123 and go

As I prepared for the Rajya Sabha debate on the nuclear issue and read in some detail on the subject, I became more and more convinced of the desirability of the proposed agreement. To try to unravel a complex legal, technological and political issue, shrouded in mystery and jargon, is useful.

The debate is, and should be, one of energy security for the country. India has poor quality coal (meeting 50 per cent of its energy needs) and imports most of its oil needs (meeting 33 per cent). Nuclear power accounts for a paltry 3 per cent (against 79 per cent for France, 60 per cent for Belgium, 42 per cent for Sweden, 39 per cent for Switzerland, 31 per cent for Spain, 21 per cent for Britain, 31 per cent for Japan and 20 per cent for the US). Nuclear power is cleaner, more efficiently produced and environmentally sounder. One tonne of uranium produces far more energy than several million tonnes of coal or several million barrels of oil. By 2030, India will go from being the fifth-largest energy consumer to the third-largest — behind only the US and China. Unless we get at least 25 per cent of our energy needs from nuclear power by 2040, we simply cannot sustain our 8 per cent or 10 per cent growth rates. Real deterrence comes from the might of a techno-economic-military power.

There are huge positives in the proposed agreement. For the first time, American law has been amended for a purely India-specific waiver. This permits the supply of nuclear fuel and equipment to India despite it not having signed the NPT, continuing to have a military (strategic) nuclear programme, having tested a nuclear weapon and not subjecting all its installations to international safeguards. India is free in perpetuity to build any number of nuclear facilities for military purposes and can decide which and how many it will submit to its civilian sector and consequentially to IAEA safeguards. India can now get a huge volume of so-called dual-use technologies. Cray supercomputer, valuable for detecting meteorological activity, was denied to India because of its potential misuse for nuclear purposes. Even the less sophisticated three axis lathe machine was similarly denied because of its possible use for nuclear warheads.

The agreement will allow India to join the club of nuclear powers as an equal and end 40 years of international nuclear isolation. The 45-country NSG group will supply us the full range of nuclear materials — none can renege unilaterally. Recently, China happily entered into two pacts, for supply of nuclear equipment from the US and uranium from Australia, at terms far more intrusive than the proposed 123 Indo-US agreement. Our uranium supplies are very limited — a fact documented by the Planning Commission and publicly lamented by eminent scientists.

This is not to suggest that we are going into this agreement starry-eyed. We have repeatedly asserted that we are bound by nothing except the proposed 123 agreement — which is not yet born, signed, sealed or delivered, and yet subjected to so much scrutiny. We will decide how far to go on this agreement and will never hesitate to walk off if even an inch of Indian sovereignty and security concerns are threatened. As President Kennedy said, “We will never negotiate out of fear but we will not fear to negotiate.”

A large part of the anxieties arises out of the advisory, recommendatory and non-binding part of the US legislation, passed recently with unprecedented bipartisan support. Unlike the parliamentary system of India, where the executive government is really a subset of the legislature and all legislation is moved and carried by the government of the day, the US system retains a rigid separation of powers between the executive and the legislature. Hence, members of the Congress and Senate move Bills that are not government Bills. They contain large portions that are declarations of intent, frequently pious hopes, which allow diverse private members to let off steam. Thus, Congress provisions or statement of policy provisions in the recently-passed Hyde Act do not bind even the American executive, much less India. Issues like not cooperating with Iran, working for a missile treaty or the CTBT and strengthening NSG guidelines are all part of this non-binding section of the Act and should cease to worry India.

Some concerns are legitimate. The Hyde Act is silent on and does not prohibit India’s right to reprocess (i.e. re-use) spent US fuel. But US policy prohibits this (permanent waivers of this policy exist only for Japan, Switzerland and the EU). India cannot allow the Tarapore used fuel stocks of US origin to continue to pile up, without either the US taking them back or allowing reprocessing. The government is committed to a change in this at the time of the negotiation and execution of the 123 agreement.

Second, the binding part of the Hyde Act prohibits, as a matter of law, further testing of nuclear devices by India. Our stand remains that while India had announced a voluntary moratorium on testing in 1998 and will naturally abide by it as general Indian policy, it will not agree to such a binding, legal commitment in the 123 agreement. This will again be a major negotiation issue. Incidentally, our first test took place in 1974 and neither Indira Gandhi nor any successor government announced a voluntary ban on testing. It was for the first time in 1998 that the Vajpayee government announced India’s unilateral decision to put a moratorium on further testing. Indeed, both Vajpayee and then Foreign Minister Jaswant Singh offered to sign the CTBT at the UN General Assembly on September 24, 1998, and September 22, 1999, respectively.

Third, US law and policy does not allow export of reprocessing and enrichment equipment to any country — not even to the original nuclear powers or NPT signatories. We have to take this as a given and work towards persuading the US otherwise. Fortunately, India already possesses sophisticated infrastructure for reprocessing and enrichment.

Abhishek Singhvi is senior advocate, Supreme Court of India, and Congress spokesperson

Email Abhishek Singhvi :drams59@amsinghvi.com