Nepal Flex of the Constitutional Muscle Places India in A Spot

Just when the Sino-Indian imbroglio over the border in Ladakh was showing signs of ending on Saturday with talks proceedings towards a comprehensive agreement on avoiding clashes, the Indo-Nepal conflict over the border in Kalapani was hotting up.

On Saturday, the Lower House of the Nepalese Parliament, the House of Representatives, amended the country’s Constitution to include areas claimed and held by India.

The Nepalese move is expected to exacerbate tension with India. The Indian media quoted officials as saying that New Delhi will not accept Nepal’s “artificial expansion” of its territory, an expansion not based on facts or history.

A report in the Hindustan Times refuted the Nepalese charge that India had not responded to its requests for immediate Foreign Secretary-level talks. Un-named officials told the newspaper that India had sent messages about the talks since April but had got no response.

Perhaps the officials were referring to the Indian proposal to hold talks after the COVID pandemic was over which Nepal had rejected saying that talks should be held immediately.

Be that as it may, Nepal and India are currently in-a-bind if not at a dead end. In the war of nerves, India’s prestige and strategic interests are up against Nepal’s self-respect and sovereignty.

While the disputed areas, Kalapani, Limpiyadura and Lipulekh, are of great strategic importance to India and has been under its control for long to meet the Chinese threat, Nepal’s grievance is that India had built and inaugurated a road across the Kalapani region to Lipulekh without taking its consent while acknowledging that these are disputed areas.

In 2015, Nepal had voiced its objection when India and China agreed to have a road link between Uttarakhand State in India and Tibet in China through the Lipulekh pass. But neither New Delhi nor Beijing had taken Nepal’s consent, Nepal complained.

The matter was forgotten till May this year, when Indian Home Minister Rajnath Singh formally opened the road. This set off a political storm in Nepal with every political party, including the “pro-India” Nepali Congress, rallying behind the “pro-China” Prime Minister K.P.Sharma Oli to demand a strong riposte to India.

When Oli pledged to get back every inch of Nepalese territory seized by India and to change the constitution to formally include the disputed areas in the official map of Nepal, there was support across the political board. This was reflected in the unanimous vote on the constitutional amendment in the House of Representatives on Saturday.

Having taken a precipitate step, the Oli-led Nepalese regime appears to have closed most options. If any change has to be brought about, it has to be done before the bill goes to the Upper House and gets passed there. It will be politically difficult to undo a constitutional amendment to which all sections of parliament had been party.

The situation puts India also in a spot, because it will have to be seen to be giving major concessions to enable Oli or his successor wriggle out of the situation without losing face.

But given the fact that like Nepal, India too has a historical case, and in view of the fact that the area in question is vital for the defense of India in the event of an armed conflict with China, it will be impossible for India to give up the area. In fact, when India vacated 16 to 17 posts in Nepal after the 1962 Sino-Indian war, it retained Kalapani. With China flexing its muscles on the Sino-Indian border in Doklam, Sikkim and Ladakh, vacation of Kalapani is ruled out now.

However, New Delhi has continuously reiterated that the matter can be settled only by talks (held in a conducive atmosphere). It has also repeatedly asserted that Indo-Nepal ties are economic, historical and cultural and these cannot be undone without multifarious consequences.

New Delhi will thus be oriented to seeking talks rather than confrontation. This will be so especially now, when the Chinese are breathing down the neck on the Sino-Indian order. India already suspects that the Chinese had instigated the pro-Beijing Communist Prime Minister Oli to up the ante on the Kalapani issue.

However, given the fact that the Sino-Indian border row is on the way to being resolved, it is possible that India will be able to approach its differences with Nepal in a calm manner. Perhaps as a follow up to the rapprochement with India, China may think it worthwhile to prevail upon Nepal to withdraw from the brink and talk to India.

But the talks are unlikely to be smooth because the two countries have different interests and different reference points in the history of the dispute. According to the Nepalese, the 1816 Treaty of Sugauli between the Kingdom of Nepal and the British East India Company (which was then ruling India) had clearly stated that the area east of the Kali or Mahakali river is Nepal, including Limpiyadhura, Kalapani and Lipulekh. But officials in India claim that revenue records dating back to the 1830s show that the Kalapani area was administered as a part of the Pithoragarh district now in Uttarakhand State in India.

Alok Kumar Gupta writing for the Institute of Pace and Conflict Studies New Delhi, says that the Indian government conducted the first regular survey of the upper reaches of the river Kali in the 1870s and the official Indian map drawn in 1879 showed Kalapani as part of India. India holds that the 1879 map should be the reference rather than the earlier maps. The Nepalese charge that the British used the shifting course of the Mahakali river to advance Indian territory eastwards for strategic reasons.

However, successive Nepalese governments had not challenged the 1879 map until 1990. Writing in the Indian Express, former Indian Foreign Secretary Shyam Saran says that Nepali maps had all along reflected the British-laid alignment.

In the early 1950s, after China occupied Tibet, India had, with the consent of Nepal, set up 17 or 18 military-cum-police posts along the Nepal-China border. These remained in place until 1969. Shyam Saran says that in 1969, Kirti Nidhi Bisht, the Nepali Prime Minister, asked Indian Prime Minister Indira Gandhi to withdraw all these posts from Nepali territory. This was done but the posts in Kalapani were not in mentioned in the Nepalese list, Saran points out.

Further, when China and Nepal drew their boundary in 1961, it was stated that the western extremity of the China-Nepal border started at the Tinker Pass, well east of Lipulekh Pass. “This cannot be refuted as this is in the formal documents,” Saran stresses.

“India and China concluded an agreement in 1954 for trade and transit between India and Tibet, and among the six border passes listed for the purpose, Lipulekh was included. There was no protest from the Nepali side. The first time that Nepal protested formally was in 2015 when India and China signed an MoU for conducting border trade between the two countries through Lipulekh Pass,” Saran adds.

What then is the way out? Saran suggests that while India retains Limpiyadura, Kalapani and the Lipulekh pass the Nepalese may be given privileged access to the area for trade or pilgrimage. But before this, a conducive atmosphere has to be created in both India and Nepal.

Grandstanding and brinkmanship must be eschewed by governments and politicians on both sides. And the media should exercise restraint and not clamor for military action of a boycott.