The Hindu Business Line : Be wary of banking on 123 Agreement

Votaries of the Henry J. Hyde US-India Peaceful Atomic Energy Cooperation Act of 2006 passed by both Houses of the US Congress a few weeks ago, have been claiming that there is no need to worry about the objectionable conditionalities incorporated in the legislation since the agreement to be negotiated under Section 123 of the Atomic Energy Act of 1954 will serve as an antidote to its harmful impact on India's sovereignty and independent decision-making powers relating to its policies and programmes in the sphere of atomic energy. In other words, in their view, the conditionalities will not hold water once the 123 agreement comes into being.

This contention is not only misleading but can work against national interest. Neither the US President nor the Judiciary can ignore any of the stipulations laid down in any Congressional legislation except when called into question on the ground of being ultra vires of the Constitution. So long as the provisions of an Act do not explicitly countermand those of another Act, both the Acts and the legal requirements flowing from them conjointly hold the field. It is, therefore, wrong to think that Section 123 of the Atomic Energy Act can neutralise the effect of the Hyde Act.

Those propounding this untenable thesis have not obviously read the whole of Section 123, which is fairly elaborate, running into four pages of single space printing.

Mandatory "requirements"

Innocuously titled "Cooperation with other nations," it practically encapsulates the essence of the stipulations of the Hyde Act. It intriguingly, if not ominously, characterises the party seeking to negotiate the agreement, as "the cooperating party," as if the entire onus of upholding the sanctity of the negotiating process and the negotiated agreement falls on it alone, and it will be held to account as "a non-cooperating party" were it to protest against any foul play on the part of the US! Here is a sampler of "requirements" included in the 123 agreement:

A guarantee by "the cooperating party," in this case, India, that

— "no nuclear materials and equipment or sensitive nuclear technology to be transferred...and no special nuclear material produced through the use of any nuclear materials and equipment or sensitive nuclear technology transferred...will be used for any nuclear explosive device, or for research on, or development of, any nuclear explosive device, or for any other military purpose";

— "no material transferred...and no material used in or produced through the use of any material, production facility, or utilisation facility transferred will be reprocessed, enriched or...otherwise altered in form or content without the prior approval of the United States";

— any special nuclear material, production facility, or utilisation facility produced or constructed within India or through the use of any sensitive nuclear technology transferred will also be subject to the above requirements, and no nuclear material "will be stored in any facility that has not been approved in advance by the United States".

Submission to the President by the Secretary of State an unclassified Nuclear Proliferation Assessment Statement which shall analyse the consistency of the text of the agreement with all the specified requirements, the adequacy of safeguards, control mechanisms and assurances of peaceful use, accompanied by a classified report from the CIA as well.

Submission of the agreement to the relevant Congressional Committees for approval.

It is clear from a reading of the section as a whole that it is futile to bank on it to let India off the hook, and loosen the stranglehold of the Hyde Act to any extent.

B.S.RAGHAVAN

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