THE Indian Independence Act, 1947, enacted by the British Parliament, set up, by Section 1, two independent states, India and Pakistan. Section 6(2) endowed their legislatures with full legislative powers, including the power to amend "the provisions of this Act". It would be absurd to imagine that this gave either state the power to amend Section 1 and absorb the other within its territories, nullifying the partition. But it would not have been absurd at all for them to amend Section 7(1) (a) and (b), which provided for the lapse of British suzerainty over the princely states and transfer it to the new state. That paramountcy was attached to British rule. With its transfer to former British India, paramountcy over the "native states", comprising one-third of the country, should have been transferred as well. India's leaders would have been justified in enacting this amendment on August 16, 1947, and thus solved the states' problem.
Two considerations deterred them. Legally, the literal interpretation was wrong. As a Judge of the U.S. Supreme Court said: "The worst way to read a Constitution is to read it literally." Everyone knew that Section 7 was intended to help the two states to tide over transitional difficulties.
Morally, the action would have been reprehensible. The Act embodied a compact between the Indian leaders and the British government. The states' problem, though created by the British, was ours to solve. Abusing Section 7 would have been a legal as well as a moral wrong. It would also have been a nullity in law.
The Act did no more than adopt the British parliamentary practice of using "the Henry VIII clause". An authoritative work on British Constitutional law, O. Hood Phillips' Constitutional and Administrative Law mentions that "Parliament sometimes delegates to a Minister the power of modifying the enabling Act so far as may appear to him to be necessary for the purpose of bringing the Act into operation. Such provisions are usually transitional" (emphasis added, throughout). Which is why they are placed at the end of the Act in the "miscellaneous" part. No Minister or government dare use it to "modify" the law basically, let alone subvert it.
The Committee on Ministers' powers noted that the power "has been sparingly used, and... with the best possible motives". It had not "given ground for complaint". Nonetheless it was "inconsistent with the principles of parliamentary government".
It was called "the Henry VIII clause" because that King was regarded popularly as "the impersonation of executive autocracy" and the clause reflected, in popular eyes, the famous Statute of Proclamations, 1539, which gave him the power to legislate by proclamation. The Committee said: "The purpose of Henry VIII was to enlarge his powers to make proclamations having the force of law. The sole purpose of Parliament... was to enable minor adjustments of its own handiwork to be made for the purpose of fitting its principles into the fabric of existing legislation... and of meeting cases of hardship... ." It was repealed on Henry's death in 1547 (Cd. 4060; pages 36 and 61).
Such a clause figured as Article 392 of the Constitution of India, on the lines of its predecessor Section 310 of the Government of India Act, 1935. It gave no power to the President of India to nullify the Constitution just as a similar provision (Section 35) in the Prasar Bharati Act, 1990, does not empower the government to scrap Doordarshan's and All India Radio's autonomy.
King Gyanendra has done just that to Nepal's Constitution. He has invoked Article 127 of the Constitution of the Kingdom of Nepal, 1990, to subvert Nepal's parliamentary democracy. In doing so, he has put the institution of monarchy on its deathbed. Article 127 reads thus: "If any difficulty arises in connection with the implementation of this Constitution, His Majesty may issue necessary orders to remove such difficulty and such order shall be laid before Parliament." Three features stand out. First, Article 127 occurs in Part 20 dealing with miscellaneous matters.
Secondly, it is a power to be exercised only on the advice of the Prime Minister. Article 35(2) of the Constitution says clearly: "Except as otherwise expressly provided as to be exercised exclusively by His Majesty or at His discretion or on the recommendation of any institution or official, the powers of His Majesty under this Constitution shall be exercised upon the recommendation and advice, and with the consent of the Council of Ministers. Such recommendation, advice and consent shall be submitted through the Prime Minister." If the King is to act on his own under any provision, it must be "expressly provided" by it. Article 127 contains no such qualification. Advice of the Prime Minister is the rule; the King's discretionary power is the exception to be "expressly provided". Interestingly, while Article 78 of India's Constitution vests the executive power "in the President, to be exercised in accordance with the Constitution", Nepal's Constitution takes the precaution of insisting [Article 35(1)] that it vests in the King "and the Council of Ministers".
Even Article 115 on emergency powers contains no such exceptional provision. Proclamations of Emergency are subject to the approval of the House of Representatives. Thirdly, so are the King's orders under Article 127. They must be "laid before Parliament". Ergo, the power cannot possibly be abused to deprive Parliament of its authority.
Gyanendra did just that. On November 4, 2002, he sacked the Prime Minister, Sher Bahadur Deuba - Nepal's Ramsay MacDonald ("the boneless wonder") - for his "incompetence", dissolved the Council of Ministers and postponed the general elections which were to be held on November 3. These orders were made, he claimed "in accordance with Article 127". Emboldened by the lack of strong reaction, particularly in India and elsewhere, he gambled on February 1, 2005. He sacked the Deuba government, which he had reinstalled in between, imposed a state of Emergency in his own discretion in breach of Article 115 and invoked Article 27(3). This provision reads thus: "His Majesty is to preserve and protect this Constitution by keeping in view the best interests and welfare of the people of Nepal." This provision binds the King to preserve and protect the Constitution, not to violate it or scrap it because in his view the interest and welfare of the people so required. Gyanendra's perversion of Article 27(3) is palpable and serves only to expose him. The man is simply clutching at straws. As part of his scheme, leaders of political parties were imprisoned. This formulation is akin to that described in oaths of office for Presidents the world over. Article 60 of the Indian Constitution contains a similar formulation. It does not empower President A.P.J. Abdul Kalam to scrap the Constitution because he thinks it is in the interest of the Indian people to do so.
Gyanendra was opposed to his brother the late King Birendra's acceptance of the 1990 Constitution when he relented to the popular movement for democracy and the pressures of a March 1989 Indian trade embargo. Birendra set up a nine-member Constitution Recommendation Commission (CRC) headed by the Chief Justice, Justice Biswanath Upadhyaya, an erudite and upright Judge whom this writer had the privilege of meeting in Kathmandu in August 1990. He told the International Crisis Group (ICG) on September 29, 2004, that the King had "misinterpreted" Article 127, which was modelled on Article 392 of the Indian Constitution. A respected member of the CRC, Daman Nath Dungana, pointed out that in order to invoke Article 127 "a recommendation is needed from the Prime Minister and [the order] must be within the Constitution."
The CRC should know since it had prepared the draft and presented it to the Council of Ministers. "Palace allies" presented a "palace draft" thereafter. Senior Army officers met a CRC member to urge that the Army should be under the King's control and sovereignty should reside with the monarch (ICG's Report, June 15, 2005; Towards a Lasting Peace in Nepal: the Constitutional Issues; page 3; an extremely able document). Its report of September 15 is entitled Nepal: Beyond Royal Rule. The title reflects the changed reality.
The palace's moves failed. Article 3 pointedly asserts: "The Sovereignty of Nepal is vested in the Nepalese people and shall be exercised in accordance with the provisions of this Constitution." No wonder King Birendra announced the new Constitution on television on November 9, 1990, the day it came into force, "with a strained face".
Both its background and its provisions reflect a fundamental reality: The Constitution was a solemn compact between an absolute monarchy and a people clamouring for democracy. Not once did King Birendra invoke Article 127 to nullify it in all the nearly 11 years he presided as head of state in a parliamentary democracy. That was left to his brother, Gyanendra, who became King on June 4, 2001, after Birendra's assassination by his son. A King who breaks a compact with his people so wilfully and perverts clear provisions of the Constitution proclaims three things - utter lack of integrity and unfitness to rule; the demise of the monarchy; and the irrelevance of the Constitution.
So systematic was the abuse of Article 127 that a former Election Commissioner, Birendra P. Mishra, opined that the Constitution should be renamed "the Constitution of Nepal 127". In an article in The Himalayan Times (September 7, 2005) he cited instances to show that "from October 4, 2002, onwards, a new or an amended Constitution is being gradually framed in an unwritten form with such salient features like: the sovereignty lies exclusively with the monarch... " Indeed, "the entire administration of the Kingdom is at present being run by this Article ".
Gyanendra came to power under the worst of circumstances. He was a businessman. The mystery of his brother's assassination remains unresolved still. As Michael Hutt recalls in his introduction: "On the night of Friday June 1, 2001, King Birendra and the whole of his immediate family were either killed or fatally injured by gunfire while they were attending their customary monthly gathering at the Narayanhiti Palace in Kathmandu. Of the 21 guests, Birendra, his wife Aishwarya, their younger son Niranjan, and their only daughter Shruti, were all pronounced dead at the Birendra Military Hospital shortly after the incident. Their other son, Crown prince Dipendra (who was proclaimed King even as he lay in a coma) was declared dead on June 4. Five other relatives also died of gunshot wounds, including Dhirendra Shah, one of King Birendra's two younger brothers.
"Prince Gyanendra, the only surviving brother, was crowned king on June 4... . Conspiracy theories multiplied, fuelled by suspicions that Gyanendra, perceived as the chief beneficiary of the massacre, might have had some hand in planning it, and by the widespread public unpopularity of his son (Paras), who was widely believed to have been implicated in some well-known drunk-driving incidents, of which at least one had led to a fatality. Demonstrators who ventured out on to city streets found that they were being fired upon by police, and for several days the capital was placed under curfew."
A Commission comprising the Chief Justice and the Speaker of Parliament - another member withdrew - submitted a 196-page report. "However, the report contained a number of contradictions and left many questions unanswered." The novelist Manjushree Thapa writes a gripping account of that massacre and its aftermath of "mass disaffection". Her critique of the report is detailed and devastating.
Gyanendra came to power under a cloud and the cloud still hovers over him. It did not induce restraint, but recklessness. The ICG's Report of September 15 warns of "a real danger that hardcore monarchists will conclude that a final brutal crackdown is the only option". The faithful courtier Tulsi Giri said last month that the Constitution is an obstacle for the King in achieving his objective (The Hindu, September 28).
THESE three books help us immensely in understanding the nuances in a grim situation. They are particularly useful for an understanding of the birth and growth of the Maoist movement and its ideological contradictions. Michael Hutt's volume has essays by specialists of note. India's immediate reaction, on February 1, was to express its "grave concern" at the "serious setback to the cause of democracy in Nepal" and to voice its support to "the two pillars of political stability in Nepal", its multi-party democracy and constitutional monarchy. Eight months later, the formulation is no longer sound. To insist on it is to confer a veto on the culprit, Gyanendra. He is a source of instability and major political elements have dropped support to the monarch. The Communist Party of Nepal (Unified Marxist-Leninist) led by Madhav Kumar Nepal opted for a democratic republic and for a Constituent Assembly at its Central Committee meeting on August 25. The Convention of the Nepali Congress (Koirala) adopted a resolution on August 30 deleting references to constitutional monarchy from its constitution. India must, therefore, alter its formulation and insist only on the restoration of democracy in accordance with the wishes of the people.
All this brought the mainstream parties closer to the Maoists organised in the Communist Party of Nepal (CPN-Maoist). Its leader Baburam Bhattarai said in December 2002: "Our party, our party Chairman Prachanda and our various publications have time and again stressed that our immediate political agenda is to consummate a democratic republic in the country. Please note that we are not pressing for a `communist republic', but a bourgeois democratic republic. For that, we have advanced the immediate slogans of a roundtable conference of all the political forces, an interim government and elections to a constituent assembly." One sticking point of old - the republic - is gone. What of the other fundamentals?
Will the Maoists disarm, shun violence and really work "a bourgeois democratic republic"? Vis-a-vis India, will they cease to encourage Indian Maoists and shun their fears of Indian hegemony? On September 1, Indian and Nepali Maoists pledged themselves to work together till "the cause of socialism and communism is established in Nepal, India and all over the world" (Indian Express, September 3).
Time was when the Maoists' Chairman Prachanda told Revolutionary Worker in 2000 that "ultimately we will have to fight the Indian Army", presumably if it intervened to save the King. He is an unabashed admirer of Peru's Communist Party and admitted that he had been to Bihar and Andhra Pradesh (Spotlight, April 6, 2001). In an interview to Keshav Pradhan of The Times of India (September 13, 2005), Prachanda claimed: "We have only ideological ties with Indian Maoists."
Events have been moving at a fast pace and have rendered many a formulation obsolete. Seven political parties - the Nepali Congress (Koirala), the Nepali Communist Party (United Marxist-Leninist), the Nepali Congress (Democratic), the Jan Morcha, and three others - issued a joint manifesto equating "rightist extremism" (the King's rule) with "leftist extremism of the CPN (Maoist)". But, not quite. It said: "A conducive atmosphere will be created for the Maoists to take part in the peaceful process of ending their conflict."
Its demand for "reinstatement of the dissolved Parliament" implies, inescapably, revival of the 1990 Constitution and the King as head of state. The Nepali Congress changed its mind, and rightly so. The Maoists, too, have shifted their position significantly from the day they presented to the Prime Minister on February 4, 1996, their 40-point Charter of Demands before launching the "people's war" on February 13.
Only through a dialogue can the Maoists' stand and their sincerity be gauged by both the mainstream parties and India. On July 11, the Maoists appealed to the seven parties "to hold a dialogue... which would explore a way out". On September 3, Prachanda announced a ceasefire for three months.
Gyanendra's tactic is to split the Maoist leadership and separate the Maoists from the seven parties. No one in his senses will fall for this. The Nepali Congress reacted positively to the ceasefire. Prachanda's statement made an overture to India: "We believe our move will encourage all forces, within and outside Nepal, who want peace through a forward-moving political solution."
Popular resentment increases by the day. Gyanendra's coup has failed dismally. He is ostracised internationally and distrusted domestically. The judiciary is a frail reed to rely on. Nepal has a vibrant radio movement. Its FM radios broadcast news as well unlike their supine Indian counterparts who submit to this unconstitutional ban. On August 10, the Supreme Court of Nepal stayed the government's order closing down a private radio station FM 91.8. Another station Radio Sagarmatha, a community FM radio station, also began airing news. As did very many others. But the newly appointed Chief Justice, Hari Prasad Sharma, went out of his way to support the royal coup and denigrate the peace process in a speech at a conference of Chief Justices of Asia-Pacific on March 20, 2005. The King's orders of October 4, 2002, and February 1, 2005, are pieces of "delegated legislation" and are very much open to judicial review. Even in the United Kingdom, courts have struck down such orders, which are ultra vires of the parent Act. Nepal's Supreme Court will uphold dutifully the King's order.
WHAT is the way out? The United Nations Assistant Secretary-General Kul Chandra Gautam said on April 4, that "ways can be found to accommodate the Maoist demand for a round-table conference, an interim government and some form of Constituent Assembly that is consistent with (democratic) principles". Alone among the states of South Asia, Nepal has never elected a Constituent Assembly. Half a century ago, King Tribhuvan promised a "fully democratic political system functioning in accordance with a Constitution prepared by a Constituent Assembly".
But such a body can work only on the basis of a political consensus. The Assembly can serve as an interim legislature following an all-party accord on an interim government that would hold the polls. Such an accord is entirely for the Nepali parties, the CPN (Maoist) included, to accomplish. Bodies like the Citizen's Movement for Democratic Peace can serve as mediators. The ICG's Report of September 15 notes differences on policy among leaders of the Government of India.
India can do a lot diplomatically. The 5,000-strong Maoist army cannot be ignored. The war has exacted a toll of 12,000 lives. Over nine million Nepalese live on earnings of less than a dollar a day, as Manjushree Thapa reminds us. Much can be done to alleviate suffering. The International Committee of the Red Cross has rendered yeomen service since 1998. It has successfully interceded with Maoists to secure releases of hostages. But it meets with obstacles when it seeks access to detainees in government prisons. It has branch offices in all the 75 districts of Nepal and sub-offices in more than 1,000 villages. India must support the ICRC. Indian non-governmental organisations (NGOs) should take keener interest in Nepal's travails. The Government of India would do well to craft a coherent policy, which it could pursue consistently. It must not forget either its assets in Nepal or the memories of a past in which grave mistakes were made.
Surya P. Subedi, Professor of International Law at the University of Leeds, has written a documented critique of India's policies on a host of topics. One has only to read the moving "late life recollections" of the legendary B.P. Koirala to realise that there was cause for resentment even at the best of times (Atmabrittanta; Himal Books; Kathmandu).
Consider two episodes - on May 6, 1954, Nehru told Nepal's Foreign Minister D.R. Regmi: "It was clear that the old Treaty between Nepal and Tibet had no force or relevance today. It might be considered to have lapsed. Normally, this should give place to a new treaty or agreement between the two countries and, sometime or other, this would have to be done. But it is not necessary or desirable for Nepal to take the initiative in raising this matter." Why not? Half a century later Nepal knocks at India's doors for a new treaty.
One was, indeed, offered by the self-styled author of the "Gujral doctrine", of which little is heard in India. Prof. Saubhagya Shah of Tribhuvan University records that episode in Hutt's volume. In 1990, Inder Kumar Gujral was External Affairs Minister and in Nepal the Panchayat government had been "disabled by the mutually reinforcing actions of Opposition demonstrations and the year-long Indian trade embargo. At a moment of extreme vulnerability, New Delhi (that is, Gujral) sent a new treaty proposal on March 31, 1990, for the King to sign in return for the possibility of relieving the pressure on his beleaguered government. The terms of the new proposal were so harsh that they `virtually put the clock four decades back to July 31, 1950'." It was far worse than the 1950 Treaty.
The crux of the treaty proposal rested on four restrictions on Nepal: 1) Nepal would not import arms or raise additional military units without Indian approval; 2) Nepal would not enter into a military alliance with any other country; 3) Indian companies would be given first preference in any economic or industrial projects in Nepal; 4) India's exclusive involvement would be ensured in the exploitation of `commonly shared rivers', in Nepal. "Rather than sign the treaty with India in the hope of saving the panchayat regime, King Birendra instead pre-empted New Delhi's calculations by abruptly handing over power to the alliance of the Nepali Congress and the United Left Front without seeking Indian assistance or mediation." Prof. Subedi's volume reproduces the full text of that shameful document.
India can adopt a two-pronged approach - active diplomatic support to Nepal's political parties in their struggle for democracy, coupled with a major policy declaration, at an appropriate moment, that it is prepared to meet Nepal's concerns on the 1950 Treaty, cede Kalapani to Nepal, and do all it can to assure its neighbour of help. But all this would be undertaken by India only when a democratically elected government assumes power in Kathmandu. Such a declaration would be warmly welcomed by all in Nepal, bar the King.
India and Nepal need each other; not least for mutual security. But that security rests not on any "security clauses" in any treaty but on the sheer facts of life of which geography is but one part. India must aim at the hearts and minds of the people of Nepal; they are the best guarantee of the security of both countries.
Gyanendra has repeatedly broken his promise to India and indeed to his own people. In March, for instance, he promised through his Foreign Minister Ramesh Nath Pandey that he would restore "multi-party democracy at the earliest". His lies need to be exposed, especially the ones on Article 127. International legal opinion, especially English jurists, should be mobilised to pronounce on the true import of Article 127 and thus strip Gyanendra of the fig leaf he uses to cover his moral and constitutional nudity.
Himalayan `People's War': Nepal's Maoist Rebellion edited by Michael Hutt; Hurst & Co., London, distributed by Foundation Books; pages 322, Rs.650.
Forget Kathmandu: An Elegy for Democracy by Manjushree Thapa; Penguin; pages 260, Rs.350.
Understanding the Maoist Movement of Nepal edited by Deepak Thapa; Martin Chautari, Kathmandu; pages 395, Rs.500.
Dynamics of Foreign Policy and Law: A Study of Indo-Nepal Relations by Surya P. Subedi; Oxford Univesity Press, India; pages 274, Rs.595.