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Cold neighborhood: Nepal Parliament Passes Controversial Constitutional Amendment Bill

Updated: Oct 8, 2020

India and Nepal have reached a new flashpoint over the Kalapani territorial issue that appears to threaten the basis of their special relationship, one with open borders and the free movement of people. In the latest series of developments, on June 13, 2020, the Lower House of Nepal's Parliament unanimously passed the historic Second Constitution Amendment Bill guaranteeing legal status for the updated political map of Nepal. The development is unique as the Constitution of Nepal defines the emblem of Nepal under Article 9 as the ‘Coat of Arms’ and is displayed in its Third Schedule. The objective of this amendment is to change the political map in the Coat of Arms by including the areas of Limpiyadhura, Lipulekh and Kalapani in Nepal's map. However, these areas are claimed by India as a part of its territory. The next step is sending the bill to the National Assembly (NA). If the National Assembly passes the bill, the bill will then sent to the President for his authentication, and after which, the bill will formally be a part of the Constitution. If it passes, it threatens to hinder the Indo- Nepal Relations, thus developing a cold rivalry in the sub-continent.

The Background

Nepal and India share an open and porous border which stretches over 1,690 kilometers. 98% of the total boundary was settled between the two countries through exchange of strip maps in 2007, however two – Kalapani in Uttarakhand and Narsahi-susta in Bihar – still remain disputed. The current boundary issue was flared up after India issued a political map on November 2, 2019 to reflect the fact that the erstwhile state of Jammu and Kashmir had been divided into two Union Territories – Jammu and Kashmir and Ladakh. At that point, Nepal had fervently objected to the inclusion of Kalapani in the map of India. Although the area is in India’s control but Nepal claims the region because of historical and cartographic reasons.

The contentious region between India and Nepal is the Kalapani-Limpiadhura-Lipulekh tri junction. Located on the banks of the river Kali at an altitude of 3600m, the Kalapani territory shares eastern border with Uttarakhand in India and the western border with Nepal’s Sudurpashchim Pradesh. As per India, this area is a part of Uttarakhand’s Pithoragarh district, while Nepal believes it to be part of its Dharchula district.

Nepal’s claims to the region is based on the river Kali as it became the marker of the boundary of the kingdom of Nepal following the Treaty of Sugauli ratified in 1816 signed between the Gurkha rulers of Kathmandu and the East India Company after the Gurkha War/Anglo-Nepal War (1814-16). According to the treaty, Nepal will lose the areas of Kumaon-Garhwal in the west and Sikkim in the east. As per Article 5, the King of Nepal gave up his claims over the region to the west of the river Kali and the British rulers recognized Nepal’s right to the region that fell to the east of the river Kali.

Here lies the historic origin of the dispute. According to Nepal’s experts, the east of the Kali River should begin at the source of the river, which according to them is in the mountains near Limpiyadhura, which is higher in altitude than the rest of the river’s flow. Nepal claims that the land mass located high the mountains, falling downwards to the east of the entire stretch starting from Limpiyadhura, belongs to them. On the other hand, India believes that both the border and the river begin at Kalapani. Thus, the dispute stems from the varying interpretation of the origin of the river and its various tributaries slicing through the mountains. While Nepal’s claim is based on the Limpiyadhura origin of the river Kali, India says the river actually takes the name Kali near Kalapani.

Thus, when India released its new map, Nepal protested immediately and drew attention to the lingering issue.

The Constitutional Amendment

The Constitution of Nepal (Second Amendment 2077) Bill aims to provide legal status to a new political map of Nepal which is used in the national emblem of the country through an amendment in the Schedule 3 (Coat of Arms) of the Constitution of Nepal. After the new map was announced by the Council of Ministers on 20 May 2020, it was placed in the Parliament two days later. The Amendment Bill was tabled on May 31 by Nepal’s Minister for Law, Justice and Parliamentary Affairs.

On 13 June 2020, voting took place on the bill in the lower house of Nepal's Parliament with the government of Prime Minister KP Sharma Oli in majority. The total ayes were 258, with reportedly no nays though 11 members remained absent or abstained. The amendment was approved through a voice vote, following which all the members of the Pratinidhi Sabha gave individual signatures to the Bill which completed the voting process.

“I announce that the bill has been endorsed by more than a two-thirds majority,” declared the speaker Agni Sapkota, as reported by Kathmandu Post. Now the bill has been tabled in the National Assembly.

While responding to this development in Nepal, the Indian Ministry of External Affairs (MEA) remarked that it had “noted” the legislative process.

Quoting the MEA spokesperson Anurag Srivastava, “The artificial enlargement of claims is not based on historical fact or evidence and is not tenable. It is also violate of our current understanding to hold talks on outstanding boundary issues.”

As per former foreign minister and Nepalese commentator Ramesh Nath Pandey, the diplomatic fallout of the territorial dispute is likely to be serious, and difficult days lie ahead for Nepal-India relations as well as for South Asian region. He argued that the territorial dispute of Kalapani, Limpiyadhura and Lipulekh cannot be resolved at talks led by Foreign Secretaries or senior envoys as the disputed territories are now part of Nepal’s constitution and public imagination and the secretaries have no right to negotiate on the provisions of the Constitution.

The Way Forward

Boundary disputes are common ground for countries that have an ancient history and shared borders, and the Kalapani issue is one such dispute that India and Nepal are yet to sort out. While Nepal still insists that they are open to any dialogue with India even after the passage of the bill, it is highly unlikely that New Delhi will move for any conversations in the near. According to Indian sources, the only reason that the Nepalese Prime Minister K.P. Oli spearheaded the move on the constitutional amendment bill was to use the nationalist sentiment to overcome challenges from within his own party and rising criticism of his handling of the COVID pandemic.

India continues to control the disputed territory and with Nepal highly unlikely to use any military means to press its point, New Delhi is not feeling any heat to have dialogues with Nepal any time soon. However, given the importance of ties with Nepal, often romanticized as one of “roti-beti” (food and marriage), India must not delay dealing with the matter at a time when it already has its hands full with the pandemic and a faceoff with China in Ladakh and Sikkim. Therefore, a stable and friendly relation with Nepal is one of prerequisites which India can’t afford to overlook.

- LEGAL HUMMING

(CO-AUTHOR KHUSHI AGARWAL)