The Indo-US nuclear deal was flawed from the start

India’s communists are these days being blamed for the failure of the implementation or “operationalizing” of the 123 Agreement that would give India access to nuclear fuel and reactor technology for civilian applications.

First, the positive side of the agreement. Although India is not a signatory of the Nuclear Non-Proliferation Treaty (NPT), under the 123 Agreement it would get access to nuclear fuel for civilian reactors, even as it maintain a nuclear arsenal. There is a section of opinion that believes that the NPT itself is iniquitous as it perpetuates the dominance in the nuclear weapons area of countries that tested nuclear weapons before 1967.

India’s communists typically see only through ideological blinkers. They never look for the broad picture.. They stood by former Indian prime minister Indira Gandhi, as she trampled political rights and imposed an emergency in the country in 1975, raising the bogey of communal forces. The communists now have a knee-jerk reflex to anything proposed by the Bhartiya Janata Party (BJP), which draws a considerable part of its support from Hindu fundamentalists.

This time over, the Congress, triggered a knee-jerk reflex, by trying to do a nuclear deal with the Americans. Through the communist blinkers, the Americans can only appear as “imperialists”.

However if we keep ideological issues out of the debate, there are still reasons for concern about the impact on India’s sovereignty from signing the 123 Agreement. Yes I am referring to the “United States-India Peaceful Atomic Energy Cooperation Act” of 2006, which in fact forms the legal framework for the proposed 123 agreement. The Act by the US was devised to exempt a nuclear cooperation agreement with India from certain requirements of the Atomic Energy of 1954.

The Act does not however entirely protect India’s right to take decisions on its own on its non-civil nuclear program. It states for example that “a determination and any waiver under section 104 shall cease to be effective if the (US) President determines that India has detonated a nuclear explosive device after the date of the enactment of this title”. Click here for the text of the Act.

What this provision in the Act means is that all the waivers extended to India could disappear at one go if India tests a nuclear device. It does not require the US to prove that fuel or technology meant for India’s civilian program was diverted to the country’s military program.

If there are doubts as to how the situation will unfold if India detonates a nuclear device, then one has to look to the 123 Agreement for the details. Click here for the text of the proposed 123 Agreement

At Article 14 of the proposed 123 Agreement, it says that “Either Party shall have the right to terminate this Agreement prior to its expiration on one year's written notice to the other Party.” So if India detonates a nuclear device, under the “United States-India Peaceful Atomic Energy Cooperation Act” of 2006, the US can, among other actions, immediately withdraw its waiver to India, and call for a termination of the 123 Agreement

“Following the cessation of cooperation under this Agreement, either Party shall have the right to require the return by the other Party of any nuclear material, equipment, non-nuclear material or components transferred under this Agreement and any special fissionable material produced through their use”, according to the 123 Agreement.

That would leave India’s civilian nuclear program starved for fuel. There have been hints that the US would in such a situation come to India’s rescue, by arranging for alternate supply from third countries.

But a country’s civilian nuclear program cannot be built on vague promises of good-will. If 123 Agreement is to go forward, the US will have to incorporate into the proposed agreement a clause stating that notwithstanding anything in earlier agreements and Acts of the US government, the supply of fuel from the US to India will not be affected by any developments in India’s military nuclear program.

By insisting that all is alright with the deal, Prime Minister Manmohan Singh may be doing a dis-service to India.