Libertatem Magazine

Nepal’s Newly Born Constitution: Should India be Perturbed?

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On September the 20th, 2015, Nepalese government took a historic step and adopted its new constitution to create Nepal as a federal democratic State and take the nation on the roads of developments. President Ram Baran Yadav signed the Constitution and the same was welcomed with a roar of applause. Under the new constitution, Nepal has now been shifted from a Hindu Monarchist nation to a secular and democratic nation. The new Constitution has 37 divisions, 304 articles and seven annexes. The seven provinces will be finalized by a high-level commission within a year. Also, this is a final promulgation of the constitution after the failure of the first constituent assembly in the year 2012. The interim constitution which was adopted in the year 2007, was meant to operate for a term of two years but it was only after a period of 8 years that Nepal has been able adopt its constitution successfully.

But the newly adopted constitution has been objected to several crucial concerns. Whether the constitution is for all the Nepalese or is only meant for one particular section of the nation and to neglect the other communities is still not clear. The basic question is that, ‘for whom is the constitution adopted?’, would it be the Madhesis, who according to the population census in 2011, living in Terai occupy 17% of the total area of Nepal and have 51% of the Nepalese Population, and have raised certain questions regarding their ‘representation’ in the democratic institution. The representation crisis can be understood according to the provisions of the newly adopted constitution.  The Article 283 of the Newly adopted Constitution states that only ‘citizens by descent’, will be entitled to hold the posts of President, Vice-President, Prime Minister, Chief Justice, Speaker of Parliament, Chairperson of National Assembly, Head of Province, Chief Minister, Speaker of Provincial Assembly and Chief of Security Bodies. This has been the forefront of the representation crisis in the constitution as a large population of the Madhesis have acquired their citizenship by birth or naturalization. The newly adopted constitution has also dropped the idea of ‘proportional representation’ in its provisions as a right to ‘participate in State structures’.

Even though an official and formal dialogue is yet to be made, the Indian Government has raised concerns over such issues in the newly developed constitution of Nepal. India, the largest neighbor to Nepal, has been concerned of the newly adopted constitution because the agitation led by the Madhesis community against the constitutional provisions, have led to various issues for India too, which in the long run might affect various aspects of India-Nepal relations, such as trade, oil supplies, and tourism. The agitation has been spread into violence between the Nepalese State police and the Madhesis, leading to the deaths of almost 40-50 people in a short span of 10 days. The Madhesis along the border areas have claimed the constitution to be an ‘arbitrary demarcation of boundaries’. The agitation near the Nepal-Bihar border has also led to deaths of several people amongst the protesters.

It can be said that the constitution is not just an instrument for  governing the Nepalese State, but has been objectified with a certain socio-political move. President Ram Baran Yadav, himself is from the Madhesis community, but still, there exist so many discriminatory Articles as against the Madhesis community, and especially against their representation in the State public services and constitutional positions. It is not just these communities who have raised concerns against these issues within the constitution. But there have been various other ethnic groups which have been affected due to the biased provisions. The Indian government has raised concerns over all the issues of the communities near the border area. They have also requested the Nepalese government to make amendments regarding the issues like representation of the various communities in the State machinery and amend such provisions which eventually might neglect such communities in the public. A request has also been made to stabilize the adjoining border areas and cautioned the neighbor that instances of violence must be avoided. Even before the constitution finally  promulgated on September 20th, 2015, India has been reminding Nepal to have mechanisms to hear and fan out the grievances of the 2/3rd of its population through its institutional recourses.

As the largest neighbor, it is important for India to have concerns for Nepal and its communities. In the recent past India has been a valuable neighbor to Nepal. During the recent earthquake in Nepal, the Indian government extended its services for the relief to the people in all possible manner and ways. It is important for any nation to have peaceful and healthy terms with the neighboring nations. Nepal and India, have a lot of socio-political and geographical similarities. Having their life-nourishing sources initiating in the Himalayas, and sharing of the similar cultures, these have been a strong reason for both the nations to have peaceful and healthy relations with one-another. Having so many situations and historical backgrounds emerging out of the same core, both the countries owe responsibilities towards each other. One of other issue would be the debate over the management of the waters of river Kosi (also, known as the ‘sorrow of Bihar’) or the recent crisis caused in Nepal due to the devastating earthquake. All such situations have involved both the countries in a mutual relationship and dialogue in order to maintain healthy terms with one another and consequentially move towards the path of growth.

Even in this situation, since the present constitution of Nepal has been paralyzed of representing a number of its nation’s communities, it will raise concerns from India, as in case of violence, the Indian trade with Nepal or the Indian Nationals living in Nepal or near the Nepal border area will face the consequences which will further create governing issues for the government of both the States. And Nepal has to keep this in mind that the constitution will have to serve as  a soul of its statehood and supreme governing law of the land for nation. Hence, the constitution cannot ignore to include the rights and inclusion of  the many communities living in the nation, otherwise there will be political tensions throughout the State. Hence in order to avoid all such situations in the long run and have a stable system of governance the soul law of the land, i.e., the constitution of Nepal must have the inclusion of majority of its communities; and as a neighbor, India must play an active role and thereby support the Nepal government in terms of amending its constitution on the right lines.

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