Introduction
Recently, India enacted the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India (SHANTI) Act, 2025, fundamentally altering the nation’s nuclear patent landscape. For over 50 years, Section 4 of the Patents Act, 1970 acted as a barrier, prohibiting patents for any invention “relating to atomic energy”. The SHANTI Act replaces this absolute prohibition with a conditional permission framework, allowing for private innovation in nuclear technology.
However, beneath this change lies ambiguity. Section 38 of the SHANTI Act, which now governs the patentability of nuclear inventions alongside the amended Section 4 of the Patents Act, introduces discretionary standards that lack definitional clarity, procedural specificity, and judicial safeguards. This article observes that these ambiguities risk transforming the anticipated “nuclear patent revolution” into a regime of uncertainty that may stifle the very innovation it seeks to promote.
The Paradigm Shift: From Certain Exclusion to Uncertain Inclusion
The pre-SHANTI regime operated with extreme clarity. Section 4 of the Patents Act, mandated that no patent could be granted for inventions useful for or related to atomic energy. The Department of Atomic Energy (DAE) served as the sole arbiter, and its determination led to automatic refusals. While restrictive, this system offered predictability; inventors knew that applications related to nuclear energy would almost always fail.
The SHANTI Act changes this framework. The amended Section 4 now reads, “The patents may be granted for inventions relating to nuclear energy subject to the provisions of this Act and section 38 of the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act, 2025”. This substitution of “may” for “shall not” represents more than just a semantic reform; it indicates a policy move toward inclusion.
However, this shift introduces a significant structural flaw, the Patent Office and inventors must now navigate Section 38 of the SHANTI Act, a provision that gives extraordinary discretion to the Central Government without establishing clear boundaries or review mechanisms.
Section 38(1): Ambiguity Creates Uncertainty
Section 38(1) of the SHANTI Act states that the Central Government “may grant patents for inventions which in its opinion are for the peaceful uses of nuclear energy and radiation”. This language creates multiple layers of ambiguity that create legal uncertainty.
First, the phrase “in its opinion” allows for subjective, non-reviewable discretion. Unlike patent examination, which follows codified criteria of novelty, inventive step, and industrial applicability, the “peaceful uses” determination rests entirely on executive assessment. The Act provides no objective parameters, no evidentiary standards, and no requirement for reasoned decisions.
Second, “peaceful uses” remains undefined. While the term appears in the context of the Nuclear Non-Proliferation Treaty, its statutory meaning in Indian law remains undefined. Does a medical isotope production method qualify? What about a reactor component usable in both power generation and naval propulsion? The absence of definitions or illustrative examples forces inventors to speculate about whether their inventions serve “peaceful” purposes.
Third, the relationship between Section 38(1)’s permissive language and its provisos create interpretive confusion. The provision states that patents may be granted for peaceful uses, “Provided that the inventions relating to activities specified in sub-section (5) of section 3, or which in the opinion of the Central Government, are sensitive in nature or having national security implications, shall not be patentable”. This structure suggests that even seemingly “peaceful” inventions could theoretically be denied if deemed “sensitive.”
The “Sensitive” Invention Conundrum
The most concerning ambiguity resides in the concept of “sensitive” inventions. Section 38(1) denies patents to inventions “which in the opinion of the Central Government, are sensitive in nature or having national security implications”. This formulation poses several problems for patent professionals and innovators.
The SHANTI Act does not define “sensitive.” No technological parameters, performance thresholds, or application-based tests appear in the statute. Unlike export control regimes that list specific technologies, materials, and capabilities, Section 38 gives the executive a broad discretion. An invention could be deemed sensitive based on its underlying physics, its performance characteristics, its potential dual-use applications, or even the identity of the applicant.
The sensitivity assessment occurs “in the opinion of the Central Government,” suggesting a non-technical determination. The Act does not establish an expert body, nor any consultation requirements with scientific institutions, nor any obligation to publish sensitivity criteria or precedents. This lack of transparency creates what legal scholars call “rule by announcement,” where standards emerge only through arbitrary decisions.
When the Controller of Patents suspects an application involves nuclear energy, Section 38(3) requires referral to the Central Government. However, the Act does not specify timelines for government response, interim protection for applicants, or requirement for hearings or evidence submission. An applicant could face indefinite limbo while the government formulates its “opinion.”
The consequences of a sensitivity determination are significant. Section 38(1) declares that sensitive inventions “shall be deemed to have been made or conceived by the Central Government”. This appropriation occurs without compensation, without negotiation, and seemingly without recourse. The Act does not specify whether the government takes full title or merely a license, what rights the original inventor retains, or whether trade secret protection survives.
Procedural Uncertainties and Due Process Deficits
The SHANTI Act’s procedural setup amplifies its substantive ambiguities. Section 38(5) imposes a pre-disclosure duty requiring anyone who “has reason to believe” an invention relates to nuclear energy to inform the Central Government before disclosure to any third party. This provision raises several concerns.
The phrase “has reason to believe” sets a low threshold. Researchers or scientists in materials science, instrumentation, or computational modelling may not realize their work implicates nuclear energy until after disclosure. The absence of safe harbour provisions or good-faith exemptions creates liability risks.
The Act does not specify a format for such disclosures, acknowledgment process, or a grace period. Inventors cannot know whether their duty is satisfied by a brief description or whether detailed technical specifications are required.
When the Patent Controller refers an application under Section 38(3), the Act provides no framework for the examination interface between the Patent Office and DAE. Who bears the burden of proof on sensitivity? Can applicants amend claims to avoid sensitive subject matter? What happens to pending applications during the referral? These questions remain unanswered.
The Reserved Core vs. The Ambiguous Perimeter
Section 3(5) of the SHANTI Act establishes a government monopoly, reserving activities like enrichment, reprocessing, spent fuel management, and heavy water production exclusively for government entities. This clarity is welcome; inventors know these areas are off-limits for patenting.
The problem arises at the periphery. The SHANTI Act gives the Central Government power to “notify further facilities or activities as reserved in the future”. This ability to expand, combined with the undefined “sensitive” category, creates a shifting goalpost that private innovators cannot reliably locate. An invention that appears patentable today could fall into a newly reserved category tomorrow, rendering patent rights precarious.
Moreover, the relationship between the reserved core and sensitivity exclusions remains unclear. If an invention touches on a reserved activity but innovates in a peripheral area, does it automatically become sensitive? Or does sensitivity apply only to non-reserved activities that raise security concerns? The Act’s silence on this interplay creates a twilight zone of patentability.
Conclusion: Ambiguity as Policy Choice
The SHANTI Act represents a significant move toward harnessing private innovation for India’s nuclear future. However, its reliance on undefined discretionary standards transforms Section 38 into a vessel for uncertainty rather than a beacon of clarity. The Act’s ambiguities create a regime where inventors cannot predict outcomes, cannot challenge decisions, and cannot protect their investments.
The SHANTI Act’s provisions pertaining to the Patent Act, 1970 demonstrate that legislative revolution without regulatory precision serves neither security nor innovation.
Authored by: Mr. Shubhang Shukla and Ms. Richa Pushpam
Mr. Shubhang Shukla is an advocate and an IP attorney practicing in Delhi and a graduate with a specialization in Intellectual Property Rights. His professional experience spans IP prosecution and litigation, alongside roles in alternative dispute resolution, legal drafting, and published scholarship in both IPR and arbitration law. He has contributed to platforms such as SCC Online, Bar & Bench, The Arbitration Digest, and the Centre for Alternative Dispute Resolution at NLU Delhi.
Ms. Richa Pushpam is an Advocate practising before the Delhi High Court and District Courts in New Delhi, with a strong interest in Intellectual Property and Technology laws. She previously worked as an Associate at ALG India Law Offices LLP, where she handled a broad spectrum of contentious matters, including IP prosecution, oppositions, rectifications, litigation, enforcement, and strategic advisory work.
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