S.D. Muni, Professor Emeritus, Jawaharlal Nehru University, New Delhi, Distinguished Fellow, Institute for Defence Studies& Analyses, New Delhi, Former Special Envoy and Ambassador, Government of India
The idea of a complete restructuring of the Nepali State to make it democratic, secular, federal and inclusive has been the outcome of Nepal’s second “Peoples Movement (Jan Andolan-II)” of 2005-2006. The Maoists of Nepal who have been working on this agenda through their ten year old peoples’ war, demanding an elected Constituent Assembly (CA) to write a peoples’ constitution, found the process of ‘revolutionary violence’ unworkable in advancing this agenda and joined hands with the mainstream democratic parties to make the “Peoples Movement” a success. The demand of an elected CA was first raised in Nepal in 1951, but was not pursued seriously until the Maoists uprising.
The first popularly elected CA-I came into being in 2008. It had the numerical dominance of the Maoists. CA-I, even under the Maoist government, could not complete its responsibility of finalising a Constitution by 2012. The opposition combine in CA-I, led by the Nepali Congress (NC) and the Communist Party of Nepal-United Marxist Leninist (UML) would not let the Maoists write the constitution as the latter desired. The reasons were both ideological as well as political. Ideologically, the opposition parties did not endorse the Maoists agenda of restructuring, as they had only accepted it vaguely to fight their battles against Monarchy during the 2005-2006 Peoples Movement. Politically, they were not prepared to approve a Constitution in the Maoists dominated CA- I, fearing that Maoists would reap huge electoral benefits in a post-constitution political arrangement. Both the ideological and political factors polarised differences between the ruling Maoists and the NC-UML opposition in the areas of federal restructuring, form of government and the electoral system. In their differences with the Maoists, the opposition had quiet support of and encouragement from the international community in keeping the Maoists deprived of the credit of getting their restructuring agenda endorsed by the popularly elected CA-I. There was also lack of strong determination on the part of the Maoists to push through the constitution by voting in CA-I, as by 2012, the Maoists had mellowed down through compromises and adjustments to remain in, and enjoy power. The Maoist Government was also restrained by Nepal’s Supreme Court in extending the life of CA-I for completing the constitution.
Nepal’s second Constituent Assembly (CA-II) was elected in November 2013, under the supervision of a non-party care taker government. Political composition of CA-II was radically different from the first one; the NC emerged as the largest party with 196 seats in a House of 601, followed by the UML with 175 seats. The two together were very close to 2/3rd strength. The Maoist came poor third with 80 seats. Being the dominant parties, the NC and the UML, formed the coalition government and set out to frame the constitution. Political direction set by the ruling coalition for constitution making initially had two notable features. One, that the new government was not obliged to follow the Maoist agenda of inclusion and federalism. In their assessment, electoral defeat of the Maoists marked peoples’ rejection of their agenda. Secondly, they did not feel bound by the principle of broad national consensus in constitution making laid down in the Interim Constitution of 2007. This was politically difficult as experienced during CA-I and required taking the Maoists on board. Conscious of their collective numerical strength in CA-II, the NC and the UML were prepared to adopt a majority constitution based on voting in CA-II. Also conscious of the failure of CA-I, they set a time line to complete the constitution writing by January 22, 2015.
These initial assumptions however, soon proved to be unworkable. Accordingly, the time set for completing the constitution had to be revised; the Maoists, as the third largest party, having considerable street power to delay and disrupt constitution making both within and outside the CA-II, had to be brought on the board for ensuring smooth 2/3 vote for the constitution; and the initial preferences of the NC and the UML for the basic contours of the constitution, particularly federalism and inclusion, had to be reformulated. The pressure for completing the constitution was suddenly piled up in view of massive earth quake suffered by Nepal in April-May 2015. The government’s response to the challenge of rescue, relief and rehabilitation fell far short of the need and expectations. A faster pace of constitutional process was then seen as a better option both to cushion and divert attention from the growing popular resentment on the front of quake destruction.
As a part of the revised strategy, the ruling NC-UML coalition decided to co-opt the Maoists and a Madhes based tribal (Tharu) group by working out a post-constitutional power sharing arrangement. In their view, co-opting Tharu group will make the constitutional deal more credible as they represented both the Madhes and the Tribal groups (Janjatis). Co-opting Maoists and the Tharus opened up the parameters of federalism and inclusiveness where adjustments with the demands of the marginalised sections became inevitable. The ruling leadership, however, planned to work adjustments in such a manner that the overall traditional dominance of the minority social groups (nearly 30% of the overall population) of the hill-upper caste, the Bahun-Chetri combine represented by them, was not seriously eroded. To move the constitution making through fast track, the draft constitutional document was completed in July 2015 and opened to the people through electoral constituencies for feedback. This brought in many proposals for revision in the draft and also led to protests by many dis-satisfied marginalised groups. But the ruling parties could not politically afford to delay or disrupt the constitutional process. Ignoring many of the demands for revision and protests, the draft constitution was rushed through CA-II and approved without much debate or discussion. In fact the last leg of the constitution, with nearly 200 and more of its provisions, were adopted in just one day through raising of hands. There was an overwhelming support of 507 members out of a total of 598, with more than sixty abstentions and more than twenty voting against. The constitution was formally promulgated on September 20, 2015.
The Provisions and the Consequences:
The new constitution of Nepal is the first truly peoples’ constitution and is a hugely progressive document as compared to its six precedents, and many other constitutions in Asia. It enshrines the principles of republican democracy, federalism, inclusiveness, extensive fundamental rights and freedoms for citizens, and secularism. The constitution also incorporates the principle of “socialism based on democratic values” which may baffle many theoreticians of Maoism, Marxism, democracy and democratic socialism. The political system adopted is of parliamentary democracy, with separation of powers between Legislature, Executive and Judiciary. It adopts both direct and representation modes to ensure that women, untouchables (Dalits), tribal groups (Janjatis), Madhes and other minorities get representation in constitutional bodies and national institutions. Women have been guaranteed 33% representation in all such bodies. Special Commissions have been established to protect and promote the interests and rights of women and other marginalised and backward groups. The new parliament will have 275 seats of which 165 will be directly elected and 110 filled through proportional vote. The constitution prohibits people to contest from more than one constituency and debar the defeated candidates from securing ministerial positions.
Despite these distinguishing and progressive features, as well as massive support in CA-II, the new Nepali constitution has been confronted with resentments and rejections from the marginalised groups. Women have resented the provision of citizenship where their children with foreign husbands are eligible only for ‘naturalized’, and not ‘by descent’, citizenship. Naturalized citizenship is discriminatory as such citizens cannot aspire for very high political and administrative positions in the state. The Janjatis and Madhes groups are upset with the inadequate representation in national/constitutional bodies and neglect of their identity. While the Nepali nation has been recognised as being multi-ethnic, the composition of the Nepali State does not fully reflect the multi-cultural character of the society. This is evident in the number of parliamentary seats assigned to the Madhes dominated Terai region (southern plains) which fall far short of Terai’s population strength. Of the 165 directly elected seats, Terai deserves to get nearly 87 seats in view its total population (Including both Madhes and other groups) being 51.7%. But the Terai has only 65 seats. Inadequacy of the Madhes and Janjati representation is also evident in the Upper House of Parliament (National Legislature), where unlike that of the Dalits (the untouchables), their minimum representation has not been specified as per their population strength. The demarcation of
provinces has also been done in a manner that according to Nepal’s well known political and constitutional analyst Krishna Hachhethu, except for the province no.2, in all the six of the seven provinces, the upper hill castes have a clear domination.  The Madhesis are also objecting to the exclusion of their traditionally dominated districts both from the eastern as well as the western Madhes provinces. They feel offended by the mind-set of hostility and indifference towards them by the hill leadership, as the latter never took the former into confidence on defining the parameters of the new constitution. On the whole, the large sections of Madhesis, Janjatis, and women do not feel ownership of the constitution. They have been protesting since even prior to the promulgation of the constitution. The Madhesis, have been boycotting the CA-II for weeks since the constitution was put to vote. It is important to note here that the initially co-opted Tharu leadership also got alienated from the constitution making at its last stage, as their aspirations of federalism and inclusiveness were ignored by the three major political parties, the NC, the UML and the Maoists.
The new constitution of Nepal has also been rejected by the monarchists, Hindu fundamentalists and the extremists break-away Maoist groups. The Maoists did not participate in the elections for the second CA and have been demanding round table consultations for constitution making. The Monarchists have been asking for the restoration of monarchy in Nepal. And the Hindu fundamentalists led by the Rastriya Prajatantra Party (RPP) of Kamal Thapa (which is fourth largest with 25 seats, in the CA-II) have been asking for removing the “secular” character of the Nepali state and making it a Hindu State. The new Constitution, to some extent has accommodated this concern by diluting the secular character and making cow as the national animal (Art.9.3) so as to assuage Hindu sentiments by prohibiting cow slaughter. As a result, Thapa’s RPP has accepted the new constitution after affixing its dissent and have also joined the post-constitution ruling coalition.
The strongest of these protests have come from the Madhesis who have been agitating since August 2015, turning Nepal’s entire Terai region unstable and violent. The government’ use of force to break the agitation resulted into nearly 50 deaths by the time the constitution was promulgated. The international group, Human Rights Watch has come out with a report blaming the government of Nepal for “disproportionate” use of force. Since the promulgation of the new constitution, Madhes agitation has also disrupted supply of essential goods going from India to Nepal creating serious scarcity of petroleum, food stuff and medicines among other things. Kathmandu and the rest of Nepal is facing unprecedented hardships as a result, leading also to serious strains and misunderstanding in Nepal’s relations with India. India has been blamed for imposing an economic ‘blocked’ on Nepal, creating scarcity during Nepal’s biggest festival – Dassain – and interfering in Nepal’s domestic affairs to dictate terms of the new Constitution. Kathmandu has witnessed burning of Indian flag and effigies of Prime Minister Narendra Modi, and unexpected surge in anti-Indianism.
International and Indian Responses:
Nepal’s new Constitution has been generally endorsed and welcomed by the international community. Initially the US, like India urged upon the Nepalese leaders to have an “inclusive and flexible” constitution that enjoys “broadest possible support”. The United Nations also on that count was cold in its initial reactions to the new constitution, as it expressed concern for violence in the Terai. Subsequently however, both the US and the UN have endorsed the constitution. China and the European Union welcomed the Constitution more enthusiastically. The Chinese are happy that Nepal’s federalism is not specifically ethnic and identity based, and also that it has continued dominance of the hill-upper caste groups. Any Madhes domination in Nepali power structure will not be a preferable factor from the Chinese perspective. It is also a matter of satisfaction for China that the post-constitution power structure in Nepal is clearly led by the communist parties, the UML and the Maoists. The European Union is also happy that Nepal has not been declared a Hindu State and secularism, howsoever, feeble, continues to characterise the structure of the Himalayan State.
India is visibly upset with the way Nepali leadership has gone about making the new constitution. It has lent its support for the Madhes and their agitation. Since coming to power in April 2014, Prime Minister Modi has gone out of his way to reinforce and upgrade relations with Nepal. During his two visits to Nepal in August and November, 2014, he repeatedly pleaded with all sections of the Nepali political class to have a truly inclusive constitution. He offered special package of assistance to help Nepal build its infrastructure and tried to bridge India’s “delivery deficit” by reviving and expediting stalled Indian development projects in Nepal. He also invited important Nepali leaders like Prachanda of the Maoist and Deuba of the NC, to visit India for consultations to ensure that Madhesis were taken on board. As a last minute, but untimely effort, Modi sent his foreign secretary Dr. S. Jaishankar to Kathamndu as a special envoy to delay the promulgation of the constitution and accommodate Madhes demands. None of these, however, bore desired results.
Frustrated, India refused to welcome the new constitution and, in view of the disturbed conditions in Terai and agitation of Madhesis, slowed down flow of essential supplies from India, precipitating scarcity crisis in Nepal. While Nepal pleads for urgent normalisation of the goods traffic, India’s contention is that disruption in the flow of goods is caused by the Madhes agitation which, being an internal matter of Nepal, should be sorted out first internally, before India can do anything to substantially change the situation. This message was conveyed also to Nepal’s new government led by K.P. Sharma Oli of the UML, through Nepal’s new Foreign Minister Kamal Thapa when the latter visited India in October (17-19), 2015.
The persisting stalemate between the new Nepali government and the Madhes and other marginalised groups, as also between Nepal and India is not good for any of the players concerned. Unless the new Nepali leadership initiates a sincere and meaning full process for constitutional reconciliation with the agitating groups, neither new constitution will be smoothly implemented nor there be any stability within Nepal. Such reconciliation will also create conducive conditions for restoring normalcy in relations with India. The adventurous assertion in Nepal of anti-Indian nationalism, invented as a political tool during the bygone years of monarchy, or bragging about alternative supply routes through China or other countries are not viable and long term options to redefine geo-culturally structured and economically sustainable traditional relations with India.
Indian policy makers must realise that their diplomatic efforts have failed to influence Nepal’s constitution making in a positive and creative manner. The failure has been on many counts. There were inconsistent levels of quiet diplomatic engagement with regard to the constitutional process. Such engagement varied from indifference to offensive assertion. There were multiple stakeholders, at the official and political levels carrying diverse and conflicting messages from New Delhi to Nepal. India could surely afford to respond softly to the adoption of constitution in Nepal. Constitution should have been welcomed publicly, as it was a historic exercise, howsoever imperfect, for a newly vibrant polity. While doing so, India could also register its reservations on the constitution. The obstructions in the supply of essential goods to Nepal, for whatever reasons, are hurting ordinary Nepalese, without making desirable impact on the government. India should have explored other means, if at all, to persuade Nepali leaders towards accommodating the marginalised groups. Two important takeaways for India from its faltered approach towards Nepal’s constitution making are; (i) there is a new, youthful, aspirant and self-conscious Nepal that calls for a radical different approach and engagement if India has to preserve and promote its vital national interests and strategic space there; and (ii) failure to find an early and amicable way out of the Nepali situation will dent India’s overall credibility and image in the entire neighbouring region vitiating its own aspirations of emerging as a major Asian and global player.
 Madhes region is identified with the persons of Indian origin residing in the southern flat lands (Terai) of Nepal. They include several caste and tribal groups, of which Tharus constitute a considerably large chunk, almost 30-35% of the Madhes population. Tharus are also one of the largest ethnic group of Nepal, accounting for 6.6% of the total population.
 These four groups, the three major parties and the Tharu leader Bijay Gachchadar, signed a 16 Point Agreement defining the broader contours of the new Constitution on its most of the sensitive and controversial aspects. For the text of these points see http://www.npnewsportal.com/the-16-point-agreement-full-text/ (accessed on October 18, 2015).
 This point has been strongly and clearly articulated by Krishna Hachhethu, “Naya Sambidhan Ko Chirfar”
(Dissecting the New Constitution), Kantipur (Nepali Daily paper), Kathmandu, October 02, 2015.
 The new Constitution at the last minute adopted through insertion a definition of ‘secular’ that syas “protection of religion and culture being practices since ancient times (sanatan – in Nepali) and religious and cultural freedom” (Article 4.1). This definition tilts in favour of Hindu religion which has the been the oldest religion of Nepal, while giving freedom of other faiths as well at the same time.
“Like we Are Not Nepalis”: Protests and Police Crackdown in the Terai Region of Nepal”, By Human Rights Watch, October 16, 2015. http://www.hrw.org/report/2015/10/16/we-are-not-nepali/protest-and-police-crackdown. (Accessed on October 19, 2015).