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In the first week of October, a Nepali Congress team led by former foreign minister Prakash Sharan Mahat visited New Delhi at the invitation of India’s ruling Bharatiya Janata Party (BJP). Udaya Shumsher Rana and Ajaya Kumar Chaurasiya were the other two team members. 

For public consumption, the visit was said to be a part of an ongoing party-to-party exchange between the NC and the BJP. But according to sources, Prime Minister Sher Bahadur Deuba had dispatched the trio to explain to the Indian establishment his plan to contest elections for a second term as party president. 

The three leaders visiting India are close confidants of PM Deuba. The visiting team didn’t have anyone from the rival factions of the Nepali Congress. Deuba did not discuss with other leaders the purpose of the visit either.  

According to Chaurasiya, the talks with Indian leaders and officials focused on two broad areas: strengthening government-to-government ties, and increasing interactions/exchanges between the NC and the BJP. “We conveyed PM Deuba’s message to the Indian leaders that he wants to maintain good rapport with the Indian government and the BJP,” Chaurasiya told ApEx. “The Indian side also conveyed its message that the government led by Narendra Modi wants to build a good relationship with the government as well as PM Deuba, who is also the party president.” 

A senior Congress leader in frequent touch with the Indian establishment says NC leaders considered close to India have deserted the Deuba camp and this has added to his worries ahead of the party elections. “PM Deuba wants to secure India’s support for his candidacy, but this time India has remained mum and not supported any specific leader,” says the leader requesting anonymity. He says this time India is unlikely to throw its weight behind any candidate. It is also not clear whether the Indian bureaucracy and the BJP are on the same page on how to approach the NC’s convention and a possible change in leadership. 

Also read: How and when will the three-tier elections be held?

Bimalendra Nidhi, a long-time confidant of Deuba, has announced plans to contest the party presidency. Shekhar Koirala, who maintains good rapport with the Indian leadership, is also in the fray. This creates additional challenges for Deuba. 

NC leaders say neither internal party dynamics nor the external environment is in Deuba’s favor this time, and he is desperate to have New Delhi’s support. During their visit, the NC team met senior BJP leaders, Minister for External Affairs S Jaishankar, and Uttar Pradesh Chief Minister Yogi Aditya Nath. According to the Congress leader, the issue of NC general convention also figured during these meetings. 

In the third week of August, BJP foreign affairs department chief Vijay Chauthaiwale had visited Kathmandu at Mahat’s invitation. He met PM Deuba and other senior leaders. Ever since the formation of the Deuba government, a team of NC leaders has been relentlessly working to mend ties with New Delhi through engagements with the bureaucracy as well as members of the ruling BJP.    

Not only those close to Deuba, others such as Bimalendra Nidhi, Shashank Koirala, Shekhar Koirala, and Prakash Man Singh have also tossed their hats in the ring in the race for party presidency. 

This week Shashank Koirala visited Bombay and New Delhi. Koirala met some BJP leaders to seek their advice and support for his bid. “Though senior leader Ram Chandra Poudel has announced his candidacy for the presidency, it is likely to boil down to a Deuba vs Koirala [Shekhar or Shashank] fight,” says another Congress leader, also requesting anonymity.  

Arun Subedi, a political and foreign policy expert, says the traditional relationship between the two countries means the Indian factor is always influential inside the NC, especially during the general convention. Whatever NC leaders may say for public consumption, all leadership aspirants secretly seek India’s support, Subdei adds, PM Deuba being no exception. 

Also read: Nepal’s decennial census needs a rethink

Deuba is equally worried about India’s reluctance to roll out the red carpet for him in New Delhi. In the past, India used to invite the Nepali PM as soon as he took charge. But this time, India is yet to send a formal invite. The delay in the visit has been partially attributed to NC’s internal political mess.

This time, Deuba’s first foreign visit is to Scotland to take part in COP26, where he is  expected to meet his Indian counterpart Modi on the sidelines of the conference. Deuba is also likely to pay an official visit to India after returning from Glasgow. 

Though the meetings of bilateral mechanisms between the two countries are taking place regularly and some connectivity projects are making progress, Deuba is not confident that New Delhi is fully backing his government. 

In June this year, in a veiled reference to India, five former prime ministers including Deuba had cautioned against external influence in the country’s internal affairs. Party leaders say it was Deuba’s mistake to join forces with four prime ministers to issue the statement, which irked India. New Delhi is reportedly unhappy with Deuba over some issues. 

Analyst Subedi’s understanding is that an environment of trust is yet to be established between the Deuba-led government and India. “Bureaucratic-level engagements don’t produce sustainable relations. Deuba doesn’t have any foreign affairs advisors to take matters beyond the bureaucracy,” Subedi says. “The foreign ministers have been unable to mend and maintain ties with India. This failure to create an environment of trust is good neither for Nepal nor India.” 

In his recent book Political Changes in Nepal and Bhutan (Emerging Trends in Foreign Policy in Post 2008 Period), Nihar R Nayak, a research fellow at the Manohar Parrikar Institute for Defence Studies and Analyses, observes: “Even after 70 years of diplomatic history, regime security has remained a key determinant of Nepal’s foreign policy. The new governments in Kathmandu give priority to win the goodwill of neighboring countries, especially India.” 

Nepal’s decennial census has been taking place since 1911, with 2021 marking the 12th one. The census should have been begun in June this year but was delayed by a few months due to the coronavirus pandemic.

The Central Bureau of Statics (CBS) kicked off the national population census program in the second week of September. In the first phase, it completed enlisting households, and the second phase aimed at collecting population data door-to-door will commence on November 11. It will take at least another six months to process the final census data, according to CBS officials.

Organizing a census every 10 years is an international practice, and prescribed both by the United Nations and the national constitution. Article 281 of the constitution says: “The Government of Nepal shall make appraisal and review of the implementation of special rights of the women and Dalit community and impacts thereof, based on human development index, concurrently with a national census to be held in every 10 years.”

As the 2021 census is underway, there are deliberations among policy experts and government officials that time may be ripe for a reform of the current census system.

Many countries are switching to alternatives, which have also been recognized by the United Nations. In Nepal’s context, there haven’t been any such initiations. Even within the current decennial census, modern technology could be used to make data-collection more efficient and effective. Senior CBS officials concede that there has been little or no effort in changing the traditional system.  

As the administrative data system is mismanaged, CBS is compelled to collect all required data by preparing a long list of questions.

Also read: Burdened with books

Hem Raj Regmi, deputy director general at CBS, terms Nepal’s census system ‘unscientific’ and ‘overburdened’. “In other countries, hardly 15-20 questions are asked during the census, but we have prepared 80 questions,” he says. “This is because our permanent administrative bodies don’t have any organized data on their respective areas.”

Experts and officials say the government ought to work on making the current census system more efficient and technology-friendly. At the same time, the government should prepare for an alternative.

Why switch?

As the country has already adopted a three-tier governance system, local governments which enjoy both resources and rights, according to experts, should be empowered to collect data regularly. The current untidy process which takes months to produce the final result should be changed. As things stand, provincial and local governments are dependent on the CBS to get the data of their area.  

The current method of the census is also costly. According to the CBS, the 2021 census will cost over Rs 4 billion, an increase of 233 percent compared to the previous one in 2011. More than 70 percent of the budget would be spent on salaries and perks of census staff as they need to reach an estimated seven million households across the country. According to Regmi, the expenditure is likely to exceed the given budget.

Rudra Suwal, senior economist and former deputy director general at CBS, says census costs will further increase in coming decades, and thus the government should start searching for options.

Planners, policymakers, political parties, and other stakeholders need up-to-date data to formulate and execute policies and plans. Another vital use of census data is while delineating electoral constituencies based on geography and population. The data from the 2011 census is still being used, and the new data being collected now will be used at least until 2032.

Also read: Systemic dysfunction

The current data collection process is time-consuming and there are reliability issues as well. During the long process (from filling of forms to analyzing data), errors could find their way into the system as all documents are hand-written, says Suwal. (Albeit, from this time, CBS staff have started using tablet computers in a few districts.) Moreover, to collect household data, surveyors have to reach every door, and even then they may not find anyone home.

Right time

As the country has already adopted a federal system and provincial and local governments are in place, experts suggest local governments conduct census on a daily basis.

Such a process has already been recognized by the UN, and some countries are practicing it, says Suwal.  “Every day, we get updated information on the population, which is known as vital registration. Norway and Denmark don’t conduct any census as their vital registrations serve the purpose.”

“Now that internet and technology are also widely available in Nepal, we too can shift to vital registration,” Suwal adds. To fully switch to vital registrations, according to officials, the government’s regular administrative bodies must be empowered to collect the data of their respective areas.

For example, the Ministry of Land Reform and Management maintains data on women’s land ownership, but the CBS is also collecting such data through the census. “The current census is an onerous and costly affair. But before choosing an alternative system we need to develop a system of collecting data from our administrative bodies at all three levels of government,” says Regmi.

According to him, more and more categories of data are being collected during the census to fulfill Nepal’s international obligations, but there has been little progress in making the process more efficient. 

Usually, the monsoon enters Nepal in the first week of June and exits the country on 23 September. But this year, it decided to stay a little longer, bringing great volumes of water, and causing flood and landslides everywhere. Although the rains have let up a bit in the past few days, heavy downpour had started this year even before the monsoon’s arrival, with some predictable consequences.

Government data suggest, this year has witnessed highest casualties in a decade. According to Home Ministry, between 28 September 2019 and 28 September 2020, altogether 292 people have died in landslides. In the past month (28 August to 28 September), 54 people died. In one week (22 September to 28 September), 16 people perished; dozens are still missing.

Parbat, Palpa, Gulmi, Sindhupalchowk, Myagdi, Lamjung, Jhapa, Dhading, Tanahu, and Gorkha, are traditionally the most landslide-prone districts of Nepal. This is in addition to 14 districts surrounding Kathmandu valley that were badly shaken by the 2015 earthquakes.

Nepal has always been one of the most landslide-prone countries in Asia. “Between 1950 and 2009, the frequency of fatal landslides was highest in China, followed by Indonesia, India, the Philippines, Japan, Pakistan and Nepal,” says a 2011 report by the United Nations’ Food and Agriculture Organization. “These seven countries accounted for 87 percent of the 17,830 landslide-related fatalities reported in Asia between 1950 and 2009, and 82 percent of the 267 reported landslides.” Even so, the frequency of landslides in Nepal has been constantly increasing.

Subodh Dhakal, Assistant Professor of Geology at Tribhuwan University, says many factors led to greater frequency of landslides mainly in hilly and mountainous regions. “Nepal is in the middle of the Himalayan region that is still in the making. Our landform is evolving so it is always vulnerable to landslides”. Moreover, adds Dhakal, our current development model does not factor in geological engineering and scientific surveys. Moreover, climate change is also causing more frequent and intense rainfall, triggering landslides in high hills and mountains of Asia.

Haphazard road construction

Road-construction is considered a major development indicator in rural areas of Nepal. Yet local road networks are cut haphazardly into steep hillsides with next to no planning, resulting in landslides, with massive amounts of soil being washed into rivers. Then there are the dozers. Government agencies and contractors make use of dozers to cut roads in hilly areas. This loosens the soil, resulting in dry landslides even in the winter.

In his 2019 article in The Himalayan Times titled ‘The road to disaster: Dozer use causing landslides’, Dane Carlson, a landscape designer and researcher says: “Dozer roads are known to contribute to or directly cause landslides. Remote communities relying on already precarious access to infrastructure are further isolated and endangered. Dozer road building doesn’t just damage the landscape in the short-term, it makes those who rely on it in the long-term more vulnerable.” He adds that the rush to build new roads is causing severe flooding in the Tarai and significant destruction of forest cover, ecosystems and productive land across the country.

In many districts, big constructions like hydro projects have resulted in slippery land. Environmentalist Prabhu Budathoki says that if the current construction model is given continuity, not only will there be more landslides but the fertile land of hilly region will also be destroyed, seriously affecting agricultural productivity. Experts say the number of landslides in Nepal began to tick up after 1994 when the central government increased development budget for local bodies.

These local bodies in turn started carving roads without any study. Now, with the country adopting a federal structure, even more resources have been transferred to local governments, resulting in even more haphazard construction. Similarly, the federal government is building highways in various parts of the country without considering their environmental impact. Already, highway areas are prone to disasters.

Earthquake and landslides

Experts say the two-dozen districts that were badly shaken by the 2015 earthquake are all vulnerable to landslides. Sindhupalchowk district, one of the worst hit by the 2015 earthquake, has seen the most landslides in the past couple of years. Even after five years, repeated aftershocks are still shaking high hills. Till September 26 this year, about 73 people were killed and 39 went still missing in some of the worst landslide in Sindhupalchowk.

The government had declared Sindhupalchok a disaster-hit district. Similarly, compared to other districts, Sindhupalchowk always sees more rainfall. Environmentalist Budhathoki says the 2015 earthquake and its aftershocks are partly responsible for more landslides in some districts. “The earthquake has shaken the land so badly, even a small rainfall can result in landslides,” says Budathoki. Experts say it will take several years to settle the land loosened by big earthquakes.

Relocation of vulnerable communities

Landslides cannot be fully prevented but there are ways to secure people’s lives against them. One way is identifying and relocating human settlements in hilly and mountainous areas vulnerable to landslides. After the 2015 earthquake, there was much talk of relocating vulnerable communities but there has been little progress. A Nepal Reconstruction Authority team had suggested relocation of vulnerable settlements but to no avail. Its study had identified around 11,000 houses in 26 earthquake-affected districts for relocation.

According to Manohar Ghimire, NRA Deputy Spokesperson, an extra Rs 200,000 will be provided to the families that want to buy new land to relocate. But the NRA only works in quake-affected districts. The government does not have nation-wide data on vulnerable human settlements. Nor is resettlement easy even if was an option for everyone. People are emotionally attached to their ancestral lands; nor can the government guarantee livelihood in the new place.

Effects of climate change

Various reports have shown that climate change is altering rainfall patterns, resulting in extreme rains in certain locations. Global warming has increased the frequency and severity of heavy rainfall. Nepal has also witnessed unexpected rainfall in certain localities. For instance, 11 people were killed when landslides triggered by incessant rains buried houses in Gulmi district this year in the third week of July. Locals said rainfall in the area was unprecedented.

“The pattern of water-induced natural disasters this year is entirely different to previous years. There is less flooding in Tarai area but the number of landslides in hilly districts has significantly increased,” says environmentalist Prabhu Budathoki. He says climate change has changed rainfall patterns, causing heavy rains in certain pockets.

Flawed environment assessment

Another reason behind increased landslides is the Environmental Impact Assessment (EIA) of development projects. As per the law, all development projects should undertake EIA but this is mostly seen as a ritual by government agencies. If the EIA shows huge environmental impact of a project, it should be relocated. If trees are to be felled, there should be compensatory plantation. “But we are building roads and undertaking other development works without any engineering, while the EIA reports are neglected,” says Budathoki.  “We will ruin our country if we do not pay more attention to sustainable development.”

Rescue and rehabilitation after landslides are also sluggish. When there is a landslide, ministers from both center and provincial levels rush to inspect the site. But when it comes to providing those affected with relief material, there is no urgency. For long there was no independent mechanism dealing with natural disasters. Last year, the federal government set up the National Disaster Risk Reduction and Management Authority. Yet its manpower and mechanisms are centralized. Provincials and local governments are yet to be adequately equipped to deal with natural disasters.

“On the one hand, our government is not serious on environmental assessment, and on the other, we don’t have expertise to ensure sustainability while launching development projects,” says Budathoki. Experts say landslides could be more frequent as hundreds of national and local development projects are now being undertaken without any homework. The authority is now in the process of identifying vulnerable human settlements.

Dhakal says local governments lack geological engineering expertise while implementing development projects. The constitution has granted to the local governments rights and resources to undertake development projects but there is little oversight. Only a geological engineer, Dhakal adds, can understand and identify vulnerable areas prone to landslides.

Recent history of big slides in Nepal

Jure landslide: The Sindupalchowk landslide on 2 August 2014 killed 156 people and dammed the Sunkoshi River. It also blocked the Araniko Highway.

Taplejung debris flow: The 10 June 2015 event killed 53 people, and badly affected airport, district headquarters, and agricultural lands.

Ramche Landslide: The 14 August 2003 nighttime slide took 23 lives, and blocked highway.

Baglung landslide: The landslide on 2 September 2020 at Lankuribot in Dhorpatan Municipality Ward No. 9, Baglung district, killed 14 people, while dozens went missing.

Lidi landslide: Happened on 14 August 2020 in Lidi, Sindhupalchowk district, killing 37 people with some missing. Around 121 households were displaced.

Melamchi landslide: On 3 August 2020 in Gaurabagar in Ward 11 of Melamchi Municipality, Sindhupalchok district, killing eight and injuring one.

Ghumthang landslide: On 13 September 2020 in Ghumthang in Bahrabise Municipality Ward No 7, Sindhupalchok district. Around 11 people were killed and 20 went missing.

Tamad landslide: On 24 September 2020 in Tamadi in Waling Municipality Ward No 14 in Syangja district. It took nine lives.

Nepal has been carrying out decennial population census since 1911, with the next one, the country’s 12^th, due in June 2021. The body mandated to conduct it is the Central Bureau of Statistics (CBS), a government agency under the National Planning Commission. Bureau officials say they are working on war-footing to make the census possible, yet it’s a tough task in the middle of a pandemic. And will the census also include Kalapani? Kamal Dev Bhattarai spoke to Rudra Suwal, senior economist and former CBS Deputy Director General. 

What is the importance of census?

There are multiple dimensions to and benefits of census. First, census is a constitutional obligation as it is on the basis of population that electoral constituencies and number of electoral candidates are fixed. Second, the census provides a complete picture of the country’s socio-economic and statistical status. Census is the only way to get a picture of each and every household and reflects the country’s social and economic conditions.

Third, census is a key guiding document for other sectoral research, study, and analysis. Fourth, census serves as a key document for policy and programs. Fifth, it is important for comparative evaluation of social, economic and other conditions between different countries.

How has Covid-19 affected our census preparations?

As per my knowledge, all activities are on schedule. The CBS has completed a pilot census. Even if one activity is interrupted the entire process will be affected. But if we don’t have more of the kind of strict lockdowns we did earlier, I think the census can be completed within the stipulated timeframe.  

But another lockdown might affect our tight schedule. The key principle of census is that it has to be done at a fixed time, June of every tenth year in our case. If we miss this timeline, we cannot have a comparable data. The delay will affect future censuses. There have been instances of delay. For example, Pakistan could not hold its census for 18 years due to terrorist activities. Having a fixed time is vital for effective comparison.   

Can you give us an overview of census-taking exercise in Nepal?

Nepal started taking census in 1911, all of 110 years ago. Before that, there was the tradition of conducting census in certain areas but not in the whole country. However, the first Nepali census process that adhered to international standards and practices was started in 1952 and took two years to complete. That was the first modernized census held by adopting scientific methods.

Why is census held in every 10 years?

It is an international practice. The UN sets certain standards on how and when countries can hold census. It wants to apply the same standards across the globe and has developed set guidelines for the same purpose. We have to follow those guidelines. Nepal has also been organizing census every 10 years.

If countries do not follow the set guidelines, we cannot have comparable data. For example, we cannot compare the populations of two countries if they do not follow same census criteria. The UN, for instance, clearly defines what constitutes a family—those who live together and share a kitchen—which should be followed by all countries.

Do we have required manpower? 

Since we have been holding census for over 110 years, this is no longer a problem. That was not the case in the initial years. For example, before conducting the 1952 census, the CBS staffs had to go to India for training. Even now, the UN trains officials from all member states, and informs them about emerging issues. It trains you on developing questionnaire and analyzing data. But like I said, these days, we don’t need much training due to our long experience.

What are the concerns of the international community on the census process in Nepal?

This area falls under the jurisdiction of the United Nations Population Fund (UNFPA). Even today, the UNFPA provides Nepal with technical support when required. In the past, it even offered us financial help. But now Nepal can fund its own census.

Donor agencies and international community want to ensure that questionnaires meet international standards. Sometimes, the international community wants to focus on some specific class, community, or area. For example, LGBTI is one area of international concern. CBS also seeks feedback from international agencies on emerging issues, which is natural as well.

How inclusive is our census process?

This is an evolving process. When we talk of inclusion, we need to consider factors like gender, castes, minority groups, etc. We started collecting data on caste and ethnicity from 1990s to ensure broad representation. The latest issue, of course, is LGBTI, in line with the global trend. The basic principle of census is that the questionnaire should be simple and easily understood. It is also difficult to collect information on some sensitive issue, for instance reproductive health of women. So we avoid them. Yet our priority is to dig out as much data as possible on all issues related to social inclusion and gender.

Can you enumerate some reforms that we have initiated in the Nepali census process over the years?

This is linked to the political changes and development of the country. After 1990, we started collecting data on various castes and communities as well as on physically-challenged people. Similarly, more priority was given to people’s educational and economic status after 1990. I already mentioned one previous shift in 1952, when our census-taking became more scientific.

How has the census system of Nepal adapted to the new federal setup?

During the last census in 2011, the country was already a federal state but the three-tier governments were yet to be formed. So we did the census based on old state structure. Later, the data were converted to make them suitable for a federal structure. I don’t think there has been much change in census-taking in Nepal in recent times, save for greater emphasis on social inclusion.

How does the new constitution guide the census process?

The constitution says new census should reflect the federal structure, and datasets have to be prepared and analyzed accordingly. Similarly, we have to have comparative data on provincial and local governments. The analytical part of census will also be expanded.

How are CBS datasets made compatible to government goals?

Our census is comprehensive. We collect data on many areas and so the state can ask CBS to analyze particular areas. For example, the new government has given social security top priority. To implement its social security scheme, many types of data—for instance on the age and distribution of senior citizens—are required. The CBS can provide segregated data from center to ward level.  

What is the current status of coordination between CBS and other government agencies?

We invest a lot of time, energy and resources in carrying out census so the government must make sure it makes maximum use of hard-gathered data. There should be maximum analysis, which has not been the case traditionally. The census has rather been turned into a ritual.

Why are we so weak on the analytical part?

First, the government hardly ever tells CBS what type of data it needs for effective implementation of its policies and programs. If the state demands, CBS will be obliged to provide the required data. CBS produces many reports based on census data, and most of these reports are filled with numbers and tables and charts. If the numbers were to be interpreted and analyzed, it would be useful for maximum number of people.

How political is the census process? For instance, in the past, there have been accusations of ethnic and religious bias in census.

We hear some people say that the number of adherents of certain religion has been artificially decreased or increased. But these are baseless accusations. There could be technical glitches and human errors but the information provided by respondents are never distorted.

What about influencing of staffs deployed in data-collection?

That is not impossible but still improbable. During the previous census, there was a misinformation campaign about CBS misrepresenting the speakers of certain mother tongues. Similarly, inaccurate information was spread on Maithili and Hindi languages. Mainly in the districts that now fall in Province 2, there were attempts to politicize some issues, but they were later resolved. Such issues could reemerge during the next census so CBS should properly train its staff. Any effort to influence census must be dealt with there and then. But I don’t think this is a big issue here in Nepal.

There are demands that citizens in the Kalapani region also be included in new census.

We have already issued a new political map that clearly shows Kalapani, Lipulekh and Limpiyadhura as falling within Nepal. So, in this light, CBS must hold a census there. But since this is also a political issue, it is the government that should decide whether or not to do so. CBS cannot make the final call on this.

Were there any initiatives in 2011 to hold census in Kalapani area?

When we were preparing for the 2011 census, a Kalapani local came to see me. He had with him maps and documents showing the areas that had been encroached upon. He demanded that census be conducted there. I saw his documents and maps, which were genuine. After that I talked to our representatives in the National Planning Commission but got no response. I don’t think the commission forwarded this proposal to the government for consideration. Had the government directed us to do so, it would have been our duty to carry out its order. Now, there are again talks about holding census there but CBS cannot do much without a clear government directive.

What are the areas we need to improve upon to make the census process more effective?

The basic principle of census is to ensure that no one is left and no one is repeated. To do so, each designated counting area should have around 200 families, and one area should be allocated to one official to ensure collection of accurate data. Before the census is conducted, we should collect actual home addresses, which happens in the US. A comprehensive database of exact houses should be prepared.

The current process of data collection is time-consuming and there are also reliability issues. From filling forms to analyzing data, we have to work in multiple steps and there could be errors. In the coming days, we have to adopt new information technology. In some countries, filled forms are scanned and data churned out. We too must adopt high-tech. Only this will ensure maximal use of collected data.

Are there alternatives to the current census pattern held every 10 years?

We conduct census every 10 years. Once done, the figures are not updated for the next 10 years. But we can conduct daily census. Such a process has already been recognized by the UN, and some countries are already practicing it. Every day, we get updated information on the population, which is known as vital registration. Norway and Denmark conduct no census as their vital registrations serve as census. Now that internet and technology are also widely available in Nepal, we too can do vital registration. As we get real-time data with this, we will have to start following it, sooner or later.

The new Nepali constitution completes its five years as the country battles an unprecedented health crisis. The national charter envisions a high level of coordination between federal, provincial, and local governments. But such coordination has been conspicuously absent in the fight against Covid-19. The constitution has empowered provincial and local governments to deal with such a crisis. But it is the District Administration Offices (DAOs), temporary coordinating bodies that are holdouts of the previous centralized state, that are at the frontline of the Covid-19 battle. The DAOs are still accountable to federal government and not to provincial and local governments, flouting the principles of federalism. Provincial interior ministries don’t even have the right to mobilize police to enforce prohibitory measures.  

Similarly, as provincial and local governments lack adequate health infrastructure, they have to rely on the federal health ministry to meet their health needs.

But despite some shortcomings the country’s political course is by and large headed in the right direction, say constitutional experts. They point to the many achievements in constitution implementation.

Bright spots

Senior advocate and Nepali Congress National Assembly member Radheshyam Adhikari says local governments are gradually becoming stronger as they have started exercising their constitutional rights. “A lot remains to be done but we are also steadily strengthening the federal setup,” says Adhikari. Now, the three-tier federal structure is functioning and is on course to complete its first five years.  

The constitution’s acceptability has increased, too. In the initial days of the constitution promulgation, the Madhes-based parties vowed to disown the national charter. But they later accepted it with reservations. They had initially boycotted the 2017 local elections held under the aegis of the new constitution but later took part in the provincial and federal elections, and now run a government in Province 2.

Similarly, they supported KP Sharma Oli’s candidacy for prime minister in 2018, with the hope that he would amend the charter. They withdrew their support after his government took no initiative to fulfill their demands. The Madhes-based parties have never given up their demand for amendment. Similarly, the international community, and India in particular, had initially expressed their reservations with the constitution. India repeatedly called on Nepal’s political parties to amend it—but no more. Now, there is full international support for effective implementation of Nepal’s federal setup outlined in the constitution.

Constitutional law expert Bipin Adhikari says, in totality, the process is working. “But it has failed to gain the expected momentum, nor has the constitution been fully implemented. This is also partly due to the failure of the opposition party to play an effective role,” says Adhikari. “In the initial years, there was good progress in formulation of laws and their implementation but the momentum has slackened,” he adds.

Fiscal decentralization: Still a mirage

A vital aspect of Nepal’s 2015 constitution is the shift of rights and financial resources from federal government to provincial and local governments, making Nepal the most decentralized country in South Asia. There has been transfer of various kinds of funds to provincial and local governments, which is good, but there are also obstacles hindering the process of effective decentralization.

The constitution envisioned the National Natural Resources and Fiscal Commission in order to transform the old unitary state into a federal one. The commission’s formation should thus have been the first priority of political parties. Yet it wasn’t until two years later, in 2017, that the National Natural Resources and Fiscal Commission Act was finalized, with the commission coming into being on 28 December 2017.

A year and a half after the commission’s formation, the federal government, on 21 March 2019, appointed Balananda Poudel as its chairman. But four other members of the commission are yet to be appointed. The government has also ignored the commission’s suggestions on distribution of economic resources to provincial and local governments.

“In the past five years, we have made a lot of progress in institutionalizing fiscal federalism but there are still many loopholes, both in law and in practice,” says fiscal federalism expert Khim Lal Devkota. He says a law to differentiate revenue rights of three governments as well to ensure equity in revenue distribution is desperately needed. Yet the commission’s report on distribution of resources among three governments has been ignored. The Federal Ministry of Finance still controls the commission’s functioning, which, again, goes against the principles of federalism.  

Problematic law-making

The process of making laws to implement federalism remains incomplete. Radheshyam Adhikari says three areas of law-making need to be considered. First, many laws formulated to implement constitutionally-guaranteed fundamental rights of citizens don’t have mandatory bylaws.

Second, laws are yet to be formulated on some key areas. For instance, the parliament is yet to endorse the new Citizenship Act, in line with the new constitutional provisions on citizenship. The draft law is pending at the State Affairs and Good Governance Committee of the federal lower house as parties are yet agree on a viable citizenship model. Similarly, the Civil Servant Act has been gathering dust at the Parliament Secretariat.

In the absence of the Civil Service Act, provincial governments have been unable to set up their own public service commissions to recruit staffs, and still have to rely on the Federal Affairs and General Administration Ministry for staff and other resources. Both provincial and local governments are short on staff. Provincial governments want to recruit their own civil servants but can’t do so without relevant laws.

Third, some laws upend the principles of federalism. “The constitution has devolved rights but several subsequent laws retain the rights in the hands of central government,” says Adhikari. The laws on health and education, for example, suggest the federal government is trying to retain its control in these areas. But these sectors fall under the jurisdiction of the provincial and local governments.

Besides, several media-related Act are pending at the parliament secretariat, and so is a bill to amend the law on the Public Service Commission.

Marginalized voices

The Madhesi and Janajati constituencies having been asking for constitution amendment since its promulgation, marking the constitution day as a ‘black day’. Of late, some lawmakers affiliated with the Janata Samajbadi Party Nepal and Nepali Congress have pushed separate amendment bills to address the pending concerns of Madhesi people.  

PM Oli has repeatedly said, without elaborating, that the national charter would be amended only ‘on the basis of necessity and relevance’. As the constitution is yet to complete even its first five-year election cycle, Oli and those close to him think, it is too early to make substantial changes in it.

Though NCP co-chair Pushpa Kamal Dahal is said to be positive on Madhesi demands, Prime Minister Oli is not. A recent Standing Committee meeting of the ruling party discussed the remaining aspects of peace and constitution drafting process without even touching the amendment topic.

Political analyst CK Lal says the main purpose of the new constitution was to secure the privileges of the old ruling elites and strip the rights of Madhesis and Janajatis, the rights the interim constitution 2007 had bestowed on them. “And both the purposes have been served,” he says.

Adds Vijay Kant Karna of the Center for Social Inclusion and Federalism, “the issues raised by Madhes, Janajati and other marginalized communities remain unaddressed”. Nor does he see any chances of amendment during the tenure of this federal parliament.

Inclusion still elusive

Among others, the new constitution ensures the inclusion of all castes and communities in state organs. But except in areas dictated by the law such as representation in parliament and political parties, the inclusion of Madhesi, Tharu, women, Dalit and marginalized communities remains dismal in state mechanisms. For instance, of the 22 cabinet ministers, there are only three women in the Oli-led federal government.

It’s the same story in the constitutional commissions and provincial cabinets. Not only women, representation of Madhesi, Dalit, Tharu, Janajati and other marginalized communities are dismal too.

The federal government has been most reluctant to empower the constitutional commissions as well. A law on the formation of the Tharu Commission was brought in 2017 and Bishnu Prasad Chaudhari was appointed chair after its formation in 2018. Other commissioners are yet to be appointed; nor has the commission been able to function independently. The fate of Madhes and Inclusive commissions is pretty much the same.

The constitution has envisaged Indigenous Nationalities Commission but it is yet to come into being. Dalit Commission and Women Commissions are functioning without the full quota of their office-bearers. “A key feature of the 2015 constitution is inclusive representation of marginalized community in state organs, which is still a distant dream. Just look at the current state of our constitutional commissions!” says analyst Karna.  

No check and balance

The constitution provides for check and balance among judiciary, executive and legislature, but there have been systematic efforts to disturb this balance and to minimize the autonomy of constitutional commissions.

Another analyst Geja Sharma Wagle says PM Oli has shown his anti-federalism bias by concentrating all powers in his hands, and thereby poses a serious threat to the constitutional order. “Not only opposition parties, even his close aides such chief minister of Gandaki Province Prithvi Subba Gurung and that of Province 1 Sher Dhan Rai have objected to PM Oli’s anti-federal activities,” says Wagle. 

Karna says there are examples of clear defiance of the constitutional order. “The constitution envisages the parliament’s oversight over the government. But in practice, just the opposite is taking place,” says Karna. For instance, the government passed the Constitutional Council Act allowing PM Oli to make key constitutional appointments on majority basis, without any opposition party representation.

Similarly, the government in July prorogued the parliament’s budget session without consulting speaker Agni Prasad Sapkota. There have also been attempts to curtail the rights of the National Human Rights Commission. “If you analyze the laws promulgated to implement the constitution, over 90 percent of them defy basic principles of federalism and checks and balance,” says Karna. 

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Key dates

September 2015: A new constitution is promulgated. The Madhes Movement intensifies and India imposes economic blockade.

October 2015: KP Oli becomes the first prime minister to be elected under the new constitution.

January 2016: First amendment of the constitution to address the demands of Madhesis and Janajatis.

February 2016: India lifts blockade, and Madhes-based parties withdraw their movement.

July 2016: PM Oli resigns after the Maoists withdraw their support to his government.

August 2016: CPN (Maoist) Chairman Pushpa Kamal Dahal becomes prime minister.

June 2017: Nepali Congress President Sher Bahadur Deuba becomes prime minister.

May-Sept 2017: Three-phase local elections.

Nov-Dec 2017: Federal and provincial elections.

February 2018:  KP Oli becomes prime minister again.

March 2018: Bidya Devi Bhandari is re-elected president under the new constitution.

September 2018: The first meeting of the seven chief ministers is held in Pokhara, supposedly to establish a common front against an uncooperative federal government.

December 2018:  Prime Minister Oli holds first meeting of the Inter-state Council, a coordinating body of chief ministers.

March 2019: Madhes-based parties withdraw their support to government as PM Oli fails to amend the constitution.

November 2019: By-elections are held on November 30 for the 52 vacant positions at all three federal levels.

April 2020: Rastriya Janata Party Nepal and Samajbadi Party merge to form Janata Samajbadi Party Nepal.

June 2020: The new party registers its 9-point constitution amendment proposal.

Once again, Nepal is drafting a new foreign policy. Once again, the big question is: Will it be implemented?

A taskforce of the Ministry of Foreign Affairs has nearly finalized Nepal’s guiding document on foreign policy, which the ministry plans to table at the cabinet meeting soon. There is growing pressure to make the ‘new foreign policy’ public and to hold extensive consultations on it among political parties and foreign policy experts. The document has thus far been prepared in hush-hush, with little public consultation.

A few weeks ago, Foreign Minister Pradeep Kumar Gyawali had invited a select group of ex-ambassadors and experts to solicit their views on Nepal’s foreign policy priorities in the changing domestic, regional, and international contexts. (The contents of the draft policy were not shared with the experts; they were only asked to give inputs.)

Both Foreign Minister Gyawali and Foreign Secretary Shanker Das Bairagi seem in a hurry. Gyawali fears his tenure as foreign minister could be cut short in the next cabinet-reshuffle and Bairagi is retiring as foreign secretary next month. They want to leave behind a lasting legacy by properly codifying Nepal’s foreign policy: Right now, except for constitutional provisions and established practices, Nepal has no written foreign policy document.

By the holy book

The central purpose of a country’s foreign policy is to promote its national interests, but defining such interests can be difficult. Similarly, it is hard to prioritize which of the many defined interests comes first.

Article 5 of Nepal’s 2015 constitution says: “Safeguarding of freedom, sovereignty, territorial integrity, nationality, independence and dignity of Nepal, the rights of the Nepalese people, border security, economic wellbeing, and prosperity shall be the basic elements of the national interest of Nepal.”  

Likewise, says the constitution’s Directive Principles: “The State shall direct its international relations towards enhancing the dignity of the nation in the world community by maintaining international relations on the basis of sovereign equality, while safeguarding the freedom, sovereignty, territorial integrity, and independence and national interest of Nepal.”

The constitution further states that Nepal will conduct an independent foreign policy based on UN charter, non-alignment, Panchasheel, international law, and the norms of world peace, taking into consideration the overall interest of the nation, while remaining active in safeguarding the sovereignty, territorial integrity, independence, and national interest of Nepal. Unlike the previous national charters, the 2015 constitution envisions reviewing past bilateral treaties and agreements based on equality and mutual interest.

The communist government’s first policy and program, unveiled in May 2018, offers hints of the kind of foreign policy it wants: “We are completely free to take any domestic-international policy, decision and play the role as an independent and free country. We would believe in a good neighborly relation with our both neighboring countries.” With this in mind, “our foreign relation will be based on mutual benefit and respect, international commitment and duties, and national interest and justice. Diplomatic missions will be made active for national interest, tourism development, export, and attracting foreign investment.”

Continuity and change

Experts say the fundamentals of Nepal’s foreign policy have been unchanged since the 1769 capture of Kathmandu valley by King Prithivi Narayan Shah, completing the country’s unification campaign.

In his famous edict, Shah had said, “This kingdom is like a yam between two boulders. Great friendship should be maintained with the Chinese emperor; Friendship should also be maintained with the emperor behind the southern seas. Do not engage in offensive attack, fight if it is a must on a defensive basis.” 

During its 105-year-reign, the Rana regime followed the same course. But after the end of the Ranas, King Tribhuwan adopted a policy of appeasing India, which was called ‘special relations.’ Nepal’s foreign policy underwent yet another dramatic shift after King Mahendra came into power in 1955. He strongly articulated the necessity of diversifying Nepal’s relations away from India and China. King Mahendra wanted balanced relation with the two neighbors, diversification of Nepal’s trade and economic policies beyond them, continuity of the policy of non-alignment, and neutrality in great-power conflicts.

Another decisive moment in Nepal’s political journey was the restoration of multi-party democracy in 1990. Political analyst Chandra Dev Bhatta says there have since been multiple efforts to reshape Nepal’s foreign policy.

Right after 1990, foreign policy focus shifted to helping Nepal institutionalize its nascent democracy. Then, after 2006, the priority was to secure international support for the peace and constitution process. Coming to today, the communist government says it is for a balanced approach with the two neighbors and diversification of Nepal’s trade, economic, and development relationships.

Former Foreign Secretary Madan Kumar Bhattarai reckons an ideal foreign policy is a calibrated mixture of continuity and change, with more focus on continuity. While non-alignment and neutrality in big-power conflict remain relevant even today, “we may face new domestic and international issues. Similarly, there could be changes in some of our foreign policy dimensions but its essence will remain the same,” says Bhattarai.

Speaking with Yoho Television two weeks ago, Foreign Minister Gyawali had emphasized on the need to clearly articulate Nepal’s foreign policy in a single document. He said changes in geopolitics and international politics should also be reflected in foreign policy, offering the example of the emergence of a multi-polar world and rise of China and India. Another reason for adjustment, said Gyawali, is to make foreign policy compatible with Nepal’s new federal structure.

Economic diplomacy the key

Nepal has for long talked up economic diplomacy. After the writing of the new constitution and formation of a stable regime with a five-year mandate, the new government wants to mobilize international support for the country’s economic and social development. As such, said Gyawali, economic diplomacy has a prominent position in the new foreign policy.

The NCP government has been trying to promote foreign investment and technology transfer. It even organized an investment summit in 2019. The new foreign policy aims to mobilize foreign embassies to attract foreign investment in order to realize Nepal’s dream of development and prosperity.

Sources say the new foreign policy will look to diversify Nepal’s trade, transit, and investment. In order to meet the aspiration of graduating to a middle-income country by 2030, Nepal has to maintain seven to eight percent annual growth. This calls for massive investment, around $8 billion annual FDI inflow over the next 10 years or so. The Oli government wants to bring more foreign aid, much like King Mahendra did in 1960s and 70s.

Analyst Geja Sharma Wagle suggests the NCP government’s ‘neighborhood first’ policy is basically right. “But Nepal should equally prioritize diversifying relations with the rest of the world for its economic development. Similarly, the government should have country-specific polices for India, China, US, UK, France, Russia, and identify thematic areas like economic diplomacy, public diplomacy, labor diplomacy, and environmental diplomacy,” adds Wagle.

Seeing red?

The common perception is that over the past three decades, Nepal’s foreign policy has been hijacked by whichever party has come to power. Instead of prioritizing national interests, past governments pushed the party agenda. Experts fear there could again be attempts to shape Nepal’s foreign policy in line with the ruling party’s ideology.

The loaded 2017 election manifesto of the left alliance says: “An independent policy will be adopted which discards foreign interference in the internal affairs of the country. The tendency to surrender to foreign forces shall be discouraged. All unequal treaties and agreements signed with India including the 1950 Treaty of Peace and Friendship will be reviewed and replaced on the basis of necessity and national interest. Diplomatic efforts will be applied to resolve border related problems and the management of border points.”

Bhatta also fears that the communist government could try to give an ideological color to foreign policy.

“To truly reset foreign policy they first have to get rid of ideological dogmas, which, frankly, I don’t see happening. We can confidently say the current regime won’t be able to come up with a foreign policy as per the needs of changing global and regional dynamics. As in the past, this government too has failed to find the rationale for a new foreign policy,” says Bhatta. He adds the manifest bias and hubris displayed by the ruling NCP leaders is coming in the way.

Make it transparent

There is a great curiosity among political and diplomatic circles on the likely foreign policy changes. After all, following the second Jana Andolan in 2006, other experts committees were formed to recommend such changes. In April 2017, the Deuba government had formed a high-level foreign policy review taskforce with experts from finance, diplomacy, law, and security. The taskforce was asked to determine Nepal’s short-term, mid-term, and long-term foreign policy priorities. The committee report was never made public. Before that, in 2007, another taskforce under former foreign secretary Murari Raj Sharma was given the same responsibility, but its report was also kept a secret. Coming to this day, instead of relying on such experts, the government this time is itself preparing a new foreign policy document.

Wagle welcomes the foreign ministry’s initiative to document Nepal’s foreign policy as Nepal thus far does not have a written, comprehensive, and integrated policy. But for such a policy to be effective, “the government should hold comprehensive consultations and build a national consensus on foreign policy,” advises Wagle. He adds that foreign policy should never be a secret document.

Every year, August 30 is observed as the International Day of the Disappeared. It’s always a somber occasion, including in Nepal. According to the International Committee of Red Cross (ICRC), 1,326 people are still missing in Nepal from the time of the Maoist conflict (1996-2006), with thousands more awaiting truth, justice, and reparations. Tellingly, this year, neither the federal government in Nepal nor any of the major political parties organized a formal program to commemorate this day, or even issue a message.

But on the day 41 organizations of conflict victims came up with a charter of 11 points, calling on the government and other stakeholders to undertake steps to reinvigoration the Transitional Justice (TJ) process, and adopt a transparent and consultative mechanism.

This is not the first time conflict victims have made such demands. They have been vocal about their plight since the signing of the Comprehensive Peace Accord (CPA) on 21 November 2006 to formally end the Maoist war. Other vital aspects of the peace process such as integration and rehabilitation of Maoist combatants, and constitution promulgation have been completed. But transitional justice, the last crucial component, remains incomplete. The TJ mechanisms are paralyzed, the law amendment process is in limbo, demands of conflict victims unaddressed, and there is an ever-present risk of internationalization of wartime cases.

Paralyzed mechanisms  

The CPA envisaged the two transitional justice mechanisms within six months of its promulgation. But only in 2015 could the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) could come into being. It is widely believed that the two bodies were formed just to fend off domestic and international pressure, and political parties are not committed to their effective functioning.

At the start, both the TRC and the CIEDP faced logistical hurdles. Of late, there has been some improvement on this part, but the two commissions still don’t have sufficient financial and other resources.

Successive governments have been reluctant to amend commissions-related laws in line with the 2015 Supreme Court verdict (more on this later). Without amending the laws, the commissions cannot go beyond the preliminary investigation of the cases filed with them.

Moreover, the commissions’ autonomy has been compromised due to constant political meddling. Speaking to APEX, both incumbent and past TRC commissioners say heavy political meddling makes it difficult to investigate war-era cases independently. In some instances, politicians have even put pressure on officials not to investigate particular cases.

Then there are the disputes within these commissions. As their members are appointed on political basis, there is a lack of unity. “The commissions have been held hostage to internal disputes since their formation,” confirms former TRC member Manchala Jha.

An incumbent senior TRC member speaks of how such disputes contribute to indecision. “In public, politicians commit to take the TJ process to a logical end but they often try to control our functioning,” says the TRC official. Similarly, there is lack of coordination between commission members and staffs. It does not help that members often seek the suggestions of politicians, often those directly involved in the civil war.

The TRC has so far received 63,000 complaints from victims, and preliminary investigations have been completed in 3,700 cases. Through its offices in seven provinces, the TRC has finished sorting these completed cases into three sections: those that need to be put on hold, those that need to proceed with reparations, and those needing further investigation.

The Covid-19 pandemic has further hampered the commission’s task. At the current rate, it could take many years to complete all investigations. In a brief comment to APEX, TRC chairperson Ganesh Dutta Bhatta says vital progress was being made on investigations when the Covid-19 crisis impeded work.

Flawed laws

The Supreme Court in its 2015 verdict has flagged some points of The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071(2014) that stand in the way of making the two commissions fully independent and compliant with international standards. There are for instance legal provisions that authorize amnesty even on grave human rights violations. The SC wants to incorporate a clear provision that the commissions cannot recommend amnesty in these cases.

Section 26(5) of the Act says: “… the Commission must decide to make a recommendation for amnesty upon considering agreement and disagreement of the victim as well as the gravity of the incident for granting amnesty to that perpetrator.” The SC finds the word ‘disagreement’ problematic as it may allow for amnesty even if conflict victims don’t agree to it.

Another issue that needs to be addressed is investigating war-era rape and sexual violation cases. As per existing laws, FIR in rape cases should be registered within six months of the incident and there is nothing on sexual violence. Moreover, there are no records of most conflict-era sexual violence cases.

There are other ambiguities in the Act as well. According to it, “gross violations of human rights” include murder, abduction, and taking of hostage, enforced disappearance, causing mutilation or disability, physical or mental torture, rape and sexual violence, looting, possession, damage or arson of private or public property, forceful eviction from house and land or any other kind of displacement, inhuman act inconsistent with international human rights or humanitarian law, and a crime against humanity. The fear is that such a broad definition could leave no room for reconciliation.

According to the TRC official, international practice is to enlist under grave rights violations incidents of extrajudicial killing, rape and sexual violence, disappearance, and torture. But Nepal’s law defines looting and arson of private property as grave rights violations as well.

Expressing its displeasure with the apex court verdict, the government had filed a review petition. After four years of deliberation, on 26 April 2020 a full bench of SC rejected the petition for a review of its 2015 verdict. In the petition, the government had questioned if the SC verdict was in keeping with the spirit of the CPA and the 2007 interim constitution. The petition aimed to nullify the verdict and restore the provision of amnesty and reconciliation at the discretion of commissions and government rather than on informed participation of victims. There is no alternative for the government to amend the law in line with the verdict.

Constant political meddling

Since the start, there has been a systematic effort to politically influence the TJ bodies. Otherwise, politicians fear being slapped with charges of grave rights violations. So they want the TJ process completed under their close watch. Both the ruling Nepal Communist Party as well as the main opposition Nepali Congress believe reconciliation should be sought by honoring the CPA’s spirit—which means no prosecution on war-era cases.

Top political leaders know blanket amnesty is unviable due to national and international pressure. So, perhaps, there could be prosecutions in some token cases to showcase them before the international community?

The ruling party taskforce has now proposed a political mechanism to conclude the transitional justice process, inviting fierce criticism of conflict victims. Experts say the government move is against principles of jurisprudence and transitional justice. Similarly, the taskforce says local and provincial governments shall be motivated to successfully conclude the transitional justice process. This shows political parties want to control the process and settle it as per their wishes. “The ruling party taskforce is silent on justice. It is more focused on reparation and compensation. But the latter is not possible without the former,” says the senior TRC officer.

Piecemeal approach

Since the start of the peace process, a section of politicians, rights activists, and conflict victims have taken a more prosecution-oriented approach, along the lines of criminal justice jurisprudence, while others, including former Maoists, are in favor of blanket amnesty. Transitional justice is caught between the two extremes. “The current debate and functioning of mechanisms are not in keeping with the spirit of a holistic transitional justice process,” says Charan Prasai, a human rights practitioner.

The first component of transitional justice is truth-seeking or fact-finding. But the SC order fails to identify clear working procedures of truth-seeking in war-era rights violations. The two commissions have started looking into some war-era cases but they are struggling in the absence of a comprehensive investigation procedure and detailed action plan. The current path does not guarantee justice, truth, or preservation of state memory.

The second key component is the provision of prosecutions of serious rights violations. A special court is provided for but there is no specific working procedure on its functioning. The law should be clear on the state's duty to investigate, prosecute, and punish.

Another vital pillar of the TRC is related to reparations. The apex court verdicts have from time to time spelled out reparations as the victim’s right, and said that there can be no discrimination in granting reparations. The first step is to classify conflict victims, as not all are likely to get similar reparations. Further steps include ensuring memorialization, provisioning of identity cards, and ensuring livelihoods for poor victims. 

According to existing laws a maximum of Rs 300,000 can be provided in reparations but the basis of such an amount has not been clarified. “In the past five years, the TJ mechanisms have failed to formulate a policy on reparations, which shows not enough attention has gone into making the process holistic,” says Prasai. Conflict victims want immediate social, cultural, economic, psychological, and legal support.

Guarantee of non-recurrence is another vital aspect of transitional justice. It calls for deep structural reforms, digging deep into the causes of the conflict. The law does not envision institutional reform, nor has there been any discussion among political parties on how to reform state mechanisms. After the signing of the CPA, there was some discussion on restructuring Nepal Army but nothing happened. “If we fail to address this issue we will set a bad precedent, and the same mistakes could be repeated in future conflicts,” says Prasai.

Risks of internationalization

If credible domestic mechanisms are not set up, there is a risk of internationalization of Nepal’s transitional justice process as per the universal jurisdiction of human rights. Nepali leaders could be arrested abroad. Some rights violation cases have already been internationalized. In 2012 Nepal Army Colonel Kumar Lama was in the UK under universal jurisdiction. Mainly, it is the Maoist leaders who fear arrest when they go abroad. “War-era cases can be internationalized under two circumstances: state reluctance to settle them, and incompetence of domestic mechanisms to deliver justice, and Nepal meets both the criteria,” says Prasai.  

In 1998 London Police arrested Gen. Augusto Pinochet, army officer, and dictator of Chile, on rights violation cases. British courts rejected Pinochet’s claim he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.

Post-conflict South Africa, East Timor, and Cambodia formed hybrid commissions with representations from the United Nations and other rights organizations and yet they failed.

Nepal’s election as a member of the UN Human Rights Council puts it under added pressure to act responsibly and accountably on rights issues. Suman Adhikari,  the founder chairperson of the Conflict Victims Common Platform (CVCP), argues this is a humanitarian issue that cannot be confined within national borders, and so the option of knocking on the doors of the international community is always there.

Revitalizing domestic process

Experts say war-era cases should be resolved domestically by securing the trust and confidence of all stakeholders. Currently, conflict victims feel alienated. They complain that they are ignored by the TJ mechanisms, the government, as well as the political parties. Similarly, the United Nations and the international community are not lending their support to TRC and CIEDP. “One thing is crystal clear. The two commissions cannot function effectively without the active support of all national and international stakeholders,” says Prasai.

The UN and other international organizations have been urging Nepal to make the domestic process inclusive, transparent, and victim-centered. The CPA has given the UN the right to monitor rights situation until the end of the peace process. Article 9 of the CPA says: “Both parties agree to give continuity to the task of monitoring provisions related to human rights mentioned in this agreement by the United Nations Office of the High Commissioner for Human Rights, Nepal.” Perhaps this is why it has sought some stake in Nepal’s transitional justice process.

There seem to be slight differences in international perception though. European countries and the US have similar positions on Nepal’s transitional justice. The European Union is of the view that Nepal should steer its own course. In a statement on 24 January 2019, the EU said: “In particular, we support a Nepali-designed, Nepali-led process that is consistent with the 2007 and 2015 judgments of Nepal’s Supreme Court and the country’s obligations under international law.”

The UK is of the view that it is for Nepal, the Nepali government, and political parties to decide. In an interview with Republica daily on 3 February 2020, Nicola Pollitt, the British ambassador to Nepal, said: “We would like to see a victim-centric approach and that it would be in line with international practice in these areas. At the same time, we recognize that these things take time and it is not easy. Such a process anywhere in the world takes time. It is our role to support in any way we can but without interfering in what must be the Nepali process.”   

India and China have not spoken much on Nepal’s transitional justice. Based on the experience of past five years, it is important that the concerns of both national and international stakeholders be addressed. For this the entire process should be revisited to ensure its broad ownership.

Nepal-India border row has flared up again despite the two sides repeatedly sitting down to resolve it at the top level. Perhaps, for the first time, the dispute has also percolated down to the level of the two peoples. Kalapani was mentioned as ‘disputed territory’ in bilateral agreements and joint press statements. Now both countries have included it in their national map.

India’s encroachment came to light during the Panchayat period, but no effort was made for negotiations. King Mahendra is blamed for allowing Indian troops into Kalapani after the 1962 India-China war, at India’s request, even though there are no official records or statements substantiating the blame. Former Nepali Ambassador to India, Bhek Bahadur Thapa, says King Mahendra did not personally allow Indian troops, “but he did maintain a studied silence, as raising the issue during the India-China standoff could have sent the wrong message that Nepal was taking a side”. According to Thapa, King Mahendra planned to take up this issue with India when the war ended, but he never came to it.

Some contend India had stationed its troops in Kalapani much before the 1962 war. A report submitted in 1988 by then Chief District Officer of Darchula district, Dilli Raj Joshi, mentions that India started encroaching on the Kalapani area as early as 1952. Similarly, former Brigadier General of Nepal Army Gopal Singh Bohara says Indian troops were in Kalapani at least since 1959. Both these instances appear in Ratan Bhandaro’s book, Atikramanko Chapetama Limpiyadhura Lipulek (‘Limpidyadhura Lipulkeh under Occupation’, 2015). It is hence hard to pin a date for the start of Indian occupation of Kalapani.

From the ground

In the early 1970s, State Minister for Forest Bahadur Singh Etwal, a politician from Darchula district, had publicly raised the issue of Kalapani encroachment for the first time. There were some efforts at the time to collect evidence on encroachment and keep an eye on border areas. On 16 July 1973, the Nagendra Prasad Rijal cabinet had formed a panel with representatives from the Ministry of Home Affairs and the Ministry of Foreign Affairs to report on the encroachment from the ground. The report clearly mentioned that India had created an artificial Kali River to demarcate the border.

Eight years later, Dwarika Nath Dhungel, then Chief District Officer of Darchula (who would later go on to be a government secretary), visited Kalapani to prepare a ground report. The report asked the then government to clearly demarcate the Nepal-India border and deploy border security forces. “I submitted the report on encroachment to the home ministry. I later came to know that my report had been forwarded to the Survey Department for necessary action,” Dhungel says.

But formal talks on border demarcation started only in the 1980s. India and Nepal had discussed Kalapani and Lipulekh in 1981. In a November 2019 interview with Himal Khabarpatrika, former Director General of Survey Department Punya Prasad Oli talks of the border meeting: “In the meeting the Indian side, for the first time, said Lipulekh fell under their territory. They urged us not to raise the Lipulekh issue… and [said] they would not start the demarcation of the border from the disputed territory.”

There was no substantial progress till 1990. The dispute gained more prominence after left parties started broaching it that year—the year of the restoration of democracy. In 1992, lawmaker Prem Singh Dhami spoke about the Indian encroachment in the upper house. In his book, Ratan Bhandari writes of the ‘Mahakali Protection Commission Kailali-Kanchanpur’ submitting a memorandum to then Prime Minister Girija Prasad Koirala in 1991, objecting to the Tanakpur water-sharing agreement. The memorandum also denounced India’s encroachment of Nepali land in Kalapani. 

Similarly, according to Bhandari, the then CPN-UML leader of Darchula Bir Bahadur Thagunna, had UML party general secretary Madan Kumar Bhandari take up the Kalapani encroachment issue. In response, Bhandari directed him to prepare a detailed report.

After that, following the signing of the 1996 Mahakali Treaty, the issue of the origin of the Kalai River entered public debate.

Summon to UN

On 29 June 1998, nine left parties wrote to then UN Secretary General Kofi Annan, complaining about the presence of Indian forces at Kalapani. In response, the UN had replied that a proposal from Nepal could be considered if it came from the Nepali government. Similarly, the Maoist-aligned All Nepal Independent Student Union (Revolutionary) had in 2016 submitted a complaint to the then UN Secretary General Ban Ki-Moon, this time over the recent India-China trade agreement via Lipulekh.

With these developments, subsequent Nepal governments were forced to take up Kalapani with India. During the 1998 SAARC Summit in Dhaka, Prime Minister Girija Prasad Koirala reminded his Indian counterpart Atal Bihari Vajpayee of Nepal’s historical claim over Kalapani. Upon his return to Kathmandu from the summit, PM Koirala said talks with India on Kalapani “had been positive”.

Then there were efforts at raising awareness on Indian occupation of Kalapani. On 19 May 1998, the then CPN (ML) organized a ‘Kalapani march’. “It was a difficult journey, I remember. It took us over 18 days to reach the Kalapani area,” recalls Deepak Prakash Bhatta, then a student leader and now a member of the federal lower house.

Ganesh Singh Thagunna, another member of the march and currently a lawmaker from Darchula, credits the march with establishing Kalapani in national discourse. In the same year, the CPN (ML) student union had organized another Kathmandu-Kalapani long march. For all these reasons, in the 1998-1999 period Kalapani had become a hot topic of discussion in Nepali political, media, and civil society circles.

During the insurgency, the Maoist party had also repeatedly raised the issue of Kalapani, demanding the withdrawal of Indian troops from the area. It even threatened military attacks to remove the Indian army post there. But the party would drop the agenda when it came out of the hiding in 2006.

Domestic efforts

Before that, on 10 August 1998, CPN-UML leader KP Sharma Oli had registered a motion in parliament demanding the withdrawal of Indian forces. The same Oli as prime minister in 2020 took the lead in amending the national charter to make Kalapani, Lipulekh and Limpiyadhura internal parts of Nepal.

Kalapani was again discussed in Kathmandu during the fifth meeting of the Joint Working Group on the India-Nepal Boundary, on 17 July 1998. Point seven of the meeting minutes reads: “The two sides continued their useful exchange of the views on the examination of the relevant facts relating to the demarcation of the boundary alignment in the western sector including Kalapani area. The Nepalese side stated that the boundary between Nepal and India in the area was the Kali River as explicitly laid down in article 5 of the treaty of Segowlee and therefore sought clarification from India side…”

After 2000, there was no discussion on Kalapani, but it continued to be mentioned in bilateral documents. The issue again came to the fore in 2015 when India and China agreed to the use of Lipulekh as a bilateral trading point. After that, India, in November 2019, issued a political map placing Kalapani within its territory.

Curiously, the Nepali Congress, Nepal’s oldest democratic party, mostly remained silent on the Kalapani dispute during this period. But after India issued its new map in 2019, the NC fully supported the Oli government’s move to amend the constitution to include Kalapani in the national map.

Indian establishment says

As in Kathmandu, there have been many debates on Kalapani in New Delhi. Kalapani became a political agenda in Nepal after 1990 but debates in New Delhi after the time were still largely confined among bureaucratic, security, and academic circles. Some politicians had raised this issue in India’s parliament but public discourse on it was minimal—at least until now.

There are various views in New Delhi. Most Indian politicians believe the two sides should find a middle point, and this view also has adherents in the bureaucracy. In a 1998 interview with Kantipur newspaper, then Indian Ambassador to Nepal KV Rajan had said that India was ready to give up its claim on Kalapani if Nepal could persuade it to do so based on solid evidence.

Indian politicians say Nepal was never serious about settling the dispute through dialogue. In his recent article in The Wire, an online portal, former Major General of Indian Army Ashok K. Mehta quotes the then Indian Prime Minister I.K. Gujral as saying, “if Nepal can prove Kalapani belongs to it, we will give it up.”

Likewise, in 1999, foreign minister Jaswant Singh, on a visit to Nepal, said India was prepared to resolve the Kalapani issue through negotiations. Again, nothing happened.

On 26 July 2000, then member of Lok Sabha and current Uttar Pradesh Chief Minister Yogi Adityanath questioned foreign minister Singh on efforts to resolve Kalapani amicably. Singh replied, “There is a difference in perception between India and Nepal on the boundary alignment in the western sector of the India-Nepal border, where the Kalapani area is located.” Singh said the Indian government was aware that some people might exploit such differences.

Similarly, on 7 December 2000, some members of India’s Rajya Sabha asked Ajit Kumar Panja, then Minister of State for External Affairs, about media reports on talks between India, Nepal and China to settle Kalapani. In his response, Panja questioned the veracity of such reports.

Then, on 6 December 2007, border issues were again discussed in the Indian parliament. This time, Pranab Mukherjee, then Minister for External Affairs, pointed the finger at Nepal: “The shifting of course in Susta region of the Gandak River, the mid-stream of which formed the boundary as per Treaty of Sugauli of 1816, has resulted in claims/counterclaims by both sides in this segment. The government is constantly monitoring the situation with a view to prevent encroachments by the Nepalese side.”

Security types differ

India’s security establishment, mainly its army, sees things differently. For it Kalapani is a strategic vantage point from which it would be unwise to withdraw. “Demarcation of two short segments of our boundary with Nepal—Kalapani and Susta—is yet to be completed. Of these, Kalapani is strategically important, as it determines the tri-junction between India, Nepal and China,” V.P. Haran, a former Indian ambassador to Bhutan and Afghanistan, said while speaking at a 2017 event organized by the Indian Ministry of External Affairs at the Central University of Tamil Nadu.

Kalapani as such is far more important to India than other disputed areas such as Susta. The security establishment has thus floated the idea of a land swap; India would not give up Kalapani but allocate the same area of land to Nepal in some other place.

Haran’s view is reflective of the Indian security establishment that argues that the militarily important Kalapani ‘should not be politicized’.

In his 9 Aug 2017 write-up in the Indian Defense Review, Lt Gen, (Dr) JS Bajwa of the Indian Army, says: “It [China] is also instigating Nepal to raise a dispute with regard to the Western Tri-junction of Nepal-Tibet-India in the Kalapani-Lipulekh Pass area where, in fact, none exists.” 

Likewise, Lt Gen of Indian Army Chief, Prakash Katoch, in his recent article in the same publication, writes “aggressive actions of PLA are directly linked to Nepal objecting to the road in Pithoragarh district of Uttrakhand to Lipulekh Pass…” Katoch thinks Lipulekh Pass is on the LAC between India and China Occupied Tibet, and Nepal, as such, has no claim on it.  

Nepal’s new map, he further writes, follows China’s pattern of cartographic aggression and has obviously been issued at China’s behest. “To hide its complicity, China gave a statement out of the blue that Kalapani is a bilateral issue between Nepal and India that both sides should resolve peacefully. There was no reason for China to issue such a statement since there neither was an India-Nepal standoff at Kalapani nor any physical fights like the PLA is indulging in.”

Likewise, elaborating on the strategic importance of Kalapani, Maj Gen Ashwani Siwach (retd) of Indian Army writes in the same magazine, “This road is not only important to India for movement of pilgrims to Kailash Mansarover, tourism and trade, but has significant strategic importance for logistic build up and fast induction of troops against China.”

Along with the political and security establishment, there has been a lot of discussions on Kalapani among Indian intellectuals and policymakers. In his paper published by the Institute for Peace and Conflict Studies, a think-tank in New Delhi, Alok Kumar Gupta cites official sources in India as claiming that administrative and revenue records dating back to the 1830s—and now with the UP state government—show Kalapani area as traditionally being administered as a part of India’s Pithoragarh district.

Local perspective

Amid debates in Kathmandu and New Delhi, less attention has been paid on how local people in border areas around Kalapani see the issue. Lawmakers elected from border areas say local people are firmly against Indian encroachment, but they face great difficulty when tensions flare up between Kathmandu and New Delhi. People from these areas depend on India for jobs, day-to-day essentials, education, and health facilities.

“When there is a dispute, Indians treat locals badly and humiliate those who go to India to buy essentials,” says lawmaker Thangunna. The locals want all outstanding issues on Kalapani resolved diplomatically, rather than through street protests. They would like to see a quick resolution of the current dispute as well. But seldom does Kathmandu (or New Delhi) listen to them.