“India-Nepal ties must move beyond 1950 treaty”

Till he was recalled last month by Prime Minister Sher Bahadur Deuba, Nilambar Acharya was Nepal’s ambassador to India since 2019. Acharya had previously served as Law Minister, as well as the Chairman of the Constitutional Committee. He spoke to Santa Gaha Magar about Indo-Nepal relations, and the country’s domestic politics:

Nepali Times: As someone who was posted to New Delhi during a rocky period in bilateral relations  please give some insight into the current state of India-Nepal ties.

Nilamber Acharya: The relationship between Nepal and India is vast and nuanced. There are problems as well as positives, and they cannot be understood if we look at them in a one-dimensional framework. We need to be careful that the problems do not overshadow the positive aspects of our relationship. The Indian people have a lot of goodwill towards Nepalis.

Like any other relationship, our bilateral ties need to evolve in the context of the times. And that has been the biggest challenge. Both governments and their political leadership need to be especially mindful of this fact.

What could be the reasons why India has not formally received the report prepared by the bilateral Eminent Persons' Group (EPG) on Nepal-India relations?

I am not sure why India has been reluctant to receive the EPG report. The document, which is integral to strengthening the foundations of our bilateral relationship, was finalised in consensus with four members from both countries. If India delays acknowledging and receiving the report any longer, it will be that much more difficult to move forward to review our diplomatic relations.

Could it be that Nepal has not taken a more active initiative to implement the report?

We have consistently engaged with our Indian counterparts to follow up on the EPG. There was not a single meeting during my term as ambassador when this report wasn’t discussed.

In fact, then-Foreign Minister Sushma Swaraj at one stage before the 2019 Indian elections had assured us that India would receive the report. Prime Minister Narendra Modi said the same thing during the inauguration of the Nepal-India Petroleum Pipeline. Ultimately, it did not work out.

After that, was there not enough pressure from Nepal, or did the Indians change their mind? 

Initially, both sides had agreed to submit the report first to the Prime Minister of India, then to the Prime Minister of Nepal, following which it would be made public via a press conference. However, there has been a roadblock from the Indian side. 

As I said, Nepal has repeatedly reminded and urged our counterparts to move forward with the report, but to no avail. Once the report is received, it would then be up to both the governments to decide whether to implement the its provisions and to what extent. One thing is for sure. Our bilateral relationships cannot move forward on the basis of the 1950 treaty.

Could India’s perceptions on Nepal vis-à-vis China be one of the reasons?

Our relations with India and China are mutually exclusive to one another. Establishing diplomatic ties with another country does not mean that our relations with India have weakened. Diplomatic relations with countries have different contexts, and must therefore be understood separately. Diplomatic ties with one nation do not and should not have a negative effect on relations with another.

Let us turn to Nepal. As a former law minister, what are your views on the Supreme Court row?

The current controversy surrounding the Supreme Court is not limited to whether the Chief Justice should resign or not. This issue is emblematic of a widespread disease that has for long plagued the very foundation of Nepal’s judiciary, which needs to be addressed properly. It is the responsibility of the Chief Justice, the judges of the court, and the government to address and solve those problems immediately.

However, instances of judges boycotting the court and refusing to hear and try cases are not representative of the principles of the judiciary. The problems within the court must under no circumstances impact the judicial process or hinder Nepalis’ right to justice.

Who is responsible?

The government, political leadership, and experts in the field must come together to identify the problem through research and investigation. 

What is happening to Nepal’s Supreme Court?, Santa Gaha Magar

Many have linked the Constitutional Council, the Judicial Council, and even the Constitution of Nepal to the problems surrounding the Supreme Court. Do you see any flaws in the constitution?

Seeing as the Constitution maintains objectivity over all things, debates about flaws in the Constitution do not come into play in this matter. What needs to be thoroughly examined is whether there are irregularities in institutional appointments and if the concerned authorities have been doing the work that they were assigned to do. Corruption must be investigated and the corrupt punished, but baseless public indictment must not be entertained. That is how this disease can be treated.

Is our constitutional structure equipped to establish bodies to address our current problems?

The government should not remain silent in this matter by leaving it up to the judiciary. Rather, should find a solution to this problem through political means, by hearing the grievances of all disputing groups.

Moreover, it is natural to protest and make your voices heard, but the movements concerning this issue must not be drawn out to the degree that it affects the people's right to justice. That is not correct.

If the government gets involved, doesn’t it mean that the executive and the legislature are interfering in matters of the judiciary?

It is not to say that the government should direct the judiciary on what to do and what not to do, and should not be taken to mean as a call against the separation of powers. Rather, the government must facilitate the judiciary in the administration of justice. This is similar to how the executive assigns the budget to the court, and how laws implemented by the judiciary are passed by the parliament.

As it is, this became a matter of political concern as soon as the problem could not be contained within the judiciary, and the fights and disagreements spilled out into the streets.

Many have compared the current state of Nepal’s judiciary to that of post-panchayat Nepal in 1990. Was the judiciary in a better position then than it is now?

The circumstances surrounding Nepal’s courts then and now are incomparable. Nepal’s judiciary only became independent after 1990, following which judges were appointed through a democratic system. Before that, judges used to be assigned for having joined a political party, or simply for holding and voicing opinions about the need for democracy. 

Was that a good arrangement? Certainly not. Barring some decisions in the favour of the people and the media, court decisions largely discriminated against the citizens and deprived them of their rights.

Other aspects of Nepali society have been cited as being better before than it is now.

As I said, comparisons do not help. Nepal in the past did not have inclusion, in the human, political, and civil rights and liberties spheres. And while this is not to say that the past was without any progress, it is inaccurate to say that Nepal was more just or democratic in the past. 

The people could neither form governments nor change them if they were dissatisfied. In fact, they were not people at all, but subjects. As far as the courts were concerned, judicial decisions were heavily influenced by forces outside the judiciary. As it was, people were able to demand to be heard and were ultimately successful in establishing democracy in 1990. Following the king’s refusal to be a subordinate to his people, Nepal became a republic.

What is your response to those who ascribe the current problems within Nepal to republicanism, secularism and federalism?

The reasons for problems in Nepal at present are not due to the Constitution--although the Constitution should be amended in time--but due to a failure to implement its provisions. Societal instability is not due to republicanism or inclusion, but due to the inability to bring those concepts into practice. The flaw lies not in democracy, but in the fact that we do not have a functioning democratic process. The multi-party system is not responsible, but factions operating within individual political parties are.

The problem is not the Federal Democratic Republic of Nepal. The problem is that we have not yet been able to bring into practice what the Federal Democratic Republic of Nepal symbolises.

So republicanism or secularism are not directly threatened?

Everyone has the freedom to voice different views in a democratic society, and we have come a long way to achieve this. When people are dissatisfied with the democratic process, they can express that through the polls. What is in the past will remain there, be it the Rana regime, the Panchayat, or the monarchy. The only way to move is forward.

Does it seem like Nepal’s major political parties have been stingy in taking ownership of the federal democratic republic?

Nepal’s history from a monarchy to a federal democratic republic is the result of significant transitions. We have been headed in a positive direction, and things are not worse than they were before. For instance, it is not to say that corruption has increased, rather the awareness of corruption and the need to hold those corrupt to account has increased. Similarly, we are at a point where we can openly speak out against discrimination and mistreatment of communities. 

There is no need to be discouraged by the momentum of Nepal’s socio-political progress. However, even though Nepal is a multi-party democracy, the responsibility of preserving the democratic process and strengthening the republic lies primarily with the Nepali Congress and the UML. Nepalis are soon going to make their voices heard through the polls, and how they fare in the upcoming elections will determine the future of the country.