clash of this section with the fundamental rights. In State of U.P v. Raj Narain[36] the court held that In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The citizens of our nation have a right to be informed about every public action and action taken by their public servants. They are entitled to know the particulars of every public transaction in all its bearing.[37]

OFFENCES AND PENALTIES UNDER THE ATOMIC ENERGY ACT, 1962

The contravention of sections 14, 17, 17(4) or 18(2) attracts a higher punishment with imprisonment, which may extend to five years or with a fine or both.[38] But for contraventions under sections 5, 7, 8 or 9 or any other provisions the punishment is comparatively lower. Punishment for infringing these sections is imprisonment, which may extend up to one year or with a fine or both.[39] If a firm commits an offence, each individual who was in control of or accountable for the company’s business behaviour at the time of the offence will be considered guilty of the offence and will face appropriate punishment.[40] But he won’t be held accountable if he can demonstrate that the offence was committed without his knowledge or that he took the necessary precautions to stop it from happening.[41]

Section 25(2) says that any director, manager, secretary or other officer of the company shall held be liable if the offence is committed with the consent or connivance or is attributable to or neglect on his part. It is also to be noted that an offence under this Act shall be cognizable offence as per the Code of Criminal Procedure.[42] But for an offence under section 8, 14, or 17 the complaint has to be given by the person authorised to exercise powers of entry and inspection.[43] If there is any other violation besides section 18, the complaint must be submitted by an individual who has been duly authorized by the Central Government to make such complaints.[44] Proceedings concerning violations of section 18 may only be initiated with the Attorney General of India’s approval.

CHALLENGES –

To match the rapid growth in the need for power supply, India is about to take up construction of new nuclear reactors. In present times there is a growing need for radiation in non-power applications. AERB holds the responsibility of supervising the safety of these reactors, but in performing such tasks AERB faces various challenges, like, Ensuring the safety of older plants, Gaining proficiency in an extensive range of technologies, assembling a sufficient workforce prepared for safety oversight, meeting the standards of today in terms of nuclear security, safety, and radiation etc. but the biggest responsibility if AERB is to ensure that economic pressures do not erode nuclear safety. To perform its functions, the body requires adequate powers.[45]

RECOMMENDATIONS–

It is the duty of the Government to ensure that the nuclear regulator is empowered and independent. For this purpose, the regulatory body should be created in law and should be capable of exercising necessary authority in making regulations, verification of compliance with the regulations and enforcement of the same in cases of non-compliance.[46]

The maximum fine amount under the Atomic Energy Act may be reviewed and AERB, as the regulator, may be authorized to use a variety of remedies, such as fines commensurate with the seriousness of the infractions.

CONCLUSION

With time, the power sector in India has grown to be a vital component of the country’s economy, propelling advancements in social transformation. The Department of Atomic Energy establishes and oversees nuclear power plants, while the Atomic Energy Act of 1962 gives the Central Government the authority to develop nuclear power. One of the main objectives of the State to guarantee development is the electrification of rural areas. The 1948 Electricity (Supply) Act was changed to establish generating companies under the jurisdiction of the Central Government. There have been recommendations by various committees for an independent statutory regulatory board under the terms of the Atomic Energy Act and a broadening of the functions and responsibilities” of the Atomic Energy Regulatory Board (AERB) but till now AERB daily struggles to develop regulatory strategies for nuclear and radiation facilities, upholding standards for nuclear and radiation safety and security, and other issues.[47]

The Atomic Energy Act of 1962 has been amended three times but still, many problems are encountered in the regulation of the sector, also, many new concerns are rising like increasing demands for electricity, environmental damages etc. so the act needs to be amended accordingly, providing more power to the regulating authority.

[1] Drishtiias.com, The Prospect of Nuclear Energy, https://www.drishtiias.com/daily-news-editorials/the-prospect-of-nuclear-energy (last visited Sep. 6, 2023 at 06:25 PM )

[2]Drishtiias.com, https://www.drishtiias.com/to-the-points/paper3/india-s-prospects-as-a-nuclear-power, (last visited Sep. 6, 2023 at 06:25 PM )

[3] Atomic Energy Act, 1962, Preamble, NO. 33, Acts Of Parliament, 1962 (India)

[4] Atomic Energy Act, 1962, § 31, NO. 33, Acts Of Parliament, 1962 (India)

[5] Atomic Energy Act, 1962, § 2(a), NO. 33, Acts Of Parliament, 1962 (India)

[6] Atomic Energy Act, 1962, § 2(b), NO. 33, Acts Of Parliament, 1962 (India)

[7] Atomic Energy Act, 1962, § 2(h), NO. 33, Acts Of Parliament, 1962 (India)

[8] Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33.

[9] Vishnu konoorayar k. and Jaya V.S., Atomic Energy Law in India: An Analysis, 01, KLRI Journal of Law and Legislation 129, 141-142 (2011)

[10] Atomic Energy Act, 1962, § 3(a), NO. 33, Acts Of Parliament, 1962 (India)

[11] Atomic Energy Act, 1962, § 3(b), NO. 33, Acts Of Parliament, 1962 (India)

[12] id