The SHANTI Act and the Absolute Liability Doctrine: Reconciling India’s Nuclear Renaissance with the Constitutional Mandate of Article 21

As the Supreme Court of India prepares to convene on April 2, 2026, to deliberate upon the constitutional validity of the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act, 2025—colloquially and perhaps optimistically christened the SHANTI Act—the Republic stands at a precipice where the imperatives of existential energy security collide with the non-negotiable sanctity of the Right to Life. This is not merely a statutory challenge; it is a profound constitutional reckoning. In the forty-two years since the methyl isocyanate leak in Bhopal transformed the city into a graveyard of industrial negligence, the Indian judiciary has painstakingly constructed a fortress of "Absolute Liability." Now, through the SHANTI Act, the legislature seeks to dismantle the battlements of that fortress in the name of a 100 GW nuclear renaissance. The question before the bench of Chief Justice Surya Kant and Justice Joymalya Bagchi in E.A.S. Sarma v. Union of India is whether the "Shanti" promised by this law is a sustainable peace or a legislative surrender to catastrophic risk.

To understand the intellectual weight of this moment, one must first concede the sheer exhaustion of the prior legal regime. The Atomic Energy Act of 1962, a relic of Nehruvian statism, had become a sclerotic barrier to India’s carbon-neutral obligations under the Paris Agreement. With a mere 8.18 GW of installed capacity and a state monopoly in the form of NPCIL that has proved unable to scale at the velocity required for a "Viksit Bharat," the government’s move to liberalize the sector is not merely a policy preference but a constitutional fulfillment of the Directive Principles under Article 47 and 48A. The shift toward private and foreign capital is the pragmatic price of survival in an era of climate volatility. However, the legal architecture of this transition—specifically the repeal of the Civil Liability for Nuclear Damage Act (CLNDA) of 2010—betrays a worrying amnesia regarding the judicial evolution of Article 21.

The central artery of this dispute lies in Section 16 of the SHANTI Act, which effectively erases the statutory right of recourse against nuclear suppliers for latent defects in equipment. In the wake of the 1984 Bhopal tragedy, the Supreme Court in M.C. Mehta v. Union of India (Shriram Oleum Gas) articulated a doctrine that remains a global outlier in its rigor: the doctrine of Absolute Liability. Justice P.N. Bhagwati’s logic was crystalline—an enterprise engaged in an inherently dangerous activity owes a non-delegable and absolute duty to the community. This duty cannot be mitigated by proof of due care, nor can it be limited by the technical complexities of supply chains. The CLNDA’s Section 17(b) was the legislative manifestation of this doctrine, ensuring that if a "latent defect" in a supplier's reactor pump caused a core meltdown, the operator—and by extension the victims—could hold the manufacturer accountable. By relegating supplier liability to the realm of private contract or proving "intentional harm," Section 16 of the SHANTI Act creates a vacuum of accountability. It treats a nuclear catastrophe as a private commercial risk rather than a public constitutional crisis.

From the perspective of a constitutional scholar, this is an unacceptable retreat from the "Precautionary Principle." If the law removes the statutory sting of liability from the supplier, it incentivizes a dilution of safety standards at the very moment India invites foreign vendors like EDF and Westinghouse into its densely populated hinterlands. The government’s defense—that this alignment with the Convention on Supplementary Compensation (CSC) is necessary to unlock fifteen years of stalled projects like Jaitapur—is a classic utilitarian argument. Yet, our constitutional jurisprudence, from Maneka Gandhi to K.S. Puttaswamy, has consistently held that administrative or economic efficiency cannot override the substantive protections of the Right to Life. A reactor built on the ashes of supplier accountability is a reactor built on a constitutional fault line.

Furthermore, the SHANTI Act’s treatment of the Atomic Energy Regulatory Board (AERB) presents what I would term an "Independence Paradox." For decades, the AERB existed as an administrative fiction—an executive body that reported to the very Atomic Energy Commission it was meant to regulate. Section 17 of the SHANTI Act finally grants the AERB statutory status, a move that is intellectually commendable and long overdue. However, the constitutional devil resides in the appointment mechanism under Section 17(4). By allowing the promoter of nuclear energy to recommend the composition of its own regulator, the Act violates the fundamental principle of Nemo judex in causa sua—no one should be a judge in their own cause. This structural conflict of interest is an affront to the "Separation of Powers" doctrine. For a nuclear regulator to be effective in the age of private participation, it must not only be statutory but functionally insulated from the executive's promotional zeal. As it stands, the SHANTI Act provides the AERB with a skeletal legal framework but denies it the marrow of true independence.

The third pressure point is the systematic erasure of transparency under Section 39. Since the landmark ruling in Union of India v. Association for Democratic Reforms, the "Right to Know" has been recognized as an integral facet of Article 19(1)(a). In the specific context of nuclear energy, transparency is not a luxury; it is a safety mechanism. Local communities residing within the 16-kilometer Emergency Planning Zones of plants in Kaiga or Kudankulam have a fundamental right to access safety audits and emergency preparedness data. The SHANTI Act, however, empowers the Central Government to declare vast swaths of information as "restricted," without a public interest override or a robust appellate mechanism. This blanket opacity, reminiscent of the 1962 Act’s "Official Secrets" mindset, is incompatible with the digital democracy of 2026. Security is often the shroud under which negligence hides, and by shielding nuclear operations from the scrutiny of the Right to Information Act, the SHANTI Act risks transforming public safety into a state secret.

We must also confront the "Ghost of Bhopal" that haunts Section 13’s liability cap. The Act sets a unified compensation ceiling at approximately Rs 3,900 crore (300 million SDRs). To put this in perspective, the remediation costs of Fukushima exceeded $200 billion. The Bhopal settlement of $470 million—which this cap mirrors—was decried as a "grotesque inadequacy" by generations of legal scholars and continues to be litigated forty years later. While the government argues that a cap is a prerequisite for insurance and international investment, the doctrine of proportionality requires that the cap be commensurate with the potentiality of the harm. When a state licenses an activity with "catastrophic and irreversible" potential, a liability cap that covers less than one percent of the probable damage is not a limitation of liability; it is an unconstitutional expropriation of the victims' right to remedy.

However, a purely adversarial critique would do a disservice to the legislative ambition behind the SHANTI Act. The Act’s creation of a four-tier dispute resolution architecture, utilizing an augmented APTEL with nuclear-specialist technical members, is a sophisticated evolution in our energy law. It recognizes that nuclear disputes are not mere "points of law" but "points of physics." This technical adjudicatory layer, if implemented with integrity, could provide a faster pathway to justice than the generalist civil courts of the past. Moreover, the decision to retain state control over the strategic "back-end" of the fuel cycle while privatizing the "front-end" of generation demonstrates a calibrated approach to national security.

As the Supreme Court takes up the mantle on April 2, its task is not to act as a third chamber of Parliament and strike down the Act in its entirety. The energy transition is too urgent for such a blunt instrument. Instead, the Court must exercise "Constitutional Surgery." It must read down Section 16 to ensure that the statutory right of recourse against suppliers is preserved for cases of gross negligence or latent equipment failure, thereby upholding the M.C. Mehta legacy. It must direct a restructuring of the AERB appointment committee to include judicial or independent oversight, ensuring the regulator is not a mere handmaiden to the Department of Atomic Energy. It must restore the public interest override to the transparency provisions of Section 39, ensuring that "national security" does not become a euphemism for "safety concealment."

Ultimately, the SHANTI Act is a testament to a nation’s hunger for growth, but it must not be allowed to become a monument to its hubris. The Sanskrit root of "Shanti" implies a balance of forces. In the constitutional sense, that balance is struck between the state’s power to innovate and the citizen’s right to exist in safety. The ghost of Bhopal is not a specter to be feared, but a teacher to be heard. Its lesson is simple: when the law forgets the victim in favor of the vendor, it ceases to be an instrument of justice and becomes a precursor to tragedy. As the Court deliberates, it must ensure that India's nuclear renaissance is illuminated not by the flash of an accident, but by the steady, transparent, and accountable glow of a truly constitutional peace. The eyes of history—and the families of Bhopal still seeking clean water in 2026—are watching.