The process of promulgating a new Constitution in Nepal has severely affected India’s relations with the country. The cold Indian response to the new Constitution upset the Nepalese government and its supporters so much that they burnt the Indian flag and effigies of Prime Minister Narendra Modi. They took up the question against India in the United Nations and encouraged the Nepalese diaspora in various countries to protest. Before one gets into India’s response and its consequences on bilateral relations, it is necessary to understand how the Nepalese elites messed up the Constitution-making process and alienated a large majority of marginalised people in Nepal.
The ideological roots of the new Constitution lie in the Nepali People’s Movement of 2003 to 2006 (Jan Andolan-II). This movement proved to be the culmination of Nepal’s 10-year-old Maoist insurgency and was triggered by King Gyanendra’s takeover of power from elected representatives in 2002. The success of the movement in April 2006 brought its core agenda to the fore, that is, the restructuring of the Nepalese state and the establishment of a “New Nepal”, a republican, inclusive, federal and secular Nepal. This vision of New Nepal was incorporated in the “interim Constitution”, which enabled the election of the first Constituent Assembly (CA-I) in 2008. CA-I, which was dominated by the Maoists, the principal driving force behind the New Nepal agenda, failed to deliver a Constitution, though it succeeded in building a consensus on a number of constitutional aspects.
The failure of CA-I led to the Constitution of the second elected Constituent Assembly (CA-II) in November 2013. The political composition of CA-II was radically different from that of CA-I, as the Maoists were reduced to a poor third group and the Nepali Congress (N.C.) and the Communist Party of Nepal (Unified Marxist-Leninist, or UML) dominated. The new Constitution was drafted and promulgated under the leadership of the N.C. and the CPN (UML).
In the CA-II elections, the N.C. and the CPN (UML) campaigned against the Maoist agenda of New Nepal, and after the elections they left no one in any doubt that they would not abide by either the constitutional framework of the interim Constitution or the consensus worked out on various aspects of the Constitution during CA-I. Since the N.C. and the CPN (UML) together did not have the numbers—two-thirds of CA-II’s 601-strong House—to adopt a Constitution of their liking, the leadership moved through a series of political manipulations to deliver a Constitution in September 2015.
Multiple flaws
The new Constitution is flawed in terms of its process where power-sharing and political steamrolling, without adequate discussion in the CA, dominated critical and substantive issues. The new Constitution is also flawed in its political intent because nearly two-thirds of the people of Nepal have felt ignored in terms of their aspirations aroused during the Jan Andolan-II. This aspect should be understood in the context of Nepal’s social composition. There are three broad social formations comprising the hill upper castes, the ethnic and tribal groups, and the Madhesis (living in the southern terai belt of Nepal). Each one of them constitutes 30-35 per cent of the population.
In Nepal, traditionally, governance has been dominated by the hill upper castes, with the tribal groups and the Madhesis kept marginalised. The Jan Andolan-II reflected the struggle of these marginalised groups for inclusion and proportional representation in the country’s economic and political power structures. The N.C. and CPN (UML) leaderships (of the hill upper castes), with the connivance of the Maoists (also of hill upper castes), delivered a Constitution that inadequately addresses the concerns of the marginalised groups. Both these groups protested, and the Madhesis launched a strong agitation that even blocked the supply of essential commodities from India to Kathmandu and other parts of Nepal.
India’s response to Nepal’s constitutional muddle has only complicated matters further. India played a decisive role in the success of Nepal’s Jan Andolan-II, but its commitment to the concept of New Nepal was fragile and somewhat indifferent. Under the United Progressive Alliance (UPA) regime, India was more concerned with the disarming of Maoist combatants than with the framing of a new Constitution during CA-I. With the coming of CA-II, India was happy that the Maoists had lost their dominance. Its preoccupation with the Lok Sabha elections meant that the UPA-II regime did not take any interest in Nepal’s constitutional process.
Modi for inclusiveness India’s new Prime Minister, Narendra Modi, soon after assuming power in May 2014, set out to reverse the trend of India’s indifference at the highest political level and provide a new dynamism to India-Nepal relations. His two visits to Nepal, in August and November 2014, his spontaneous and massive support during Nepal’s earthquake calamity, and his pleas to Nepali leaders to have an inclusive Constitution that accommodated the aspirations of all the Nepalese underlined this approach. In his impressive address to Nepal’s CA-II in August 2014, he asked his Nepalese hosts to frame a Constitution which, like a bouquet of flowers, reflected all the different colours and fragrances.
However, when the Nepalese leaders managed to promulgate the new Constitution, the coldest response came from India. It did not welcome, but only “noted”, the new Constitution, which is far better than all the previous ones in being inclusive, representative and people–friendly. New Delhi openly lent support to the Madhesi agitation and expressed sympathy for the obstructions to the smooth flow of essential goods to Nepal from India. In fact, New Delhi informally but effectively controlled the supply chain to make Kathmandu feel the pinch.
The shift in the Modi government’s approach was guided by three factors. One was the genuine support for the marginalised groups that did not get their due in the new Constitution. The Madhesis, particularly, had close and extensive family and social ties with India. They stood for warmer and closer relations with India. From India’s point of view, proportional representation for the Madhesis in Nepal’s political and economic order would make them a strong and long-term asset. For the first time, India categorically stood by the Madhesis, perhaps because the Madhesis took up their own cause so resolutely for the first time.
India ignored The second factor was that the Modi administration, and Narendra Modi himself, felt offended by the way Nepal’s dominant elites responded to India’s many positive overtures. For instance, during his second visit in November 2014, difficulties were created in Modi’s plan to visit Janakpur and Lumbini, where he wanted to establish a direct rapport with the Madhesis and also distribute some 20,000 cycles to needy people. He was stopped on the prextext security considerations and logistic difficulties by the N.C.-UML government. Then there was the tardy reception to and hesitant acknowledgement of India’s massive and spontaneous support to Nepal during the earthquake of April-May 2015. Some of the Indian supplies were not moved smoothly and sections of the Nepali media and civil society groups objected to Modi being projected as the only saviour of Nepal during the natural calamity.
Modi had constantly pleaded with the Nepalese rulers to address adequately the concerns of the Madhesis. Nepalese leaders such as former Prime Ministers Sher Bahadur Deuba of the N.C. and Pushpa Kamal Dahal (Prachanda) of the Maoists were invited to Delhi in July 2015. The idea was to impress upon them the value of a truly inclusive Constitution. In August 2015, Modi called Prime Minister Sushil Koirala to reiterate the same concern, but Kathmandu ignored him as was evident in the new Constitution. Soon after the voting on the new Constitution in CA-II on September 16, 2015, Modi sent India’s Foreign Secretary, S. Jaishankar, as his special envoy to delay the promulgation of the new Constitution by a few days in order to accommodate the Madhesis and other marginalised groups. Kathmandu ignored this last-minute intervention, which obviously was grossly undiplomatic and intrusive.
Hindutva agenda The third aspect related to the agenda of India’s ruling party, the Bharatiya Janata Party (BJP), particularly its Hindutva factions which wanted Nepal to become a Hindu state. This agenda was pursued informally and not through official channels. To begin with, Nepal’s royalist and pro-Hindutva Rastriya Prajantantra Party, led by Kamal Thapa, was supported morally and materially to mobilise Nepali opinion in favour of a Hindu state both during and after the CA-II elections. Many BJP political activists, including MLAs and MPs from Jharkhand, Uttaranchal, Delhi and other places, visited Nepal during the constitutional process to convey this preference. Deuba and Prachanda, during their informal meetings with top BJP leaders in New Delhi, were told in whispers to support the Hindutva agenda. Prime Minister Modi expressed his subtle support for this agenda during his visits to Nepal when, during a reference to the Nepalese Constitution, he did not mention the word “secular”, a characteristic of the Constitution, while underlining its republican, inclusive and federal features. Modi’s much projected visit to the Pashupatinath temple in Kathmandu also sent out a subtle message in this respect. As a result, within the N.C. and the CPN (UML) too there emerged sections that were sympathetic to the demand for the removal of the word secular in the new Constitution. However, at the last moment, presumably on the insistence of top CPN (UML) and Maoist leaders K.P Oli and Madhav Nepal, “secularism” was retained in the Constitution, though in a diluted form. There were reports that this was done under the influence of Christian and European lobbies.
Thus, the Modi regime felt offended on all three counts by Nepal’s Constitution makers: not accommodating the Madhesis; ignoring the Modi government’s efforts for a broad-based consensus-led Constitution; and keeping Nepal secular, though notionally. Against this backdrop, the intensity of India’s engagement with the Nepali constitutional process fluctuated. India displayed knee-jerk and apparently intrusive diplomacy and executed harsh moves such as restricting the smooth flow of essential goods, including petrol, cooking gas, food stuffs and critical medicines. This last action turned a whole generation of Nepalis against India and opened a window of opportunity for China and other influences. Indian diplomacy in Nepal may have to deal with these consequences for a long time.
Under the impact of the constitutional muddle and India’s role in it, the broad political consensus among the ruling elites of Nepal, which made promulgation of the Constitution possible, broke down. The ruling coalition led by the CPN (UML)’s K.P. Oli suspects that India tried to exploit this situation by propping up the outgoing Prime Minister, Sushil Koirala, to thwart Oli’s election as Prime Minister.
On his part, Prime Minister Oli is getting isolated within Nepal owing to his uncompromising and erratic approach to the Madhesi agitation. The demand for a national government is snowballing in Nepal and strong voices have depicted Oli as being incapable of leading Nepal’s constitutional transition. The Madhesi agitation is finding itself helpless in getting its demands fulfilled, and the movement seems to be slipping out of the hands of the present comparatively moderate leadership. Fears have been expressed that Nepal and India should be prepared for a more assertive, aggressive and even violent movement in the southern terai belt if the present stalemate between Kathmandu and the Madhesis continues. There is also a quiet realisation in the Modi establishment that its Nepal policy has not exactly moved in the desired direction and much is needed to control the damage.
The realisation of the slips and lapses on all three fronts is leading the respective players towards compromises and adjustments. Nepal’s Constitution makers are now willing to accommodate the Madhesis through constitutional amendments. They have also moved to soften the Modi government’s hurt feelings. Madhesis seem to be reluctantly coming round to a position of staggering their demands by accepting amendments on inclusiveness and proportional representation if there are credible assurances on the question of redrawing of their proposed State boundaries. And the Modi regime, from being a strong supporter of Madhesi demands, seems inclined to play mediator for resolving the constitutional impasse so that its Nepal policy may be put back on track.
One hopes that moderation eventually works to make Nepal’s Constitution operational and put India-Nepal relations on an even keel.
S.D. Muni is Professor Emeritus, Jawaharlal Nehru University; Distinguished Fellow, Institute for Defence Studies and Analysis; and former Special Envoy and Ambassador, Government of India .
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