LEADER ARTICLE: Don't Be Afraid Of Mr Hyde

The CPM general secretary has delivered an ultimatum to the UPA government to choose between going ahead with the nuclear deal or staying in office. Though the Left has talked about withdrawing support if the government went ahead, thereby reducing it to a minority, there is no indication they have thought through the consequences. They appear to be playing a game of brinkmanship and expect the government to blink first. It is obvious that the Left's objective was not so much to torpedo the deal itself but to allow the government to proceed with the deal and then humiliate it both domestically and internationally. If the government is to yield to the Left's blackmail at this stage, it will lose all credibility. In that event, the Congress will be ridiculed by its opponents in the coming elections, which is only a few months away. If the Left could allow the government to proceed with negotiations with the IAEA to save its face, why are they now trying to rub the Congress's face in the dirt? They could have objected to the deal in 2006 and withdrawn support. The fact they did not do it then shows that their target is not the deal itself but the ruling coalition. Let us look at the objections that have so far been advanced against the nuclear deal. US assistant secretary of state Richard Boucher has clarified beyond all doubt that the Hyde Act was a domestic legislation of the US, the main function of which is to allow the kind of cooperation in the civil nuclear field with India envisaged under the nuclear agreement between the two countries. While the Hyde Act binds the US government, it has nothing to do with India. India is bound only by its agreement with the US. There are some perceived contradictions between the Hyde Act and the provisions of the nuclear agreement according to opponents of the deal. They focus attention on those provisions and refer to the statements of US secretary of state Condoleezza Rice that Washington will support nothing in the Nuclear Suppliers Group (NSG) that is in contradiction to the Hyde Act. However, there are clear rulings by the US Supreme Court that according to Article VI of the American constitution, treaties made by the US will be the supreme law of the land. The nuclear agreement will be approved by the US Congress after its clearance by the NSG. Since that would happen later than the earlier Hyde Act, the legal position will be that the nuclear deal constitutes the last word of the US Congress, superseding what had been said in the Hyde Act. The Hyde Act itself has three major sections: a section on the sense of the Congress, one on the statement of policy and a third on waiver authority, Congressional approval and other incidental matters. The first two sections are not binding on the administration and are essentially meant to placate the non-proliferation lobby. The crucial bit is Section 104 on the waiver which authorises the US president to enter into civil nuclear cooperation with India prescribing certain conditions. Besides this, the section also deals with certain restrictions on nuclear transfers to India. What India needs at present is this waiver which would then enable NSG to agree to their waiver on the ban on nuclear trade and cooperation by the international community with India. Once this waiver is finalised and the US Congress approves the nuclear agreement, that will be irrevocable. Then India will be able to deal with Russia, France and other countries on nuclear technology and materials import. Section 106 of the Hyde Act deals with this nuclear exemption coming to an end if India detonates a nuclear device. The nuclear agreement says there will be consultation between the two parties whether the circumstances leading to the termination of the agreement resulted from a serious concern about a changed security environment or as a response to similar actions by other states which could impact on its national security. This provision ensures that if India were to conduct a nuclear test, the nuclear cooperation won't be terminated automatically, but there will be consultation between New Delhi and Washington. At this stage, India's attention should be on getting the nuclear deal passed by the US Congress after the clearance of the IAEA safeguards agreement and the NSG waiver. Once the nuclear agreement passes the US Congress, the Hyde Act provisions contradictory to the deal need not bother India. Those provisions may cause some worry when we are to negotiate contracts for US reactors. That will be another day and at that time India can press for amendments to those provisions of the Hyde Act which govern equipment supply if the US wants Indian business. At the moment, it would be extremely imprudent to miss the opportunity to get the waiver from the ban on nuclear cooperation imposed by the US Atomic Energy Act, 1954 through congressional approval of the nuclear agreement. The Hyde Act controversy is a red herring put forward by those who had always opposed India's civil and strategic nuclear programmes. The writer is a strategic affairs analyst.
8 Mar 2008, 0200 hrs IST , K SUBRAHMANYAM