India should leave Nepal alone to resolve its final controversies of Constitution making. The porous border influx of refugees into India is no excuse. Nor the geopolitical pressure that China is watching. A wise Nepal could choose non-alignment, get aid from everywhere and pursue its own path. In the distant past Nepal had conquered Sikkim and the Darjeeling Hills which were eventually ceded to the British. China backs the "Hill" folk, India the Madhesis. Both are divisive.
Nepal wants its Constitution to be secular, to supercede its former Hindu state. The BJP and its cohorts should accept this. Nepal is in crisis: shortage of Indian currency and cross-border trade is causing spiralling prices and commodity scarcity. Planes coming into Tribhuvan Airport are warned to carry fuel because of its short supply in Nepal. The UML (Unified Marxist-Leninist) leader KP Sharma Oli accuses India of violating international law which requires positive duties towards landlocked nations. Why push Nepal to turn to China for oil and supplies? It was churlish, even stupid, for Prime Minister Narendra Modi to tell his Nepali counterpart Sushil Koirala that "five to ten people cannot sit in a room to determine a Constitution". Nor should our misfit external affairs minister Sushma Swaraj and her envoys tell the Nepalese what to do.
India wants seven amendments to Nepal's Constitution (to Articles 11(6), 21, 63(3), 86, 154, & 283) and restructuring of five districts (Kanchanpur, Kailali, Sunsari, Jhupa and Morang) to enable minority representation. The amendments cover many aspects: proportional representation in certain matters, the right of non-Nepalis by descent to hold public office, and of course, the reworking of federalism to reflect Madhesi and Tharu rights. Surely India does not want Nepal or anyone else to advise India to reorganise its federalism in Kashmir, Maharashtra, Uttar Pradesh or the Gorkha districts of West Bengal.
I have been privileged to attend many meetings on Nepal's Constitution in Kathmandu with many activists, politicians and groups. While welcoming ideas, the Nepalis are discerning about what they want, as well as the problematic demands from its vastly diverse population. We do not have to go back to the fall of the Ranas, India restoring the monarchy in 1951 or its "help" in Constitution making in 1951 and 1959 and with the panchayat system till the 1990s. The new Constitutional arrangement from 1990 failed.
Despite the murder of the King, the Jan Andolan of 2006 ended the Maoist-armed rebellion. Nepal has taken a long time over its constitutional discussion, has seen a turnover of prime ministers from the Maoist Prachanda to the present incumbent Sushil Koirala who relies on the 196 Nepali Congress and 175 UML seats in the 601 Assembly for his majority.
The Madhesi Andolan of 2007 and now should have reminded the Constitution makers that their insistence on representative provinces in the federation is a cornerstone question for them.
On the federal question, many Nepalis (and indeed myself in discussion with them) agreed that the first step in devising federal states is the test of financial and administrative viability. Each state had to be able to afford an executive assembly, civil servants, infrastructure and other wherewithal. After 2006, the first Constituent Assembly of 14 provinces necessarily failed the viability test.
Then a high-level state restructuring commission recommended ten provinces which, depending on detail, would have failed the viability test in some cases. Article 60 of the Preliminary Constitution of 2015 envisaged a three-tier federalism consisting of the federal, provincial and local. There were to be eight provinces on the basis of identity and capability including caste, community, culture, geography, history and contiguity (Article 60). At that time, a federal commission was to define and deter-mine the provinces.
The Madhesis (will all their complexities) and the Tharu were at the forefront for recognition. On June 19, 2015 the Supreme Court of Nepal declared that 16-point deal could pre-empt delineating the provinces by the Constituent Assembly itself.
On August 5, 2015 it was proposed to have six provinces but, given controversy, this was extended to seven on August 21, 2015. This was not acceptable and huge clashes took place by the Madhesis, Tharu and others, paralysing the Terai border with India and resulting in killing, mayhem, currency crisis and goods scarcity. Undeterred by India, Europe or the US (the latter with their China containment agenda) Nepal passed their Constitution on September 16, 2015 with 507 votes for and 25 against. Presented to the nation by the president on September 20, this is necessarily a joyous moment.
The Constitution provides for amendment of the boundaries of a province, with a majority consensus by that Province's Assembly and a two-third majority of existing members of both houses of the federal legislature (Article 269). For changes, the amendment article provides a complex and tough procedure, to be man-aged with statesmanship.
China has welcomed the Constitution as a "friendly neighbour". So should India and not listen to Indian voices that continue to think of Nepal as a tinder box unless Indian demands are satisfied. Biblically, India should first cast the beam out of its own eye.
Nepal's fertile plains consist of 22 out of its 75 districts, 17 per cent of the area and 51 per cent of its population. To reconcile differences, five districts will be affected (Jhapa, Morang, Sunsari in the East, Kanchanpur and Kailali in the West). Hope and pray for Nepal to work this out without India's confrontation.