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Post-Constitution Shivers in Nepal and India’s Response

Nihar R Nayak is Research Fellow at Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi. Click here for detailed profile.
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  • September 28, 2015

    After seven years of debate and discussion to iron out differences among various political parties, the Constituent Assembly (CA) of Nepal promulgated the new Constitution on September 20. There was a grand celebration in and around Kathmandu immediately after the country’s president signed the draft. However, more than half the population, especially the Janajatis, the people living in the Terai region, Dalits and women rights groups, opposed the new Constitution.

    The Protests

    The Terai region witnessed violence protests when the Constitution was promulgated. In fact, the region has been witnessing violent protests since August 9, 2015 and over 46 persons including 10 security personnel have so far been killed in various incidents. According to media reports, around 2,000 Madhesis have taken political asylum in Bihar and Uttar Pradesh and the Nepal Armed Police has been resorting to excesses to quell the protests. Normal life has been badly hit and many parts of Nepal have been witnessing a shortage of essential goods due to prolonged protests and road blocks by the Samyukt Loktantrik Madhesi Morcha (SLMM), the Tharus and the Janajati groups. As part of the protest, some of the elected members from the Terai region have either resigned from the CA or boycotted the Constitution making process.

    The marginalized groups of Nepal – the Madhesis, the Tharus and the Janajatis — argue that the Constitution promulgated by the CA has failed to accommodate their long standing demands. These include: demarcation of provincial boundaries on ethnic lines, establishment of two Madhesh provinces, proportional representation of ethnic groups in State agencies and Parliament, equal political rights to persons to acquire citizenship by naturalisation, and implementation of previous agreements between the State on the one hand and Janajatis and Madhesis on the other. Later, the SLMM has also demanded the withdrawal of the Army from the Terai region as one of the pre-conditions for negotiations. Even after the promulgation of the Constitution by nearly 85 per cent of CA members, the agitating groups are continuing their protests.

    According to media reports about 1,000 Madhesi have so far taken political asylum in Sitamarhi and Madhubani districts of Bihar. There were reports that some of them might go underground if the Constitution does not accommodate Madhesi demands. Some reports also indicated that the Madhesi leaders had lost control over the agitators and there was an unforeseen spontaneity in the way the people in the Terai poured out into the streets and went ahead with their protests.

    Instead of putting Nepal together, the draft has in fact divided the Nepalese people into two deeply polarised sections — the so-called Pahadis, and the non-Pahadis comprising the Madhesis, the Tharus and the Janajatis.

    Initial External Reactions

    Despite mixed domestic responses, congratulations have poured in from the International Community. China, the European Union and Japan were the first to congratulate Nepal immediately after the promulgation of the Constitution. Norway, the United States, the United Kingdom, Russia and the United Nations followed.

    India’s Cold Response

    India neither ‘welcomed’ nor ‘congratulated’ Nepal on this occasion. Rather, there was a press release titled “Statement on the situation in Nepal”, which stated: “We note the promulgation in Nepal today of a Constitution. We are concerned that the situation in several parts of the country bordering India continues to be violent …We urge that issues on which there are differences should be resolved through dialogue in an atmosphere free from violence and intimidation, and institutionalized in a manner that would enable broad-based ownership and acceptance.”

    India’s cold response indicated that Nepal’s southern and most important neighbour was not happy with the way the Constitution was drafted. India has been following a ‘hands-off’ policy, i.e., not interfering in the Constitution drafting process and encouraging a ‘Nepali grown model’ to generate consensus, ever since the process was set in motion in May 2010. However, in the immediate aftermath of the finalisation of Nepal’s Constitution and especially with the increase in violence and political asylum seekers entering Indian Territory, India has found itself embroiled in Nepal’s domestic issues. As informed observers have noted, Nepal’s political leadership has ignored India’s concerns and suggestions which have been periodically shared ever since Prime Minister Modi visited Nepal in August 2014. In this backdrop, the Indian reaction appears quite natural because prolonged conflict in Nepal is certainly not in India’s interest. Anticipating a Sri Lanka like situation on its northern border and genuinely concerned about the durability of the Constitution which has already become embroiled in controversy, India did not welcome Nepal’s new Constitution.

    Second, India has felt that it has been let down by Nepal’s leadership. Apparently, top Nepalese leaders — including K. P. OIi, Prime Minister Sushil Koirala, P. K. Dahal (Prachanda) and Sher Bahadur Deuba — had, during private meetings with Modi and other senior Indian officials, assured them that the Constitution would be promulgated on the basis of consensus. In fact, India had all along hoped that Nepalese leaders would keep their promise. When that did not happen, it was but natural for the Indian government to feel betrayed.

    Thirdly, although many Nepalese commentators linked India’s reactions to its traditional support to the Madhesi cause over the years, the aversion of the present government to the word secularism in Nepal’s constitution and its apprehensions about the spill-over effect of the Terai violence on the upcoming Bihar elections, the fact of the matter is that the Indian foreign office has been particularly worried about the growing ‘united front’ among the left political parties of Nepal — especially between the Maoists and the Communists —against India, backed by external powers opposed to Indian influence in Nepal. India had already apprehended such an alignment of forces against it when it was kept in the dark about the 16-point deal signed in June 2015 among the top four political parties.

    India had reflexively interpreted this development as a major strategic challenge for it in its Himalayan backyard. Its suspicions were further confirmed when the three-party alliance ignored India’s suggestions about preparing a broad-based document by accommodating the demands of the marginalised groups. Even India’s suggestions during Foreign Secretary Jaishankar’s visit to Nepal on September 18, to delay the Constitution making process by 10 to 15 days and initiate dialogue with the agitating groups, was rejected by the top leaders.

    Deepening distrust

    Trust deficit and mutual suspicion between India and Nepal have deepened further after India issued its third note on Nepal on September 21, which said: “We are deeply concerned over the incidents of violence… Our freight companies and transporters have also voiced complaints about the difficulties they are facing in movement within Nepal…” This note gave rise to fears in Nepal that India might resort to an economic blockade like it had done earlier in 1988-89. Anti-India elements took full advantage of the growing fear of Indian retribution in Nepal. Most significantly, India was surprised to see the level of anti-India sentiments posted on Nepalese print, electronic and social media.

    The Indian reaction has, in the meanwhile, led to notes of caution by some of the major international actors. China, which had welcomed and congratulated Nepal over the new Constitution, has now suggested to Nepalese leaders that they should make the Constitution broad based so as to accommodate the voices of the marginalised groups. A press briefing by the Chinese foreign office on September 21 stated: “China sincerely hopes that all political parties in Nepal can bear in mind the fundamental interests of their country and the people, address the differences through dialogue and consultation, realize enduring development of the country and bring happiness to the people.” The observation by the United States was also along similar lines.

    ‘Caution’ is the need of the hour

    The present slump in India-Nepal relations could have been avoided had Nepalese leaders adopted caution and pragmatism in their approach. They should not have promised India that they would finalise the Constitution on the basis of ‘Consensus’ in the first place. Secondly, they could have clarified their position to India before taking the final step of proceeding with a majority decision to promulgate the Constitution, rather than decrying India’s role after the promulgation of the Constitution. Moreover, in the face of prolonged protests, the leadership in Nepal has to find a way of bringing the dissenting voices on board, thrash out mutual differences, and initiate necessary revisions in the Constitution to satisfy the groups feeling marginalised by provisions in the constitution.

    On the Indian side, rather than moving swiftly from its policy of “hands off” to a state of “panic reaction”, India has to proactively engage all concerned and ensure that the new Constitution is suitably amended to accommodate the demands of the marginalised groups in Nepal.

    Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India

    Note: This article has been amended for a factual error. In paragraph 2, it was originally mentioned that "the Nepalese Army has been resorting to excesses to quell the protests". This has now been amended to "the Nepal Armed Police has been resorting to excesses to quell the protests".