Most importantly, Section 103 also contains two clauses that have been focused upon by opponents of the deal in India: an article to restrict the transfer of equipment and technology related to enrichment, reprocessing and heavy water production, and a clause to prevent the transfer of nuclear equipment, materials or technology from other NSG countries should nuclear transfers to India be suspended. Furthermore, the first clause is largely offset by another which allows for the transfer of technology related to enrichment, reprocessing and heavy water in “a multinational facility”. A careful reading of the Hyde Act indicates that India should not be too concerned regarding fuel supply assurances and ‘full’ nuclear cooperation as some analyses have suggested.

This leaves only 10 objectionable clauses that can legally constrain the executive branch of the US government. Of these, one — a clause to ensure that appropriate safeguards will be put in place — can be dismissed as unnecessary, but not necessarily damaging. Another four sections detail presidential determinations to Congress on India’s nuclear activities, while two others detail presidential reporting to the appropriate Congressional committees. It is in these sections — 104(c) and 104(g) — that two mentions of securing India’s cooperation in efforts to isolate and contain Iran are included. These six clauses are by no means desirable from an Indian vantage point, yet they place significant decision-making power in the hands of the presidency. Given Congress’s many reservations concerning the deal, this may not be so bad.

Three clauses remain which could provide serious legal constraints to the future of US-India nuclear cooperation, two of which fall under Section 104(d), which outlines restrictions on nuclear transfers to India. Section 104(d)1 states that civil nuclear cooperation between the US and a non-NPT weapons state cannot “in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices.” This should not be cause for offence as the separation of civilian and military facilities was an inherent aspect of the deal. Section 104(d)3 puts termination of the nuclear transfers in the hands of the president. This too should not be surprising as it is impossible to envision bilateral civilian nuclear commerce taking place under a president who is opposed to it.

... contd.