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Nepal’s new Constitution: Some lessons from India’s experience

analysis Updated: Dec 06, 2016 04:48 IST

A Nepalese activist with his mouth covered gathers with others from the Federal Alliance -- members of the Madhesi and ethnic communities -- to voice their anti-constitution concerns on the first anniversary of Nepal's constitution in Kathmandu.(AFP File Photo)

The other day Kathmandu’s Radisson Hotel, off a tiny lane crammed on either side by stores with Nepalese and Himalayan knick knacks, was crawling with security officials. The president and prime minister, their senior cabinet ministers and top officials, as well as diplomats, intellectuals, media and scholars, packed the sprawling conference hall, celebrating the 10th anniversary of the end of Nepal’s brutal and divisive civil war.

But even as celebratory speeches rang out in the diplomatic and upper-middle class neighbourhood of Nepal’s capital, the country was in the midst of a crippling constitutional standoff.

In fact, it is 26 years since that spring of 1990, when a brief-but-powerful popular movement against the partyless panchayat system forced the late King Birendra to introduce constitutional reforms, which led to the ushering in of democratic rule. Many of the old guard from the Nepali Congress (NC), which led that fight under BP Koirala and his brother Girija Babu or GP Koirala as well as KP Bhattarai and Ganesh Man Singh, all of whom spent long years in prison, have gone.

GP Koirala’s nephew Sushil, who helped negotiate the 1990 midnight transition to power during those heady days of revolt and near-revolution and found himself propelled into the PM-ship, is no longer a leader of the NC.

The two comrades who led the breakaway Maoist battle against the democratic but family-led rule of the Nepali Congress and led the Maoists to a stunning victory against the NC have fallen out; one is Prime Minister Pushpa Kamal Dahal, better known as Prachanda (who had held that post in 2008-09), the other, Baburam Bhattarai, leads a breakaway faction in the opposition.

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As this manthan has taken place, the Nepali economy, apart from its politics, has been grappling with two crippling shocks: The 2015 earthquake and then the unofficial Indian economic blockade. New Delhi was taken by surprise by clauses in the Constitution that it felt discriminated against the Nepalis of Indian origin, better known as the Madhesis of the Terai region, bordering Nepal and India. The position was that the statute infringed upon citizenship processes, especially to those married to Indians and their right to contest elected office.

After many months of negotiation and the ouster of Prime Minister KP Oli, of the Communist Party of Nepal (Unified Marxist Leninist), widely seen as anti-Indian, the Constitution process continues to struggle with the Madhesi roadblock, showing how emotive such issues can become in a heterogeneous land. In an effort to break the logjam, Prachanda proposed redrawing district borders to enable the Madhesis and hill tribes to carve up a special area for themselves.

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This Constitution amendment has run into opposition, both from a Madhesi political alliance as well as furious blockades by the youth from schools and colleges opposing the effort. Both sides say the same thing: It’s unacceptable because it is discriminatory — but for different reasons.

The Madhesi front says that it was not consulted on the proposed Bill and the effort to push through the amendment did not address the core issue of citizenship. The Nepalis opposing it in the affected province say that it would irreparably damage the resource and culturally rich region.

This quarter century has been a rocky ride on a rough road for the former Himalayan kingdom and its elusive quest for a Constitution that has the mandate and support of all political groups. While this has taken time, we should look at our own Constitution-making processes.

The effort to carve up a Madhesi homeland is familiar to India — it takes a leaf out of the books of New Delhi’s experiences in the Northeast and other parts of the country. The ‘remapping of India’ is part of the political project of policymakers, weaving imagination, political flexibility and restructuring that have tested the boundaries of the constitutional process. This has grown over 60 years to meet local and regional aspirations, including most recently the division of Andhra Pradesh and Telangana.

This addressing of regional aspirations as reinvented political entities has always been part of an effort by the State to curb ‘fissiparous’ tendencies and tackle challenges to perceived national unity. It began with the Fifth and Sixth Schedules of the Constitution, passed after independence, which endowed special privileges and powers on tribal groups in central and eastern India.

The first reimagining exercise in the 1950s created states on the basis of language. This was extended to devise homelands as answers to insurgency in the Northeast — Nagaland in 1963, the Reorganisation of the North-east (the first time the region had been so officially defined) with Meghalaya and Mizoram carved out of Assam and statehood later to Arunachal Pradesh.

Within states too, autonomy struggles have played out differently. Ethnic demands for separate states have been met with special constitutional provisions for autonomous councils existing states like the Bodoland Territorial Council in Assam. Negotiations to accommodate Naga notions of sovereignty continue even after 20 years.

Thus, the Constitution-making process in Nepal is neither new nor slow. After all, the political accommodation described here has taken us more than a half century. And we’re still at it! Constitution-making and nation-building entail a flow of changes and experiments within a legal framework. This takes patience, sometimes the loss of lives, and there’s give and take in the realm of public dialogue and pressure.

Indian policy makers and commentators would do well to heed our own history in this process instead of pointing fingers at our neighbour.

Sanjoy Hazarika is director, Commonwealth Human Rights Initiative.

The views expressed are personal.