Court vs Government: Nepal-India border regulation

One of the recommendations made by the Nepal-India Eminent Persons’ Group (EPG) report prepared in 2018 is regulation of existing open borders between the two countries. While the report has not been made public, some of its drafters say they have suggested regulating the porous border between Nepal and India with a string of approaches, such as use of identity cards, installation of cutting-edge technology and strategic control of border crossings.

The previous leadership of the Nepal Army had also suggested the government to regulate the borders with India, albeit without offering any specifics. Besides several communist parties and left-leaning experts have long been advocating for controlling the Nepal-India border  

Yet, amidst these discussions, the corridors of power have remained eerily silent. The government and major political parties of Nepal are yet to give the border regulation issue a serious consideration. Some communist parties have touched upon the topic in their election manifestos, but they have not ventured beyond this electoral commitment in the form of proper deliberation.  

The debate on Nepal-India border regulation does not stop there. Even the Supreme Court has waded in with its order to the government to regulate the open border. 

A few years ago, advocates Chandra Kanta Gyawali, Bimal Gyawali, Liladhar Upadhaya, and border expert Budhi Narayan Shrestha had filed a case demanding a court order to regulate the border between Nepal and India—their primary concern being the surge in cross-border crimes.

It took almost two years for the top court to come up with the full-text of its order which directs the government to take essential actions based on existing national and international laws for the management and regulation of the Nepal-India border.  

The 25-page  document has explained in detail about the border management system, shedding light on some international experiences as well. According to the court’s order, there are three types of border management systems in the world: open border, regulated border, and closed border.  

Advocate Gyawali, one of the petitioners, proclaims that this ruling has turned a political quagmire into a legally binding obligation. The Supreme Court has unequivocally called upon the government to take the reins in hand, directing them to manage and regulate the cross-border movement, citing national and international laws as their guide.

To control criminal activities, protect Nepali territory, facilitate smooth transit process, and uphold Nepal’s independence, sovereignty and national integrity, the court has directed the government to manage and regulate the open border on the basis of past treaties and agreement. It has also ordered the government to sign additional treaties and agreements with India, if needed, on the basis of mutual equality, respect, and cooperation.

To meet this challenge head-on, the court encourages the adoption of technology – drones and CCTV cameras – for a secure, seamless border. Language training for border personnel and the issuance of identification cards for travelers are also recommended.

Moreover, diplomatic overtures to India are prescribed to clarify disputed border areas, ensuring that future disputes do not disrupt the harmony between the two neighboring nations. 

The court has directed the government to give continuity to the tasks related to the installation of new border pillars and restoration of missing ones, as well as evacuation of settlers from the no-man’s land areas.

Arguing that criminal activities, unchecked human trafficking, drug trade, and counterfeiting were thriving in the border areas, the petitioners had demanded for a robust border security and monitoring mechanism. They had argued that the absence of record-keeping had further compounded these challenges. 

Their plea? Revision of treaties, mandatory ID cards for border crossers, and meticulous record-keeping by the government.

In response to the petition, the Office of the Prime Minister and the Council of Ministers had said that border management falls within the purview of the executive branch.

“In its previous rulings, the Supreme Court has explicitly stated that decisions regarding the nature and type of relationships to maintain with other countries rest with the sovereign country. Such matters fall under the jurisdiction of the state's executive branch,” it said. “The government is actively and earnestly addressing these concerns to ensure the security and interests of the nation and its citizens through diplomatic channels and other appropriate means.”

It added: “People of both countries have traversed this border without hindrance for centuries. EPG formed by the two countries are studying treaties and agreements. Likewise, officials of both countries are holding regular meetings on border management.”

At the time, the Ministry of Home Affairs also issued its own rebuttal.  “Six immigration offices have been opened along the Nepal-India border for management of movement of people and goods between the two countries. Likewise, the Eminent Persons’ Group having experts from both countries are holding discussion on different treaties between the two countries including the 1950 Treaty,” it said. 

“The two countries have been holding meetings under minister, secretary and high-ranking official level on a regular basis to address border management and control crimes, smuggling, human trafficking, use of counterfeit currency, movement of drugs and narcotics.”

Aadvocate Liladhar Upadhyay says: "Now, government has responsibility to implement the mandamus of the Supreme Court. Regulating border is equally important for India to control various kinds of crimes by taking benefit of open cross border between the two neighbouring countries."

The Ministry of Foreign Affairs and the Ministry of Defence had also joined the chorus for the dismissal of the petition. They too cited cooperative initiatives, joint measurements, and border pillar deployment, and the EPG initiative, asserting that unilateral decisions are not the answer.

However, the report prepared by EPG is gathering dust and chances of its acceptance by India appears slim. 

Nepal-India border management issue has been overshadowed by the map row that erupted in 2020. There was no official response from the Ministry of Home Affairs and Ministry of Foreign Affairs regarding the latest court order.