South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in The Kathmandu Post on Aug. 03 ::

Given India’s role in the Nepali peace process, it should work to facilitate an understanding over contentious constitutional issues

Indian Prime Minister Narendra Modi is currently on a historic visit to Nepal, the first one by India’s Prime Minister in the last 17 years. It may appear a sort of departure from the United Progressive Alliance (UPA) government but the fact remains that during those 17 years, Nepal was caught in a civil war that eventually saw the capture of the state’s political power by the insurgent Maoists through ballots rather than bullets; Nepal reeled under the massacre of the royal family of the late king Birendra; there was the lack of any credible prime minister, as they were handpicked by the king; and finally, the takeover of direct administration by king Gyanendra, which ultimately led to the abolition of the monarchy in Nepal.


However, there is no denying that both External Affairs Ministers and India’s Ambassadors to Nepal, under the UPA regime, acquired infamy in Kathmandu for their ‘damn care’, if not ‘colonial’ approach. India’s then External Affairs Minister Salman Kurshid even made the Prime Minister of Nepal meet him at a hotel, a serious breach of protocol while Indian Ambassadors acted largely as viceroys.

The Indian government under Prime Minister Modi has restored the basics—External Affairs Minister Sushma Swaraj, during her visit to Nepal on July 25-27, stuck strictly to protocol by calling on those she was required to call on and inviting those who were required to call on her.

However, the question remains whether there is an adequately mandated government in Nepal to conduct business-as-usual. The UPA government had adopted a business-as-usual approach since Prime Minister Sushil Koirala took over as Prime Minister following the elections in November 2013. The Bharatiya Janata Party-led government is essentially solidifying the same. During the visit of External Affairs Minister Swaraj, the Nepal-India Joint Commission held its meeting after a gap of 23 years and the Commission reviewed the entire gamut of Nepal-India relations, including an assurance to review the 1950 Nepal-India Treaty of Peace and Friendship, the strengthening of mechanisms to resolve border-related problems; widening of the Prithvi Highway; promoting greater collaboration and cooperation in combating cross-border crimes; cooperation in agriculture; enhancing bilateral trade and investment; cooperation in hydropower, including finalising the text of a Power Trade Agreement; and expanding and deepening cooperation in the culture and tourism sectors, among others.

One outstanding issue

However, Prime Minister Modi ought to recognise that Nepal is still ‘in transition’ and has been governed by an Interim Constitution since January 15, 2007. The key mandate of the current Government of Nepal is to adopt a new constitution. It does not mean that the current government does not have a mandate to run the government but that elections were held to adopt a new constitution. The second Constituent Assembly has done precious little towards this end.

Most contentious issues stand resolved—the Maoists cadres have been integrated into the national army and there is consensus among the political parties on transitional justice and violations of human rights during the conflict. The question of federalism remains the final frontier. However, there is still no seriousness to find a solution to this contentious issue. In July 2014, instead of discussing federalism in the constitution, Deputy Prime Minister and Minister for Federal Affairs and Local Development Prakash Man Singh tabled the Local Self-Governance (first amendment) Bill at the Legislature-Parliament to pave the way to hold local bodies’ elections, which have not been held for the last 17 years. The Local Self Governance Bill can neither be a substitute for federalism in Nepal nor can it put the genie of federalism back into the bottle.

Learning from Indian experience

Prime Minister Modi would do well to remember that India played a critical role in the Nepali peace process by facilitating the Comprehensive Peace Agreement between the Seven Party Alliance and the then insurgent Maoists on November 7, 2006 in New Delhi. While Maoists supremo Prachanda was housed in Noida, even as his colleagues Mohan Baidya and CP Gajurel (Comrade Gaurav) rotted in Indian jails, Nepali Congress leader Girija Prasad Koirala frequented the All India Institute of Medical Sciences (AIIMS) in New Delhi, ostensibly for a medical check-up, only to slip away through the backdoors and hold negotiations with Prachanda.

If India could facilitate dialogue between insurgent Maoists and the seven political parties, there is no reason as to why it cannot facilitate dialogue on federalism amongst over-ground political parties. Unlike many Western models of federalism floated in foreign junkets and conferences, India has vast experience on the different types of federalism required to address the specific needs of the people and situations: full federalism with a clearly identified Central list, State list and concurrent list; semi-federal structure with Central government supervising the Union Territories, in some cases, with Legislative Assemblies; and Autonomous District Councils (ADCs), under the Sixth Schedule of the Constitution of India, which are often called ‘States within States’, once again with clearly identified subjects falling under the mandate of the ADCs. Nepal will have its own specific type of federalism but there is no doubt that India’s experiences can be very relevant to Nepal.

The failure to adopt a new constitution has serious implications as it touches the daily lives of all Nepalis. If Nepal fails to adopt a constitution once again and finds itself in an abyss, neither any red-herring against China, the biggest investor in Nepal, nor proposed Saarc Development Bank can rescue India’s stake in Nepal. Prime Minister Modi ought to proceed on the understanding that the adoption of a constitution that captures the aspirations of the people is of paramount importance for the Nepali people to continue to have faith in the political parties and the democratic system, especially after the abolition of monarchy and the rejection of the insurgency.

Chakma is director of the Asian Centre for Human Rights