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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.

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.

Mahanta Thakur was a top Nepali Congress (NC) leader before he formed his own Tarai-Madhes Loktrantrik Party in 2007, immediately after the first Madhesi Movement. Had he not left the NC, Thakur was the most likely candidate for the country’s president from the party. Instead, the nomination and the post went to Ram Baran Yadav, another Congress stalwart. Thakur is a firm believer in parliamentary democracy. 

In 1996 Baburam Bhattarai was already the second-in-command and the party’s chief ideologue when the Maoists launched their insurgency. But he severed ties with the mother Maoist party in 2015, following the promulgation of the new national charter, and formed his own party, Naya Shakti Nepal. The new party embraced socialist and progressive agendas. 

Upendra Yadav was a school teacher before becoming a revolutionary Maoist and the champion of the Madhesi cause. His burning in 2007 of the interim constitution led to his arrest, catapulting him into national politics. In the first Constituent Assembly election, his new party, Madhesi Janadhikar Forum, emerged as the largest Madhes-based outfit. Yadav is most comfortable working with left parties. 

Rajendra Mahato, a seasoned Madhesi leader, was once associated with the Nepal Sadbhawana Party. This party was active in Madhesi politics after the 1990 changes, but has since merged with Rastriya Janata Party Nepal. Ideologically, he is close to ‘democratic’, as opposed to ‘progressive’, forces. 

Mahendra Raya Yadav comes from the CPN-UML, and joined various Madhes-based parties after the 2006 political changes. Likewise, Ashok Rai was UML vice-chair before he formed his own Sanghiya Samajbadi Party. In 2015, he merged his party with Upendra Yadav’s Madhesi Janadhikar Forum. But the senior Janajati leader has failed to get much support from Janajati groups. 

All these leaders from diverse backgrounds are now collectively under the umbrella of the new Janata Samajbadi Party-Nepal (JSPN). In the federal lower house, it is the third largest party after the Nepal Communist Party and the NC, and projects itself as an alternative political force. 

The new party also includes leaders such as Sarad Singh Bhandari (from NC), and Anil Kumar Jha and Raj Kishor Yadav (various Madhes-based parties). There are also some junior leaders in the JSPN who started their politics during the party-less Panchayat system. The new party is thus a curious mixture of ethnicities, ideologies, and classes. 

Merger star aligns 

What prompted them to come together? According to Madhes watchers, the unification had been in the cards for a while. It got the final push on April 20, when Prime Minister KP Sharma Oli brought a new ordinance to make it easier to divide political parties; doing so with the express purpose of splitting Madhesi parties and strengthening his two-thirds lower house majority. 

Oli’s strategy was to split the big Madhes-based parties and use CK Raut—the leader of a secessionist movement in Madhes that Oli helped bring to national mainstream—to improve his position in Madhes. To forestall this, Samajbadi Party and Janata Party, with 17 and 16 seats in the federal lower house respectively, announced their merger on April 22. Otherwise a section of the Samajabadi Party was all set to join the Oli government after registering a separate party under new rules. 

The Madhesi forces faced an ‘existential crisis’. Mainly after the unification of the CPN-UML with the CPN (Maoist Center), the Madhesi outfits feared being permanently shut out of power. In the past, even fringe Madhesi parties had played kingmakers, making and breaking governments in Kathmandu. But with the consolidated communist party at the helm and changes in political party rules, that was no longer an option. 

According to new legal provisions, in a national election, a party has to cross the threshold of three percent overall valid votes under the Proportional Representation category and get at least one seat under the First-Past-the-Post category. Only then it is recognized as a national party. This explains why there were only four national parties after the 2017 elections, while eight national parties and over two-dozen others had emerged after the 2013 CA elections. The new provisions forced smaller parties to consolidate. 

The utter dominance of the NCP in national politics made these proponents of identity politics band together. With the local elections just two years away, they didn’t have much time to lose. 

Ideological muddle

Ideological differentiation is an important concern for political parties. What is the core ideology of the JSPN with its diverse cast of characters then? Party leaders say its ideology of ‘advanced democratic socialism’ sets the JSPN apart from other political outfits. 

“BP Koirala embraced democratic socialism, mainly focusing on economic equality and individual freedom. Our party professes ‘advanced democratic socialism’ by incorporating new issues such as the end of social, cultural and caste discriminations, and the consolidation of federal and republican orders,” says party leader Keshav Jha. He also states that the new party is in favor of inclusive and participatory democracy. 

But Madhes watchers reckon the new party’s ideology is still unclear. According to Rajesh Ahiraj, “The JSPN has leaders who served the NC, the CPN-UML, the Madhes-based parties as well as the Panchayat regime. Carving out a clear ideology is thus difficult for it”. But lack of clarity could also be to the party’s benefit, adds Ahiraj, as it could forestall a split along ideological lines. 

According to another analyst of Madhesi politics, Tula Narayan Shah, there are currently three major currents in national politics. Some parties focus on nationalism, some focus more on development, while still others focus on identity politics. “The new party’s major plank is identity-based politics,” Shah says.

Meanwhile, the JSPN’s Raj Kishore Yadav says that with the formation of a strong alternative force, Kathmandu will be under greater pressure to heed the Madhesi voices, including the crucial issue of the constitution amendment. “The NCP and NC are traditional forces. We are a new, alternative political force that stands for inclusive and participatory democracy,” says Yadav.  

Organizational headaches

Management of party leaders from center to grassroots is also problematic. Plus, the old personality clashes in Madhes-based parties could resurface. 

“Our primary focus now is settlement of internal organizational issues. We have to amalgamate the various organizations affiliated with separate parties pre-unification,” says Raj Kishor Yadav. 

When six Madhes-based parties united in 2017 to form the Rastriya Janata Party Nepal, there was a huge problem with managing all the new leaders. So the party adopted the presidium system, where six leaders served as presidents on a rotational basis. “In order to adjust all top leaders who now fall under the JSPN rubric, we will continue to follow the principle of collective leadership,” says Yadav.  

During the JSPN’s registration, Mahantha Thakur and Upendra Yadav were named party chairs, while Baburam Bhattarai, Ashok Rai and Rajendra Mahato were declared senior leaders. “In a top-heavy party like the JSPN, there are bound to be personality clashes. In fact, that would be JSPN’s biggest challenge going ahead,” says writer Pranab Kharel, a sociologist and a close follower of Madhesi politics. 

Another vital issue is the constituency of the new party. A combination of two largely Madhes-based parties, the JSPN’s base will continue to be Madhes. As it is, the new outfit commands over 50 percent local governments in Tarai-Madhes. But the party also incorporates many powerful leaders from the hills. 

The JSPN is projecting itself as a national party. But analysts say while there is a chance of it holding on to its Madhes base, it will have a tough time expanding in hill areas and in Kathmandu.  

“It will struggle to attract the hill’s Janajati constituency. Nor will the Khas-Arya folks support it easily,” says political analyst Shah. He fears that in due course hill leaders like Baburam Bhattarai and Ashok Rai could come to dominate the JSPN. In that case, the party could face an identity crisis. 

Yet the party has started consolidating the Janajati constituency and plans on a big alliance of identity-based political forces. According to leaders from the two merging parties, the next national movement will be launched under the banner of ‘Rastriya Mukti Andolan’, with the goal of accommodating Janajati and other forces that feel betrayed by the 2015 constitution. 

Can’t go national 

Analyst Ahiraj suggests the party will struggle even in Madhes. “The new party cannot win support in Madhes as it is no longer a Madhes-based party, nor does it carry Madhesi ideology,” he says. According to Ahiraj, the NC, whose traditional vote bank is Madhes, could gain from the ideological muddle in the JSPN.  

Political analyst and Madhesi intellectual Chandra Kishore echoes Ahiraj. He says there is a feeling among grassroots level Madhesi cadres that Madhesi leaders are gradually abandoning their base in the name of forming a national party. There are other problems too. “During its formation, the party has not been inclusive. There is no representation of Madhesi Dalits, and the Tharu community has been ignored,” says Kishore. 

Analyst Shah, however, believes the party will do well in Madhes even though he is not so sure about its prospects in the hills and in Kathmandu. Baburam Bhattarai, Ashok Rai and Rajendra Shrestha who represent the JSPN’s non-Madhesi faces all struggled in the 2017 national elections. For instance, Bhattarai won the election from Gorkha only because of his alliance with the Nepali Congress. The other two lost, as they struggled to get the Janajati support.

The Madhesi leaders will also struggle to increase their appeal in hilly and mountain regions as well as in Kathmandu Valley. According to experts, the 2007 Madhes movement created a gulf between Madhesi and Pahadi communities in Madhes—a gulf which is yet to be breached. According to Shah, Madhesi population more easily accepts Pahadi leaders rather than the other way around. For instance, Baburam Bhattarai and Ashok Rai are somehow accepted in Madhes but other Madhesi leaders are not as easily accepted in the hills. 

According to Shah, problems will crop up even within the party. “In intra-party elections, leaders and cadres from hill constituencies are unlikely to vote for Madhesi leaders,” he says. Sociologist Kharel adds, “Their tactical alliance to establish identity-based politics notwithstanding, there has never been cordial relations between Madhesi and Janajati constituencies.” 

Brief History of Madhes-based parties 

Bedananda Jha established the first Madhes-based party, the Tarai Congress, in 1951 after breaking away from the Nepali Congress. Nepal Sadbhawana Party, formed in 1985, represented Madhes in the post-1990 dispensation. Between 1990 and 2006, the NSP itself would repeatedly split and coalesce into new parties. But it was only in the aftermath of the 2006 political changes that the Madhesi parties started playing a decisive role in national politics. 

A group of Madhesi activists led by Upendra Yadav launched the first Madhesi movement following the promulgation of the interim constitution in 2007, after federalism had found no place in the interim charter. Yadav emerged as the undisputed Madhesi leader and registered the Madhesi Janadhikar Forum Nepal (MJF). 

Later, Nepali Congress leader Bijaya Kumar Gachhadar and Sarad Singh Bhandari joined the Upendra-Yadav led MJF just before the first Constituent Assembly elections in 2008. At the same time, senior NC leader Mahanta Thakur, Sadbhawana leader Hridayesh Tripathi, UML’s Mahendra Raya Yadav, and Ram Chandra Raya of Rastriya Prajatantra Party formed Tarai Madhes Loktantrik Party.  

Gachhadar split from the MJF to join the Madhav Kumar Nepal-led government. After some time, Sarad Singh Bhandari and JP Gupta also formed separate parties. 

Just before the 2017 national elections, six Madhes-based parties announced their unification, all merging into the Rastriya Janata Party Nepal. Similarly, the Upendra Yadav-led party united with Ashok Rai-led Sanghiya Samajbadi to form Sanghiya Samajbadi Forum Nepal. Later there was unification between Samajbadi and Naya Shakti Nepal under Baburam Bhattarai. Now, the Janata Samajbadi Party Nepal has been formed after the merger of the Samajbadi Party and the Rastriya Janata Party Nepal.