Rather than resolve its ongoing political crisis, Nepal’s new constitution has produced a polarized internal landscape and complicated relations with its most important neighbor, India. The product of a peace process that brought insurgent Maoist rebels into mainstream politics, the new constitution was promulgated on Sept. 20, institutionalizing a federal, democratic and secular republic.
But it failed in its core task of bringing the country’s various ethnicities—there are over 100—and social groups together. Many social groups, especially the Madhesis and Tharus of southern Nepal, are deeply unhappy with its provisions on inclusion, political representation, federalism and citizenship, and have been leading a mass movement against it for more than two and a half months, leaving the country paralyzed.India is also upset at the crisis at its doorstep, and is putting pressure on Nepal’s political leadership to make amends. But in Kathmandu, the protest movement against the constitution is being dismissed as an Indian-sponsored plot, while ultra-nationalist sentiments run high and the government’s willingness to correct course is unclear.
At the root of the divisions is the fact that the country’s political structure has never reflected the remarkable ethnic and social diversity of Nepal, producing deep inequality. Power has been monopolized by the Hindu upper castes based in the mid-hills of Nepal who, although they constitute less than one-third of the country’s population, dominate politics, bureaucracy, the army and even civil society and media. Madhesis, who live in the southern plains region known as the Terai, have historically not been treated as equal citizens and are even viewed as a “fifth column” due to their extensive ethnic, linguistic and kinship ties across the border with India. Janjatis—the indigenous peoples of both the hills and plains—have historically been subsumed by a centralized state, with their culture and languages marginalized, and remain underrepresented in politics. Women, meanwhile, have lived under a traditional patriarchal society, with gender discrimination institutionalized in law. At the bottom of the hierarchy are the Dalits, the “untouchable” caste who are stripped of dignity, opportunity and any participation in the mainstream.But after the devastating earthquake in April, political equations changed. Top political leaders realized their failure to adequately respond to the humanitarian crisis had damaged their credibility. A breakthrough on the constitutional impasse, which had lasted too long, became necessary. The tragedy also offered a pretext to others to drop some of their demands and shift tracks. The Maoists, who had until then sided with the marginalized social groups, agreed to support a draft constitution fielded by the two other top parties—Nepali Congress and the Communist Party of Nepal (Unified Marxist Leninist)—making Nepal a federal democratic republic with a parliamentary system. It would also be secular, albeit with a pronounced Hindu tilt.
The resulting document alienated the ethnic Madhesis in the Terai, as their share of seats in both houses of parliament would be reduced due to the formulas used to determine representation. The new constitution also dropped a key provision from the interim constitution of 2007 for “proportionate inclusion” of Madhesis and other historically marginalized ethnic groups in state organs, while further diluting the principle of quotas by adding a host of other groups, including dominant upper castes, as eligible for representation.Meanwhile, the constitution’s citizenship clauses require the offspring of mixed marriages to get Nepali citizenship by naturalization only when the father is a foreigner. In turn, naturalized citizens are not eligible for a range of public positions, including president, prime minister, heads of security agencies, chief minister and more. In addition to violating gender equality, the provision appears driven by the fear—many see it as paranoia—of Indians marrying into Nepal and taking over key positions, given the extent of cross-border marriages in the Terai.
Adding to opposition to the constitution was its gerrymandering of provincial demarcations, which favors the hill groups that have long dominated Nepali politics. Terai groups wanted the country’s 20 plains districts divided into two provinces, one in the east dominated by Madhesis and the other in the west dominated by Tharus, an indigenous group. Instead, while leaving eight districts in a plains province, the constituent assembly merged 12 districts with various hills provinces. The result was an eastern Madhesh province deprived of resources, and the Tharus reduced to a political minority in western Nepal. The decision to push the constitution through despite protests against it, with police then killing and harassing demonstrators, only added to the unrest. The constitution’s technical legitimacy cannot be contested. After all, an elected constituent assembly by an overwhelming majority passed it. But its political legitimacy is under grave threat, given the climate in which it was passed.The movement in the Terai against the constitution reflects genuine anger, and if its moderate demands are not addressed, there could be further radicalization and even a secessionist movement. That is a scenario New Delhi wants to avoid at all costs. Despite India’s temporary unpopularity in Kathmandu, it is nudging Nepal’s leadership to make the difficult decisions necessary to accommodate the opposition.Nepal managed its transition from an autocratic monarchy and civil war to peace and a republic. The constitution represents the culmination of this process. But it holds the seeds of discord within it. Before it can be enforced, it has to be amended.