To put things in perspective and timeline, let me start with the statement issued by Indian Minister for External Affairs Sushma Swaraj on September 14. The statement came just two days before the final vote in the Constituent Assembly.
I quote sections of the statement here:
“For the last few months, the political leadership of Nepal has been intensively engaged in the critically important task of Constitution drafting, through mutual consultations and dialogue. Encouraging voices were heard from Nepalese leaders from afar that the Constitution will carry along all regions and sections, and will become the focal point of a progressive, modern and united Nepal. Coming from all the political leaders, these voices make all of us in India very happy.”
The statement further said:
“We welcome and commend the recent progress achieved by the Constituent Assembly in the Constitution-drafting process wherein several contentious issues have been resolved. India is concerned over the ongoing protests and strife in several parts of Nepal… In this context, we urge continuing flexibility on the part of all the political forces so that any outstanding issues are addressed through dialogue and widest possible agreement, in an atmosphere free from violence.”
There were three key elements in the statement. First, India did not only acknowledge the progress made by the sovereign Constituent Assembly in the constitution drafting process but it also ‘welcomed and commended’ it.
Second, India was concerned about the ongoing protests and strife in our southern plains.
And third, it called for ‘continuing flexibility’ on the part of all political forces and resolution of the outstanding issues through dialogue and ‘widest possible agreement.’
A result of compromises
Two days after the statement, on September 16, the Constituent Assembly endorsed the constitution. As the final tally of CA members who put their signatures on the constitution emerged, more than 90% of them had endorsed the constitution. These CA members were representative of the rich diversity of our society. An overwhelming majority of the Janajati CA members, Madhesi CA members, Tharu CA members, Dalit CA members and women CA members voted in favour of the constitution.
There seems to be misconception in India that 50% of the Tarai population is unhappy with the constitution and is violently agitating against it. That is absolutely not true and India should take note that of the 116 directly elected CA members from the 20 Tarai districts, bordering India, 105 of them have voted for the constitution and 11 stayed out.
Not each of them was happy about each and every Article of the constitution but they thought the document was a result of compromises and was passable. They had their own Ambedkar and Franklin moments. Neither the Indian nor the American constitution had turned out what BR Ambedkar and Benjamin Franklin wanted it to be, but they also thought it was passable and was in the larger interest of their nations at that moment in history.
What really matters in a document of compromise is, how many members of the sovereign Constituent Assembly endorsed the constitution at the time of promulgation? Such a resounding endorsement of the constitution written by a Constituent Assembly is rare in the history of any nation. With 90%, we did secure the ‘widest possible agreement’!
On September 16, the CA declared September 20 as the day for promulgation of the constitution. This day had eluded modern Nepal for more than 65 years, and the Constituent Assembly for more than eight years. Our moment had, finally, arrived.
In the evening of September 16, Ranjit Rae, the Indian ambassador in Kathmandu, called on Prime Minister Sushil Koirala and proposed, on behalf of India, that the constitution promulgation date be postponed. He made the same plea before President Ram Baran Yadav the next morning, just before he left for India for consultations with Prime Minister Narendra Modi.
When the news of Rae’s suggestion to postpone promulgation of the constitution came out, there was a sense of disbelief. How on earth would the largest democracy in the world, and Nepal’s steadfast friend, ask Nepal to call off her momentous day?
Gradually, the reality sunk in.
Next day, on September 18, two days before the promulgation of the constitution, Modi’s special envoy, Foreign Secretary S Jaishankar, arrived in Kathmandu. In less than an hour after he had landed in Kathmandu at 9 am, Jaishankar busied himself in hectic parleys that lasted till 10 pm.
The only reason a close neighbour and a friend could send her high-ranking official to a neighboring country just 48-hours before her historic moment is to be a part of that moment. But it was clear that Jaishankar hadn’t come for the celebration. Nepalis started pondering about the possible message that Jaishankar would pass on to their leaders.
It soon became clear that he didn’t have a message; he only had a threat. Jaishakar had a list of tough questions: How would the world’s endorsement of your constitution matter if India did not welcome it? What if the violence does not cease in Madhes on September 21, a day after the promulgation of the constitution? And if the violence continues across the border, do you expect us to keep quiet?
This wasn’t expected of India. Not from India that had the firsthand experience of the difficulty of promulgating the constitution through a constituent assembly. Not from India that suffered the split in its Constituent Assembly, the eventual division of the country, the killings of thousands of innocent people during partition, and the pain of losing Bapu at the hands of a mindless fanatic. How could India, who went through all these in the run up to the promulgation of her constitution, not be sympathetic to Nepal’s difficulties?
It wasn’t just that the message that Jaishankar brought was ill-timed and inappropriate; the brute way of its delivery was equally damning. Having read some of the Indian history books and been privy to some of Jaishankar’s meetings with our leaders, I can, confidently, say this: His stiff body language and the harsh tone matched the arrogance of British Viceroy, Lord Curzon.
On the contrary, Prachanda, maintained his calm and with all humility said, ‘You came too late, you should have come here at least 15 days ago.’
That Jaishankar, otherwise a suave and polished diplomat, made no pretense of courtesy and decorum with the sitting and former prime ministers of a sovereign country says a lot about the anger that has gripped the New Delhi establishment. One of the measures of the quality of your friendship is, how you maintain respect and decorum even at seemingly difficult moments. Post Jaishankar’s visit, New Delhi’s anger is matched by a rage in Kathmandu.
A day after Jaishankar left Kathmandu and a few hours after Nepal had promulgated the constitution, New Delhi issued a statement merely noting ‘promulgation of a constitution’. And there was no formal welcome of the constitution.
The next day, a Delhi newspaper clarified that use of ‘a’ in front of ‘constitution’ was deliberate, as India does not see it as ‘the definitive constitution.’
‘A constitution’ that Nepal has promulgated is far more inclusive and progressive on almost all counts than the Indian constitution. It is more progressive in terms of fundamental rights. It reserves 40% seats in the parliament to be elected through proportional representation system so that Nepal’s diverse communities find place in the legislative body. Nepal is perhaps the only country in the world that has now reserved at least 33% of the seats for women in the federal parliament, provincial assemblies, and at the local bodies. Local bodies will have 40% representation at the ward level. The President and the Vice President will be from different ethnicities and gender. And there are now seven constitutional commissions that will advance the cause of marginalised groups.
To complement the constitutional provision, we already have an affirmative action Act that reserves 45% of the state jobs, including in the security agencies, for minority groups. In 1990, Nepal became the first country in South Asia to abolish the death penalty and the present constitution retains it. And this constitution recognises the rights of LGBT people, unique in South Asia.
These constitutional and legal guarantees will eventually make our state and polity one of the most inclusive in the world.
The sanctity of the process
For Nepalis, this is what makes it the Constitution. And we hope it will live at least as long as India’s constitution, with the changes made according to the aspirations of our fellow countrymen and women.
India, at this critical moment, lost sight of the sanctity of the CA process in Nepal and the quality of the constitution that has been promulgated. Only through narrow prisms of Babus and the agencies is it possible to miss such a progress.
Thankfully, India is more than Babus, and we remain confident that its diverse political class, the civil society, and the media will take note of this historic moment in the life of her closest neighbor and be with her.
Is this constitution without flaws? Absolutely not. As a husband of a woman with a great sense of self-respect and the father of a three-year old daughter, I feel ashamed to my core that we have institutionalized unequal citizenship rights for women in the constitution. I have many other reservations, too.
Now let me come to the Madhes issue and India’s concern over the ongoing strife and violence across the border.
Is there a problem in Madhes? Yes there is a serious problem. Have our politicians done enough to address it? No, they haven’t. And they have been inept and slow, as politicians often tend to be during difficult times.
But, then, the Madhes problem and the current standoff is not as simple as it meets the eye.
If we look at the key demands of the Madhesi parties, some of them have been accommodated in the constitution and the leaders have made written commitment to fulfill the rest of the demands through constitutional amendment.
Differences still remain over the delineation of the provincial boundaries of the two proposed provinces – and this is at the heart of the contention.
Yes, the boundary issues in the two proposed provinces have been made complicated by the personal calculations of leaders of the national parties. But that is truer for the Madhesi parties. For example, the Madhesi Morcha wants parts of Sunsari and Morang districts to be in province number 2. While the largest party from Madhes, Madhesi Janadhikaar Forum Loktantrik, wants Saptari and Siraha from the province number two to be a part of province number one.
There are saner voices for letting the people in the disputed area decide which province they want to belong to. I remain fully hopeful that we will find a way out of this standoff and reach an agreement on the legitimate demands of the Madhesi people.
But the larger and deepening problem that we are facing in Nepal today is something else: It’s the rising communal sentiments and growing communal divide.
Challenge of addressing violence
As the communities in Nepal remain divided and polarised along communal lines over delineation issues at the local level, top leaders of the big parties have also, unfortunately, taken sides with the communities they belong to. This has further provoked communal sentiments of the other communities and the regional parties.
More recently, it has fed the communal sentiments, which were already running high, in Madhes. The violence in Madhes is, therefore, more complicated than the simplistic theories portray. It is fuelled by the communal sentiments and hatred, the Pahade-Medhesi divide, the personal experience of humiliation and the real and perceived sense of injustice and exclusion.
CK Raut, who has been campaigning in Madhes for the last couple of years for statehood, has been consistently drawing crowds larger than any Madhesi party has been able to. The hate speech that he routinely practices and the call for formation of a separate state for Madhesis has radicalized the masses on the ground.
The Madhesi parties, discredited by their own rank opportunism and self-serving politics, felt somehow sandwiched by the likes of CK Raut and the huge presence of mainstream parties in Madhes, and decided to whip their support base through radical and communal politics.
The collective hate speech and the disinformation campaign against the Pahadis in Madhes is now so visceral that very few Madhesis protesting on the street really know or care about what the real demand is.
Who else than India better knows the challenge of addressing violence once the communal and regional sentiments are let loose in a society?
India has grappled with similar challenges and violence in Punjab, Mizoram, Nagaland, Kashmir, Jharkhand, and Gorkhaland for decades now. Nepal, therefore, hoped that India would understand that, despite the best intentions of the state, violence sometimes spirals out of control. And there is no simple, overnight remedy to the violence when the ground remains charged.
It is in this context that the 24-hourly statements from India calling for the cessation of violence in Madhes, and leaving the onus fully on the Nepali state, was uncalled for. And that is why many people see through the intentions of these ‘we told you so’ statements.
People with little knowledge of India-Nepal dynamics on either side of the border understand that India has the capacity to both stoke and tame the violence in Tarai.
Will India do the right thing?
At this critical juncture, Nepal needs India’s support, not condescending statements, to deal with the spiraling violence in the Tarai.
Some Indian newspapers have run stories claiming that the Ministry of External Affairs has sent its seven-point amendments to the constitution to resolve the crisis in Nepal.
Nepalis are too self-esteemed to believe or expect India to go to that extent to undermine the constitution promulgated by the sovereign Constituent Assembly.
Nepalis will have to negotiate the deal amongst themselves, and the Kathmandu leadership will need to take the lead. India would serve her interests best in Nepal and across her own border by staying out of the nitty-gritty but using her leverage to solve outstanding issues through dialogue.
If the violence in Madhes continues, it will harm the fragile internal balance of Nepal, spill across the border and will eventually sour India-Nepal relations.
New generation of Nepalis have emerged and they are trying to come to terms with our relationship with India. They maintain a more balanced and nuanced view of the Nepal-India relationship. Narendra Modi’s election as India’s prime minister and his immense affinity toward Nepal had marshaled attention and admiration of this new generation of Nepalis.
If India errs further, this net gain could evaporate fast, which would be against the interest of both Nepal and India.
How could Modi with his ‘neighborhood first’ policy have lost sight of things in Nepal and failed to take a balanced and nuanced approach?
In not welcoming Nepal’s new constitution endorsed by 90% of the CA members, India has distinguished itself from among the P5 members of the UN Security Council and three other aspirant countries to the top league.
Had India welcomed Nepal’s constitution, it would have cost India nothing. Even after welcoming the constitution, it could have encouraged Kathmandu and Madhesi leaders to break the standoff, contain violence in Madhes and reach a negotiated solution.
That would have been the right approach. There is still time.
I just hope India will also ‘take note’ of this suggestion from a well-wisher from across the border!
This article was first published on Setopati.net.