-Arun_S (Admin hat on}
Deccan Chronicle, 6 May 2008
Are we hiding from the Hyde Act?
By Pran Chopra
The defenders of Indiaâ€™s proposed nuclear deal with the United States have often argued that the "deal" would be protected by the 123 Agreement between the two countries. Now a major newspaper has gone a bit further. It has argued editorially that "the 123 Agreement does not stop India from conducting a nuclear test." But what does the Hyde Act do?
The editorial does not deny that the Hyde Act authorises the US to impose major penalties upon India if the latter conducts a nuclear explosion. India might escape the penalties if the purpose of the explosion suits Americaâ€™s own needs as well. But what will happen if it serves only Indiaâ€™s needs? Will the 123 Agreement still hold the Hyde Act at bay?
The newspaperâ€™s answer is implied in its further assertion that "The Hyde Act ... is not binding on India," and it is "a domestic issue to be thrashed out in the United States." But where will the "thrashing out" leave India? The answer to that will depend upon the circumstances prevailing at the time, and the circumstances have changed significantly since the time when the 123 Agreement was reached. The Hyde Act itself is an ominous result of that change.
The United States has often said it before, and the White House said it again on April 29, that the "main stumbling block" in the way of the Indo-American nuclear deal was "the internal political process in India." But in saying so America forgets, and would like others to forget, that it was the same "process" which produced the 123 Agreement, and that India still abides by that agreement in spite of Indiaâ€™s opposition to the Act.
It is Americaâ€™s own "internal political process", dominated at present by the electoral tussle between the Democrats and Republicans, which has put the unacceptable Hyde Act in the way of the 123 Agreement. The agreement itself remains broadly acceptable to India. What is not acceptable is the Hyde Act as it has emerged from an "internal political process" in the US.
At a time when President Bush, a Republican, was negotiating the 123 Agreement with India, the Democrats found that they could do nothing to block it because making foreign agreements is within the executive discretion of the President, and they were also in a minority in Congress. But when they captured Congress, in the Congressional elections held a few weeks ago, the Democrats used their newly-won Congressional majority to pass the Hyde Act as a counter to the 123 Agreement, which had earlier been sailing smoothly towards an agreement with India.
Now the political scene in America has shifted further, and this exposes India to certain dilemmas which have yet to receive adequate attention from those who are pressing for an early "deal". Whoever the "those" be â€” the American or Indian enthusiasts for the deal â€” they must find answers to these dilemmas.
They are urging India to sign the deal quickly because otherwise, they argue, a Democrat will capture the White House, and whether that be Barack Obama or Hillary Clinton, the White House which India will then face will be a tougher one than it was under the Republican Bush, at least on the issue of Indiaâ€™s nuclear ambition.
But the negotiations on this issue are not between the Congress in India and a Democrat or Republican in the White House. They are between the Indian and American governments. As such, the negotiations do not involve a transitory issue which may vanish as soon as the White House changes hand again. They are on an issue concerning a vital aspect of Indiaâ€™s defence, and the outcome will remain vital for Indiaâ€™s defence so long as nuclear weaponry remains vital, no matter which party captures the White House or Congress.
What is at stake is a basic agreement on a long term issue, and it will affect â€” positively or otherwise â€” many aspects of a wide range of relations between the two countries and the relations of each of the two countries with many a third country.
One look at the Hyde Act will reveal how widely and deeply it ranges over many aspects of the security and foreign policies of the two countries and also how much it expects of India in terms of "congruence" with the foreign policy objectives of America. It will also show how little will be Indiaâ€™s energy gains from the Act, either in comparison with Indiaâ€™s needs or with Indiaâ€™s likely gains from other sources, including Indiaâ€™s own.
Of course the Hyde Act also applies to America, and of course it has clauses under which India can withdraw from the Act if it finds the conditions too onerous. But of course the penalties India would face if it withdrew would be probably greater than the loss it would suffer if it avoided coming under the Act in the first place.
In these circumstances it would be much better if neither country hurried the other into an agreement without fully weighing its consequences for both. As was pointed out in this paper once before, for the past few months both countries have been going through "processes" which can affect the present positions of each in material ways, and the processes are too valuable for each to be skirted around instead of being followed sincerely.
Both countries are democratic, and are proud to be so, and in each case the "process" is central to the credibility of its democracy, not only in its own eyes but also in the eyes of the other country and in the eyes of the world. Therefore, each country should face the Hyde Act in all honesty after fully understanding all its implications and consequences. Such an understanding would show that the Act can have a wider and more harmful fall-out on India than the agreement would have had.
Therefore, one can find little comfort in the discovery which America has been hawking for sometime â€” and which India too appears to have swallowed now â€” that since the Hyde Act is not binding on India we need not worry about any individual provision of the Act. This is sheer self-deception. The Act commits America to the position that if India violates the Act or any of its provisions, then America can â€”- indeed must â€”- proceed against India under any of the numerous additional powers it has acquired under the Act.
It might be best if Democrats come and ratify the CTBT for that will set of its own dynamics.