However, both governments hope that the Senate could still take up this bill around November 13, when its brief 'lame duck' session begins. When passed by the Senate, the amended bill will still have to go to a conference meeting of a group of Senate and House committee members for reconciliation into a unified version, and subsequently approved by a joint session of both Houses of Congress.
All current indications are that the final version of the changes in US law will, most likely, contain a few clauses which violate the major Indian requirements which Prime Minister Dr Manmohan Singh had clearly spelt out in his August 2006 statements to Parliament. In spite of that if the deal is to be carried forward, certainly there will be concerted opposition from the major political parties outside government and a large section of the scientific community in the country.
On August 26 the prime minister and his key advisers met with seven senior retired nuclear scientists, including this author, for a discussion on the India-US nuclear cooperation deal. The prime minister, at the outset, assured us that he will not take any action which would weaken the nation's strength or harm its indigenous research and development pursuits. He hoped that each of us, in due course, would also help the government in finding an acceptable path to take full advantage of the opportunities available through this deal, and at the same time identify the potential pitfalls that are to be avoided in doing this, and provide suggestions on how to avert these adverse impacts.
In view of the anticipated actions by the US Congress in the next three months, this article attempts to summarise the Indian position on the subject as on today, based on my analysis as well as the information and views I have gathered from senior officials and others in the know of things. Such a summary should serve us well in the near future, when we will be faced with the final legislation from the US Congress, and the nation has to clearly assess what we stand to gain and lose if that revised law is put into effect.
To start with, as I understand, the government is firmly opposed to any direct or indirect attempt by the United States to limit or slow down the nuclear fissile material production in our country. Similarly, India is opposed to the imposition of any curbs on the further expansion of our strategic nuclear programme. There is no doubt that any clause in the final US legislation which may directly or indirectly contradict these stands will become 'deal breakers'.
Another crucial issue is that of India retaining the flexibility to conduct further nuclear weapon tests, in case the future strategic environment necessitates such tests. The government appears to concede that such a need cannot be ruled out, and this is the reason for its repeated emphasis on a 'voluntary' moratorium on testing. It is also clear to the government that the final US legislation will most likely dictate the stoppage of the India-US nuclear deal in case of an Indian nuclear weapon test.
The counter-measures which the government has in mind for this include a carefully chosen path of development, wherein there will be built-in strategies to withstand the adverse impacts of the US and Nuclear Suppliers Group sanctions which would certainly follow such a test. These shall also include, but not be limited to, the following precautionary steps which should form part of the modified US law and/or the yet to be signed bilateral 123-Agreement.
The US Congress and administration must also understand that non-inclusion of any of these protective provisions in the final legislation will indeed constitute a 'deal breaker' as far as India is concerned.
If the deal is cancelled due to any reason, we need to prevent the stoppage of fuel and spare-part supplies for reactors and equipment which India might have already imported up to that time. For this purpose, a set of multiple alternative schemes for facilitating the procurement of these items have been worked out and these have been included in the mutually agreed separation plan in March 2006. Stockpiling of such items should be one of the flexibilities made available to India, though the government is sensitive to the associated inventory-carrying costs and the burden this will add to nuclear electricity prices. Nevertheless, at this stage, we need to ensure that the US Congress concurs with these parallel supply options and that they agree to retain these in the revised US legislation.
As it stands, the US Atomic Energy Act will require that India return all US equipment and materials supplied to civilian facilities under this deal, including the spent-fuel and any plutonium extracted from that, in case the nuclear cooperation is terminated. India certainly cannot agree with this requirement. Suitable waiver of this clause will therefore have to be sought in the reconciled version of the legislation.
If the cooperation is terminated by the US in the middle of a joint reactor project, the US cannot be allowed to abandon the half-finished project and walk away. The revised legislation must include the US obligation to provide materials and assistance as originally envisaged, and the lifetime fuel and spare-part supplies, for such a facility.
As for the disposition of the spent-fuel arising from the use of imported, natural or enriched uranium in our civilian reactors, the government's position is that India must retain full rights to reprocess that fuel in India, under safeguards, and use the extracted plutonium in our civilian reactors. This provision has to be written into the legislation, since there will be no question of India asking for US permission to do such reprocessing, on a case to case basis.
Both the International Atomic Energy Agency agreement and the Additional Protocol will be negotiated as India-specific documents. The government appears to have the full assurance of the IAEA director general that he will help India frame these as close as possible to the corresponding agreements applicable to the nuclear weapon states under the nuclear Non-Proliferation Treaty.
How far the IAEA board will go along with this is to be seen in due course. Though not confirmed, it would appear that if the supply of fuel and spare-parts to a set of imported reactors is stopped on the cessation of nuclear cooperation under this legislation, despite the alternative options built into the separation plan, India will insist on the right to withdraw forthwith all such facilities from IAEA safeguards and the Additional Protocol.
In other words, no fuel and spare-parts, no further safeguards inspections or return of assets bought and paid for prior to that, while under safeguards!
It is necessary that the government incorporate this stipulation in both the 123 Agreement and the agreements which we sign with the IAEA. It is also clear that the separation plan will not involve the bifurcation of personnel into military projects and civilian projects. Also, the safeguards and the Additional Protocol will be effective only prospectively, with India not being obliged to discuss past issues regarding any facility we decide to place on the civilian side.
The stated position of the prime minister on full civil nuclear cooperation is clear from his addresses to Parliament. 'We will not agree to any dilution that would prevent us from securing the benefits of full civil cooperation, he said. In my view, it would be sufficient if the revised legislation does not specifically bar full civilian cooperation for India, as the current bill does. The Nuclear Suppliers Group is seriously reframing its rules on transfer of enrichment and reprocessing technologies to all countries, and notwithstanding what the US and India may agree, eventually the Nuclear Suppliers Group decision will override any bilateral understanding.
At the end of his meeting with the senior scientists, the prime minister made it quite clear that he did not view imports as substituting domestic efforts in any way. He gave the assurance that domestic R&D programmes and their utilisation, especially those related to the three-stage nuclear power plan leading to the establishment of thorium breeder reactors, as well as the scaling-up of clean-coal technologies for power generation, will be pushed forward with no impediment.
We need to be absolutely sure that the India-US cooperation in the nuclear and energy fields does not come in the way of fully implementing these assurances of the prime minister.
Dr A Gopalakrishnan is a former chairman of India's Atomic Energy Regulatory Board. He can be reached at: agk37@hotmail.com
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