by Hari Prasad Shrestha 22 September 2023
The Supreme Court of Nepal recently issued an order of mandamus in the name of the government to review the agreements and treaties regarding the management and regulation of the open border between Nepal and India, about Nepal’s sovereignty, geographical integrity, national unity, protection and the welfare of the people, economic prosperity and border security, which are government’s significant constitutional responsibilities.
The mandamus asked the government to make compulsory identity cards for Indians to enter Nepal and keep records of those entering Nepal via land route at the immigration office in the checkpoints under the task of border management. Moreover, it says that the open border has been an immense blight for Nepal as the problems of human trafficking, refugee problems to security, economic dependency, citizenship, employment and anti-social activities through the open border have been challenges to Nepal’s sovereignty and national interest.
It also says that due to the open border, the fact that 814 aircraft of Indian Airlines was hijacked from Tribhuvan International Airport in Kathmandu on 9th Poush, 2056 BS has also been mentioned. After the incident, it is mentioned in the full text that certificates such as passport, voter ID card, citizenship ID card are mandatory for passengers traveling by air with the consent of the two countries.
Similarly, looking at the gazette of the year 2009 BS, it is stated that there is a provision that when Indians come to Kathmandu, they should bring their identity cards and Nepalese people should carry passports when they come to Kathmandu from India and when they go to India from there, the mandamus further says
The article 7 of Treaty of Peace and Friendship between India and Nepal of 31st July 1950 has clearly mentioned, “The Government of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.”
Some legal experts on international treaties are also being surprised how free movement of people is allowed between Nepal and India. However, neither 1950 treaty nor any other agreement between the two countries provides for free movement of nationals on either side. The word ‘ reciprocity’ has been used according to one’s convenience and a party can not be compelled to provide similar privileges to people of another party without mutual agreements.
Being a poor, landlocked and highly dependent nation, Nepal’s position has always been fragile and almost all its national affairs have been severely affected as a result of open borders. From problems of human trafficking, refugees problem to security, economic dependency, citizenship and employment, open border has been an immense blight for Nepal.
As per Nepalese concerns, the central government of India also opined that open borders could be more problematic as fake currency, criminal activities, anti-social elements get shelter in each other’s country, which is going to be a big problem not only to Nepal but also to India In future.
For many years, in Nepal, big debates have been going on non-stop to cancel or amend the treaty of 1950. Majority of people in Nepal have a strong concern, citing this treaty as an intrusion on the security and development of Nepal.
Only after continued opposition from Nepal, India became ready in January 2016 to form Eminent Persons Group (EPG), with the mandate to review various aspects of the bilateral relations including Nepal-India Friendship Treaty 1950. However, India declined to receive the joint EPGs report, in which regulation of open by order was one of the important recommendations.
As a result of the open border, there are considerable numbers of Indian workers, businessperson and high-level personnel employed in the private sector in Nepal, while low level of Nepalese laborers are working in India. Indians working in Nepal are residing in certain localities of the Tarai, Kathmandu and big cities, where economic opportunities are high and better organized. But Nepalis that migrate India for work are scattered in small groups all over the country working low-paying jobs, bring very low remittances to Nepal
Nepal is severely suffering from an open border with India as Nepal has been surrounded by poorest Indian districts of UP, Bihar and flow of people to Nepal job market and business have been a permanent trouble for the Nepalese economy. As a result of high inequality in Indian society, in the near future it is possible to be number one in the world economy, however based on current trends, it might still take many decades to narrow down income inequality in bordering districts with Nepal. Without satisfactory narrowing in inequality in border districts of India, the flow of poor Indians in Nepal can not be minimized for years.
Five types of Indian entities are dealing with Nepal; they are – bureaucrats, former diplomats and so called Nepal experts, intelligence and security agencies, and political leaders. Intelligence and the former diplomats of India have been dominating factors in Nepal matters compared to bureaucrats and the political leaders. They always create confusion, citing special relations between two countries and security concerns with Chinese engagements in Nepal.
However, the general public, majority of politicians, and elites in Nepal are fully aware of this obsolete repetition and they have started to openly criticize it. People in Nepal say that now it is the right time to think about breaking a special relationship with India. They also argue Nepal should start to keep a distance from India by deciding unilaterally to protect its national interest and sovereignty systematically.
If the historical, cultural and traditional relationships between border communities of Nepal and India have been eased by the open border, on the other hand, both the countries also complain about the problems arising from the unregulated open border. The Supreme Court of Nepal in its mandamus order also clearly stated that in the name of cultural and traditional relationship between people of two countries, the government of Nepal can not blind eyes from its responsibility to regulate the open border.
As Nepal’s weak leadership had been responsible for allowing free movement of people in Nepal India borders and allowing Indian troops to stay at Kalapani territory of Nepal after the India China war of 1962 and now again the question arises: can the government do the work according to the Supreme Court’s decision? This has become a serious matter as it is difficult to believe in our top leaderships?
Finally, if the major political parties in Nepal could show strong determination to bring unity and consensus in such issues of open border and national supremacy, The government’s effort to take a stand on regulating the open border would certainly get people’s support as during the border blockade by India in 2015 when Nepali people supported the government with open heart. And it would be in favor of long term stability of Nepal to seriously follow the order of the Supreme Court.