Union minister for science and technology, Kapil Sibal, is the new man on the block. He has emerged as the government’s legal expert on the civilian nuclear energy deal, although his arguments are not going to win him many clients. There is less of substance and more of courtroom dramatics in his presentation: the emphatic public school speech, the expressive raising of eyebrows ("Are they all stupid?"), the strong and even seemingly passionate rhetoric.

The government’s argument in recent weeks has shifted from the "scientific" to the "legal." Atomic Energy Commission chief Anil Kakodkar has not been inclined to challenge the strong arguments presented by many of his former colleagues, and while deciding to stick with the nuclear deal, he is clearly not interested in joining issue with many of the arguments he probably agrees with. So now the focus à la Sibal has shifted to the ridiculous where the government has been placed in the unhappy situation of interpreting and peddling US law for India.

The thrust of the Sibal defence of the deal is that the Hyde Act is irrelevant, or rather, has been made irrelevant by the 123 Agreement that is now the last word on the nuclear deal in US law. To be fair to his Congress colleagues, not many are parroting this with the zeal of new converts. And he keeps saying this, even though US state department officials keep denying it by insisting that the Hyde Act is important, that the 123 Agreement is in conformity with the Hyde Act, that they have ensured that not a single provision of the Hyde Act has been violated, etc., etc. So we now have a position where the Indian government, or rather some of its apologists for the deal, know more about the US law and the US Congress than the state department and the Congressmen themselves!

US assistant secretary of state Richard Boucher was asked by reporters only a couple of days ago whether the Hyde Act was overwritten by the 123 Agreement. Clearly aware of the Indian argument, and not willing to make it more difficult for the government at home, the embarrassed official kept evading the question but at one point let go to say that this was a "meaningless statement" and the 123 Agreement was in full conformity with the Hyde Act. The Indian government of course wants to wish the Hyde Act away, there is no mention of it in government briefings, and now the legal expert is out in the field insisting that the 123 Agreement is supreme and the US Congress in that sense wasted its time in getting together the detailed document, as the technical bilateral agreement completely negates its provisions. One will have to wait and see what the US Congressmen have to say about this!

To take Mr Sibal at his word, for that one short moment, and accept that the 123 Agreement has wiped out the Hyde Act. So what are the implications? One, there is no need now for the US President to annually certify that India is fulfilling all the stated requirements, and report back to the US Congress. As this is not mentioned in the 123 Agreement, only in the Hyde Act where pages have been devoted by the US Congress in elaborating this provision. Two, India retains its right to test as again the 123 Agreement is silent on this, although it carries a termination clause. But then, if Sibal’s argument is carried to its logical conclusion, then India can go right ahead and test as many times as it wants without inviting any US censure. Three, there is no mention of foreign policy and Iran in the 123 Agreement. So New Delhi can now go ahead to embrace Iran, finalise the gas pipeline and step up the military relations with Tehran if not right now then definitely after the 123 Agreement is signed and sealed. Is

Sibal serious? Is the government serious? One wonders what the poor Americans are thinking, dealing with such an amazing partner all set to make a strategic alliance out of falsehoods, half truths, delusions, illusions and what have you. One does not know whether to criticise the US or commiserate with it in the present situation. For a Sibal unleashed is clearly a formidable entity, friend or foe is now for Washington to determine. Particularly, after the Bush administration is asked to respond to the US Congress about the Indian propaganda that its legislation has been overturned by a bilateral agreement, and that Congressmen have no authority left now to intervene in the working of the pact with India.

Democrats have recently pointed out that if the nuclear deal, that has admittedly bipartisan support in Washington, does not come through in the life of the Bush administration it will be little more than a "hiccup" in India-US relations. This again effectively contradicts the doomsday pictures being presented by New Delhi and of course its legal expert, that India cannot afford to renege on an international treaty without serious consequences, and without losing its face in the world. Strange, because the Democrats and probably most of the Republicans do not think so, if the comments by the Democratic representative can be taken as any indication of this. In fact, they will be secretly surprised if the government ignores the majority opinion at home and goes ahead with a clearly unpopular deal to please President George W. Bush. Particularly when it has no need to do so, as the Democrats are not huffing and puffing for a deal as yet, and elections are around the corner.

In a parliamentary democracy, Parliament is the most important institution. For those who fought for India’s independence and sovereignty, parliamentary democracy was the most cherished institution to be preserved and strengthened. It was thus decided that the Prime Minister of India would be from the Lok Sabha, in that he or she would be directly elected by the people of India and would thus be accountable to Parliament and through it to the people. It was also decided that the executive would respect the will of Parliament, and while the Constitution did not provide for the ratification of international treaties by Parliament it was understood that the Prime Minister would take the will of Parliament into account when entering into agreements with other countries. The last example of the executive bowing to Parliament’s will can be found during the NDA government when Prime Minister Atal Behari Vajpayee despite pressure from his advisers and his party, decided not to send Indian troops to Iraq.

It is therefore a matter of deep regret that the government, aided by legal experts like Sibal who one had thought would know better, has decided to ignore the will of the people of India and accept the will of President Bush. That it is willing to sacrifice the government for an ill conceived treaty that has been strongly opposed by the majority of political parties in Parliament; that it has refused to take cognisance of the strong points offered in writing by the Left, by the BJP and even by the regional parties; that it is refusing to wait even for six months to allow Parliament to debate and discuss the nuclear deal in its entirety; that it is prepared to subvert the pillars of Indian democracy and rush into a deal according to a timetable set out by the Bush administration without stopping to even debate the impact that the strategic alliance with the US will have on India and the region; that it is doing all this and more under the shroud of secrecy, refusing to take the people of India into confidence
about the reasons for the hurry, and the reasons why democratic will is being completely disregarded.

Every day brings with it a new demand or a reiteration of the old from the US. To put together a quick list of the do’s and don’ts for India: do not test; complete the nuclear deal formalities by the end of this year; do not support Iran; join the Proliferation Security Initiative; join the Quadrilateral; participate in military exercises; accept our friends and oppose our foes; bring our multinationals into retail; import our wheat and seeds; buy our aircraft and weapons.

The last word then has to go to Richard Boucher who one has started trusting more and more, and not to Kapil Sibal: the 123 Agreement is in total conformity with the Hyde Act.

(Courtesy: The Asian Age)