The Hyde Act, 2006 has prominently featured in the controversy over the Indo-US nuclear agreement. On the one hand the Hyde Act has been criticised because it denies full cooperation in civil nuclear energy to India. It requires India to participate in a nuclear policy congruent to that of the US, for instance, on Iran; it authorises termination of nuclear cooperation if India conducts future nuclear weapons tests. But the government's view is that the Hyde Act is not binding on India and will not materially control the Indo-US Agreement. It is, therefore, relevant to note of the legal implications of the Hyde Act.
The Indo-US Agreement is executed under the provisions of Section 123 of the US Atomic Energy Act, 1954. This section requires an Agreement for Cooperation (known as a peaceful nuclear cooperation agreement or a Section 123 agreement) should be concluded with a particular country before the US can assist that country in the nuclear field according to nine criteria. The president can exempt a proposed nuclear cooperation agreement from any of the criteria but such an exemption requires Congressional approval. That's why the Congress passed Hyde Act.
Apart from treaties, the president of the US has the power to enter into executive agreements, which do not require the assent of the Senate and are not subject to the formal treaty-making process in the US Constitution. Executive agreements are of two kinds. One, those that are made subject to Congressional authorisation or approval. Other executive agreements are made solely in accordance with the president's constitutional power and are known as sole executive agreements. They do not require Congressional approval or authority.
The Indo-US Agreement is a Congressional-Executive Agreement under the authority of the Hyde Act passed by Congress, and to which the president gave his assent on December 18 2006. The Hyde Act must therefore be considered in some respects at least as delimiting the president's authority to implement the nuclear agreement with India.
The Hyde Act is described as an act to exempt the proposed nuclear agreement for cooperation with India from certain requirements of the US Atomic Energy Act, 1954. The act requires the US Government to follow certain policies in the implementation of the agreement, the president to report to Congress periodically on the implementation of the cooperation and places restrictions on transfers of nuclear material. It also makes provisions for the termination of nuclear transfers to India and accountability for nuclear material supplied to India.
Simultaneous with the signing of the Hyde Act into law on December 18, 2006 by President Bush, he issued an important statement, aimed at allaying certain apprehensions of India arising from the act. President Bush stated that its prescriptive provisions would be treated only as being of an advisory character. The president's statement said: "Section 103 of the Act purports to establish US policy with respect to various international affairs matters. My approval of the Act does not constitute my adoption of the statements of policy as US foreign policy. Given the Constitution's commitment to the presidency of the authority to conduct the nation's foreign affairs, the executive branch shall construe such policy statements as advisory. Also, if Section 104(d)(2) of the Act were construed to prohibit the executive branch from transferring or approving the transfer of an item to India contrary to Nuclear Suppliers Group transfer guidelines that may be in effect at that time of such future transfer, a serious question would exist as to whether the provision is unconstitutional by delegated legislative power to an international body. In order to avoid this constitutional question, the executive branch shall construe Section 104(d)(2) as advisory. The executive branch will give Sections 103 and 104(d)(2) the due weight that comity between the legislative and executive branches should require, to the extent consistent with US foreign policy."
Section 103(4) of the Hyde Act that the president refers to, requires the US to secure India's full and active participation in US efforts to dissuade, isolate and, if necessary, sanction and contain Iran for its efforts to acquire nuclear weapons and capability to enrich uranium and so on. Section 104 (d) (2) which the president refers to states that notwithstanding the 123 agreement, no item subject to such agreement may be transferred to India if such transfer is inconsistent with transfer guidelines for the NSG operating on the date of transfer.
President Bush's perception of the controlling effect of the Hyde Act on his executive powers may not necessarily be shared by succeeding presidents. Nevertheless, the statement does qualify the rigours of the Hyde Act as a matter of law.
The advantages of the Indo-US nuclear agreement are too great to be thrown away because of an impressionist reading of the Hyde Act. The problem requires a deeper understanding of the position of the president in relation to Congress in the system of separation of powers and checks and balances in the US Constitution, and the complexities of nuclear technology. Any evaluation of the Hyde Act must also take into account the inevitable gulf between legislative prescriptions of the Hyde Act and their expedient and practical implementation over the 40 years duration of the agreement.
The setting up of an expert committee by the government to examine the implications of the Hyde Act is a way forward in a complex problem.
The writer is a senior advocate, Supreme Court and a former Solicitor-General of India.
