NEW DELHI: Supreme Court has said constitutional courts must be careful in exercising judicial review of laws so as not to create an anti-investment atmosphere and should weigh national interest against hypothetical fears about legislation.A bench of CJI Surya Kant and Justice Joymalya Bagchi made these oral observations on Friday during preliminary hearing on a PIL by E A S Sarma, whose counsel Prashant Bhushan faulted the liability fastened on private players operating nuclear power plants under the Sustainable Harnessing and Advancing of Nuclear Energy for Transforming India (SHANTI) Act passed by Parliament in Dec. Bhushan said the private players’ liability is capped at 3,000 crore even though a nuclear plant accident could cause damage running into lakhs of crores of rupees and cited the Chernobyl and Fukushima nuclear disasters. The govt has allowed private players in the nuclear sector but absolves them of strict civil liability clauses, he said, adding that the govt’s liability is also capped at 4,500 crore.CJI Kant said, “There must be an atmosphere in the country where investors feel encouraged to invest.” Regulations must sync with other countries, says SC CJI Kant said, “Today, coal-based power plants are not encouraged. We cannot do without nuclear energy. So, there must be a balance in the approach – national interest vs hypothetical fears.” “We should not create an atmosphere where people will fear to invest in India because courts here interfere in everything. The litigation drags on and the projects become unviable despite huge investments.”Justice Bagchi said, “These are policy decisions – what should be our energy basket. Whether the policy suffers bias or is unconstitutional could be determined on scrutiny.”“Show us the regulatory framework on civil liability in countries like the USA, Europe and Japan. When electricity is traded across borders, the regulatory framework in India must be compatible with those in other countries,” he said.Senior advocate Kapil Sibal attempted to interject in support of Bhushan, but the bench stopped him saying “let Bhushan assist us.” The bench asked Bhushan to give details of the regulatory framework on civil nuclear liability regimes in other countries and adjourned the hearing to next month.
