The India-United States (US) Civil Nuclear Co-operation Agreement, popularly known as the nuclear deal, has once again entered into the domain of uncertainty. The policy making community is divided over predicting its fate. Evidently when a vast majority has surrendered  hope over its revival, signals for its resuscitation started coming from some important quarters – the atomic energy establishment, retired scientists, and the main Opposition party. Yes, the road to success is always under construction making travellers work overtime.

The current impasse generates several questions: First and foremost is, what went wrong? After signing the successful 123 Agreement it appeared the core concerns of the strategic community were somehow satisfied. But the political leadership could not sell the deal properly to their coalition partners.

While some blame the Prime Minister's provocative statement that infuriated the Left combination, and precipitated the crisis; others point a finger at the Left formation for ignoring national interests by opposing an Indo-US agreement, and indirectly helping China. Also to an extent the principal Opposition formation is guilty for not rising to the occasion, and helping to facilitate the deal to fruition.

Consensus
Now the task of the government is to build a consensus around the agreement. The need for a consensus to save the agreement is to support the nuclear energy establishment, and support Indian reactors to function to their capacities. The image management in international relations could be the secondary factor or maybe of no relevance.

Then comes the question: Are the political parties trying to build a consensus over the deal? It seems at least the ruling formation and its outside allies are talking to build the consensus. However, believing the public postures of the Left combination, it does not appear that it is going to accept the proposed agreement in it’s present package.

Similarly, the US officials  are meeting the leaders of the principal Opposition party – the Bhartiya Janata Party (BJP). The leaders of the BJP, too, categorically told the former US Secretary Henry Kissinger as well as the US Ambassador to India David C Mulford that the agreement in the current form is unacceptable. 
Could the deal be re-negotiated? Very recently, the US Secretary of State Condoleeza Rice stated that the deal could not be re-negotiated. The Indian External Affairs Minister Pranab Mukherji also stated on the floor of the Parliament that the deal could not be re-negotiated. So, a simple guess would be that the deal would fail as there is no political backup for it. And the Prime Minister’s disappointment would come true.

Re-negotiation
However, technically or legally, the deal can be re-negotiated. This provision is not only under the broad legal framework of the US but also under the 123 agreement that both countries negotiated and released inAugust. Article 2 paragraph 3 of the 123 agreement stipulates, “Transfer of nuclear material, non-nuclear material, equipment, components and information under this Agreement may be undertaken directly between the Parties or through authorised persons. Such transfers shall be subject to this Agreement and to such additional terms and conditions as may be agreed by the Parties.”

Apparently, the current US posture and the Indian acceptance are based on a political understanding that the deal is to be closed for further action or next steps. In reality, there is hardly any legal problem in re-negotiation.
There is a spurt of activity in India to save the deal and to explain the perils of failure of the deal. If actors involved in the exercise are really serious, they must undertake the task of mitigating the fears of the Indian political class, basically emanating from the controversial provisions of the Hyde Act.

The 123 Agreement opted to remain silent on some of these provisions. As the silence is not going to solve the problem some of the provisions may pose in the future, it is prudent to overcome them before the operationalisation of the deal or simply put before thinking of going to the International Atomic Energy Agency, Nuclear Suppliers Group, and seeking the final approval of the US Congress.

(The writer is a Research Officer with the Institute for Defence Studies and Analyses, New Delhi.)