- The Hyde Act: The Implications

The Hyde Act: A critical exposition in the context of the 123 Agreement

By Shiva Kant Jha

The Hyde Act: The Implications: A Brief Overview

(An Aspect of the 123 Agreement)
Part X(c)

It is unusual for a citizen of this country to hold an inquest over a statute of the USA to comprehend its implications, and possible impact on our interests. But this task is essential for precisely the following two reasons:

(i) The conjoint effect of the 123 Agreement and the US Hyde Act is to subject our sovereign space, both in the domestic sphere and at the international plane, to foreign domination, if not jurisdiction; and

(ii) Our past proves unequivocally the terrible ‘knowledge deficit’ on the part of our leaders in the matter of foreign law, and international public law. To illustrate: our Government did not protect its interests while a foreign company was in India but litigated for tax dues in the U.K to be told brusquely by the House of Lords (in Govt. of India v Taylor 27 ITR 356) that foreign revenue law could not be implemented there. But we may ignore this deficiency, culpable though it was [ after all money is money]. But a foreign law that virtually drives us to a military alliance, and subjects us to an imperial domination, exposing to hazards in this world threatened by a nuclear holocaust, surely deserves to be taken up seriously by us all.

A close reading of the Hyde Act shows that its prime purposes are two:

(a) to facilitate and promote the neo-liberal agenda of trade in nuclear goods,

equipments and services; and

(b) to erect an Alliance under the US hegemony to dominate the world, especially the world which hates Islam, and ignores the Hindu culture as these cultures are not conducive to capitalism, and do not believe in consumerism without which modern capitalism cannot hope to flower[Francis Fukuyama in The End of History and the Last Man (1992) draws a panegyric of the free-market economy dubbing it the ‘endpoint of mankind’s ideological evolution’; and holds Christianity more “evolved” religion than other faiths, and more conducive to the growth of capitalism (Peter Watson, A Terrible Beauty p.754)].

These points are of the greatest importance for us if we are to survive as an independent nation capable of protecting our culture and tradition. This author has his views on both the aforesaid points, but the scope of this article does not permit that venture at present.

A reading of the Hyde Act shows that the USA intends to draw us into the vortex of the realpolitik of which the USA is the author, promoter, protector, and the supreme beneficiary. The US Government is bidden by the Congress to ensure:

“(3) Secure India’s—

(A) full participation in the Proliferation Security Initiative;

(B) formal commitment to the Statement of Interdiction Principles of such Initiative;

(C) public announcement of its decision to conform its export control laws, regulations, and policies with the Australia Group and with the Guidelines, Procedures, Criteria, and Control Lists of the Wassenaar Arrangement;

(D) demonstration of satisfactory progress toward implementing the decision described in subparagraph (C);


(E) ratification of or accession to the Convention on Supplementary Compensation for Nuclear Damage, done at Vienna on September 12, 1997.

(4) Secure India’s full and active participation in United States efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel, and the means to deliver weapons of mass destruction.

(5) Seek to halt the increase of nuclear weapon arsenals in South Asia and to promote their reduction and eventual elimination……”

We must recognize some crash facts of the present-day Globalization under

Pax Mecatus (the Rule of the Market):

(i) Though ours is now surely one world because of the breaking down of many barriers, and the conquest of time and space on account of information technology, and the innovative exploitations of the Cyber Space, human nature is still bedeviled by what they call the Wallace Syndrome: the syndrome bred by fast changing technology but stagnant morality revealed in the unbridled greed and lust for wealth and power. When we study the words and deeds of humans, we should take things with caution and with a pinch of salt, otherwise we are bound to be short shrifted. We should sense every step, because the lapses of certain moments would sentence us to humiliation, exploitation, even destruction. Let us not create a situation in which we may have to bewail what Einstein did after observing the antics of the politicians of his days in the matter of disarmament:

“The [the politicians and statesmen] have cheated us. They have fooled us. Hundreds of millions of people in Europe and in America, billions of men and women yet to be born, have been and are being cheated, traded and tricked out of their lives and health and well-being.”

(ii) We are now fast becoming a Sponsored State run by people schooled and trained at the IMF, World Bank, WTO and other analogous institutions contrived to promote the neo-liberal economic agenda of the corporate imperium under the US leadership. A friend of mine made a blood-curdling observation that by 2020 India may become a country with numerous enclaves functioning as city states controlled and guided by Washington (with our Federation existing only as a figment of delight)! This is surely an attempt to see through the tunnel. We wish not to believe this macabre apprehension, yet we are worried that things taking place in our country are pointing towards this gruesome destiny: the SEZ and its variants; the rolling-up of the State functions; the dominance of the corporate leaders and their institutions promoting the Washington Consensus, in our domestic policy; the obvious governmental strides to orbit round the USA which invades our domestic space with all sorts of soft and hard directions, most of them through an opaque system; the insidious efforts at the corporate colonization of our mind; shocking disrespect for our culture and religion; creation of conditions under which the country gets divided into Bharat and the de-luxe India, the latter hand in glove with the extractive and exploitative gladiators of the Economic Realm and its rogue financial system which subjugate the Political Realm to which our Constitution primarily belongs.

(iii ) We live in a phase when the political morality in our country is at the lowest ebb. Our Supreme Court, in Shivajirao Nilangaker Patil v. Mahesh Madhav Gosavi, [AIR 1987 SC 294 at page 311and 306 repeated in R. S Das v. Union AIR 1987 SC 593 at 598)] had said:

“But it has to be borne in mind that things are happening in public life which were never even anticipated before. There are several glaring instances of misuse of power by men in authority and position. This is a phenomenon of which the Courts are bound to take judicial notice.”

“This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country, along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out, the Court should not and cannot remain mute and dumb.”

And the government is accustomed to resort to falsehood when it suits the wielders of power to remain perched at the seats of authority. This author cannot recount examples to corroborate this painful censure, but he invites his readers to read Thomas Mann’s The Death in Venice where a callous government, through its omissions and commissions, kept people in dark! This author is mentioning this as a ground in support of his view that the Indo-US Deal deserves to be effectively considered by people through their Parliament. John Milton’s Comus, to which our Supreme Court refers in Shrisht Dhawan v. Shah Bros [1] aptly says:

‘’T is only daylight that makes sin.’ [2]

There are several reasons for morbid apprehensions, which should not be allowed to persist if we have to survive as an independent and pluralistic country:

(i) Why should we give up our time-tested policy of Non-Alignment? To say that we will be aligning, as a major democracy, with a powerful democracy out to fight for the cause of Democracy with a verve stronger than of King Arthur and his Knights, is a dangerous lie. There is no harm in aligning with a noble cause as this would be acting with what Lord Krishna said in the Bhagavad-Gita. But can we say that the US policies really promote Democracy? This author agrees with Chomsky: read his chapter ‘Democracy Promotion Abroad’ in his Failed States to discover reasons. For USA democracy is good thing if and only if it is consistent with its strategic and economic interests.’

(ii) It would be dangerous for our country to become a party to the promotion of a strategic partnership with the USA as it is evident that someday it may create problems with the Muslim world or China. We should not embarrass ourselves by doing anything which disturbs our demographic harmony that would breed sense of anguish in any section of our people. It is not worthwhile to became a pawn in international politics creating zones of encirclement with an evil design towards China, or any other country. The folly that Nehru had committed once, let that not be repeated again. We want to live at peace with all our neighbours, whether Pakistan or China. We should understand that once upon a time China was the world’s greatest trading nation, and still has strong traditions of public service. China is so pragmatic that it is accepting even Globalization on its own terms.

(iii) Like Cassandra, this author prays that his apprehensions may never come true. But then, why should we provide pin-pricks to our neighbours? Examining the war-guilt question, the Encyclopedia Britannica very perceptively observed:

“Perhaps the 1914 crisis was, after all. a series of blunders, in which statesmen failed to perceive the effects of their actions, would have on the others.”

Both the World Wars emanated only from most foolish errors. Let us not repeat the past.

(iii)We live under an extremely fragile international law and order. Noam Chomsky’s

Hegemony or Survival correctly portrays the realities we must face:

‘The whole frame-work of international law is just “hot air”, legal scholar Michael Glennon writes: ‘The grand attempt to subject the rule of force to the rule of law” should be deposited in the ashcan of history –a convenient stance for the one state able to adopt the new non-rules for its purposes, since it spends almost as much as the rest of the world combined on means of violence and is forging new and dangerous paths in developing means of destruction, over near-unanimous world opposition’” (p. 13):

International law has now become virtually an instrument of US policy. This has enhanced the danger of US interventions this way or that. The Hyde Act and the 123 Agreement provide several ways and several occasions of such soft or hard interventions. We can forget inclement facts only at our peril.

(iv) One thing more, the Hyde Act, in effect, subordinates India to the US President and the US Congress as they would be supervising us, appraising us, commanding us, and setting us to toe their lines through pressure and persuasion, both overt and cryptic. Such things would not be done as they were done under the old style imperialism. The latest style of imperialism was emerging when Nehru was writing his Glimpses of World History wherein he wrote with deep insight:

“Economic imperialism is the least troublesome form of domination for the dominating power. It does not give rise to so much resentment as political domination because many people do not notice it.” [at 571]

“This latest kind of empire does not annex even the land; it only annexes the wealth or the wealth-producing elements in the country. By doing so it can exploit the country fully to its own advantage and can largely control it, and at the same time has to shoulder no responsibility for governing and repressing that country. In effect both the land and the people living there are dominated and largely controlled with the least amount of trouble.” [at 570]

[1] AIR 1992 S C 1555

[2] notpadyate vina jnanam vicarena nyasadhanaih

yatha padarthabhanam hi prakasena vina kvacit
(Without inquiry, wisdom cannot be attained by any other means,
even as things of the world cannot be seen without light.)

--Samkar in his Aparoksanubhuti

“ It has been established that more the effort at secrecy the greater the chances of abuse of authority by the functionaries”. [Shah Commission Of Enquiry, Third and Final Report P. 231] - Links on Shivakantjha - Links on Shivakantjha

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