Counting the costs of a vaunted deal

For United States President George W. Bush and Indian Prime Minister Manmohan Singh, the nuclear deal was a prized legacy-building issue. Mr. Bush ensured the deal wasn’t a divisive subject at home by forging an impressive bipartisan consensus. By contrast, Dr. Singh’s polarising single-mindedness on the ballyhooed deal and refusal to permit parliamentary scrutiny injected intense partisan rancour into the debate. Given that India may have to assume new international legal obligations on other fronts too — from climate change to the Doha Round of world-trade talks — the noxious precedent set by the deal must be corrected in national interest.

The deal indeed was a milestone, symbolising the deepening ties between the world’s oldest democracy and largest democracy. But on the first anniversary of its coming to fruition, the deal stands out as an overvalued venture whose larger benefits remain distant for India, including an end to dual-use technology controls and greater U.S. support in regional and global matters. The deal offers more tangible benefits to the U.S. While significantly advancing U.S. non-proliferation interests, the deal — embedded in a larger strategic framework — fashions an instrumentality to help co-opt India in a “soft alliance.” It also carries attractive commercial benefits for the U.S. in sectors extending from commercial nuclear power to arms trade.

To be sure, the deal-making was a tortuous, three-year process, involving multiple stages and difficult-to-achieve compromises. At its core, the deal-making centred on India’s resolve to safeguard its nuclear military autonomy and America’s insistence on imposing stringent non-proliferation conditions, including a quantifiable cap on Indian weapons-related capabilities. Eventually, a deal was sealed that gave India the semblance of autonomy and America some Indian commitments to flaunt, best epitomised by the decision to shut down Cirus — one of India’s two research reactors producing weapons-grade plutonium. No sooner had Congress ratified the deal package than the White House made clear the deal was predicated on India not testing again, with “serious consequences” to follow a breach of that understanding.

The more recent G-8 action barring the transfer of enrichment and reprocessing (ENR) equipment or technology to non-NPT signatories even under safeguards is a fresh reminder that while New Delhi is taking on legally irrevocable obligations that tie the hands of future Indian generations, America’s own obligations under the deal are unequivocally anchored in the primacy of its domestic law and thus mutable. If there were any doubts on that score, they were set at rest by the American ratification legislation that gave effect to the deal, the U.S.-India Nuclear Cooperation Approval and Non-Proliferation Enhancement Act of 2008, or NCANEA. This Hyde Act-plus legislation unabashedly declares that the bilateral 123 Agreement is subservient to existing U.S. law and “ any other applicable United States law” enacted henceforth.

That the U.S. has used the G-8 mechanism to deny India the “full” cooperation it bilaterally pledged shouldn’t come as a surprise because the NCANEA obligates Washington to spearhead a Nuclear Suppliers Group ban on ENR transfers. Having formally proposed such a ban in the NSG, Washington got the G-8 to act first — a move that puts pressure on the NSG to follow suit and, more importantly, brings on board in advance all potential ENR-technology suppliers to India. Even on the unrelated and unresolved issue of granting India an operational right to reprocess U.S.-origin spent fuel, the U.S. government has notified Congress that such permission, while subject to congressional approval, would be revocable.

For years to come, the deal will generate eclectic controversies because it is rife with unsettled issues, ambiguities and the avowed supremacy of one party’s variable domestic law. To help the beleaguered Indian government save face, some issues — ranging from a test prohibition to the political nature of fuel-supply assurances — were spelled out not in the bilateral 123 Agreement but in the subsequent U.S. presidential statements and NCANEA. As a result, the final deal gives America specific rights while saddling India with onerous obligations.

Politically, the deal was oversold as the centrepiece, if not the touchstone, of the new Indo-U.S. partnership to the extent that, a year later, New Delhi seems genuinely concerned about India’s declining profile in American policy. Clearly, New Delhi had over-expectations about what the deal would deliver.

Still, there are some key lessons New Delhi must draw from the way it handled the deal. The first is the importance of building political bipartisanship on critical national matters. Had the Prime Minister done what he repeatedly promised — “build a broad national consensus” — India would have strengthened its negotiating leverage and forestalled political acrimony. Dr. Singh’s approach was to play his cards close to his chest and rely on a few chosen bureaucrats. Not a single all-party meeting was called. Consequently, the government presented itself as deal-desperate on whom additional conditions could be thrust.

A second lesson relates to Parliament’s role. Even if there is a lacuna in the Indian Constitution that allows the executive branch to sign and ratify an international agreement without any legislative scrutiny, a forward-looking course would be to plug that gap by introducing a constitutional amendment in Parliament, rather than seek to exploit that weakness.

Sadly, the government chose not to place the final deal before Parliament even for a no-vote debate before it rushed to sign the 123 Agreement on September 10, 2008, just two days after Mr. Bush signed NCANEA into law. This extraordinary haste occurred despite Dr. Singh’s July 22, 2008 assurance in the Lok Sabha that after the entire process was complete, he would bring the final deal to Parliament and “abide” by its decision. But no sooner had the process been over than the government proceeded to sign the 123 Agreement without involving Parliament, although the deal imposes external inspections in perpetuity and leaves no leeway for succeeding governments. A year later, Dr. Singh has yet to make a single statement in Parliament on the terms of the concluded deal, lest he face questions on the promises he couldn’t keep, including the elaborate benchmarks he had defined on August 17, 2006.

In the future, Parliament must not be reduced to being a mere spectator on India’s accession to another international agreement, even as the same pact is subject to rigorous legislative examination elsewhere. In fact, when the government tables the nuclear-accident liability bill, Parliament ought to seize that opportunity to examine the nuclear deal and its subsidiary arrangements. The bill — intended to provide cover mainly to American firms, which, unlike France’s Areva and Russia’s Atomstroyexport, are in the private sector — seeks to cap foreign vendors’ maximum accident liability to a mere $62 million, although each nuclear power station is to cost several billion dollars.

Yet another lesson is to stem the creeping politicisation of top scientists. This trend has drawn encouragement from two successive governments’ short-sighted use of topmost scientists for political purpose. Such politicisation was on full display during the nuclear deal process. The top atomic leadership made scripted political statements in support of deal-related moves, only to be rewarded with special post-superannuation extensions beyond established norms. The current unsavoury controversy among scientists over India’s sole thermonuclear test in 1998 — and the atomic establishment’s frustration over the attention dissenting views are receiving — is a reflection of the damage to official scientific credibility wrought by the deal politics. All this only underscores the need to bring the cosseted nuclear programme under oversight.

If truth be told, national institutions have been the main losers from the partisan approach and divisive politics that the deal came to embody. The deal divided the country like no other strategic issue since Indian independence, with the deteriorating national discourse reaching a new low. Such divisiveness, in turn, seriously weakened India’s hand in the deal-related diplomacy. A new brand of post-partisan politics must define India’s approach in Copenhagen and the Doha Round.

A final sobering lesson: Key national decisions must flow from professional inputs and institutional deliberations, not from gut opinions in which near-term considerations or personal feelings and predilections of those in office prevail over the long view of national interest. The lodestar to avoid disconnect between perception and reality is to ensure that any agreement bears the imprint of institutional thinking, not personal fancy.

(Brahma Chellaney is Professor of Strategic Studies at the Centre for Policy Research in New Delhi.)