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The truth must be told
Arvind Lavakare
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November 12, 2007

By postponing its November 16 meeting with the Left Front on the nuclear deal with the US, the UPA (read the Congress) has only delayed the Judgement Day. For, by all accounts, that meeting was to centre almost exclusively on America's Hyde Act which was believed to be the last stumbling block for the Communists to give either the green signal or the red flag for the pact which has been having a roller-coaster ride till now.

External Affairs Minister Pranab Mukherjee must be lauded for being the first in the UPA to be honest about the 123 Agreement. In a front-page interview to The Indian Express of August 22, 2007, Mukherjee had confessed to the newspaper that while he himself 'feels' the Hyde Act has no relevance (to our 123 Agreement) the Left did not agree and had therefore asked for an assessment of the implications of the Hyde Act. No self-righteousness there, no contempt for the adversary as had been dished out till then by the PM and his 'mindless sheep.'

Mukherjee's acceptance of different perceptions justified the Left's proposal that, before we go further on the nuclear deal, there should be a mechanism that would inform the nation as to whether the Hyde Act so constrains us as to make us rethink on the deal's promised energy benefits. Strangely, the Congress Party was slow in responding positively to the Left's request.

Strangely, too, our Left's opposition to the 123 Agreement has been widely criticised in our media as no more than its anti-US imperialism ideology and a device to please its alleged big brother in Beijing [Images], rather than as a genuine concern for preserving India's sovereignty over nuclear and foreign policy matters.

But the Left was not indulging in fantasy. In his report in The Times of India (August 19, 2007), the newspaper's Washington correspondent clubbed the sequence of events slated for September this year -- the massive Malabar '07 military exercise involving submarines and US as well as Indian aircraft carriers, the meeting thereafter of the 45-member Nuclear Suppliers' Group to consider, and possibly approve, the 123 deal under US pressure followed by a final vote on the deal by US Congress --  and said 'the sequence lends credence to those who have argued that the US-Indo nuclear deal is more about an emerging US-led security alliance than about nuclear energy.'

The same and more categorical view had come months before the 123 Agreement was inked. It came from Belfast-based Dr David Morrisson, 65, who has written extensively in the last 30-odd years on world politics.

In an article posted on his website in January this year, he wrote, 'Understandably, India is very keen to get the international rules changed so that it has access to the world market in nuclear goods in order to develop its nuclear power programme. The US has agreed to facilitate India, in a transparent attempt to draw it into the US sphere of influence as a counterweight to China.'

On some specific constraints of USA's Hyde Act on the India-US nuclear deal, Dr Morrisson wrote, 'Under the 2006 Act, Congress retains considerable control over nuclear exports to India. Thus, Section 104(e) requires that a 123 Agreement made by the President with India has to be approved by a joint resolution of the two Houses of Congress (unlike Agreements with other states). Section 104(f) allows Congress to terminate an Agreement by a joint resolution of the two Houses of Congress. By Section 106, an Agreement will automatically terminate if India explodes a nuclear device.'

The above view is reiterated by Arun Kumar, North America editor of IANS. In his piece datelined Washington, August 24, 2007, he writes, 'Section 106 of the Hyde Act does state that, 'any waiver under Section 104 shall cease to be effective if the President determines that India has detonated a nuclear explosive device' after the enactment of the Hyde Act.'

Arun Shourie, more of a journalist and author of scholarly books and less of a politician, wrote in The Indian Express of August 16, 2007, 'It (the 123 Agreement) explicitly states in Article 2 that 'Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes.'

In the case of the US, the relevant national laws' include the original Atomic Energy Act of 1954, the Nonproliferation Treaty Act, and the Hyde Act of December 2006. To take just one example, the very Section 123 of the 1954 Act -- under which the 123 Agreement is entered -- states 'should any nuclear device be detonated for any reason whatsoever, not only shall all nuclear commerce be halted with the country, the US shall have the right to demand the return of any nuclear materials and equipment transferred pursuant' to the agreement for cooperation as well as any special nuclear material produced through the use thereof if the cooperating party detonates a nuclear explosive device.' This provision is re-emphasised in the Hyde Act, Section 106.

Strategic experts Brahma Chellaney and Bharat Karnad, our eminent nuclear scientists Dr Iyengar, Dr Prasad and Dr Gopalakrishnan, have echoed the same view. (If two other prominent nuclear scientists, Dr Kakodkar and Dr Chidambaram are 'satisfied' with the present deal, let it be remembered that, unlike the three others, they are still tied to Delhi's apron strings.)

Even Nick Burns, the US Assistant Secretary of State, is on record that a further nuclear test by India could kill the running deal. A Rediff report last month cited him as saying that the deal addressed the concerns of sceptics in the US Congress who want the agreement to state that the civilian nuclear cooperation will end if India ever conducts a nuclear test.

'We have a clear obligation under the Atomic Energy Act to react if a country like India conducts a nuclear test. This president and any future president will always have that right under our law,' he said. 'It would be up to the American president at the time, but we have been very clear with the Indians that we do not want them to conduct another nuclear test and there is no indication that they have plans to do that any time soon,' he said.

But then came the googly from Kapil Sibal, the UPA's minister for science and technology as well as a Supreme Court counsel. As reported in the Sunday edition of The Indian Express of August 26, 2007, Sibal quoted Article 6 of the US Constitution to the newspaper and cited the supremacy clause therein stipulating that 'all treaties made under the authority of US shall be supreme law of the land and judges shall be bound by them anything in the Constitution and laws notwithstanding.'

Accordingly, argued Sibal, the obligation of the US under the 123 Agreement is 'regarded as supreme law of the land and (will) override all other laws including the Hyde Act.' He said once the 123 Agreement is approved by the US Congress, the Agreement would have a 'life of its own and would not be secondary to provisions of the Atomic Energy Act and the Hyde Act.' He said, 'The 123 Agreement is the last expression of the sovereign will and must control all the other previous expressions.'

Sibal's googly is a 'no-ball' as well as a 'wide ball' though he himself, obstinate as usual, won't admit it.

Firstly, Article 6 of the US Constitution as attributed to him by the journalist concerned is selective and a devious twist of the reality. See for the authentic version of the relevant clause. It states, 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'

The annotation to this Supremacy Clause of Article 6 given by the Cornell University of Law makes its interpretation very clear. It says, 'When Congress legislates pursuant to its delegated powers, conflicting state law and policy must yield.'

Further, Sibal wants us to ignore that Article 2 of the 123 Agreement, as it now stands, requires that the Agreement is to be implemented in respect of its national laws. Thus, the present 123 Agreement is not the last sovereign will of the American nation, as Sibal wants us to believe, but only a continuation of its previous laws and treaties. The present 123 Agreement does not have a life of its own but depends on the oxygen provided by earlier enactments as well. (And, apart from the Hyde Act, the 123 Agreement itself has some disturbing implications for India. The details are in the insightful article by Rajiv Sikri.)

Why is the UPA so obstinately hiding the Hyde effect? After Pokhran 1998, there were doubts about its yields and the success of the fusion device, underlining the need for further testing. Has the UPA decided that, Hyde Act or not, there's no risk at all of a US ban on our further nuclear testing simply because we are just not going to do another test for the 40 years of the Agreement's life? Has it decided to let our nuclear weapons programme become atrophied? Has it also decided to be, as VP Singh fears, a vassal of the USA? We, the people of India, need to be told the truth... now.

Arvind Lavakare
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