India should tread more cautiously with Nepal

The Indian public's reaction to the detailed and generally progressive and pluralist Constitution of Nepal, which has just been passed after seven years of discussion, is shocking. Normal diplomatic behaviour would warrant at least a welcome, especially for such a close friend and neighbour. But India has chosen to just take "note" of this historic event. The Nepali intelligentsia and political class have already realised that the concern is not so much about Nepal, but the expected positive electoral support to Modi and the NDA in the upcoming elections in Bihar, from the Madhesis whose expectations have not been met, and worse.

To put things in perspective, the Indian Constitution of 1950 could even do with lessons from the current Nepali Constitution. Firstly, only 16-18 per cent of the Indian people had voting rights because of the colonial 1935 Government of India Act. In Nepal 78 per cent citizens participated in the Constituent Assembly (CA) elections of November 2013. Unlike the Indian Constitution where rights are limited, with most economic rights in the non-binding Directive Principles, the Nepal Constitution, apart from institutionalising the republic and secularism, to rejecting the death penalty, to including social and economic rights as fundamental, along with the felt needs of marginalised communities, including the Dalits, the differently-abled and the LGBT community.

There have also been significant rights for women, including the provision for 33 per cent reservation in the Nepali Parliament. Despite sustained efforts by progressive forces in India, attempts to get a similar law for women have failed to get adequate support in the Lok Sabha.

Of the 601 CA members, 335 were selected through proportional representation, and 240 directly elected, an undertaking unknown in South Asia and most parts of world. Of the 116 (first-past-the-post) seats won by representatives from the Terai-Madhes plains, 105 voted for the Constitution, while 11 boycotted. In the promulgation, 92 per cent of all members endorsed the Constitution, while 85 per cent voted for the document, well over the required two-thirds majority.

Then why the strident reaction by the Madhesis, Tharus and others? They do have reason to feel that their concerns have not been met. The Indian state made a number of points, let's list the most important ones: To begin with, in Article 63(3) of the Interim Constitution, there was proportionate representation under which the Madhesis, with more than 50 per cent of the population got 50 per cent of seats in Parliament. The proportionate representation provision was omitted in Article 84 of the new Constitution, which would negatively affect the seats the Madhesis would get in Parliament. Article 21 of the Interim Constitution upheld the "right to participate in state structures on the basis of principles of proportional inclusion." In the new Article 42, the word "proportional" has been dropped, diminishing the extent of "inclusion". As India has pointed out, Article 283 is particularly disturbing. Under this law, only citizens by descent will be entitled to hold key posts like president, vice president, chief justice, speaker of Parliament, chairperson of national assembly, head of province, chief minister, speaker of provincial assembly and chief of security bodies, all constitutional bodies. This is partisan on ethnic not political grounds, and disempowers all naturalised citizens including the Madhesis. This Article 283 is against the spirit and letter of the Constitution, virtually treating naturalised citizens as second class citizens. It is also unnecessary. It should be remembered that even in the US, only the president has to be of American descent, as is case with US president Barack Obama, whose mother alone was of American descent. It was submitted that this article should be withdrawn in Nepal's interest.

Article 154 of the Interim Constitution provided for the delineation of electoral constituencies in ten years. This has been increased to 20 years in Article 281 of the new Constitution. Yet another important issue is perhaps Article 11(6), which states that a foreign woman national married to a Nepali citizen may acquire naturalised citizenship of Nepal as provided for in a federal law. Madhesi parties want acquisition of naturalisation to be automatic on application. The article, as it stands, discriminates between men and women and is demeaning to the latter. It goes against the grain of the Constitution and its rights-based approach. This is unfair to women since they have to go through the process of naturalisation which children of Nepali male nationals do not. This would infringe on the rights of Madhesi women citizens who marry Indian citizens and the Tarai areas which merge with India. This would clearly affect the Madhesis negatively, and must, in Nepal's own interest, be withdrawn.

These are serious questions were raised by the Indian government much later in the day. Prime Minister Narendra Modi dialled his counterpart only on August 25, his general appeal to resolve all outstanding issues should have come much earlier. The bureaucracy should have provided the details of its requests in time, and the relevant minister of state should have had preliminary discussions. In sum, India was tardy. Caught unawares because of its own failures, it was rude and arrogant, like the proverbial big brother.

Amendments to the Nepali Constitution can be made with relative ease over the next two years and four months during the transition of the CA to the Parliament with the same party based configuration. This opportunity should be acted upon with utmost haste and care to deal with the remaining issues to meet the concerns of the Madhesis, Tharus and women. Some restraint is necessary. Maoist leader Baburam Bhattarai has conceded that some mistakes have occurred and need to be redressed. Unfortunately, the CPN-UML Chairman KPS Oli has very strongly insisted on maintaining Article 283. He and his party are highly respected and experienced, as well as part of the the ruling coalition. No Left party in this era has supported this kind of descent-based access to constitutional posts. I repeat, as a humble student of politics and constitutions, that in the coming three years, the controversial Articles that are in spirit and letter against the large part of this secular, progressive Constitution, should be withdrawn or suitably modified as soon as possible.

India must not fish in troubled waters. Nepal is an old friend and a special neighbour, and must be treated accordingly. All diplomatic and political norms must be strictly followed.