The Senate Bill says...
- The 123 Agreement doesn’t supersede the Hyde Act
- Undercuts guarantees of fuel supplies, imposes ENR ban
- Future reprocessing agreement subject to Congress approval
- Goes against Manmohan’s commitment to Parliament
- Infringes on India’s sovereignty
- Gives the Opposition ammunition to attack the UPA
- The Senate bill has to be adopted by the house
- House of Representative must pass a bill approving the N-agreement
- These two bills must be reconciled through a conference
- At this conference irksome clauses from the Senate bill can be dropped
- If not, India shouldn’t sign the N-agreement, officials say
- Obviously, Manmohan can ignore their advice, accept the N-agreement
- But he will find it hard to sell it to Parliament and the country
***
The bill, as it is, still doesn’t provide comfort to Indian officials. India’s Ambassador Ronen Sen promptly sought assistance of the Indian American community leaders to persuade lawmakers to right the perceived wrongs. North Carolina-based Swadesh Chatterjee, who’s camped in Washington to ensure the N-deal’s smooth passage, told Outlook that Indian officials "would rather freeze the bill and do it next year than accept it in the current format". Claiming that the state department had "blessed" the bill, he said, "There was obviously a big disconnect between the Indian government and the state department". Worse, at the time of writing, the House of Representatives (HoR) was expected to produce a bill more or less similar to the Senate version.
To begin with, the Senate bill has raised Indians’ hackles because its rule of construction says that "nothing in the Agreement shall be construed to supersede" the legal requirements of the Hyde Act. Some, like University of Georgia’s Anupam Srivastava, say, "They have highlighted the negative consequences, which only become actionable if India is in substantive breach of its commitments. India has no reason to do so."
Officials, however, fume at the SFRC’s disregard for the UPA government’s sensitivity over the Hyde Act, even though admitting that the rule of construction clause is more an "optical" problem than "material". Says one source closely associated with the deal, "These things will become fodder for the Left and the deal’s critics, but they miss the point that when India went in for the deal it was denied nuclear technology. That’s available now. They can politically utilise it to rub the government’s nose in the dirt. But the latter has not lied." He says this because the Hyde Act specifies the parameters of what the US and India will do, but the sovereign document binding them is the 123 Agreement. The source says US’s insensitivity is perturbing, for Manmohan risked his government for the deal.
But the Senate bill isn’t just about "optical" problems. In the "declaration of policy" section of the bill, a clause states that "in the event that nuclear transfers to India are suspended or terminated" (say, because of nuclear testing) by the US, then Washington would seek to prevent the transfer to India of "nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group (NSG) or from any other source." This, in a way, undercuts earlier US guarantees of providing assured nuclear fuel supplies.
Because the NSG works through a consensus it’s unlikely Russia and France—the two big beneficiaries of the deal— would agree to abide by Washington’s decision. But considering the diplomatic heft the US displayed to secure the NSG waiver in early September, this could set the tone for the future and box India in.
Another clause in the Senate bill says "it is the policy of the United States" to work with NSG countries, "individually and collectively", to agree to "further restrict the transfer" of enrichment and reprocessing (ENR) techonolgy to India. This effectively introduces an ENR ban on India through the backdoor.
Particularly cumbersome is a set of prescriptions on reprocessing of spent fuel. A clause asks the US president to certify that he’s pursuing "efforts" to ensure that any other nation permitting reprocessing or alteration of nuclear material supplied by it to India should adhere to "similar arrangements and procedures" agreed to between Washington and New Delhi. While the president can always certify that he’s pursuing efforts without doing so, this clause infringes on India’s sovereignty to enter into agreements with other countries.
No less galling is a clause that makes any future reprocessing arrangement between India and the US subject to Congress disapproval. For those who came late on the story, the 123 agreement allows India to reprocess American fuel in a safeguarded facility under a future arrangement. The Senate bill now states that this arrangement between two sovereign nations can be set aside if "Congress adopts, and there is enacted, a joint resolution stating in substance that Congress does not favour such subsequent arrangement". Congress disapproval could leave India with a stockpile of spent fuel that it can’t reprocess.
Does the Senate bill have binding implications for India? An official says the bill has the same status as the directive principles of the Indian Constitution. He explains, "The directive principles don’t have the same sanctity as fundamental rights, and are in the nature of guidelines for the executive. But, should a government implement the principles, these would have legal validity."
Other officials say it would be wrong to blame Washington for the messy situation. They praise the Bush administration for finding time for the 123 agreement during these days of financial crisis, and overcoming objections to secure the NSG waiver for India. But the administration, like India’s, has to be sensitive to its domestic audience, a fact known to the Indian government. Perhaps Manmohan, they say, over-committed himself to the Indian Parliament and is now finding it hard to keep the ball in play.
But the ball could be still kept in play. To begin with, the House of Representatives must pass a bill approving the N-agreement (it is expected to happen this week), while the Senate adopts the bill approved by its foreign relations committee. The next step involves reconciliation of the two bills to conform to each other through a process known as a "conference". It’s during this process that "irksome language" and clauses can be dropped, allowing Manmohan to sign the deal without worrying about the political consequences.
Otherwise too, Manmohan can sign the 123 agreement, irrespective of the restrictive conditions imposed by the Senate bill. But the problem is that most of these conditions are in gross violation of his commitment to Parliament, usually considered sacrosanct.
