Not Much Frisson

Placid Rodriguez Former Director, IGCAR:
Each clause is an affront to the self-respect and sovereignty of India. The entire Act is premised on the supposition that India’s foreign policy is ‘congruent’ to that of the US.

A.N. Prasad Former Director, BARC:
It’s clear the US intends to stretch the tentacles of non-proliferation over every aspect of our nuclear activity, whether strategic or civilian. They will also get access to our people...this will lead to attrition.

P.K. Iyengar Former Chairman, Atomic Energy Commission:
There is enough leverage in the Act for the Americans to start that business (vilification campaigns) again. Every DAE employee is in danger of being targeted...for some silly reason.

M.R. IyerEx-IAEA Inspector in North Korea: 
The US is not committed to the CTBT, but the Act commits India not to test! This Act is more an Indo-US non-proliferation initiative rather than an energy cooperation initiative.

***

But even before the euphoria could subside, critics of the deal began to voice grave reservations. Leading them was a group of atomic scientists renowned for their pioneering work and, consequently, considered to be in the know on the intricacies of India’s N-programme. They claim the Henry Hyde Act does not guarantee energy security in the manner the prime minister has led the nation to believe; that it would ultimately only serve to constrict India’s strategic weapons programme. So, is the nuclear deal really a boon for India? Or will it come back to haunt the country in the future?

Scientists say there is distinct unease in the Department of Atomic Energy (DAE) over the Act. The DAE itself has chosen to maintain a studied silence, speaking out only once through its secretary, Anil Kakodkar, who expressed surprise over Section 109 of the Act. This section provides for an agreement between American scientists and their Indian counterparts to implement non-proliferation cooperative programmes. Kakodkar’s comment was telling, "We do not want to get into any joint activity that will become intrusive on our programme."

Government sources say they have communicated concerns over Section 109 to the US, and accept the many pitfalls inherent in the Act. Publicly, though, the government has decided to wait till India and the US sign the 123 Agreement that will lay out the contours of cooperation between the two countries and spell out respective commitments and obligations. For those fresh to the issue, the Hyde Act, to be signed into law by US President George W. Bush next week, merely provides waiver to his administration to strike an agreement (123) for nuclear commerce with India, besides laying out broad markers for it. Though binding on the US administration, it legally doesn’t/can’t lay any obligations on India. Only, the provisions of the 123 Agreement will tether India.

Scientists here are also worried about other intrusive provisions of the Act. For instance, the explanatory note attached to the Act requires the US president to keep appropriate Congress committees "fully and currently informed of the facts and implications of any significant nuclear activities in India".

This reporting requirement encompasses information pertaining to construction of any new nuclear facility in India, significant changes in the production of nuclear weapons, types and amounts of fissile material produced, changes in the purpose or operational status of any unsafeguarded nuclear plant, estimate of uranium mined and milled in a year, the amount of such uranium that has likely been used or allocated for the production of nuclear explosive devices, along with an estimate of the electricity civil reactors produce in a year. In addition, there must be an analysis of whether imported uranium affected the rate of production of explosive devices.

Though the clauses in the explanatory note are of a non-binding nature, their importance cannot be overstated. Even the prime minister conceded in Parliament, "The non-binding provisions do not require mandatory action, but at the same time, have a certain weight in the implementation of the legislation as a whole." The moot point to ponder here: can the US administration flout Congress diktats and sentiments to ignore provisions of the Act that India considers inimical?

M.R. Iyer, who has worked as an IAEA inspector in North Korea, has no such illusions. He told Outlook, "It would be more appropriate to call the Act an Indo-US non-proliferation initiative rather than an energy cooperation initiative." Placid Rodriguez, a former director of the Indira Gandhi Centre for Atomic Research (IGCAR), Kalpakkam, is even sharper in his criticism: "I find each clause of the Act an affront to the self-respect and sovereignty of India. The entire Act is premised on the supposition that India’s foreign policy is ‘congruent’ to that of the US. There are two clear motives: bind India to as many nuclear non-proliferation conditionalities as possible, and second, cap India’s strategic nuclear capability. No self-respecting nation can yield to the Act."

By contrast, the Act explicitly denies India access to reprocessing technologies, which, scientists insist, is critical to the success of the fast breeder programme that will guarantee India virtually unlimited electric power at the commercial stage. Though India does possess its own reprocessing technology, the Act is worryingly silent whether the nuclear fuel imported from the US can be reprocessed after it has been used (called spent fuel). Kakodkar has gone on record saying, "We consider reprocessing an extremely important part of full civil nuclear cooperation.... A situation where the spent fuel simply accumulates without any proper disposal option being available is not acceptable." This point was reiterated by Rodriguez, "The right to reprocess any nuclear fuel that we may buy, with or without a reactor, should be guaranteed. Any deal without this right is not worth it."

The Hyde Act, though, has introduced an element of uncertainty. As Section 103 (10) states, "Any power reactor fuel reserve provided to the Government of India should be commensurate with reasonable reactor operating requirements. (Emphasis Outlook’s)." Further, the explanatory notes say US officials have testified that the US "does not intend to help India build a stockpile for nuclear fuel for the purpose of riding out any sanctions that might be imposed in response to Indian actions such as conducting another nuclear test". This, ostensibly, undercuts strategic reserve requirements that India has been pushing for.

Says A. Gopalakrishnan, ex-chairman, Atomic Energy Regulatory Board, "How can you get energy security if the US is going to sanction fuel for the reactors for only, say, two years at a time? One basic definition of energy security is you have assured supplies for an extended period." In other words, India is doomed to a hand-to-mouth existence.

Iyer feels the linking of testing to nuclear cooperation is hypocritical. He says, "The US is not committed to the CTBT (Comprehensive Test Ban Treaty). But the Act commits India not to test. In other words, the US wants India to adhere to treaty provisions that it does not itself commit to." It’s unambiguously an unequal situation.

Now the question: should India cry foul even before the 123 Agreement has been signed? After all, as foreign minister Pranab Mukherjee told Parliament, the Act binds the US, not India. Gopalakrishnan describes Mukherjee’s statement as a "piece of deliberate misinformation. This is an overarching law which is going to dictate how the US and India should collaborate in the nuclear field. Everything will have to conform to the Hyde Act." Adds Prasad sarcastically, "Till now we were being fooled by statements given by our people saying, ‘Let’s wait for the law’. Now we are being told ‘Let’s wait for the 123 agreement.’ Ultimately, the Act is the final product. This is a dead case."

Misgivings arise from the fear that a less-friendly president than Bush could exploit the intrusive provisions of the Act to put the skids under N-cooperation; or, alternatively, a weak president in the future might fail to stare down a belligerent Congress insistent upon adhering strictly to the Act’s provisions. This is why Gopalakrishnan says India should walk out of the Hyde Act. NOW. "We should walk away unless the Americans are willing to completely rehash this Act in the new Congress and come up with a new Act." Too much to expect from the world’s only superpower, right?