About as debatable as 1,2,3

The fact is that the bill passed on December 8, to be signed into law by US President George W. Bush today, provides a permanent waiver from three sections of the US Atomic Energy Act for the commitments made by India on July 18, 2005. The three sections prohibit the US from entering into civilian nuclear cooperation with countries that have tested a nuclear device after 1978, do not have all their reactors under safeguards and have an active nuclear weapons programme. India is the only country outside the nuclear weapon states to get this waiver.

So, keeping all this in mind, let8217;s take a look at the criticism.

Critics say: India has been forbidden from nuclear testing in future. The US is pushing CTBT through the back door.

India8217;s commitment on July 18 is only to voluntary moratorium on testing. There is already an understanding on this in the ongoing 123 Agreement negotiations. Deal or no deal, sanctions will anyhow be triggered in case India tests, under several other US laws. So this legislation essentially states what already exists.

This is in line with the post-Pokhran approach followed by the NDA. Atal Bihari Vajpayee had stated at the UN general assembly September 24, 1998 that India was willing to 8220;move towards a de jure formalisation8221; of its moratorium. Jaswant Singh had written in Foreign Affairs that 8220;since India already subscribes to the substance of the test ban treaty, all that remains is its actual signature8221;.

What has been suggested now is a 8220;voluntary moratorium on testing8221; which falls short of any de jure commitment.

The US has cancelled its obligations to facilitate alternate fuel supplies from friendly countries in the Nuclear Suppliers Group. The final bill bars building strategic reserves for lifetime running of Indian reactors. In sum, there is no assurance on fuel supplies as the PM had stated on August 17.

Specifically responding to this Section 103 10, Condoleezza Rice had stated in her letter to the conference heads that such references in the 8220;Statement of Policy8221; section 8220;would infringe upon the president8217;s constitutional authority to conduct the nation8217;s foreign affairs8221;. This clearly indicates the US administration8217;s willingness to go ahead with its commitments on this issue.

These provisions are not binding on the US administration. Moreover, the March 2 separation plan, agreed to by the US clearly states that the assurance on strategic fuel reserves will be part of the 123 bilateral agreement.

Finally, it is for the US administration to assess how the legislation restricts or enables them to fulfil their commitments. If repeated statements from Washington unambiguously say that they are confident of fulfilling their July 18 and March 2 commitments, then why the effort here to help unburden them of this responsibility?

The bill does not envisage the negotiations on the 123 Agreement and those on safeguards agreement with IAEA to move in tandem. This runs contrary to the PM8217;s assurance that India will accept safeguards in a phased manner, only when all restrictions are lifted.

The legislation requires that 8220;all legal steps8221; be completed on the IAEA safeguards agreement. The bill also requires that the NSG should have relaxed its guidelines before the 123 Agreement is implemented. Clearly, India placing reactors under safeguards is the last step in the sequence. There were doubts on this score, but the legislation has cleared them. Obviously, Indian reactors will be placed under safeguards in a phased manner as spelled out in the March 2 Separation plan.

The bill leaves space for alternate arrangements for ensuring safeguards in case IAEA fails to carry out inspections. Also, fears have been raised on the US end use programme that can be intrusive in nature. Specific concerns have been raised on US scrutiny through the requirement of cooperation in research with the National Nuclear Safety Administration

Three specific provisions in Section 107 of the Senate version of the bill on review of equipment design, access to places where US material is used and maintenance and disclosure of records were deleted. This removes the scope of intrusive scrutiny. Besides, India is clear that it will not accept anything beyond IAEA safeguards. India has been importing dual use items since 1985, which have been subject to end use verification, including in the nuclear sector.

As for arguments that the bill calls upon the US president to submit detailed annual reports on India8217;s nuclear weapons programme to Congress, this is already being done under sections 601 a of the Nuclear Non-proliferation Act and Section 620F c of the Foreign Assistance Act. More so, the most relevant factor here is that the reports are to be made on publicly available information.

The annual good conduct certification remains and the US Congress has merely replaced the word 8220;certification8221; with 8220;assessment8221;.

Rice took on board Indian concerns when she asked Congress to remove this as it may lead to 8220;annual tensions8221; between the two countries. Certification has a significant connotation. This is not the case with 8220;reporting8221; or 8220;assessment8221;. These actions don8217;t lead to termination of cooperation. They are an internal exercise in which India has no role to play, let alone cooperate.

The prime minister had promised full civilian nuclear cooperation, but the US bill says no to enrichment and reprocessing technologies.

The US as a matter of policy does not export these technologies to any country. The sole exception is the bilateral SILEX project with Australia. The bill, after India raised the concern, lists the conditions under which such exports can be made to India.

But for India, the key issue is an explicit commitment to allow reprocessing of US origin spent fuel and up to 20 per cent enrichment of US origin uranium. The bill is silent about this because this is under negotiations in the 123 Agreement, where India has made it clear that it needs the right to reprocess and enrich US origin fuel. It is encouraging that the bill does not tie the hands of US negotiators on the issue.

There are nine references to India8217;s role of being one of support and complicity with US designs on Iran. The bill talks of Indian foreign policy being congruent with that of the US.

These provisions are in the statement of policy and reporting sections of the bill that are not binding on the US administration. In fact, there was a binding provision on Iran in the Senate bill but this was removed in the Conference, indicating the desire to not let this come in the way of implementing the n-deal.