in the hon’ble - websmemberfiles.freewebs.com/66/29/64392966/documents/... · web viewamity...
TRANSCRIPT
IN THE HONrsquoBLE
SUPREME COURT OF RENATA
WRIT PETITION ( C ) ____2019
Ananda and Ors hellip Petitioner
v
Union of Renata and Ors hellip Defendants
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS
COUNSEL FOR THE RESPONDENTS
AMITY UNIVERSITY FIRST NATIONAL MOOT COURT COMPETITION-2011
T A B L E O F C O N T E N T S
T A B L E O F C O N T E N T S I I
I N D E X O F A U T H O R I T I E S I I I
S T A T E M E N T O F J U R I S D I C T I O N V I
S T A T E M E N T O F F A C T S V I I
S T A T E M E N T O F C H A R G E S I X
A R G U M E N T S A D V A N C E D 1
[A] THE SUPREME COURT OF RENATA CANNOT ENTERTAIN THIS PRESENT CASE
[B] THE CIVIL LIABILITIES NUCLEAR DAMAGES ACT 2010 IS VALID AND
CONSTITUTIONAL
[C] NO ABSOLUTE LIABILITY CAN ACCRUE ON THE GOVERNMENT OF RENATA AND SANTAGAR POWER CORPORATION
P R A Y E R 3 3
L I S T O F A B B R E V I A T I O N S
AIR All India ReporterCPC Code Of Civil ProcedureHONrsquoBLE HonorableSC Supreme CourtSCC Supreme Court CasesSCR Supreme Court ReporterUOI Union Of Indiawww World wide Web2010 Act Civil Liabilities Nuclear Damage Act
MEMORIAL FOR THE RESPONDENT
L I S T O F C A S E S
1 Additional sec to the Govt of India amp Ors v Smt Alka Subhas Gadia Anr helliphelliphellip4
2 AIADMK v LKTripathi helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip20
3 Bacchan singh v State of Punjab helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8
4 Bank of India v Peerless general finance amp investment co ltd amp orshelliphelliphelliphelliphellip 11
5 CJ of Andhra Pradesh v LVADixitulu amp ors helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11
6 Deepak Bajaj v State of Maharashtra amp Anr helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
8 EP Royappa v St of Tamil Nadu amp orshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13
9 Gundaji Satwaji Shinde v Ramchandra Bhikaji helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
10 Hillier v Air Ministry helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21
11 Jitendra nath Biswas v Emperor amp Cyclone tea amp cohelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6
12 LMS International Ltd v Styrene Packaging and Insulation Ltdhelliphelliphelliphelliphelliphelliphelliphelliphellip22
13 Maneka Gandhi v UoIhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13
14 National telephone co v Baker Eastern helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21
15 South African telegraph company limited v Capetown tramways co ltdhelliphelliphelliphellip 21
16 Premier Automobile ltd v Kamlekar Shantaram Wadke of Brsquobay amp ors helliphelliphelliphellip 6
17 Quamarul Islam v SKKanya helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19
18 Rylands v Fletcher helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20
19 SAKhan v Bhajan lalhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19
20 Shri Panch Nagar Parakh Manaasur v Purghottam Das helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
21 State of Bombay v RMDChelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9
MEMORIAL FOR THE RESPONDENT
22 State of Madras v VGRow helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9
23 Union of India v Ranbaxy Laboratories ltd helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip10
L I S T O F W E B S I T E S
wwwmaupatracomwwwindiankanooncomwwwwikipediacomwwwssconlinecomwwwindialawcom
L I S T O F B O O K S A N D A R T I C L E S
1 IDSA Brief 2110 Ramachandran
2 ldquoTortsrdquo by Michael Jones 4th Edn
3 ldquoWinfield and Jolowicz on Tortrdquo 13th Edn
4 Rattanlal amp Dhirajlal ldquoThe Law of Tortsrdquo26th Edn
5 The Constitution Of India
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F J U R I S D I C T I O N
The Supreme Court of Renata has jurisdiction to try entertain and adjudicate the present
matter under the provisions of the Constitution Of Renata
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F F A C T S
1 Union of Renata is a developed state It is located in the Southern Asia The
Constitution establishes a republican form of government with Presidents as the head of the
state It is a commonwealth nation and guarantees to its citizenrsquos basic fundamental rights
including equality before law and protection of life and liberty
2 Renata facing extreme energy crisis was eyed as the best business centre for all the
corporate giants related to nuclear energy The Government of Renata while understanding
this part and with the intention of raising its revenues besides protecting the human rights of
its citizens passed the Civil Liabilities for Nuclear Damages Act 2010 The Preamble to the
Act laid down
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo
Retania is not a member of any international instrument regarding civil liability for
nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation
with the Golanod United on August 3 2007 which entered into force on January 1
2008 The Agreement provides for transfer of technology and nuclear fuel at
subsidised rates to be used for production of energy
MEMORIAL FOR THE RESPONDENT
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
T A B L E O F C O N T E N T S
T A B L E O F C O N T E N T S I I
I N D E X O F A U T H O R I T I E S I I I
S T A T E M E N T O F J U R I S D I C T I O N V I
S T A T E M E N T O F F A C T S V I I
S T A T E M E N T O F C H A R G E S I X
A R G U M E N T S A D V A N C E D 1
[A] THE SUPREME COURT OF RENATA CANNOT ENTERTAIN THIS PRESENT CASE
[B] THE CIVIL LIABILITIES NUCLEAR DAMAGES ACT 2010 IS VALID AND
CONSTITUTIONAL
[C] NO ABSOLUTE LIABILITY CAN ACCRUE ON THE GOVERNMENT OF RENATA AND SANTAGAR POWER CORPORATION
P R A Y E R 3 3
L I S T O F A B B R E V I A T I O N S
AIR All India ReporterCPC Code Of Civil ProcedureHONrsquoBLE HonorableSC Supreme CourtSCC Supreme Court CasesSCR Supreme Court ReporterUOI Union Of Indiawww World wide Web2010 Act Civil Liabilities Nuclear Damage Act
MEMORIAL FOR THE RESPONDENT
L I S T O F C A S E S
1 Additional sec to the Govt of India amp Ors v Smt Alka Subhas Gadia Anr helliphelliphellip4
2 AIADMK v LKTripathi helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip20
3 Bacchan singh v State of Punjab helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8
4 Bank of India v Peerless general finance amp investment co ltd amp orshelliphelliphelliphelliphellip 11
5 CJ of Andhra Pradesh v LVADixitulu amp ors helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11
6 Deepak Bajaj v State of Maharashtra amp Anr helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
8 EP Royappa v St of Tamil Nadu amp orshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13
9 Gundaji Satwaji Shinde v Ramchandra Bhikaji helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
10 Hillier v Air Ministry helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21
11 Jitendra nath Biswas v Emperor amp Cyclone tea amp cohelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6
12 LMS International Ltd v Styrene Packaging and Insulation Ltdhelliphelliphelliphelliphelliphelliphelliphelliphellip22
13 Maneka Gandhi v UoIhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13
14 National telephone co v Baker Eastern helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21
15 South African telegraph company limited v Capetown tramways co ltdhelliphelliphelliphellip 21
16 Premier Automobile ltd v Kamlekar Shantaram Wadke of Brsquobay amp ors helliphelliphelliphellip 6
17 Quamarul Islam v SKKanya helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19
18 Rylands v Fletcher helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20
19 SAKhan v Bhajan lalhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19
20 Shri Panch Nagar Parakh Manaasur v Purghottam Das helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
21 State of Bombay v RMDChelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9
MEMORIAL FOR THE RESPONDENT
22 State of Madras v VGRow helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9
23 Union of India v Ranbaxy Laboratories ltd helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip10
L I S T O F W E B S I T E S
wwwmaupatracomwwwindiankanooncomwwwwikipediacomwwwssconlinecomwwwindialawcom
L I S T O F B O O K S A N D A R T I C L E S
1 IDSA Brief 2110 Ramachandran
2 ldquoTortsrdquo by Michael Jones 4th Edn
3 ldquoWinfield and Jolowicz on Tortrdquo 13th Edn
4 Rattanlal amp Dhirajlal ldquoThe Law of Tortsrdquo26th Edn
5 The Constitution Of India
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F J U R I S D I C T I O N
The Supreme Court of Renata has jurisdiction to try entertain and adjudicate the present
matter under the provisions of the Constitution Of Renata
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F F A C T S
1 Union of Renata is a developed state It is located in the Southern Asia The
Constitution establishes a republican form of government with Presidents as the head of the
state It is a commonwealth nation and guarantees to its citizenrsquos basic fundamental rights
including equality before law and protection of life and liberty
2 Renata facing extreme energy crisis was eyed as the best business centre for all the
corporate giants related to nuclear energy The Government of Renata while understanding
this part and with the intention of raising its revenues besides protecting the human rights of
its citizens passed the Civil Liabilities for Nuclear Damages Act 2010 The Preamble to the
Act laid down
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo
Retania is not a member of any international instrument regarding civil liability for
nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation
with the Golanod United on August 3 2007 which entered into force on January 1
2008 The Agreement provides for transfer of technology and nuclear fuel at
subsidised rates to be used for production of energy
MEMORIAL FOR THE RESPONDENT
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
L I S T O F C A S E S
1 Additional sec to the Govt of India amp Ors v Smt Alka Subhas Gadia Anr helliphelliphellip4
2 AIADMK v LKTripathi helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip20
3 Bacchan singh v State of Punjab helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8
4 Bank of India v Peerless general finance amp investment co ltd amp orshelliphelliphelliphelliphellip 11
5 CJ of Andhra Pradesh v LVADixitulu amp ors helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11
6 Deepak Bajaj v State of Maharashtra amp Anr helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
8 EP Royappa v St of Tamil Nadu amp orshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13
9 Gundaji Satwaji Shinde v Ramchandra Bhikaji helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
10 Hillier v Air Ministry helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21
11 Jitendra nath Biswas v Emperor amp Cyclone tea amp cohelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6
12 LMS International Ltd v Styrene Packaging and Insulation Ltdhelliphelliphelliphelliphelliphelliphelliphelliphellip22
13 Maneka Gandhi v UoIhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13
14 National telephone co v Baker Eastern helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21
15 South African telegraph company limited v Capetown tramways co ltdhelliphelliphelliphellip 21
16 Premier Automobile ltd v Kamlekar Shantaram Wadke of Brsquobay amp ors helliphelliphelliphellip 6
17 Quamarul Islam v SKKanya helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19
18 Rylands v Fletcher helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20
19 SAKhan v Bhajan lalhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19
20 Shri Panch Nagar Parakh Manaasur v Purghottam Das helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 5
21 State of Bombay v RMDChelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9
MEMORIAL FOR THE RESPONDENT
22 State of Madras v VGRow helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9
23 Union of India v Ranbaxy Laboratories ltd helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip10
L I S T O F W E B S I T E S
wwwmaupatracomwwwindiankanooncomwwwwikipediacomwwwssconlinecomwwwindialawcom
L I S T O F B O O K S A N D A R T I C L E S
1 IDSA Brief 2110 Ramachandran
2 ldquoTortsrdquo by Michael Jones 4th Edn
3 ldquoWinfield and Jolowicz on Tortrdquo 13th Edn
4 Rattanlal amp Dhirajlal ldquoThe Law of Tortsrdquo26th Edn
5 The Constitution Of India
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F J U R I S D I C T I O N
The Supreme Court of Renata has jurisdiction to try entertain and adjudicate the present
matter under the provisions of the Constitution Of Renata
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F F A C T S
1 Union of Renata is a developed state It is located in the Southern Asia The
Constitution establishes a republican form of government with Presidents as the head of the
state It is a commonwealth nation and guarantees to its citizenrsquos basic fundamental rights
including equality before law and protection of life and liberty
2 Renata facing extreme energy crisis was eyed as the best business centre for all the
corporate giants related to nuclear energy The Government of Renata while understanding
this part and with the intention of raising its revenues besides protecting the human rights of
its citizens passed the Civil Liabilities for Nuclear Damages Act 2010 The Preamble to the
Act laid down
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo
Retania is not a member of any international instrument regarding civil liability for
nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation
with the Golanod United on August 3 2007 which entered into force on January 1
2008 The Agreement provides for transfer of technology and nuclear fuel at
subsidised rates to be used for production of energy
MEMORIAL FOR THE RESPONDENT
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
22 State of Madras v VGRow helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9
23 Union of India v Ranbaxy Laboratories ltd helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip10
L I S T O F W E B S I T E S
wwwmaupatracomwwwindiankanooncomwwwwikipediacomwwwssconlinecomwwwindialawcom
L I S T O F B O O K S A N D A R T I C L E S
1 IDSA Brief 2110 Ramachandran
2 ldquoTortsrdquo by Michael Jones 4th Edn
3 ldquoWinfield and Jolowicz on Tortrdquo 13th Edn
4 Rattanlal amp Dhirajlal ldquoThe Law of Tortsrdquo26th Edn
5 The Constitution Of India
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F J U R I S D I C T I O N
The Supreme Court of Renata has jurisdiction to try entertain and adjudicate the present
matter under the provisions of the Constitution Of Renata
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F F A C T S
1 Union of Renata is a developed state It is located in the Southern Asia The
Constitution establishes a republican form of government with Presidents as the head of the
state It is a commonwealth nation and guarantees to its citizenrsquos basic fundamental rights
including equality before law and protection of life and liberty
2 Renata facing extreme energy crisis was eyed as the best business centre for all the
corporate giants related to nuclear energy The Government of Renata while understanding
this part and with the intention of raising its revenues besides protecting the human rights of
its citizens passed the Civil Liabilities for Nuclear Damages Act 2010 The Preamble to the
Act laid down
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo
Retania is not a member of any international instrument regarding civil liability for
nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation
with the Golanod United on August 3 2007 which entered into force on January 1
2008 The Agreement provides for transfer of technology and nuclear fuel at
subsidised rates to be used for production of energy
MEMORIAL FOR THE RESPONDENT
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
S T A T E M E N T O F J U R I S D I C T I O N
The Supreme Court of Renata has jurisdiction to try entertain and adjudicate the present
matter under the provisions of the Constitution Of Renata
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F F A C T S
1 Union of Renata is a developed state It is located in the Southern Asia The
Constitution establishes a republican form of government with Presidents as the head of the
state It is a commonwealth nation and guarantees to its citizenrsquos basic fundamental rights
including equality before law and protection of life and liberty
2 Renata facing extreme energy crisis was eyed as the best business centre for all the
corporate giants related to nuclear energy The Government of Renata while understanding
this part and with the intention of raising its revenues besides protecting the human rights of
its citizens passed the Civil Liabilities for Nuclear Damages Act 2010 The Preamble to the
Act laid down
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo
Retania is not a member of any international instrument regarding civil liability for
nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation
with the Golanod United on August 3 2007 which entered into force on January 1
2008 The Agreement provides for transfer of technology and nuclear fuel at
subsidised rates to be used for production of energy
MEMORIAL FOR THE RESPONDENT
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
S T A T E M E N T O F F A C T S
1 Union of Renata is a developed state It is located in the Southern Asia The
Constitution establishes a republican form of government with Presidents as the head of the
state It is a commonwealth nation and guarantees to its citizenrsquos basic fundamental rights
including equality before law and protection of life and liberty
2 Renata facing extreme energy crisis was eyed as the best business centre for all the
corporate giants related to nuclear energy The Government of Renata while understanding
this part and with the intention of raising its revenues besides protecting the human rights of
its citizens passed the Civil Liabilities for Nuclear Damages Act 2010 The Preamble to the
Act laid down
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo
Retania is not a member of any international instrument regarding civil liability for
nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation
with the Golanod United on August 3 2007 which entered into force on January 1
2008 The Agreement provides for transfer of technology and nuclear fuel at
subsidised rates to be used for production of energy
MEMORIAL FOR THE RESPONDENT
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
3 On March 27 2017 at 0023 Hrs while testing the potential safety emergency core cooling
feature in a scheduled experiment during the normal shutdown procedure at the Santagar
Power Plant located at Santagar District in Eastern Province of Renata the nuclear reactor
suffered a catastrophic power increase leading to explosions in the core thereby dispersing
large quantities of radioactive fuel and core materials into the atmosphere igniting the
combustible graphite moderator leading to a nuclear meltdown Five neighbouring provinces
and some trans-boundary areas were also affected
4 The incident was brought to the notice of the Atomic Energy Regulatory Authority which
in a meeting held on April 4 2017 and after preliminary inquiry concluding that there was no
grave and imminent danger to life and property did not notify the incident
5 The Renatan Times leading newspaper reported that lsquofour hundred times more radioactive
material was released than had been by the atomic bombing of Hiroshima However
compared to the total amount released by nuclear weapons testing during the 1950s and
1960s the Santagar disaster released 100 to 1000 times less radioactivity Around 124
million people affected with damage to property amounting to $12 billionrsquo The matter was
of grave concern as per the reports but the reply by the authorities was found to be
completely disappointing When contacted by the Press the Director-General of the Santagar
MEMORIAL FOR THE RESPONDENT
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
Power Plant refused to comment on the incident A similar report on melt down was
published in Retanian Daily another leading newspaper
6 Sources in the Santagar Power Plant mentioned that the cooling feature imported from
Karnikav Inc of Golanod United had been replaced a month back Foul play on the part of
Karnikav was suspected which was later confirmed by the Director-Generalrsquos office It was
contended by Santagar Power Corporation that no liability could be accorded since the
cooling feature supplied by Karnikav which was the cause of the incident was faulty
7 The claims were estimated to be around $23 billion Several Writ Petitions were filed
against Santagar Power Corporation including Karnikav Inc by various NGOs in the High
Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over
this matter) inter alia challenging the validity of the Nuclear Damages Act 2010 mainly on
the grounds of its insufficiency to meet the liabilities in case of nuclear disaster Transfer
petition was filed in the Supreme Court by Anada an organisation working for the protection
and preservation of environment founded by Ms Riyalin Roundal a Retanian citizen
8 The Supreme Court issued notice to all concerned and listed the matter for hearing on
20082019
MEMORIAL FOR THE RESPONDENT
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
S T A T E M E N T O F I S S U E S
Part One Challenge to Jurisdiction
I The Supreme Court of Renata has no jurisdiction to hear the present claims
Part Two Challenge To Validity
II The 2010 Act is completely valid and constitutional in nature
Part Three Merits
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1No absolute liability on part of the Government
2 No Liability on Part of Santagar power Corporation
MEMORIAL FOR THE RESPONDENT
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
A R G U M E N T S A D V A N C E D
PART ONE OBJECTIONS TO JURISDICTION
The Supreme Court of Renata has no jurisdiction to hear the present claims
1 Union of Renata is a developed state It is a commonwealth nation and guarantees to its
citizens basic fundamental rights including equality before law and protection of life and
liberty Renata was facing ldquoextreme energy crisisrdquo1The Government of Renata while
understanding this part and with the intention of raising its revenues besides protecting the
human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act 20102 The
Preamble to the Civil Liabilities for Nuclear Damages Act 2010 (hereinafter ldquothe 2010 Actrdquo)
states as follows
ldquoAn Act to provide for civil liability for nuclear damage and prompt compensation to
the victims of a nuclear incident through a no fault liability regime channelling
liability to the operator appointment of Claims Commissioner establishing of
Nuclear Damage Claims Commission and for connected matters therewith or
incidental theretordquo3
1 Para 1 moot proposition
2 Para 1 moot proposition
3 Para 2 moot proposition
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
2 The 2010 Act itself purports to establish a concrete framework for disposal of cases
that relate to the subject-matter such as the one in the present case The competent
authority to entertain the claims such as those arising out of or incidental to nuclear
damages shall be dealt in accordance with the procedure established by law The
correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself
has approved the same
3 It is humbly submitted before the Honrsquoble Supreme Court that it is clear from the
preamble of impugned Act the claims commission has the competent jurisdiction in
the present case as per the procedure in accordance with law laid down by the
legislature ldquo appointment of Claims Commissioner establishing of Nuclear
Damage Claims Commission and for connected matters therewith or incidental
theretordquo Under this provision the matter should have been raised before the Claims
Commission rather than directly approaching the Supreme Court The Supreme court
although is the apex court its doors cannot be knocked before exhausting other
available alternatives remedies established by law
4 In this case as per Para6 of the Moot Problem ldquo The claims were estimated to be
around $23 billionrdquo The claims are basically for compensation and are conceived as
monetary claims having determinate amounts Thus more than being a patent breach
of Fundamental Rights the present case deals with compensation arising out of Torts
Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the
Supreme Court in garb of the violation of Fundamental Rights will only frustrate the
very purpose of the 2010 Act
MEMORIAL FOR THE RESPONDENT
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
5 The 2010 Act provides the apt procedure to settle such kind of a matter through a
Claims Commission Merely because an alternative remedy in the form of
approaching the Supreme Court exists it does not mean that the appropriate course
need not be followed Even MC Mehta vs UOI4 States that
ldquoIt is only in exceptional cases of the nature indicated by us above that compensation
may be awarded in a petition under Article 32rdquo
In India the Courts of law have laid down in a number of cases that the power under
Article 32 should be sparingly used Article 32 Of The Indian Constitution provides
for
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs
including writs in the nature of habeas corpus mandamus prohibition quo warranto
and certiorari whichever may be appropriate for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ) Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
4 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
ldquoThe powers under Articles 226 and 32 are wide and are untrammeled by any
external restrictions and can reach any executive order resulting in civil or criminal
consequences However the Courts(India) have over the years evolved certain self-
restraints for exercising these powers They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of
the said powers rdquo5
ldquoIt is in pursuance of this self-evolved judicial policy and in conformity with the self-
imposed internal restrictions that the Courts insist that the aggrieved person first
allow the due operation discretionary extraordinary and equitable jurisdiction under
Articles 226 and 32 respectively and implementation of the concerned law and
exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their That jurisdiction by its very nature is to be used sparingly and
in circumstances where no other efficacious remedy is available rdquo 6
6 Similarly in the present case the appellants should have first exhausted the available
remedy before invoking the writ jurisdiction of the Supreme Court of Renata
Therefore it is humbly submitted that the writ petition holds no merit should not be
entertained by the Supreme Court of Renata in the present case
7 A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code
1908 of India (India being a commonwealth country like Renata) That Section only
recognizes the principle that a Court has the jurisdiction to try all the suits of a civil
nature unless the Court is impliedly or expressly barred from doing so For instance
5 Additional Secretary to the Government Of India and OthrsvSmt Alka Shubhas Gadia Anr 1990 SCR Supl (3) 583 1992 SCC Supl (1) 496
6 Deepak Bajaj v State of Maharashtra amp Anr 12 2008
MEMORIAL FOR THE RESPONDENT
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
where the jurisdiction to try suits relating to agricultural land were specifically meant
to be tried by the competent authority under the Tenancy Act of 1948 the Civil Court
was expressly barred from trying such a suit7 Similarly in cases where the subject-
matter is Electricity Income Tax Central Administration etc there have been
separate Tribunals which have been established by various Legislations and it is only
those Tribunals that are competent to try the suits of a civil nature dealing with a
subject-matter such as theft of Electricity Income Tax Evasion Indian Administrative
Services etc respectively
8 In a more recent case of Shri Panch Nagar Parakh Manaasur v Purshottam Das the
Supreme Court (India) examined the issue of implied bar of the Civil Court under
section 9 of the CPC in the matter where remedy was provided in a special statute
and it observed
However in cases where there is no express provision excluding jurisdiction of
the Civil Court it would be necessary to enquire and determine whether it is
impliedly barred For this purpose the scheme of the Act and the relevant provisions
are required to be examined to find out whether the statute provides rights and remedy
and where the scheme of the Act is such that the procedure provided therein will be
conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in
respect thereof8
9 ldquoThe enforcement of a right or an obligation under the Act the remedy provided uno
flatu in it is the exclusive remedy The legislature in its wisdom did not think it fit and
7 Dhondi Tukaram Mali v Dadoo Piraji Adgale AIR 1954 Bom 100 Gundaji Satwaji Shinde v Ramchandra Bhikaji Joshi [AIR 1979 SC 653]
8 AIR 1999 SC 3071 JT 1999 (6) SC 155 1999 (5) SCALE 87
MEMORIAL FOR THE RESPONDENT
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
proper to provide a very easy and smooth remedy for enforcement of the rights and
obligations created under the Act Persons wishing the enjoyment of such rights and
wanting its enforcement must rest content to secure the remedy provided by the Act
In India under s 9 CPC courts have subject to certain restrictions jurisdiction to
try suits of civil nature excepting suits of which their cognizance is either expressly or
impliedly barred If a suit in relation to an industrial dispute relates to the enforcement
of a right created under the Act by necessary intendment the jurisdiction of the civil
court is barred That being so in India it is barred for all purposes and a suit for in-rdquo9
10 ldquoA five-Judges Bench of this Court (Supreme Court of India) considered the language
of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was
observed Where there is no express exclusion the examination of the remedies and
the scheme of the particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and
liability shall be deter- mined by the tribunals so constituted and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or
not10
11 In the present case the preamble clearly states that the Nuclear Damage Claims
Commission will be set up which will deal with connected matters therewith or
incidental thereto Thus the act itself provides the procedure and remedy and it was
9 Premier Automobile LtdvsKamlekar Shantaram Wadke Of Bombay amp Ors 1975 AIR 2238 1976 SCR (1) 427
10 Jitendra Nath Biswas v Emperor and Cyclone Tea and Co amp Athr 1990 AIR 255 1989 SCR (3) 640
MEMORIAL FOR THE RESPONDENT
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
not open to the appellant to approach the civil court for getting the relief which he
could get only under the scheme of the Act
12 Hence it is humbly submitted before this Honrsquoble Court that even though the
Supreme Court is the ultimate guardian of Fundamental Rights of any citizen still it
does not mean that the procedure established by law will be compromised in a callous
manner Hence it is only the Nuclear Claims Commission which is competent to hear
the present case The Supreme Court cannot be approached before exhausting the
available remedy provided for in the 2010 Act
MEMORIAL FOR THE RESPONDENT
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
PART TWO VALIDITY OF THE 2010 ACT
II The 2010 Act is completely valid and constitutional in nature
1 It is not disputed that if any enactment violates the Fundamental Rights as being
arbitrary unjust unreasonable or irrational in nature then such enactment is clearly
invalid11 However that is not the case with the 2010 Act in the present matter As per
Para 2 of the Moot Problem the Government of Renata has fully considered three
things before enacting the 2010 Act ie (a) trying to find a solution to the extreme
energy crisis in Renata (b) raising the Revenue of the State and (c) protecting the
Human Rights of its citizens It cannot be patently said that the Government has
arbitrarily formulated such a policy as the 2010 Act without even considering the
various practicalities associated with the Act As MC Mehta12 (supra) puts it
ldquoThe infringement of the fundamental right must be gross and patent that is
incontrovertible and ex facie glaring and either such infringement should be on a
large scale affecting the fundamental rights of a large number of persons or it
should appear unjust or unduly harsh or oppressive on account of their poverty or
disability or socially or economically disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action in the civil
courtsrdquo
11 Bachan Singh vs State of Punjab [(1982) 3 SCC 24 at p56]
12 AIR 1987 SC 1089
MEMORIAL FOR THE RESPONDENT
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
2 The 2010 Act purports to establish a ldquono fault liability regimerdquo and provides ldquofor civil
liability for nuclear damagerdquo There is nothing which is patently wrong or ulterior
about the 2010 Act The basic Fundamental Rights such as equality before law and
protection of life and liberty have by no means been abridged or curtailed by the very
inception of the 2010 Act It has been laid down in State of Bombay vs RMDC13
that
ldquowhen the validity of an Act is called in question the first thing for the court to do is
to examine whether the Act is a law with respect to a topic assigned to the particular
Legislature which enacted it If it is then the court is next to consider whether in the
case of an Act passed by the Legislature of a Province (now a State) its operation
extends beyond the boundaries of the Province or the State for under the provisions
conferring legislative powers on it such Legislature can only make a law for its
territories or any part thereof and its laws cannot in the absence of a territorial
nexus have any extra-territorial operation If the impugned law satisfies both these
tests then finally the court has to ascertain if there is anything in any other part of the
Constitution which places any fetter on the legislative powers of such Legislature The
impugned law has to pass all these three testsrdquo
3 The first two tests can be assumed to have been fully satisfied in the present matter as
neither is it the case of Petitioner that they have not nor are the facts of the Problem
suggesting anything contrary to that assumption The final test which remains is
arguable since it is contended by the Petitioners that the 2010 Act is in contravention
of the Fundamental Rights guaranteed by the Constitution of Renata
13 AIR 1957 SC 699
MEMORIAL FOR THE RESPONDENT
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
4 Such an argument is tenuous and fragile because merely engaging in an activity such
as one related to production of Nuclear Energy is not violative of the Fundamental
Right to life and liberty of the Renatian citizens Every Country has a right to meet its
energy requirements through various possible channels and the Treaty which Renata
has entered into with Golanod United vide Para7 of the Moot Problem is only for
the development of Renatian Nuclear Energy Industry Such an inherent power of the
State to create profit-making agencies for earning Revenue and bettering the standards
of living of its citizens is a common practice and nothing can curtail or take away that
power from the State This power is not violative of any rights of citizensA distinctly
supportive message emerged from the leaders of the seven leading economic
countries and the Russian Federation at the Nuclear Safety and Security Summit held
in Moscow during April 1996 It declares
We are ready to co-operate among ourselves so that the use of nuclear energy is
conducted all over the world consistently with fundamental principles of nuclear
safety Further we are committed to measures which will enable nuclear power
already a significant contributor to electricity supply in those countries choosing to
exploit it to continue in the next century to play an important role in meeting future
energy demands consistent with the goal of sustainable development agreed at the Rio
Conference
MEMORIAL FOR THE RESPONDENT
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
5 In Union of India v Ranbaxy Laboratories Ltd14 the Supreme Court of India
observed that all statutes have to be considered in light of the object and purport of the
Act In Reserve Bank of India v Peerless General Finance and Investment Co Ltd
and Ors15 this Court held that
Interpretation [of statutory provisions] must depend on the text and the context They
are the bases of interpretation One may well say if the text is the texture context is
what gives the colour Neither can be ignored Both are important That
interpretation is best which makes the textual interpretation match the contextual A
statute is best interpreted when we know why it was enacted With this knowledge the
statute must be read first as a whole and then section by section clause by clause
phrase by phrase and word by word If a statute is looked at in the context of its
enactment with the glasses of the statute-maker provided by such context its scheme
the sections clauses phrases and words may take colour and appear different than
when the statute is looked at without the glasseshelliprdquo
6 In Chief Justice of Andhra Pradesh and Others v L V A Dixitulu and Others16 a
Constitutional Bench of this Court observed
The primary principle of interpretation is that a constitutional or statutory provision
should be construed according to the intent of they that made it (Code) Normally
such intent is gathered from the language of the provision If the language of the
14 (2008) 7 SCC 502
15 (1987) 1 SCC 424
16 (1979) 2 SCC 34
MEMORIAL FOR THE RESPONDENT
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
phraseology employed by the legislation is precise and plain and thus by itself
proclaims the legislative intent in unequivocal terms the same must be given effect
to regardless of the consequences that may follow But if the words used in the
provision are imprecise protean or evocative or can reasonably bear meaning more
than one the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent In such a case in order to ascertain the true meaning of
the terms and phrases employed it is legitimate for the court to go beyond the arid
literal confines of the provision and to call in aid other well-recognised rules of
construction such as its legislative history the basic scheme and framework of the
statute as a whole each portion throwing light on the resthellip
7 With reference to the above mentioned case laws it can also be gathered that the Act
does not infringe the basic fundamental rights of life and liberty The Act should be
construed according to the intent of the legislature which is to provide for a prompt
compensation The legislature very well specifies the procedure for claiming
compensation by providing for the appointment of Claims Commissioner and
establishing the Nuclear Damages Claims Commission The act by laying down the
Commission provides for the mode of relief in the form of accessibility of special
courts The intent behind barring the jurisdiction of civil courts to try such claims was
to provide for prompt compensation
8 Thus there is nothing to suggest patently that the 2010 Act per se is unconstitutional
or invalid
9 Act must be examined on the touchstone of the fundamental rights on the basis of the
test laid down by this Court in State of Madras v VG Row17 There at page 607 of
the report this Court has reiterated that in considering the reasonableness of the law
17 1952 CrLJ 966
MEMORIAL FOR THE RESPONDENT
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
imposing restrictions on the fundamental rights both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point
of view of reasonableness And the test of reasonableness wherever prescribed
should be applied to each individual Statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as applicable to all cases The
nature of the right alleged to have been infringed the underlying purpose of the
restrictions imposed the extent and urgency of the evil sought to be remedied thereby
the disproportion of the imposition the prevailing conditions at the time should all
enter into the judicial verdict (The emphasis supplied) Chief Justice Patanjali Sastri
reiterated that in evaluating such elusive factors and forming their own conception of
what is reasonable in the circumstances of a given case it is inevitable that the social
philosophy and the scale of values of the judges participating in the decision would
play an important role
In the present case there is nothing in the act to suggest that it is not reasonable or jus thus
the contention of invalidity cannot be sustained
MEMORIAL FOR THE RESPONDENT
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
PART THREE MERITS
III There is no absolute liability on part of the Respondents for the damage caused in
the present case
1 No absolute liability on part of the Government
a It is most humbly submitted before this Honrsquoble court that the Government of Renata
cannot be held liable in the present case The preamble of the 2010 Act creates a lsquono
fault liability regimersquo under which the civil liability for nuclear damage will be
ldquochannelledrdquo to the operator Thus the liability under the act has clearly been
channelled to the operator and therefore the claims against the government cannot be
maintained The legislature laid down this law whereby it channelled the liability to
he operator was done keeping in mind the fact that otherwise the compensation if
demanded from the government would be paid out of the citizenrsquos own pocket the tax
money would come back to the citizens in form of compensation The whole point of
channelling the liability was to make sure that the ldquocorporate giantsrdquo which eyed
Renata ldquoas the best business centrerdquo for its extreme energy crisis can be made liable
directly to pay to the citizen
b The internationally evolved and accepted basic principles of liability in case of a
nuclear accident requiring compensation against damage caused including to the
environment are1818 Civil Nuclear Liability Bill IDSA Brief by Ramachandran 2010 page4
MEMORIAL FOR THE RESPONDENT
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
1048723 Strict liability of the operator of a nuclear installation which relieves the victim from
burden of proof
1048723 Legal channelling of liability exclusively to the operator regardless of the accidentrsquos
cause ndash lsquoabsolute liabilityrsquo ndash except for acts of armed conflict hostilities or insurrection
1048723 Mandatory financial coverage of the operatorrsquos liability through insurance coverage
or any other means of financial security and
1048723 Exclusive jurisdiction to the courts of the State where the nuclear accident occurs
The strict and absolute liability of the operator is in fact in keeping with the lsquoPolluter
Paysrsquo principle of international norms of environmental law This exclusive liability of the
operator has been criticized on the grounds that it frees the supplier of nuclear equipment of
any liability whatsoever even if the incident had arisen because of defective equipment or
design flaw in the reactor system19
c At the international level there are four instruments for nuclear liability that share
these common principles the OECDrsquos Paris Convention of 1960 (entered into force in
1968) which was strengthened by the Brussels Supplementary Convention (BSC) in
1963 the IAEArsquos Vienna Convention of 1963 (entered into force in 1977) and the yet
to come into force Convention on Supplementary Compensation To enable a
common geographical scope for the two Conventions they were linked in 1988 by a
Joint Protocol Towards striking a balance between operatorrsquos liability and promoting
investment in nuclear power the operatorrsquos liability is generally limited However to
bridge the compensation gap beyond the operator limit the conventions envisage a
three-tier liability structure operator liability installation state liability and liability 19 The Civil Labilities Nuclear Bill IDSA Brief Issue 2010(page 4)
MEMORIAL FOR THE RESPONDENT
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
of contracting parties to the convention (Channelled through a contributory
international fund) In principle however depending upon the convention adhered to
or an appropriate national legislation operatorrsquos liability may be kept limited or
unlimited20
d Renata is not a party to any of the nuclear liability conventions mentioned above
Renata has a domestic legislation in the form of the 2010 Act which is in line with the
international conventions The 2010 Act channels the liability on to the operator
therefore the compensation in cases of nuclear accidents cannot be claimed from the
government the operator is liable to pay compensation Thus the contention that the
government liable cannot be sustained
e More so the law laid down in MC Mehta v UOI21 ldquoIf the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its profits the law must
presume that such permission is conditional on the enterprise absorbing the cost of
any accident arising on account of such hazardous or inherently dangerous activity as
an appropriate item of its overheads Such hazardous or inherently dangerous activity
for private profit can be tolerated only on condition that the enterprise engaged in
such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity
regardless of whether it is carried on carefully or notrdquo
f The above Act passed by the legislature attempts to do the same by establishing the
ldquono fault liability regimerdquo and channelling it to the operator To ensure that when a 20 IDSA BRIEF Ramachadran (page 4)2010
21 AIR 1987 SC 1086
MEMORIAL FOR THE RESPONDENT
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
corporate giant engages itself in the hazardous activity it can be held liable to pay in
cases of an accident
g It is a humby submitted before this Honrsquoble Court that when MC Mehta (supra)
case was decided there was no Legislature governing the matter brought before the
court but in the present case the legislature has passed the Act thus in the absence of
any concrete law perhaps the Indian Supreme Court rightly took over the job of laying
down the law in MC Mehta case rather than interpreting it However the Renatian
Supreme Court is not as helpless as the Indian Supreme Court was back then and all it
has to do is to interpret the 2010 Act Once the liability for Nuclear Damages is
ldquochannelledrdquo to the Operator of the Nuclear Plant it means that the liability has been
ldquoshiftedrdquo to the Operator and it is now the Operator and no one else who is to be held
liable for anything which may happen adversely due to the working of the Nuclear
Plant
h The only role of the Government is to import the technology and nuclear fuel at
subsidized rates from Karnikav Inc of Golanod United for the production of energy
as per Paragraphs 5 and 7 of the Moot Problem Thus if at all there arises any
liability then it should be that of the ldquooperatorrdquo and not the government of Renata
The facts are silent as to whether the Director General of the Santagar Power Plant
was a Government officer or if the Government was controlling the operation of the
Power Plant
i Moreover the plaintiff is demanding compensation without any exact statistics or data
or an authority supporting their claim It is very well mentioned in the facts of the
MEMORIAL FOR THE RESPONDENT
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
case that the Atomic Energy Regulatory Authority did not notify the incident and
cited the lack of any grave and imminent danger to life and property as the reason
Now it is to be seen that the Atomic Energy Regulatory Authority is the authentic
board to notify nuclear incident or a newspaper report
j The civil liability for Nuclear Damage Act2010 passed in October 2010 in India
lays down the similar preamble as Union of Renata in its act In that particular act
clause (3) specify Atomic Energy Regulatory authority to notify any nuclear incident
if it is satisfied about the gravity of the nuclear incident In the present case the
incident was reported to the Authorityon preliminary investigation they found it not
to be of any grave and imminent danger and did not notified the incident This
establishes that the news paper reports were overhyped and no grave damage has
been caused as commented by Atomic Energy Regulatory Authority
k More so the petitioner has claimed compensation and the basis of their claim is the
report published in newspaper as per para 4 of the damage to moot problem which
said that around 124 million people affected with damage to property amounting to
$12 billion However the credibility of such reports is itself not as accurate as they
do not have any evidentiary value
l In Quamarul Islam V S K Kanya22where in an election petition it was necessary to
prove the speech delivered by the winning candidate the supreme court did not allow
22 AIR 1994 SC 1733
MEMORIAL FOR THE RESPONDENT
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
it be proved only by producing the newspaper on account of the speech Supreme
Court(India) in SA Khan V Bhajan Lal23 held that facts contained in the newspaper
report would have to be proved Even where a person against whom an item of news
appears in the press has not denied it it would not constitute evidence against him
Further in All India Anna Dravida Munnetra Kazhagam V LKTripathi24 Supreme
court(India) held evidence produced in the form of newspaper and tapes not to be
relevant
m Likewise in the present case it is well established that the newspapers have blown the
whole event out of proportion and even the claims which have arisen after such
reports are merely of a determinate monetary value seeking compensation rather than
anything else Thus in the present matter the Government of Renata cannot be held
liable the compensation if any is to be paid by the operator
2 No Absolute Liability On Part Of Santagar
a It is most humbly presented before this Honble court that the Santagar power
corporation which is the operator in the present case cannot be held liable in this case
and the compensation to be claimed if any has to be against the supplier as it was due
to the faulty cooling feature that the accident happened The preamble to the Civil
liabilities Act2010 clearly mentions the provision for a ldquono fault liability rdquo channelled
to the operator This principle was laid down in RYLANDS V FLETCHER
23 AIR 199U3 SC 1348
24 AIR 2009 SC 1314
MEMORIAL FOR THE RESPONDENT
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
b The rule of strict liability laid down by Blackburn J in Rylands v Fletcher 25
The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that
their activities generate and (ii) it operates as a loss distribution mechanism the
person who does such hazardous activity (usually a corporation) being in the best
position to spread the loss via insurance and higher prices for its products26
c Thus in cases where the principle of strict liability applies the defendant has to pay
damages for injury caused to the plaintiff even though the defendant may not have
been at any fault
d The rule in Rylands v Fletcher (supra) was subsequently interpreted to cover a variety
of things likely to do mischief on escape irrespective of whether they were dangerous
per se eg water electricity explosions oil noxious fumes colliery spoil poisonous
vegetation a flagpole etc 27vide National Telephone Co v Baker28 Eastern and
e South African Telegraph Co Ltd v Cape Town Tramways Co Ltd29 Hillier v Air
Ministry30 etc
25 1868 [LR 3 HL 330]
26 Torts by Michael Jones 4th edition(p 267)
27 Winfield and jolowicg on ldquotortrdquo 13th edition p 425
28 (1893) 2 CH 186
29 (1902) AC 381
30 (1962) CLY 2084
MEMORIAL FOR THE RESPONDENT
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
f In other common law jurisdictions such as Canada Ireland and New Zealand cases
based on the rule in Rylands v Fletcher continue to come before the courts The
general approach has been to follow the lead given by the English courts
in Cambridge Water 31 Consequently the cases have been decided under the narrow
rule only There have been two successful claims in Canada in recent years32 whilst
others have foundered on the traditional rocks which beset Rylands v
Fletcher litigation33
g Clearly a niche has been found for the narrow rule in the common law world Even in
England a recent case34 shows that it is possible for a claimant to succeed on the basis
of Rylands v Fletcher
h In the United States however the wide rule has had more success As Fleming notes
lsquoafter an at first cool reception strict liability is now generally applied to ldquoabnormally
dangerousrdquo activities that is those with inherent risks that cannot be eliminated by
the exercise of reasonable carersquo35 Strict liability is consistent with the lsquopolluter paysrsquo
principle in the environmental arena Therefore it cannot be contended that the Civil
Liabilities Nuclear Damages Act 2010 is inadequate and insufficient to meet the
liabilities arising in such cases
31 Van Gerven Lever and Larouche Cases Materials and Text on National Supranational and International Tort Law (Hart Publishing 2000) at 204-5
32 Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont Sup CJ LEXIS 1034 (Canada) Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand) and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland)
33 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court
34 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries 35 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC)
MEMORIAL FOR THE RESPONDENT
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
i Apart from the above some other exceptions carved out to the rule in Rylands v
Fletcher (supra) are (a) consent of the plaintiff (b) common benefit (c) Act of
stranger (d) Act of God (e) Statutory authority (f) default of plaintiff36 As the 2010
Act establishes a ldquono faultrdquo liability regime whereby the exceptions can be said to be
applicable In the present case the accident happened due the faulty cooling feature
supplied by Karinkav Inc therefore In this case Santagar Power Corporation cannot
be held absolutely liable for it and the compensation if any has to be paid by the
supplier
i More so at international level the operators liability is never absolute and unlimited
ldquoright to recourserdquo 37 is common to all international conventions and national laws These
provision provide for making the supplier legally liable in cases of accidents resulting due
to a wilful act or gross negligence on part of the suppliers Therefore in the present case
where the accident happened due to the suppliers faulty cooling feature Santagar cannot
be held absolutely liable
III Compensation has been claimed without any quantification of damages
It is humbly submitted before this honrsquoble court that the plaintiff has sought damages from
the court without any reasonable authority The preamble clearly lays down the provision of a
claims commission from which compensation in case of a nuclear accident can be sought
Moreover it has already been submitted that newspaper reports are not the competent
36 Winfield and Jolowicz on Tort 13th Edn
37 Civil Liabilities Act IDSA Issue Brief 2010
MEMORIAL FOR THE RESPONDENT
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
authority In an article written by Nathalie LJT Horbach and Patrick Blanchard in an
international business law journal38it is mentioned that it is for the applicable substantive law
to determine the precise damage concept and delineation and thus also whether certain types
of environmental damage might be compensable under the headings as provided by the
relevant conventions
Hence liability if any arises is to be determined through the competent authority and is to be
based on to what the substantive laws provides The civil liabilities act as passed by the union
of Renata provides for such a provision Compensation can only be claimed after notification
of the incident if it seems appropriate by the Atomic energy regulatory authority and proper
quantification of damages has been done by the appropriate authority as per the substantive
laws laid down by Union of Renata
PRAYER FOR RELIEF
In light of the foregoing submissions and the reasoning made therein it is most humbly
prayed before this Honrsquoble Court
1 That the Honrsquoble Court need not entertain this Petition due to lack of jurisdiction and
38 Nuclear Civil Liability For International Transport New Queries And Proposal
MEMORIAL FOR THE RESPONDENT
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-
2 That the 2010 Nuclear Damages Act is constitutional and valid and
3 That there accrues no absolute liability to any of the Respondents in the present case
and or
4 That it may pass any other Order which it deems fit and just in the light and
circumstances of the present case
AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IN DUTY BOUND
SHALL EVER PRAY
Dated March 26 2011
(Counsel for the Respondent)
AMC 215(A)
MEMORIAL FOR THE RESPONDENT
- 1868 [LR 3 HL 330]
- Torts by Michael Jones 4th edition(p 267)
- Table of Contents
- list of Cases
- list of websites
- list of books and Articles
- STATEMENT OF JURISDICTION
- Part One Challenge to Jurisdiction
- I The Supreme Court of Renata has no jurisdiction to hear the present claims
- Part Two Challenge To Validity
- II The 2010 Act is completely valid and constitutional in nature
- Part Three Merits
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- Arguments Advanced
- PART ONE OBJECTIONS TO JURISDICTION
- The Supreme Court of Renata has no jurisdiction to hear the present claims
- PART TWO VALIDITY OF THE 2010 ACT
- II The 2010 Act is completely valid and constitutional in nature
- PART THREE MERITS
- III There is no absolute liability on part of the Respondents for the damage caused in the present case
- 1 No absolute liability on part of the Government
- 2 No Absolute Liability On Part Of Santagar
- PRAYER FOR RELIEF
- Dated March 26 2011
-