Shivakantjha.org - The Hyde Act: Conclusion
The Hyde Act: A critical exposition in the context
of the 123 Agreement
By Shiva Kant Jha
[This author intends to examine critically the provisions
of the Hyde Act of the USA to comprehend the implications of the 123 Agreement
between the USA and India. This exposition would be done by dividing it into
4 segments under distinct captions: (a) the Prelude; (b) the Provisions; (c)
the Implications; and (d) the Evaluation.]
The Hyde Act: Conclusion
(An Aspect of the 123 Agreement)
To summarize what this Hyde Act does? It is an elaborate Act
enacted by the US Congress. This author has examined some of its provisions,
and has highlighted some of its implications in this series of 14 articles.
The broad effects of this Act can be summarized thus:
(i) The Hyde Act is the domestic Act of the USA, but with a
lot of spin-offs in our domestic sphere.
(ii) The Indo-US Agreement is called the 123 Agreement as it
is done in pursuance to Section 123 of the US Atomic Energy Act, 1954.
(iii) It provides a statutory foundation to the 123 Agreement,
by exempting the US Executive from certain mandatory provisions of the US Atomic
Energy Act, 1954.
(iv) It empowers the US President to waive the operations of
certain provisions of the said Act for the purpose of entering into a Deal with
(v) It makes contemplates the 123 Agreement under a Congressional
(vi) It subjects the process of the said Agreement to a close
Congressional supervision and control.
(vii) It the US President is himself, in the matter of formation
and implementation of the said Agreement, under a close Congressional accountability.
(viii) It gives clear guidelines how to go about the formation
and the execution of the 123 Agreement through the Sense of Congress and Policy
guidelines spelt out comprehensively in the Act. Besides, it gives a set of
mandatory directions on many operational points.
(ix) It authorizes unilateral decisions on many crucial points
as the process of the Presidential certification is wide enough to sanction
an indirect intrusion into India’s inner sovereign space, and to keep us in
crucial moments of needs on tenterhooks.
(x) It is a wide spectrum treaty with the possibilities of
many incidental Agreements the profile of which would be clear only in course
of time (which is quite a dangerous situation for India as it is entering into
a treaty virtually framed in pactum de contrahendo.)
(xi) It promotes a strategic partnership not only for assisting
India’s peaceful uses of nuclear energy, but for promoting the US hegemonial
agenda and corporate commercial interests
(xii) Its provisions are couched in words capable of generating
a lot of controversies for deciding which no fair and acceptable tribunal, or
forum has been set up.
What this author has done in these articles on the Hyde Act
is to drum into the ears of my countrymen to study the Hyde Act with care, and
assess it in the context of our country. Our Government says that the 123 Agreement
has nothing to do (in the matter of obligations vis-à-vis India) with the Hyde
Act. The US President thinks that his foreign policies are not controlled or
influenced by the terms of the Hyde Act. This author has examined in the very
first article (“The Hyde Act: Evaluation of certain assumptions of the Faustian
pact”) that the President is not well informed at law. So far our Government
is concerned, less said the better. It signed the Uruguay Round Final Act, there
are good reasons to believe, even without reading the text. It now wants to
ratify the 123 Agreement without understanding it. One thing is more alarming.
No body the Government tries to understand it. A brief is being pleaded by our
Government, and that is encored day and night by the Press and media. There
was a time when even the legal stalwart like M C Setalvad thought it appropriate
that even some foreign expert’s service deserved to be obtained for better representation
before the ICJ. Now the time has changed. They think it is better to saddle
the nation with their vainglorious and ill-informed assertions, than to subject
themselves to right hearing and right comprehension. We can derive solace from
F.S. Mahony “Every nation has the government that it deserves. Or is it just
Destiny? This author would end this Conclusion with a few lines from the Panchatranta:
‘Is it not amazing that Ravana did not see the impropriety
in carrying Sita to his kingdom? Is it not amazing that Shri Ram did not catch
the impossibility of a deer of gold? Is it not amazing that Yudhistir did not
foresee the consequence of playing dice? It was all because when ill-luck strikes,
wisdom soon departs.’
Are we driven to something of this sort?
Thus ends this author’s short over-view of the Hyde Act. This
author does not claim to find the ‘Open Sesame’ to this Act. Only time would
reveal what its provisions mean both for us and for them. ” Whether we know
and intend it or not,” says Dr. I.A. Richards, “ we are all jugglers when we
converse, keeping the billiard-balls in the air while we balance the cue on
our nose.” And we must not forget that we shall be dealing with the global Hegemone.
It may not be unlikely that in the administration of the 123 Agreement and other
incidental Agreements in the offing the authority, to which Lord Atkin referred
in his famous dissent in Liversidge v Anderson  , may be often invoked.
Lord Atkin had said:
“I know of only one authority which might justify the suggested
method of construction. ‘When I use a word’ Humpty Dumpty said in rather scornful
tone, ‘it means just what I chose to mean, neither more nor less’. ‘The question
is,’ said Alice ‘Whether you can make words mean different things’. ‘The question
is,’ said Hampty Dumpty, ‘who is to be the master ---that is all.”
After all, didn’t C.S.. Calverley say: “And as to the meaning,
it’s what you please”; and Tulsi Das “samrarath ke nahi dosh” [ No fault
gets ever attributed to the mighty]. It is for this reason John Philpot Curran
had said: “ The condition upon which God hath given liberty to us is eternal
 (1942) A.C. 206,at 245