Nevertheless the joint conference bill amending US laws is of great importance, since its passage was a requirement for NSG members to decide on the amendments to the NSG guidelines allowing for civil nuclear commerce between India and NSG members. To that extent India’s reaction to the changes in US laws would have an impact on members’ actions at the forthcoming NSG plenary.

The earlier House and Senate versions of this bill had been criticised heavily by certain sections of the political, strategic and scientific establishments in India. As a consequence of these criticisms, Prime Minister Manmohan Singh had made a statement in August in Parliament outlining the government’s position and giving certain assurances. Both the critics and supporters of the Indo-US deal welcomed this. The PM categorically assured the House at that time that “we will not accept any conditions that go beyond the parameters of the July 18, 2005 joint statement and the March 2, 2006 separation plan, agreed to between India and the United States. If in their final form the US legislation or the adapted NSG Guidelines impose extraneous conditions on India, the government will draw the necessary conclusions, consistent with the commitments I have made to Parliament.”

The point is the final form of US legislation does not impose any additional conditions on India beyond those agreed to by India in the July 18, 2005 joint statement and the March 2, 2006 separation plan.

In addition to this categorical assurance, the PM had elaborated on certain criticisms of the earlier bills. Even at that time five of the nine points referred to by the PM had no real significance as they were not the subject matter of any of the bills at that time and the criticisms were a result of misreading — deliberate or otherwise — of the bills by the critics. Another was in reference to the India-US bilateral Nuclear Cooperation Agreement, which is yet to be finalised. The remaining three elements — full civil nuclear cooperation, principle of reciprocity and certification — all have been addressed satisfactorily in the joint bill. The requirement of an annual certification by the president, notwithstanding the fact that it was non-binding on India, has been removed. The principle of reciprocity has been restored. Finally, the explicit prohibitions on certain exports relating to enrichment, reprocessing and heavy water production have been removed although the final version may still attract some criticism.

The final version of the bill is not perfect. It contains redundancies — provisions that are already covered by various existing US laws — that do not add to the bill’s effectiveness and yet are certain to attract criticism in India. For instance, Section 107 on MTCR Adherent status is already covered under the Arms Export Control Act in an explicit manner. Nothing in the current bill, minus Section 107, would have in any manner altered India’s adherent status under US laws. Yet the only explanation for the inclusion of the final bill is that “ the conferees included section 107 to clarify this point”! In another instance, the conference bill while modifying the earlier Section 107, End-Use Monitoring Programme, requires measures to be taken to obtain assurances pursuant to the export licensing authorities of the Department of Commerce, including conditions on end-use monitoring — which has been already concluded between India and the US a long ago.

In the final analysis what should be India’s response? Strictly speaking, this is a piece of domestic legislation in the US and does not require any Indian action. Nevertheless what should be our reaction? As mentioned earlier, this bill does not add on any new commitments by India other than those that were voluntarily accepted by India in the July 18, 2005 joint statement and March 2, 2006 separation plan. On the other hand, its length and redundancies would certainly raise some harsh criticism in India.

This is where the reference to moment of truth becomes relevant. Last March, when India announced its separation plan, it was subjected to much criticism in US official and non-official circles alike cutting across all sections of the nonproliferation community as not conforming to the spirit of the July 18, 2005 joint statement. It was left to President Bush, one of his few wise decisions, to cut across the confusion and make the political decision to accept India’s separation plan, since he, quite correctly, recognised that addition or deletion of one or more reactors from India’s civil nuclear list does not really make any substantive difference to the outcome: de facto recognition of India as a nuclear weapon state.

It is now time for India’s political leadership to make the hard choice. Whether to focus on irrelevant details in the joint bill — which do not have any impact on Indian security or indeed require India to undertake any fresh commitments — or accept that this bill is a prerequisite for any change in the international rules governing nuclear commerce in India’s favour, and act accordingly.

While there are critics in India who would not be happy with any US legislation drafted by the Americans — they would rather that they be asked to write US laws — the final bill in its current form is an acceptable one. In the final analysis, nothing in this bill or under any possible US or NSG rules would require India to import anything from the US. If India finds the US conditions on nuclear transfers too demanding, it can simply turn to other suppliers.

The writer is a technology consultant specialising in nuclear issues