Time for Modi to nudge Nepal on writing an inclusive constitution

  • Prashant Jha, None
  • Updated: Jul 14, 2015 00:36 IST

In February 2008, Nepal was in the middle of a political deadlock and India House — the palatial residence of the Indian ambassador in Kathmandu — was the hub of the action. A peace process between the Maoists and democratic parties was underway. The constituent assembly (CA) elections were scheduled for April that year. But the transition was interrupted by a movement in the country’s southern plains.

A second agitation had broken out in the Tarai, led by the Madhesis, people who shared close kinship, ethnic and linguistic ties with those across the border in Bihar and UP and had been excluded from the Nepali power structure. The Tarai forces demanded immediate federalism and inclusion in political structures and security forces.

Kathmandu was crippled. The CA elections looked uncertain. The Government of India was clear that elections were essential to ‘mainstream the Maoists’, and to ‘consolidate democracy’.

Fulfilling New Delhi’s brief, the then ambassador, Shiv Shankar Mukherjee, convened a meeting at his residence with government negotiators and Madhesi leaders. An eight-point agreement was struck. The government assured the Madhesis that the elected CA would determine the boundaries of the State and committed to creating an ‘autonomous Madhes province’. The Madhesis called off their protests. The CA elections were held, and the peace process reached an ‘irreversible point’.

Last week, Tarai’s leaders walked back to India House to remind India of the deal it had brokered. The trigger was the draft constitution that has been tabled, and now endorsed, by Nepal’s Constituent Assembly. This draft is a by-product of a post-earthquake political deal between four political parties, including the Nepali Congress, the Communist Party of Nepal (Unified Marxist Leninist), the Maoists and one among the many Tarai forces.

While the draft stipulates that the country would have eight provinces, it leaves the key issue of federal demarcation to a future commission. This has sparked outrage not only amongst the Madhesis but also hill ethnic groups across party lines. Both groups view the current draft as a way to postpone, dilute and subvert federalism and maintain the political hegemony of the hill upper-caste groups.

Responding to a petition, the Supreme Court ordered that the CA had to determine the boundaries and names of provinces as stipulated by the interim constitution. But the big parties slammed the judiciary for overreach and went ahead with the draft. This has now triggered dissent even within parties like the Nepali Congress, with veterans like Pradeep Giri and members of PM Sushil Koirala’s own family like MP Shekhar Koirala arguing against defiance of the judiciary.

The draft also has citizenship provisions that institutionalise gender inequality and attacks the special India-Nepal relationship. A person can be a citizen by descent if only both his father and mother are Nepali citizens. Given the extent of cross-border marriages between India and Nepal — the ‘roti-beti’ relationship as Union external affairs minister Sushma Swaraj put it — this will directly impact children of those from the bordering regions. There are also restrictive clauses on citizenship by naturalisation. The provision that only those who are citizens by descent can hold high public office will once again impact many in the Tarai with Indian roots. All these provisions are born out of xenophobic nationalism and fear of Indian ‘demographic aggression’.

India is in a policy dilemma. It does not want to be seen taking sides. Expressing a view on another country’s constitution-writing project can come across as ‘interventionism’. Powerful hill caste-led parties will be quick to stoke ‘anti-Indianism’ if New Delhi is seen as backing federalism. The absence of reliable and strong interlocutors on the Tarai side does not help. But staying away is not easy, either. India has been involved in every stage of Nepal’s current political process — from mediating the Maoist party peace deal to creating an enabling environment for two CA elections.

Distilled to the basics, India’s core interests in Nepal are peace, stability and a friendly Kathmandu. While the current constitutional proposal may go through, it will deliver neither peace nor stability.

The Maoist conflict is a thing of the past. Nepal’s current fundamental political problem is that its State structure does not reflect its enormous social diversity — the draft constitution does little to address this issue of political exclusion and even aggravates it.

The Tarai will remain fertile ground for unrest — the perceived failure of moderate Madhesi forces is already strengthening a separatist strand in the region. The xenophobia that has driven citizenship clauses will erode the people-to-people relationship on the ground. The hope that Nepal will institute a stable political order and then focus on development partnership will be dashed since it will, sooner or later, get embroiled in a conflict with a strong regional and ethnic subtext.

There is now domestic pressure to revise the draft. The issue of federal demarcation is not intractable and there are many voices — from the NC to Maoists to the dissenting Madhesi and Janjati MPs — who are pushing for a constitution with state boundaries. Tarai parties are willing to accept two provinces in the plains, with some districts merged with the hills as proposed by the establishment.

What a new deal requires is a nudge.

Prime Minister Narendra Modi, in his landmark speech to Nepal’s CA, asked members to take the long-term view while writing the constitution. He also advised them to write it based on consensus. He needs to offer his advice to Nepal’s leaders one final time — to resolve core outstanding issues and promulgate a constitution that all Nepalis can own. It would stabilise Nepal; it would also mark India’s success as a peacemaker in the region. New Delhi could then justifiably claim it helped end a civil war, and prevent a new ethnic conflict in Nepal.

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