Now that the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act 2006 has been signed into law, the 123 Agreement currently being negotiated must conform in letter and spirit with the provisions of that Act.
Any modification of the requirements under this Act cannot be brought about through merely word-engineering a cleverly drafted agreement to be settled between the two executive branches of government.
Let us not forget this agreement will have to be presented to both Houses of US Congress and approved by each before it becomes part of the overall deal.
Therefore, while the recent discussions between the two governments have helped to clarify the Indian stand, the US administration must now present a revised case based on our stand to US Congress and seek appropriate amendments to the Hyde Act.
As long as the Act remains what it is today, no 123 Agreement can be used to override its legal provisions.
Knowing this, the US efforts are to push India to agree to positions in conformity with the Act's current provisions, rather than take the legal route of getting the Act amended to accommodate the Indian prime minister's assurances to Parliament.
In the eagerness to see the deal through, India should not succumb to the US ploy and help their approach by over-dramatizing the importance of the 123 Agreement to the Indian public.
If the US administration is not willing to approach its Congress to amend the Act suitably, the only recourse India must take is to outright reject the nuclear deal.
In the rapidly changing global strategic environment, the maintenance of a reliable and adequate nuclear deterrent may necessitate future Indian nuclear weapon tests.
In the interest of our national security, future Indian governments should not have to face severe economic hardships in case of testing -- and therefore be inhibited from conducting such tests -- because of the type of nuclear agreements we may enter into with the US, the International Atomic Energy Agency and the Nuclear Suppliers Group.
This translates into the absolute requirement that India must be assured lifetime fuel and spare-part supplies and stockpiling of unlimited fuel reserves for all nuclear reactors included in the civilian list and put under the IAEA's India-specific safeguards. Simultaneously, amendments to the Act permitting India to retain possession of all assets gained under the deal will also have to be insisted.
We must agree to keep these reactors under perpetual safeguards, with the condition that suitable amendments to the Hyde Act are put in place and the law modified beforehand as required.
India 'retaining the right to take corrective measures in the event fuel supplies are interrupted,' as the PM stated in the Rajya Sabha on August 17, 2006, is not a solution to the problem.
If this means that India will withdraw its civilian reactors from IAEA safeguards, that still would leave us with no fuel to feed the reactors already set up at a huge cost running into thousands of crores of rupees.
And such a blatant unilateral violation of a safeguards agreement will lower India to the level of countries like North Korea and could result in Chapter-7 United Nations resolutions against us in the Security Council.
As it stands, Section 103(a)(6) of the Hyde Act stipulates that if US exports were to be suspended or terminated pursuant to US law, it will be US policy to seek to prevent transfer of nuclear equipment, material or technology from other sources.
Furthermore, according to the Congressional Report, US officials have testified to Congress that America does not intend to help India build a stockpile of 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.
To cover this aspect, Section 103(b)(10) of the Act is structured to limit nuclear power reactor fuel reserves to an amount commensurate with reasonable reactor operating requirements.
These two provisions in the Act directly negate the earlier bilaterally agreed and multi-layered lifetime fuel supply assurances contained in the Separation Plan of March 2, 2006.
No clause to be incorporated in the 123 Agreement can override these basic provisions in law, and these sections of the Hyde Act will therefore necessarily have to be amended for India to ensure uninterrupted fuel supplies.
Section 123(a)(4) of the US Atomic Energy Act gives the US government the right to require the return of any nuclear material and equipment transferred under this deal and any special materials (like plutonium) produced through the use thereof, if India conducts a nuclear test or terminates or abrogates the IAEA safeguards agreement.
Presently, the Hyde Act does not authorize the American President to exempt India from this clause, and if we are to avoid the 'right of return,' Section 104 of the Hyde Act needs to be amended to include this waiver authorization .
Another contentious issue is the denial of technology transfer for uranium enrichment, spent-fuel reprocessing and heavy water production.
As stated by Prime Minister Manmohan Singh in Parliament, ' the objective of full civil nuclear cooperation is enshrined in the July 2005 Joint Statement. This objective can be realised when current restrictions on nuclear trade with India are fully lifted We will not agree to any dilution that would prevent us from securing the benefits of full civil nuclear co-operation.'
But, the US in recent times has decided that 'full' nuclear cooperation, in its definition, will not include technologies for enrichment, reprocessing and heavy water production.
The July 2005 Joint Statement, in effect, accepts India as a de facto nuclear weapon power and yet we are specifically denied these technologies under Sections 103(a)(5) and 104(d)(4) of the Hyde Act, while neither the US Atomic Energy Act nor Article-IV of the Nuclear Non-Proliferation Treaty denies the right for these technologies even to non-nuclear weapon States.
In future, if we may need any import of nuclear technology know-how, it could be in one or more of these three areas. Therefore, it is important that we insist on a suitable amendment of Sections 103(a)(5) and104(d)(4) to lift the current restrictions in law .
Section 123(a)(7) of the US Atomic Energy Act requires that India should provide a guarantee that no material transferred to us under this deal or produced through the use of any material, production facility or utilisation facility transferred pursuant to this deal will be reprocessed, enriched or otherwise altered in form without the prior approval of the US government.
In simpler terms, this means India cannot reprocess any spent fuel to be discharged from imported reactors or arising from natural uranium bought from abroad, without prior permission of the US.
This restriction on reprocessing will hold even if the nuclear deal is terminated or abrogated, though the fuel would have been fully paid for by India and irradiated in an Indian facility.
Without such reprocessing, the major objective of using the separated plutonium from the spent fuel, in a subsequent civilian breeder reactor or AHWR, cannot be met.
We, therefore, need to insist on a permanent prior consent for reprocessing built into the123 Agreement and a waiver from Section 123(a)(7) of the US Atomic Energy Act, to avoid our having to seek case-to-case permission in future.
There are many more important deviations from the PM's assurances to Parliament and what appears as law in the Hyde Act. None of these deviations can be compensated for through the 123 Agreement, contrary to what the Prime Minister's Office and the Ministry for External Affairs would have the Indian public believe.
The Department of Atomic Energy is aware of this only too well. And they are resisting the attempts from Delhi for them to compromise.
Indication of a shift in the Indian stand can be noted in the recent remarks of the external affairs minister that 'India and the US are committed to implementing the understanding expeditiously in a way that it adheres as closely as possible to the framework of the July 2005 Joint Statement and the March 2006 Separation Plan.'
Compare this with the PM's assurance in Parliament on August 17, 2006: ' concerns have been expressed regarding possible deviations from assurances given by me in this august House on the July 18, 2005 Joint Statement and the March 2, 2006 Separation Plan. I would like to state categorically that there have neither been nor will there be any compromises on this score and the government will not allow such compromises to occur in the future.'
The external affairs minister is a seasoned politician and a staunch nationalist. No one needs to teach him where the national interest lies.
But, he must also be aware that any leeway to unilaterally deviate from the prime minister's assurances to Parliament does not any longer lie with him or the MEA, or for that matter with the PM himself.
It can only come about, if at all, from a conscious decision of Parliament as a whole, after a detailed debate of the pros and cons.
Dr Gopalakrishnan is a former chairman of the Atomic Energy Regulatory Board. He can be contacted at agk37@hotmail.com
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