The Hyde Act has provided for an annual certification from the White House regarding India's role in promoting non-proliferation and in dissuading Iran from making nuclear weapons.
The controversy over the Hyde Act has yet again come to haunt the fate of the Indo-US nuclear deal. The Indian Opposition leaders have often spoken about this Act, which is perceived as containing a language that would force India to compromise its sovereignty and independent decision-making on foreign policy. The visiting US Assistant Secretary of State Richard Boucher told Indian journalists on Wednesday last that the "Hyde Act is a domestic legislation (and) the 123 Agreement is an international agreement.
I think we can move forward with both in a consistent manner,"
this statement was made soon after he discussed the nuclear
deal issue with Foreign Secretary Shivshankar Menon and a
day after the Foreign Minister Pranab Mukherjee made a suo
moto statement in Parliament. The statement read: "the Hyde
Act is an enabling provision that is between the Executive
and the Legislative organs of the US Government," and that
"India's rights and obligations regarding civil nuclear cooperation
with the US arise only from the bilateral 123 Agreement that
we have agreed upon with the US." By saying so, Mukherjee
circuitously countered the US Secretary of State Condoleezza
Rice's statement last month before the Foreign Affairs Panel
of the House of Representatives that the Bush Administration
will "support nothing with India in the NSG that is in contradiction
to the Hyde Act. It will have to be completely consistent
with the obligations of the Hyde Act". She also said that
the Bush Administration would "have to be consistent with
the Hyde Act or I don't believe we can count on the Congress
to make the next step." The UPA Government made no immediate
comment on Rice's remark.
The Foreign Office spokesman reportedly said: "I don't want
to hazard guesswork on this. I have seen the statement in
the newspapers. If we have a response or a statement, we will
put it out. I don't have it today." It was probably thought
proper to let the Foreign Minister respond to it, which he
did in Parliament on Tuesday last. Boucher's statement a day
after Mukherjee's statement on the Hyde Act makes it apparent
that the US and the Indian Governments are already interpreting
the relevance, importance and meaning of the Hyde Act even
before the 123 Agreement is allowed to complete its formal
process. Is the 'apparent' real? Are there differences between
the Indian Government and the Bush Administration over the
actual meaning and the purpose of the Hyde Act? Significantly,
both the Indian as well as the American officials have not
even once stated that they differ on the interpretation of
the Hyde Act and its implications.
A careful observation and analysis of the statements and
remarks by both Indian and American leaders and officials
clearly indicate that while the Indian Government is largely
communicating to the Indian people and political leaders,
the US Government is likewise doing it with the Congressional
leaders. According to Article VI of the US Constitution, there
are three laws which are supreme--the Constitution itself,
laws made by the Federal Government under the Constitution
and Treaties. Under this provision, the Hyde Act and the 123
Agreement between India and the US are supreme laws, which
no Administration could violate. Secondly, the 123 Agreement
would not even have been negotiated with India, if the Hyde
Act would not have been passed by the Congress and signed
by the President George Bush. If the Secretary of State Condoleezza
Rice's statement is analyzed in the backdrop of these legal
facts, she did not say anything that is not already known.
She could not have said that she would bypass the Hyde Act
while taking a position at the NSG on the issue of giving
clearance to the Government of India for undertaking nuclear
trade with the member countries.
Likewise, the Foreign Minister Mukherjee's statement that
India is bound by what it is committed to by signing the 123
Agreement; and not some US domestic law, is without blemish.
No country is allowed to impose its domestic law on any foreign
country under international law. No country can prevent any
other country's legislature from passing laws outlining the
country's foreign policy goals and requirements. And thus,
India is not bound by the Hyde Act. No US Administration can
follow a foreign policy course by violating its domestic law.
Had it been so, the Bush Administration need not have to lobby
hard for the passage of the Hyde Act before signing the 123
Agreement. Does it mean that the Hyde Act has no implications
at all? It does have. If India conducts a nuclear test in
future, the US Administration of the time would have to act
on the basis of the provision of the Hyde Act and may proceed
to cancel the civilian nuclear cooperation. But the Administration,
with Congressional concurrence, may also take a decision to
go ahead with the civilian nuclear cooperation on the ground
of national security interests.
Laws are written, unwritten and amended on the basis of national
interests! The Hyde Act, of course, has provided for an annual
certification from the White House regarding India's role
in promoting non-proliferation and in dissuading Iran from
making nuclear weapons. It does not ask India to submit an
annual progress report on these two issues. It does not spell
out what India should do or not do to dissuade Iran from undertaking
a nuclear weapon programme. The US law makers very well realize
that America is unable to pressurize Iran enough to dissuade
it from going ahead with its uranium enrichment activities.
What could India possibly do? The law is silent on this. All
these indicate that these "extraneous" provisions only reflect
the sense of the Congress and do not bind India to do or not
do certain things. Sovereignty and political independence
are not violated, protected or exercised by enacting legislations.
India is a sovereign country and will remain so. The rest
is a matter of cost-benefit analysis.
Dr Chintamani Mahapatra, INFA
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