by: Ram Jethmalani
For quite sometime critics of the Nuclear Agreement have been frightening the Government that the people of India intensely resent it. This is just not true.
Truth can only be established if the House is dissolved and the deal becomes the only issue at the next election. My own understanding is that this canard emanates from those who are hoping to corner the votes of those who hate America but for reasons totally unconnected with the deal. The Times of India Poll published only this morning fortifies my opinion. 93% welcome the deal. Conceding that the Poll is not conclusive, the criticism by the Left, the BJP and some other parties must be exposed as false, frivolous and vexatious.
The main criticism is based upon the Act of the US Congress called the “Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006”. It is said that this legislation is binding on the US President and it negatives the provisions of the Nuclear Agreement. The US President has explained that most of its clauses are advisory and whatever binding effect they have, is on the U. S. Administration and not India. The latter is only bound by its obligations under the Agreement. The Constitutional relationship between domestic legislation and a treaty entered into by the President is wholly misrepresented out of ignorance or intentional suppression of truth. The position is thus described by well known text book in its latest edition. It needs to be reproduced.
Treatise on Constitutional Law –
Substance and Procedure – Third Edition –
Ronald D. Rotunda John E. Nowak
6.7 Conflicts Between Treaties and Acts of Congress
While treaties as well as federal statutes are the supreme law of the land, the Constitution provides no solution for the dilemma arising when provisions of a self-executing treaty conflict with acts of Congress. In Whitney v. Robertson the Supreme Court addressed the issue of modifying a treaty by subsequent acts of Congress. The case involved a dispute arising between the United States and the Dominican Republic over the terms of a sugar trade treaty to which the two nations were parties.
The Court stated that constitutionally treaties and legislative acts are equal, both being the supreme law of the land. When the treaty and statute relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either, but if the two are inconsistent, the one last in date will control the other…
Acts of Congress passed after the date of the treaty, the Court held, control over the treaty terms. Similarly, a self-executing treaty is valid as domestic law and takes precedence over a federal law enacted earlier. The last expression of the will of the sovereign controls.
This puts an end to most of the arguments conjured up by the not too honest critics. The Act doubtless reiterates the Non-Proliferation policy of the Government of the United States of America. The Nuclear Weapons Power have persuaded all the countries of the world except four to sign the Nuclear Non-Proliferation Treaty (NPT). The Act is a bold attempt to make an exception for India. The reasons for making this singular and extraordinary exception are clearly spelt out by the Act. These are –
1. India has demonstrated responsible behaviour with respect to the Non-Proliferation of technology related to nuclear weapons and the means to make them;
2. India has a functioning and uninterrupted democratic system of government;
3. Agreement for civilian cooperation will strengthen the Non-Proliferation mechanism in place and restrain the making and spread of nuclear weapons.
4. That the cooperation to be extended to India will isolate and weaken the States that sponsor terrorism and terrorist groups which are on the look out for nuclear weapons and other weapons of mass destruction.
5. Strong bilateral relations with India are in the national interest of the United States.
6. The two Nations share common democratic values and the potential for increasing and sustaining economic engagement.
7. Commerce in civil nuclear energy with India has the potential to benefit the people of all countries.
8. The cooperation to be extended to India represents a significant change of American policy relating to business with States which have rejected the NPT.
9. Indian democracy should feel flattered by this magnificent statement of reasons for exceptional treatment of India. Prime Minister Manmohan Singh has accused the termination of long period during which we were treated as international outcasts with whom no nation will trade in nuclear fuel and technology sorely needed for its economic growth and industrial survival.
It is true that India has agreed to dissuade and prevent Iran from acquiring weapons of mass destruction including nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel. It is certainly not in the interest of India and the world at large that a government which openly declares as its objective the destruction of a Member of the United Nation which has been granted full recognition by India should acquire the power to carry out its diabolical designs. Search for vote banks should not blind our politicians to the stark reality that half of the worlds organized terrorism, represented by Hizbollah is created and financed by ruling clerics of Iran. Iran has an ancient civilization and India is a friend of the people of Iran but the current government is an international horror.
Besides Iran is a signatory to the NPT and without a serious breach of International Law it cannot renege on its obligations. This part of the bargain is our constitutional duty under Article 51 of our basic law. This is not subservience to the U.S.A.
Dr. P. K. Ayanger, the former Chairman of Atomic Energy Commission seizes on Article 2 of the Nuclear Agreement which reads as under:-
Article 2 : “The parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this agreement.
Each party shall implement this agreement in accordance with the respective applicable treaties, national laws regulations and license requirements, concerning the use of nuclear energy for peaceful purposes.”
He concludes, and in this he is joined by my dear friend Arun Shourie, that we have bound ourselves by the Hyde Act, this is manifestly absurd. The Article only provides that each party shall implement the Agreement in accordance with the respective applicable treaties national laws etc. etc. As explained above the treaty overrides the national law. Moreover the Hyde Act is not the national law of India. Even if the Hyde Act were to bind India, the Article speaks not of the entire Act but only its provisions concerning the use of nuclear energy for peaceful purposes. Incidentally Dr. Kakodkar, the current Chairman of the A.E.C. and Dr. Chidambaram, the Principal Scientific Advisor to the Government have made no such criticism and raised no such absurd inference from Article 2. India has no intention to violate any provision concerning use of nuclear energy only for peaceful purposes. It is time we clearly understand what we intend to achieve by this Agreement. We are admittedly starved of nuclear fuel and new technology for production of the fifty thousand megawatt of electricity which are needed to light our homes and offices and run our industries and public services.
We will be able to trade and, by ordinary commercial activity, acquire what we need from the U.S. as well as the forty five countries that constitute the Group of suppliers. This is being done on the assumption that India is not going to detonate a nuclear bomb in the foreseeable future. But India has not given up this right in perpetuity. If and when the changed International Scenario compels this action we can exercise our sovereignty. The other party in exercise of its own sovereignty may well decide to terminate the exceptional business relationship forged by the Agreement. At that moment we will be in the same situation in which we are today or perhaps a much better situation because we would have sufficient reserves to see us through the remaining life of our reactors or we might have already solved our energy deficit problem.
I have no doubt that a situation in which we are compelled to explode one or more nuclear devices is not likely to arise at all. We expect no nuclear attack from Pakistan nor indeed from China.
It is well to draw the attention of the Left to the Joint Declaration issued by the Governments of India and China during the visit in November 2006 of President Hu Jintao of China. It is a long document and, therefore, reference may only be made to two extremely important paragraphs No. 27 and 39:-
“27. Considering that for both India and China, expansion of civilian nuclear energy programme is an essential and important component of their national energy plans to ensure energy security, the two sides agree to promote cooperation in the field of nuclear energy, consistent with their respective international commitments. As two countries with advanced scientific capabilities, they stress the importance of further deepening cooperation bilaterally as well as through multilateral projects such as ITER and enhance exchanges in the related academic fields……
39. Energy security constitutes a vital and strategic issue for producing and consuming countries alike. It is consistent with the common interest of the two sides to establish an international energy order, which is fair, equitable, secure and stable, and to the benefit of the entire international community. Both sides shall also make joint efforts, bilaterally as well as in multilateral fora to diversify the global energy mix and to increase the share in it of renewable energy sources. Global energy systems should take into account and meet the energy needs of both countries, as part and parcel of a stable, predictable, secure and clear energy future. In this context, international civilian nuclear cooperation should be advanced through innovative and forward-looking approaches, while safeguarding the effectiveness of international non-proliferation principles.”
This declaration evoked no criticism from the Left or any body else and yet the declaration records that India is under an obligation not to breach or dilute the effectiveness of the International Non-Proliferation infrastructure that the nuclear powers including China have created for the rest of the world.
The Chinese secured from us a written promise not to manufacture or to explode a nuclear bomb. If this involves surrender of sovereignty we were deprived of it by the Chinese in November 2006. It is immoral to attribute it to the USA in July 2007.
We can rest assured that if India is faced with the danger of nuclear aggression any bomb that we explode will be a legitimate act of defence which doubtless is a peaceful purpose by reason of the 51st Article of U N Charter.
Scientist P.K. Ayanger then treats us to another absurd ipse dixit. He declares that the Agreement is a total gain for the Non-Proliferation lobby and India gets nothing except a big Zero. Then like a megalomaniac he claims that the Indian Scientists have much better technology than the Americans. We can help them rather than that they help us. This to me sounds like the thirteenth stroke of a clock which not only discredits itself but tells us that the mechanism of the clock has gone hay wire.
The greatest gain is coming together of the two great democracies of the world. We are now partners not merely in a war against terrorism because two years ago we decided on expansion of the frontiers of democracy and the rule of law. However, because of the terrible mistakes on both sides India and United States which should have been friends and allies had drifted apart. Both countries have significantly changed their foreign policy by harmonizing it with the values of their domestic Constitutions. As partners we have a right to offer sage advice to each other. We both might accept the jurisdiction of the International Criminal Court, sign and carry forward the Kyoto protocols, give up the Security Council veto cut back on military spending and substantially increase social spending. Jointly we might fulfill the dream of Gandhiji that India will be the conscience of humanity relying on its arsenal of spiritual force rather than weapons of mass destruction.
Courtesy: Sindhishaan magzine, 30th August 2007