Some of the opponents to the 123 Agreement between India and US have asked whether India can conduct a Pokharan III nuclear test as it did Pokharan I and II. This analysis is offered on the assumption that this is a question posed in all sincerity and not one of the Pontius Pilate category where the poser turns away after the question without waiting for an answer. The answer is a categorical yes, with a caveat. It depends on who is the Indian prime minister at the time and under what circumstances this decision is taken. This answer is implicit in the sovereignty of India; casting doubts on our ability to test is to entertain reservations on India’s sovereignty. Today there is an informal test ban in operation. Of the five nuclear weapon powers, Britain and France have no testing sites on their own soil. They have both signed and ratified the CTBT. Only the US, Russia and China have test sites. Of these three, Russia has signed and ratified the CTBT. The US and China have signed but not ratified the treaty. According to the Vienna Convention on Treaties, a country is bound by the spirit of the treaty it has signed but not ratified. In that sense, US and China also have an obligation not to test. So, none of the five can test without breaking the spirit of a treaty obligation. Opponents of the 123 Agreement who fear that India would be trapped into a no-testing obligation are not able to cite any language in the 123 Agreement that binds India not to test. They argue that the Hyde Act provides for punitive measures if India were to test after becoming a recipient of US nuclear reactors and technology. The Hyde Act serves two purposes. One, it exempts India from a ban on nuclear cooperation though India has not acceded to the NPT and will continue to possess nuclear weapons. It specifically exempts India from the requirement of full scope safeguards. Two, it lays down conditions for nuclear technology cooperation and supply of reactors to India. At the present moment, India is concerned only with the first provision that exempts India from the prohibition of nuclear cooperation and requirement of full scope safeguards, since that exemption is a prerequisite for getting a waiver from the 45-member Nuclear Suppliers Group. The second implication of the Hyde Act will be of relevance only when India buys reactors from US or imports various nuclear technologies. That bridge is quite some distance away. Yet, unfortunately, the opponents of the 123 Agreement highlight that provision without focussing on the primary provision of getting exemption for India from the Atomic Energy Act of 1954. Getting that exemption does not stipulate that India should not conduct a nuclear test. No other nuclear power/nuclear supplier country has any such stipulation. In fact, contrary to assertions of the opponents of the 123 Agreement, it strengthens India’s position on testing compared to the situations in 1974 and 1998. At that time when tests were conducted, the US imposed sanctions. Article 14 of the 123 Agreement provides that there will have to be one year’s notice before termination of the agreement and there should be consultations. Article 14(2) says “They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a party’s serious concern about a changed security environment or as a response to a similar action by other states which could impact national security.” Further, article 13(1) stipulates “The parties recognise that such consultations are between two states with advanced nuclear technology which have agreed to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology”. In these two clauses Indian diplomats have secured the country’s right to test if the security environment deteriorates and if the US or any other nuclear weapon power were to test. In other words, the 123 Agreement strengthens India’s hands immeasurably in terms of the right to test in case of some other power testing or serious deterioration in security environment. It would appear that articles 13 and 14 of the agreement have not been carefully studied by those who oppose it. Any Indian prime minister considering testing will have to weigh carefully the consequences of such an act and the judgement of the prime minister may vary from time to time depending on his/her assessment of consequences. Indira Gandhi conducted Pokharan I in 1974 braving international disapproval. But in 1983, after ordering a test she cancelled it. Atal Bihari Vajpayee went along with Morarji Desai on a passive nuclear stand in 1979 but conducted the Pokharan II test in 1998. Narasimha Rao prepared for the test in December 1995 and at the last minute stepped back. Therefore, whether Pokharan III will be conducted or not will depend upon the man/woman in charge. It is a highly subjective decision. However, Pokharan II was conducted in an international situation more favourable than Pokharan I. At present through the 123 Agreement we are trying to eliminate the adverse consequences of Pokharan I. The adverse consequences of Pokharan II were not as long-lasting as Pokharan I. Within five years after the test, India was able to engage the US on the Next Steps in Strategic Partnership. The 123 Agreement has cleared the ground for conducting Pokharan III if it becomes necessary. Those who are opposing the 123 Agreement want to condemn us perpetually to the technology apartheid imposed on a weak India after Pokharan I. It is understandable that the Left which wanted India to continue to be non-nuclear, perpetually subject to the Sino-Pakistan nuclear threat and dominance, should oppose India getting international recognition of its right to test in case its security requirement needs it or another power carries out a test. It is incomprehensible why those who carried out Pokharan II test should oppose an agreement which specifically recognises the Indian right to test. Is there an explanation other than partisan politics? The writer is a senior defence analyst
