There is a feeling in India that the new Constitution of Nepal may not be a win-win situation for it as long as the aspirations of two-thirds of the population comprising Madheshis and Janjatis are not addressed. India had expressed its “disappointment” and “dissatisfaction” with the new Constitution adopted by Nepal on Sunday.
Officials here feel that while India does not want to interfere in Nepal’s internal matters, it cannot also sit and watch on the sidelines as the trouble will sooner or later reach India’s doorsteps. A huge portion of the population of Nepal is dependent on India for employment, education, healthcare, trade and tourism, hence sealing off the borders is not feasible on humanitarian grounds. On the other hand, India has always been first to reach out in times of disaster or trouble in Nepal.
Anticipating trouble, Foreign Secretary S Jaishankar, during his recent visit to Nepal as special envoy of Prime Minister Narendra Modi, tried to broker peace and conveyed to the Nepalese leadership that India would like aspirations of the Madheshis also to be kept in mind while finalising the Constitution.
“India has been strongly supportive of Constitution-making efforts in Nepal. We would like its completion to be an occasion for joy and satisfaction, not agitation and violence. We hope that Nepal’s political leaders will display the necessary flexibility and maturity at this crucial time to ensure a durable and resilient Constitution that has broad-based acceptance,” Jaishankar said after his visit to Kathmandu.
There are largely seven points of dispute. First, the Madheshis have been demanding that based on the majority of population five disputed districts of Kanchanpur, Kailali, Sunsari, Jhapa and Morang or its parts should be included in the neighbouring Madhes provinces.
Article 63(3) of the Interim Constitution provides that electoral constituencies will be based on population, geography and special characteristics, “and in the case of Madhes on the basis of percentage of population.”
This provision ensures that Madheshis having more than 50 per cent of the population got 50 per cent of seats in Parliament. However, the latter phrase was omitted in Article 84 of the Revised Draft Constitution. The demand is to get it re-inserted so that Madhes continues to have electoral constituencies in proportion to its population.
Also, in Article 21 of the Interim Constitution, it is mentioned that various groups would have “the right to participate in state structures on the basis of principles of proportional inclusion”. In the Revised Draft Constitution (Article 42), the word ‘proportional’ has been dropped which is sought to be inserted.
Moreover, Article 283 of the Revised Draft Constitution says that only citizens by descent will be entitled to hold the posts of President, Vice-President, Prime Minister, Chief Justice, Speaker of Parliament, Chairperson of the National Assembly, Head of Province, Chief Minister, Speaker of Provincial Assembly and Chief of Security Bodies. This clause is seen as discriminatory for the large number of Madheshis who have acquired citizenship by birth or naturalisation.
Further, Article 154 of the Interim Constitution provides for delineation of electoral constituencies every ten years. This has been increased to 20 years in Article 281 of the Revised Draft Constitution. Madheshi parties want this to be restored to ten years.
Also, Article 86 of the revised Constitution states that the National Assembly will comprise eight members from each of the seven States and three nominated members. Madheshi parties want representation in the National Assembly to be based on population of the provinces.
Finally, Article 11(6) states that a foreign woman married to a citizen of Nepal may acquire naturalized citizenship of Nepal as provided for in a federal law. Madheshi parties want acquisition of naturalised citizenship to be automatic on application. Women’s groups too claim this section discriminates against Nepalese women as now it will be difficult for a single mother to pass on her citizenship to her child. Because, if a Nepalese woman marries a foreigner, her child cannot become a citizen of Nepal automatically unless her husband/man first takes citizenship of Nepal. But if the father is Nepalese, his child will automatically be a citizen of Nepal regardless of his wife’s nationality.
India feels that the demands of Madheshis are not completely unjustified, which is why External Affairs Minister Sushma Swaraj stressed on “flexibility on the part of all the political forces so that any outstanding issues are addressed through dialogue and widest possible agreement.” India has also urged the Nepalese leadership to address the issue without resorting to violence and intimidation.