Nuclear Meltdown: The Threat is Real for India

Japanese nuclear engineers are making heroic efforts at immense personal risk to prevent a steam explosion (not a nuclear explosion) in the Daiichi Nuclear Power Plant (NPP) at Fukushima. This is the point at which the design and construction standards of the concrete double containment structure of the nuclear reactor will have to withstand the explosion.

This could trigger a partial or total meltdown of the reactor core, similar to what happened in USA in 1971 in the Three Mile Island NPP. (This put the US nuclear power industry into the doldrums until USA revived it by negotiating the nuclear deal with India in 2009).

Japan has a reputation for good design and safety standards and good quality control and quality assurance in execution. It would be the fervent wish of every thinking person on the planet that the double containment will not fail and that the engineers will control the desperately delicate situation in the Daiichi NPP. Nobody is as yet even thinking of the costs of containing the accident and the subsequent nuclear clean-up.

But let us now cut to the nuclear situation in India. The issue of Indian design and construction quality standards stands naked when we note that the concrete containment dome of the Kaiga (Karnataka) NPP collapsed when under construction, and had to be rebuilt. It has not been revealed whether it was a failure of design or execution quality.

It is not possible to obtain reliable information regarding the operation, safety standards and performance or other cost, constructional or operational aspects of any NPP because of the following reasons: One, Section 18 (Restriction on disclosure of information) and Section 24 (Offences and penalties) of the draconian Indian Atomic Energy Act 1962, do not permit anybody to even ask questions about NPPs.

Two, nobody except the nuclear industry is permitted to conduct tests for radioactivity even outside the perimeter of any NPP. Three, the Environment Protection Act 1986, does not apply to NPPs. Four, the safety and monitoring agency (AERB) is not an independent agency and the public has to accept whatever health and safety information is released by the NPP or the AERB.

Five, the budget of the DAE is not placed even before Parliament and the power generation and efficiency figures are not available even to the Central Electricity Authority (CEA). In short, the Indian nuclear industry is a closed door to the rest of India, and this can be at the cost of public safety and health.

Further, in the event of a nuclear accident, Government of India (GoI) has sought to cap or limit the liability of operators or suppliers of nuclear hardware and technology to assure profits to the US nuclear industry. In simpler language, this means that the real financial cost of post-accident nuclear clean-up and repair would be borne by India, as the liability of the suppliers would be limited to the cap amount, while the real costs of health and livelihood would be borne by the people.

In view of the secrecy and the poor standards of construction even in the nuclear industry, the conflicting parameters of safety, operational cost and radioactive emissions of any NPP leave the public to guess when one of India’s NPPs may suffer a serious accident, and whether we will be able to handle the disaster effectively and efficiently.

Indian nuclear engineers are second to none, thus the issue of safety in India’s nuclear establishment is institutional. The secrecy, intransparency, unaccountability and self-certification of the nuclear industry makes one doubt whether we will be able to prevent serious emergency or handle it effectively should it happen.

This also raises questions about the advisability of going for mega NPPs such as planned in Jaitapur, Maharashtra. This is quite apart from the fact of enormous resistance to its construction from local people on the grounds of livelihood and environment.

Let us hope that the Indian nuclear establishment would never need to handle a serious accident of the type of Three Mile Island or Chernobyl or Fukushima.

SG Vombatkere

Nuclear Liability Bill : Government Protects Foreign Suppliers

The amendments to the Civil Liability for Nuclear Damage Bill, 2010 proposed by the Government not only goes against the grain of the crucial recommendations of the Standing Committee, but also seeks to further dilute the provisions of the original bill to protect the interests of the foreign suppliers of nuclear equipment and domestic private players.

The new formulation of Clause 17 (b) suggested by the Government reads as follows:

“(b) the nuclear incident has resulted as a consequence of an act of supplier or his employees, done with the intent to cause nuclear damage, and such act includes supply of equipment or material with patent or latent defects or sub-standard services;”

This makes any liability on the part of the suppliers, for supplying defective or sub-standard equipment or material, contingent upon proof that it was “consequence of an act.done with the intent to cause nuclear damage.”. With this amendment, it will become impossible to ascribe liability to the supplier.

This goes against the Standing Committee formulation of 17 (b), which does not require any such proof:

“(b) the nuclear incident has resulted as a consequence of latent or patent defect, supply of sub-standard material, defective equipment or services or from the gross negligence on the part of the supplier of the material, equipment or services.”

Thus, in the name of removing the “and” in 17 (a), as suggested by the Standing Committee, the Government has rewritten 17 (b), effectively throwing the baby out with the bathwater. The formulation of 17 (b) proposed in the amendment is in fact worse than the provision contained in the original bill.

The dubious intent of the Government is further exposed by the addition of Clause 7 (1) proposed as an amendment, through which it seeks to “assume full liability for a nuclear installation not operated by it” (i.e. private nuclear installations) even as the Standing Committee had categorically recommended “that there will be no private operator of nuclear installation”. This paves the way for a massive subsidization of the private players in nuclear power by the Government, as and when they are allowed to operate.

All this is clearly being done under pressure from the foreign nuclear suppliers and domestic corporate lobbies.

Siddharth Vardarajan of The Hindu gives the background to the Manmohan Singh government’s shenanigans:

Despite assuring the Left and the BJP that their concerns on the government’s proposed nuclear liability law had been fully addressed, the final version of the bill – as cleared by the Union Cabinet on Friday – protects foreign companies in the event of a nuclear accident caused by gross negligence or defective supplies on their part.

It does this by raising a legal barrier against damage claims that is so high it will be impossible to scale. The amended version of the bill says the suppliers of any defective equipment involved in an accident can be sued by the Indian operator of a nuclear facility only if the supply in question was made “with the intent to cause nuclear damage”.

In other words, the operator, who is wholly liable in the first instance for any damages resulting from an accident caused by that faulty equipment, can recover his money only if it is proved that the supplier intentionally caused the accident.

Clause 17(b) of the original draft allowed a right of recourse for the operator in the event of an accident resulting from “a wilful act” or “gross negligence” on the part of the supplier. As reported by The Hindu on March 8 and April 1, U.S. nuclear suppliers want this clause deleted as they feel it would expose them to litigation.

Critics in India, on the other hand, saw these conditions as too weak. The Standing Committee on Science & Technology, whose report on the bill was released earlier this week, felt the “vague” language of 17(b) offered suppliers an “escape route” and needed strengthening. “In case an incident takes place, it would be difficult to prove and establish the fact that it was a wilful act or gross negligence on the part of the supplier”, the report said. “Hence there should be clear cut liability on the supplier of nuclear equipments/material in case they are found to be defective”. The committee also quoted the testimony of the Secretary (Legislative Department) to argue the use of the doctrine of mens rea, or criminal intent, though common in criminal and tax law, “is grossly inadequate and misplaced” in compensation cases.

Accordingly, the Standing Committee expanded the scope of the right of recourse in 17(b) to include nuclear incidents resulting “as a consequence of latent or patent defect, supply of sub-standard material, defective equipment or services” in addition to gross negligence.

The government’s first attempt by stealth to indemnify suppliers from legal action came in June, when it circulated amendments to the Standing Committee deleting 17(b) altogether. When the Opposition cried foul, it backed off, seeking instead to negate the clause by making it contingent on 17(a), which grants operators a right of recourse against suppliers only if expressly provided for in a contract. Forced to backtrack there too, the government now appears to have hit upon the inclusion of intent as the best way of ensuring foreign suppliers never face legal action in the event of a nuclear accident.

Thus, the amended 17(b) gives the operator a right of recourse where “the nuclear incident has resulted as a consequence of an act of supplier or his employees, done with intent to cause nuclear damage, and such act includes supply of equipment or material with patent or latent defects or sub-standard services”.

Since accidents resulting from the intentional acts of a “person” (including corporate entities like a supplier) are already covered by 17(c) of the original draft, the government is now proposing to replace the word “person” in 17(c) with “individual” to avoid the charge of redundancy.

If the earlier subterfuge was to merge 17(b) with 17(a), the attempt now is merge it with 17(c). Either way, the Manmohan Singh government’s aim is the same: to produce legal language that would shield foreign suppliers from civil suits.

UPA Report Card: Drifting From Tragedy To Farce

The Manmohan Singh government completes 6 years in office today. Alas, it has nothing to show by way of achievement except making India an American satellite. As the following assessment by Prakash Karat underlines, if there is an impression of drift and being directionless, the Congress government has only itself to blame for this plight. After thinking it can go ahead with its own policy prescriptions, it now finds itself in a position where its partners in Government often look at things differently and assert themselves.

The present UPA government is completing one year of its tenure on May 22. Unlike the first UPA government, its second edition did not spell out a common minimum programme. Instead, the Congress-led government began by reiterating its commitment to pursue the neo-liberal agenda. It announced that it would take up those policy measures which it could not push through in its first term in office.

The government also promised to bring in some welfare measures for the aam aadmi. On foreign policy, the government stated that it would adhere to the path taken by the first UPA government of aligning India’s foreign policy in tune with the strategic alliance with the United States of America.

The one-year of the UPA government has been notable for the following:

Firstly, it has totally failed to tackle the relentless price rise of essential commodities particularly food items. This has been the biggest cause for people’s suffering in the past year; for the poor it has meant less food and more hunger and malnutrition.

This is not a “failure” as such but an outcome of the determination to pursue neo-liberal policies. Food items and other essential commodities are traded and speculated in the market in a big way. The forward trading system is the playground for big trading companies and corporates. The government is in the least interested in curbing these interests who are making huge profits.

Secondly, the Congress-led government is in the grip of finance capital and the sway of big business. It believes in cutting taxes for the rich; providing a tax bonanza for big business and maintaining favourable terms for foreign finance speculators.

The Direct Taxes Code which the government proposes to usher in will make India one of the least taxed countries as far as the rich are concerned. In the last financial year, the government provided Rs. 80,000 crore of tax concessions to the corporates. The disinvestment of shares in the profitable public sector units is the favoured agenda of both Indian big business and the US corporate interests.

Every sphere of policy making, whether it concerns the pricing of gas, the allocation of telecom spectrum, opening up of mining and minerals, the financial sector, retail trade or allowing foreign educational institutions into the country – bears the imprint of a government pandering to big business and their foreign finance collaborators.

Thirdly, this type of growth under the neo-liberal regime has spawned crony capitalism. The nexus between big business and politics has become the hallmark of the Congress regime. The legitimacy provided to foreign capital flows from dubious sources through the Mauritius route and other tax havens; the huge illegal mining business flourishing under political protection; the refusal to discipline and penalize law breaking and tax evasions on a large scale on the part of the super rich – all this has promoted a unhealthy and perverted capitalism which is celebrated as India’s growth story.

What this has produced is corruption and illegality on a large scale which affects every sphere of society. The first year of the government has seen the IPL affair, the 2G spectrum allocation scam and the mining scandal of the Reddy brothers. All this can be directly sourced to the nexus between big business and ruling politicians.

Fourthly, the UPA government’s concern for the aam aadmi has proved to be shallow. The Congress and the UPA government are conscious that some relief has to be provided to the people who are the worst victims of the neo-liberal policies.

During the UPA I tenure, the National Rural Employment Guarantee Act, the farm loan waiver and the Forest Rights Act were some such measures. These were part of the Common Minimum Programme and came into being mainly due to the consistent pressure and struggles waged by the Left parties.

However, under the UPA II, the government has failed to legislate even one substantial measure for relief. The proposed Food Security Bill would have in no way enhanced food security for the people.

After one year, the government is still debating how to bring about such a measure. The Public Distribution System has been further weakened and curtailed. The plight of the farmers does not seem to concern the government which has cut the fertilizer subsidy by Rs. 3000 crore in the current Union budget.

The Common Minimum Programme of the first UPA government had promised to increase public expenditure in education to 6 per cent of the GDP and in the sphere of health to 2 to 3 per cent of the GDP.

As far as education is concerned the combined central and state expenditure is still below 4 per cent. In the case of health the combined budgetary allocation of the Union and state budgets was a meager 1.06 per cent of the GDP in 2009-10, far below the target of 2-3 per cent.

Fifthly, the UPA government has failed to utilize the favourable political atmosphere and the strength of the secular forces in parliament to push for firm anti-communal measures. It seems visibly reluctant to come to terms with the Ranganath Mishra Commission report recommending reservation for the minorities on the basis of their socio-economic backwardness. There has been a noticeable lack of political initiative in dealing with the simmering problem of Kashmir.

As far as tackling the Maoist violence is concerned, the UPA government tends to treat it solely as a law and order problem without realizing that some of its own policies like the licence for indiscriminate mining in the forest areas is alienating the tribal people.

Moreover, it finds itself hampered by its own partner in government, the TMC. Mamata Banerjee has declared that there are no Maoists in West Bengal and therefore there is no need for joint operations against them.

Sixthly, foreign policy under the Manmohan Singh Government has remained steadfast in its fealty to the United States. As a quid pro quo for the nuclear deal, India has agreed to buy billions of dollars of US arms and equipment.

The End Use Monitoring Agreement which would allow American inspections on Indian soil was signed. The Civil Nuclear Liability Bill which has been introduced in parliament to meet the demand of the United States is patently against the interests of the Indian people. The growing military and security collaboration with the US and Israel affects the pursuit of an independent policy.

India has gone along with the United States which is targeting Iran on the nuclear issue. It once more voted against Iran in the IAEA, unlike other non-aligned countries. India is not playing the role of a leading non-aligned country.

In contrast, President Lula De Silva of Brazil has stood up to the United States and refused to go along with the campaign for further sanctions on Iran. President Lula has visited Tehran for talks with the Iranian leadership to find a way out of the impasse and to come to some agreement with the help of Turkey.

One of the few positive aspects in foreign policy is the Prime Minister’s refusal to adopt a confrontationist stance towards Pakistan despite what sections in his government and party wish.

The great potential of shaping an independent foreign policy and strengthening of multi-polarity by India’s vigorous diplomacy and energising forums like the BRIC, IBSA and the trilateral meetings of the foreign ministers of Russia, China and India is being underplayed.

Politically, the striking outcome of the first year of the UPA government is its increasing vulnerability. In May 2009, the UPA won the elections but failed to get a majority. The Congress leadership ignored this reality and became complacent with the unilateral declaration of support by parties like the BSP, SP, RJD and the JD(S). By the end of the first year that complacency has been shattered.

During the last budget session, the Congress had to adopt the tactic of bargain and striking deals to garner support from amongst these parties. The last three weeks of the budget session have witnessed the manouevres to prop up the government’s majority against the cut motions and the struggle to ensure the passage of legislations.

The cynical use of the CBI for political purposes is undermining the credibility of the agency. The wheeling and dealing that saw the postponement of the Women’s Reservation Bill in the Lok Sabha and the introduction of the Civil Nuclear Liability Bill – all portend a tortuous path for the future.

If there is an impression of drift and being directionless, the Congress government has only itself to blame for this plight. After thinking it can go ahead with its own policy prescriptions, it now finds itself in a position where its partners in Government often look at things differently and assert themselves. There is growing opposition within parliament.

As far as the people are concerned, their experience is of a government increasingly callous to their sufferings due to price rise, while it showed great solicitude for big business and the corporates when it felt the impact of the global recession.

After the first six months of the government, there has been the rising tempo of popular struggles and movements. A peak in this struggle was reached with the April 27 hartal called by the 13 opposition parties. A spate of struggles of different sections of the working people have taken place. The struggle is on against the harmful policies of the government and to defend the livelihood and the rights of the working people. The question is whether the UPA government has learnt any lessons from its first year in office.

Oppose The Nuclear Liability Bill

The recent radioactive poisoning death in Delhi has once again highlighted the fact that the Civil Nuclear Liability Act being foisted on the nation will only help American companies get away with murder just as Union Carbide did after killing and maiming thousands in Bhopal. In the Mayapuri case one person died after coming into contact with a radioactive pencil that was disposed of by Delhi University as scrap, the vice chancellor appeared on TV to offer only an apology. No talk of compensation. This is going to be repeated on a horrific scale in case of an accident at nuclear power plants proposed to be built across the country. Sitaram Yechury argues why this the Civil Nuclear Liability Bill must be opposed

On the last day of the budget session of Parliament, the government hurriedly introduced the Civil Nuclear Liability Bill amid largescale protests by the Opposition.

The Left had opposed the introduction of the Bill itself on the grounds of violation of Article 21 of the Constitution, which guarantees protection of life and personal liberty.

Former Attorney General Soli Sorabjee says, “In view of Supreme Court judgements which are part of Indian jurisprudence and whose thrust is for the protection of victims of accidents as part of their fundamental rights under Article 21 of the Constitution there is no warrant or justification for capping nuclear liability.”

However, it is precisely such a cap that the Civil Nuclear Liability Bill introduces.
The proposed Bill has sought to limit all liability arising out of a nuclear accident to only 300 million Special Drawing Rights (about $450 million) and the liability of the operator only to Rs 300 crore.

The difference between $450 million and Rs 300 crore (about $67 million) is the government’s liability. Given that a serious accident can cause damage in billions, the small cap of $450 million that’s been proposed shows the scant regard the the UPA has for the people.

The Bhopal Settlement of $470 million reached between the government of India and Union Carbide and accepted by the Supreme Court, has been shown to be a gross underestimation. Even today, gas victims are suffering and have received only meagre compensation.

It is unconscionable of the UPA government to suggest that all nuclear accidents, which have the potential of being much larger than Bhopal, be capped at a figure that has already been shown to be a gross underestimate. Since the government wants to allow private operators in the nuclear power sector, this low level for compensation is meant to serve their interests too.

Apart from this, the minuscule liability of Rs 300 crore for the actual operator is tantamount to encouraging the operator to play with plant safety.

The Indian legal regime is quite clear: for hazardous industries, the plant owners have strict liability. Neither does the law accept any limits to liability — the party concerned must not only pay full compensation but also the cost of any environmental damage that any accident may cause. The Oleum leak from Sriram Food and Fertility settled the liability regime in India and any legislation seeking to cap liability will be completely retrogressive.

Contrary to the claims being made, the Vienna Convention — the basis of the proposed Nuclear Liability Bill — does not cap nuclear liability but only puts a minimum floor. It also allows countries to operate their liability regimes. For example, Germany, Japan and Finland all have unlimited liability, the same as current Indian law.

The US has a liability cap of $10.2 billion. Not only is the Indian government proposing to cap liability of nuclear plants, but it is also proposing a cap of only $450 million, way below the consequences of any serious nuclear accident. It appears that in order to promote private nuclear power and foreign suppliers, the UPA government is willing to sacrifice its own people.

The suppliers’ liability is also being considerably weakened by the proposed Bill. Instead of the normal contract law, where recourse of the operator to claim damages is inherent, the Bill limits this recourse only if it is explicitly mentioned in the contract. Otherwise, the nuclear operator cannot claim compensation from the supplier of equipment even if it is shown to be faulty.

It is evident that contracts for buying US nuclear reactors will explicitly exclude any liability on the part of the suppliers and, therefore, by the law to be adopted, they will go scot-free even if an accident occurs due to a defect in the equipment supplied by a US company.

In fact the UPA-II government wanted such a legislation, which the prime minister could carry with him to the Nuclear Security Summit that President Obama convened in Washington in April. However, following the controversial passage of the Women’s Reservation Bill in the Rajya Sabha with the help of marshals, the crucial support of 47 Lok Sabha MPs belonging to the BSP, SP and RJD was not forthcoming.

This obstacle, however, appears to have been overcome now through possibly some ‘bargain’ similar to what happened at the time of the passage of the Indo-US nuclear deal.

The US is insisting that this law be enacted to protect US suppliers of nuclear equipment from liability to pay compensation in the case of a nuclear accident. Currently, only the State-run Nuclear Power Corporation of India Ltd. under the existing Atomic Energy Act can operate nuclear power plants. But with the opening up of international nuclear commerce, US companies have sought a civil nuclear liability framework to be put in place before they enter.

The US government has linked the completion of the Indo-US nuclear agreement to India’s capping of nuclear liability. The UPA-I government, prior to the ratification of the 123 Agreement, had given a written commitment that India will buy nuclear reactors from the US totalling 10,000 megawatt of capacity.

This Bill has now been referred to the parliamentary standing committee for its consideration. It will now be tabled in the monsoon session. It is imperative for all political parties to ensure that the government is not allowed to disregard the life and safety of the Indian people through such a legislation. Article 21 of the Constitution and the various judgements of the Supreme Court cannot be allowed to be violated.


Indo-US Nuclear Deal: Kowtowing Again!

One more accord has been concluded under the much-trumpeted Indo-US nuclear deal. But like the previous two — the 123 bilateral agreement with the US and the safeguards accord with the International Atomic Energy Agency (IAEA) — the latest agreement, too, will escape scrutiny by the Indian Parliament. The newest agreement involves US consent to India to reprocess spent fuel of American origin.

Is it a good advertisement for the world’s most-populous democracy that while the American president will submit the reprocessing agreement to the US Congress for scrutiny, the Indian Parliament will again be shut out from playing any role on this latest accord? How can there be effective checks and balances in a democracy if the executive branch insists that the national legislature has no role to play in any international agreement?

It is only on the nuclear-accident liability issue that the government is coming to Parliament because that involves passing a new law. In fact, it wants Parliament to pass a law that limits liability to a pittance, overturning the doctrine of absolute liability that the Supreme Court has set in response to the Bhopal gas disaster.

The result of blocking Parliament from scrutinising the nuclear deal is that India is now saddled with a deal that does not adequately protect its interests. India has got no legally binding fuel-supply guarantee to avert a Tarapur-style fuel cutoff, and no right to withdraw from its obligations under any circumstance, although the US has reserved the right for itself to suspend or terminate the arrangements.

The terms of the latest reprocessing agreement are in continuation of what the US was able to extract in the 123 bilateral agreement. The US has retained the right to unilaterally suspend its grant of reprocessing consent to India. This is an extension of its right, incorporated in the 123 agreement, to unilaterally suspend or terminate fuel supply to India. That is exactly what the US did in the mid-70s under its previous 123 agreement with India dating back to 1963. As a result, the twin-reactor, US-built Tarapur nuclear power plant near Mumbai, was left high and dry.

In the newest 123 agreement, the US has retained the legal right to unilaterally terminate cooperation but provided political assurances to India that such a right will be exercised only in extraordinary circumstances. A similar approach is mirrored in the reprocessing accord.

Under Article 7 of the reprocessing accord, the reprocessing consent can be suspended on grounds of “national security” or a “serious threat to the physical protection of the facility or of the nuclear material at the facility,” and if the party determines “that suspension is an unavoidable measure.” So the US right to suspend reprocessing consent is unfettered.

Still, the agreement’s article 7 and the accompanying “agreed minute” record political assurances to India that such a right shall be exercised only in special circumstances and after careful thought. But such assurances hold little value when the legal right to suspend reprocessing consent is explicitly recorded in the text.

The actual implementation of the reprocessing agreement is years away, even though US-origin spent fuel has been accumulating in India for nearly 40 years at Tarapur.
India will not be able to reprocess that spent fuel until it has built at least one new dedicated reprocessing facility — a process that will take a number of years. Article 1(3) specifies that the US consent relates to “two new national reprocessing facilities established by the government of India.”

Only in those new facilities, approved by the IAEA, can India reprocess the discharged fuel under international inspection. Any additional reprocessing facility can be added only with prior US agreement.

Another feature of the agreement is that it amplifies India’s reprocessing obligations with the IAEA, including to provide facility-design information in advance and to allow unhindered international monitoring and verification (article 2). But in addition, the accompanying “agreed minute” obligates India to permit US “consultations visits” to each dedicated reprocessing facility. Every “visiting team of not more than 10 persons” will be permitted onsite access “at a time and duration mutually agreed by the parties.”

It is thus apparent that the US has got what it wanted. For example, the state department had earlier notified the US Congress in writing that “the proposed arrangements and procedures with India will provide for withdrawal of reprocessing consent” by the US. That is exactly what the text of the accord provides. Also by providing for US “consultations visits,” it effectively permits IAEA-plus inspections.

Had the Parliament been allowed to play a role, the government would have been able to leverage that to fight back one-sided provisions.

Brahma Chellaney/DNA

Indo-US Nuclear Deal: An Overrated Initiative

On the first anniversary of its coming to fruition, the much-trumpeted Indo-U.S. nuclear deal stands out as an overrated initiative whose conclusion through patent political partisanship holds sobering lessons for India, writes Brahma Chellaney

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.)

Congress Left In The Lurch

By Roger Alexander

The Left is back in fashion.

Even with Manmohan Singh who hated being a “bonded slave” of the comrades. He now “regrets” having parted ways with the Left.

And Rahul Gandhi, who wants “to keep communal forces at bay” with the very people he called “obsolete” just the other day. 

And Sharad Pawar, who is shouting from the rooftops that “no government can be formed without the support of the Left.”

And Lalu Prasad and Ramvilas Paswan who get nostalgic about “past friendship”.

And Amar Singh now wants an “urgent meeting” with Prakash Karat.

And Kapil Sibal. And Jayanti Natrajan. And Prannoy Roy. And Rajdeep Sardesai. And Arnab Goswami…The list is long and interesting.

All insist the Left has “no choice” but to support the Congress. According to them, “politics is the art of the possible.”

Indeed, so loud is the clamour to do business with the Left parties and their allies in the Third Front that one wonders what happened to Rahul Gandhi’s brave words of taking the Congress back to the halcyon days of one-party rule.

So what gives? 

It is evident that with the five-phase election now over, the Congress has got the heebie-jeebies. Gone is the bravado and swagger of the five past years. And as the day of reckoning on May 16 approaches, the ruling party is literally clutching at straws. 

Nothing illustrates this better than Rahul Gandhi’s craven overtures to J Jayalalithaa, Chandrababu Naidu, Nitish Kumar and, above all, to the Left Front even before the election process is complete.

The Congress, of course, is an old practitioner at chicanery, back-stabbing, underhand deals, and double-cross. Remember Manmohan Singh jauntily flashing the V-sign just before he faced the trust vote on June 22 last year? He could afford to be optimistic then, secure in the knowledge that with Amar Singh’s help he had bought off enough MPs to save his government. But buying a billion votes is a different kettle of fish. 

Rahul’s plans to once again sneak him into 7, Race Course Road through the backdoor without having to face the electorate lie in tatters. Even self-professed allies have called his bluff. 

For the Congress, the writing is on the wall. The maths is working like this: the Congress’s dream of winning in Andhra and Tamil Nadu have evaporated; Sharad Pawar has shafted it in Maharashtra; Mamata Banerjee may not win more seats than the Left Front in West Bengal; Naveen Patnaik may hold his own in Orissa; and most importantly the BJP should retain its strength in the states it rules.

Rahul has no choice. He must turn poacher.

But alas, the only thing coming in the way of the Congress’s political nirvana is the Left-led Third Front. Not only have the members of this front – the TRS and JD(S) notwithstanding – snubbed the Congress, other parties that are not formally part of the Third Front are also eyeing greener pastures in a non-Congress, non-BJP dispensation.

The fact of the matter is that after ten years and two coalition governments – NDA and UPA – the small parties are chary of being handmaidens of the two big parties. Not only do they have to scramble for crumbs thrown at them when it comes to cabinet berths, the big brothers also try to muscle into the political space they have carved for themselves in the provinces.

Chandrababu Naidu was the first to realise that the BJP was gaining at the TDP’s expense in Andhra Pradesh during the Vajpayee years. Naveen Patnaik came to the same conclusion in Orissa recently. Deve Gowda is still to recoup after being taken for a ride by the saffron party. And Mayawati who has played footsie with the big two in the past has only scars to show for her dalliance. 

On the UPA side of the fence, Lalu Prasad and Paswan realised late in the day that the Congress was keen on regaining Bihar for itself using their muscle. Mulayam Singh Yadav did not yield an inch over sharing seats in Uttar Pradesh knowing full well he would be writing his own epitaph. And Mamata Banerjee was smart enough to offer only “unwinnable” seats in West Bengal and keep her options open.

So it is only natural that whoever forms the government, the small parties will hold the whiphand. And if they stick together and play their cards smartly, they can certainly take the country on a new track.

For this to happen the Left Front must emerge as the largest formation after the Congress and BJP to provide the glue to keep the smaller together in a tight bloc that can call the shots when it comes to forming the next government.