The Hindu Business Line : The HYDE ACT — Misreading or misleading?

It may be a good idea for the Government to obtain an authentic interpretation of the questionable provisions of the Hyde Act from the Supreme Court, or an independent legal consultancy firm in countries such as the UK or Canada whose system of jurisprudence is similar to India’s.

B. S. Raghavan

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The Government is fully entitled to hold the view that its agreement with the US for full civil nuclear energy co-operation (commonly known as the 123 Agreement as it is pursuant to Section 123 of the US Atomic Energy Act of 1954) is essential to ensuring energy security and, therefore, in the nation’s interest.

It is free to seek to mobilise support for the deal by adopting all means of persuasion available to it in a democracy, both within and outside Parliament. But when it steps out of these legitimate bounds and resorts to specious pleas in order to browbeat opposition, it is time to cry halt and alert public opinion.

Puzzling

It is puzzling why and how a worldly-wise person like the External Affairs Minister, Mr Pranab Mukherjee, in his anxiety to justify the deal at all costs, allows himself to put forward, and keep on repeating, arguments, and that too on the floor of Parliament, that are disingenuous, at the very least.

The pith of his contention, once again reiterated in Parliament on March 3, is that the “Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006” (to give the full name of the umbrella Act governing all transactions falling within the scope of civilian nuclear energy co-operation) is only an enabling legislation between the executive and the legislative organs of the US Government and that India’s rights and obligations with the US arise only from the 123 Agreement.

Before taking up the exact wording of the Act, let us see what one of the highest functionaries, the US Secretary of State, Ms Condoleezza Rice, told the US Congress some time ago as the authoritative stand of the US Administration: “We will support nothing with India in the NSG (Nuclear Suppliers Group) that is in contradiction to the Hyde Act. It will have to be completely consistent with the obligations of the Hyde Act… or I don’t believe we can count on Congress to take the next step.”

It does not require a profound knowledge of the intricacies of the law to grasp the point that if a country’s legislation calls upon the country’s government to conform to certain mandatory stipulations in respect of an agreement entered into with another country, it is futile to pretend that their ramifications, for good or evil, will not affect the third country.

Any failure or omission of the US Administration, in the case of nuclear agreement with India, to comply with the Hyde Act provisions will be fraught with grave consequences such as censure, or even impeachment, of the President.

Hyde Act prescriptions

The Hyde Act prescribes that before any deal as per section 123 of the US Atomic Energy Act for nuclear cooperation with India (which is not a party to the Nuclear Non-Proliferation Treaty) can be operative, the President must submit to the US Congress for its approval a report affirming in categorical terms, along with supporting documentation, that the following actions have occurred:

(1) India has provided the United States and the IAEA with a credible plan to separate civil and military nuclear facilities, materials, and programmes, and has filed a declaration regarding its civil facilities and materials with the IAEA;

(2) India and the IAEA have concluded all legal steps for the application of IAEA safeguards in perpetuity in accordance with IAEA standards, principles, and practices to India’s civil nuclear facilities, materials, and programmes as declared in the plan, including materials used in or produced through the use of India’s civil nuclear facilities;

(3) India and the IAEA have concluded an Additional Protocol consistent with IAEA principles, practices, and policies that would apply to India’s civil nuclear programme;

(4) India is working actively with the United States for the early conclusion of a multilateral treaty on the cessation of the production of fissile materials for use in nuclear weapons or other nuclear explosive devices;

(5) India is working with and supporting the United States and international efforts to prevent the spread of enrichment and reprocessing technology to any state that does not already possess full-scale, functioning enrichment or reprocessing plants;

(6) India is taking the necessary steps to secure nuclear and other sensitive materials and technology, including through:

(a) the enactment and effective enforcement of comprehensive export control legislation and regulations;

(b) harmonisation of its export control laws, regulations, policies, and practices with the guidelines and practices of the Missile Technology Control Regime (MTCR) and the NSG; and

(7) The NSG has decided by consensus to permit supply to India of nuclear items covered by the guidelines of the NSG.

Annual reports to US Congress

The US President is also mandated to furnish to the US Congress a description of the steps taken to ensure that the proposed US civil nuclear cooperation with India will not in any way assist India’s nuclear weapons programme and to secure India’s full and active participation in US efforts to dissuade, isolate, and, if necessary, sanction and contain, Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel, and the means to deliver weapons of mass destruction.

The Act also requires the US President to submit annually to the US Congress reports containing an analysis as to whether imported uranium has affected the rate of production in India of nuclear explosive devices.

It should, additionally, provide an estimate of the amount of uranium mined and milled in India during the previous year, the amount used or allocated for the production of nuclear explosive devices and the rate of production in India of fissile material for nuclear explosive devices.

Also required to be submitted is an analysis of whether US civil nuclear cooperation with India is in any way assisting India’s nuclear weapons programme through the use of any US equipment, technology, or nuclear material by India in an un-safeguarded nuclear facility or nuclear-weapons related complex or in any other manner.

Each one of these provisions is intrusive in character violative of its sovereignty.

They will subject India to constant pestering for data and information and visits of inspection teams from the US to make sure that the conditions imposed by the US Congress through the Hyde Act are duly complied with by India in the day-to-day implementation of the agreement.

Nuclear test barred

The Prime Minister and the External Affairs Minister have also been telling the nation and Parliament that there is no bar to India conducting a nuclear test in the future.

This flies in the face of one of the most unambiguously worded provisions (Section 106) of the Hyde Act that all commitments and concessions that may be agreed upon as part of the civilian nuclear cooperation “shall cease to be effective if the President determines that India has detonated a nuclear explosive device...”

There should be absolutely no doubt in any quarters that once India conducts a test at any time in the future, the Hyde Act will simply put a stop to all further implementation of the Agreement, and if the US Administration ignores the categorical injunction, it will fall foul of the Congress and the law.

In short, in the event of a test, the Agreement will stand automatically terminated with no need for notice or consultations.

In view of the position explained above, it may be a good idea for the Government to obtain an authentic interpretation of the questionable provisions of the Hyde Act from the Supreme Court, or an independent legal consultancy firm in countries such as the United Kingdom or Canada, where the system of jurisprudence is similar to that in India.

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