The Supreme Court on Tuesday (May 19, 2026) appeared wary about rocking the boat on a new nuclear law which caps liability at less than ₹4,000 crore even as the petitioner, a retired bureaucrat, reminded the court of its own 40-year-old judgment that held that the “larger and more prosperous” an enterprise carrying on a hazardous activity is, the greater must be the compensation for causing a mishap which may affect thousands of lives.

“Name a single country which does not fulfill its energy needs through nuclear plants?” Chief Justice of India Surya Kant, heading a three-judge Bench asked petitioner, E.A.S Sarma, a retired IAS officer.

Mr. Sarma, represented by advocates Prashant Bhushan and Neha Rathi, has challenged the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India (SHANTI) Act of 2025, primarily on the ground that it allowed private sector and foreign corporations to operate nuclear power plants in India and has further capped the liability of these operators at an “absurdly low level and exempted the supplier from any liability”.

Mr. Bhushan added that Japan and Germany had dismantled their nuclear plants.

But the Bench adopted a cautionary note about examining the legality of the Act, terming it a “sensitive legislative policy issue”. The court said it was within the powers of the government to work a policy which would aid development and national economy.

Mr. Bhushan submitted that Article 21 (right to life) cannot be sacrificed on the altar of policy.

Justice Joymalya Bagchi queried whether the petition was challenging the very act of foreign corporations setting up nuclear power plants in India or if it was limited to the quantum of financial liability post a nuclear accident.

Mr. Bhushan argued that both were interconnected, the compensation threshold had been lowered to minimise liability in order to attract foreign private investors in the nuclear sector. The cost of setting up a nuclear power plant was “40 times” more than establishing a solar facility. Mr. Bhushan said setting apart 6% of India’s wastelands for solar power would more than suffice for the country’s power needs.

He said that the Supreme Court’s 1986 judgment in the Oleum gas leak case had made a strong statement against cutting corners on liability to attract investments through hazardous industry .

Forty years ao, the apex court had extended the ambit of Article 12 of the Constitution to include private corporations engaged in dangerous and hazardous activity under the definition of ‘state’ for the purpose of enforcing fundamental rights, particularly Article 21, in case of accidents.

“A nuclear plant is definitely a dangerous and hazardous activity. The court said the liability of a corporation involved would be strict and absolute,” Mr Bhushan said.

The five-judge Constitution Bench in the Oleum gas leak case had said the expansion of Article 12 to include private corporations engaged in dangerous activity was not to deliver a death blow to investments in India, but to inject and advance respect for human rights and social conscience in the corporate structure.

“The apprehension that including within the ambit of Article 12, and thus subjecting to the discipline of Article 21, those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to the policy of encouraging and permitting private entrepreneurial activity is not well-founded,” the Constitution Bench had observed.

The 1986 judgment had made it amply clear that an “enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute non-delegable duty to the community”.

Chief Justice Kant listed the case in the second week of July even as Mr. Bhushan urged the court to issue formal notice to the government. “At least we can have their response,” he said.

The CJI assured that “all the apprehensions” raised in the petition about the SHANTI Act would be cleared.