ROUND THE WORLD

New Delhi, 6 March 2008

Hyde Act Controversy

IS IT REALLY PERTINENT?

By Dr. Chintamani Mahapatra

School of International Studies, JNU

 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.--INFA

 (Copyright, India News and Feature Alliance)