Free Movement

Free Movement


Birendra P Mishra’s article ‘The 1950 Treaty’ (Himalayan Times Daily, May 23, 2008) has pointed out that implementation of several Articles, including 6 and 7, have been rendered ineffective in time in totality. He has also mentioned that the treaty provides for continuity to the centuries-old tradition of free movement of citizens in each other’s territory.


I would like to highlight that no mention has been made free movement or open border in the treaty. But it is only mentioned, the movement will be on the reciprocal basis. Portion of Article 7 says “India and Nepal agree to grant, on reciprocal basis, to the nationals of one country in the territories of the other, movement and privileges of a similar nature.” In this context, the then Councilor of Indian Embassy, Kathmandu Sanjaya Verma had said “In the 1950 Treaty, not a single point speaks that there must be an open border system between Nepal and India, but open border should be best construed as a symbol of intimate bond between the two neighbours (Space Times Daily, July 2, 2004 page 6). So what should be understood that there is not a single clause in any of the treaties, agreements, memorandum and understanding reached between Nepal and India that inscribes open border system. It is only an unofficial practice which has kept on going for centuries by both the nations.

Buddhi Narayan Shrestha

Bhumichitra Mapping Co.

Replace or Review 1950 Treaty

Replace or Review 1950 Treaty


By Buddhi Narayan Shrestha


Nepal-India Peace and Friendship Treaty, signed on 31 July 1950 has become the hot topic of discussion and debate in these days. In fact, the treaty triggered a great hullabaloo in the country right after the emergence of the CPN (Maoist) as the largest political force at the election to constituent assembly (CA). Maoist Chairman Prachanda has said that the 1950 Treaty should be abrogated as per the changed context. He has also opined that the replacement of the treaty with new one is imperative to define Nepal-India relationships in a new light.


In its electoral manifesto, the CPN (Maoist) has clearly stated “In line with the principle of Panchasheel, Nepal-India Peace and Friendship Treaty-1950 will be abrogated in order to sign a new one for mutual benefits apart from the standardization of the system of border security force.” Similarly, in his proposal presented on behalf of Maoist Party on 27 April 2003, Dr Baburam Bhattrai, senior Maoist leader said, “All the unequal treaties including Nepal-India Peace and Friendship Treaty-1950, must be annulled and Nepal’s foreign policy must be guided by the principles of Panchaseel and non-alignment,”


Similarly, CP Gajurel, Chief of the Foreign Affairs Department of the CPN (Maoist) has also raised the issue of reviewing the Treaty by making necessary amendments in related articles. Gajurel made this remark while speaking at a program “Emerging Trend in India-Nepal Relations” organized in Patna, India from 26-28 April 2008. Speaking at the same program, Shyam Saran, former Indian envoy to Nepal said “Reviewing the treaty is not a great issue. If this issue is forwarded as a bilateral agenda, we will not have any objection.” Saran attended the program as the special speaker.


Now, the major question that crops up in one’s mind is whether the Treaty should be only review or annulled at all. And, the other burning aspect is if the treaty is equal or unequal. In order to resolve these questions, it will be relevant to dwell on certain provisions of the Treaty in brief.     


Equal or unequal

First of all, let us focus ourselves towards confirming if the treaty is equal or not. Quite notably, the two plenipotentiaries who jointly signed the treaty representing their respective countries are found to be of asymmetrical position. While signing the treaty, Nepal was represented by the Prime Minister while an Ambassador was assigned by India for the same purpose.


The next incoherence is related to the imposition of more conditions in the letter of exchange between the two countries with the signing of the treaty. Ironically, the various sections of the letters showed the imposition of some more conditions than the various points mentioned in the treaty, per se.


In some sections of the exchanged letters, one can find the provision that says the first priority should be given to India and its people.  The exchanged letter has more or less disregarded the essence of the treaty, which is against the general spirit of the treaty. The way the words are framed in the letter of exchange shows that India wants Nepal to come under its control. In this regard, the Press Trust of India, quoting the General Secretary of CPI (Marxist) Prakash Karat, recently stated, “There should be no room for unequal treaties irrespective of the hugeness of the countries involved in it.”


Uncongenial between Treaty and Letter of Exchange

Now, let’s briefly discuss the provisions stipulated by the treaty. A number of its provisions have never been implemented while some others have been partially implemented. It is also conspicuously clear that one signatory have been unscrupulously leveraging the Treaty unilaterally to serve its vested interests.  


Article- 8 of the controversial treaty states “The Treaty cancels all previous treaties, agreements and engagements entered into on behalf of British Government and Government of Nepal.” But this Article has never been implemented. The unfettered prevalence of Sugauli Treaty of 4 March 1816, Nepal-Britain Friendship Treaty of 21 December 1923, and Tripartite Treaty of 9 November 1947 attests to the complete comatose state of the Article- 8. If the implementation of the 1950 Treaty has fully seen the light of the day, the boundary of Nepal would have stretched from Tista in the east and Kangada in the west.


The Article- 7 of the Treaty ensures the special privileges to the citizens of the both countries to live in each other’s land. The article says “Both the Governments agree to grant, on reciprocal basis, in the territories of the other the same privileges in the matter of residence, ownership of property, movement and privileges of a similar nature.” However, Indian nationals are prohibited from owning the land and property in Nepal. On the other hand, Nepali citizens are free to do such activities in the Indian terrain. It is compulsory for any person wishing to own a fixed property is legally required to produce Nepali citizenship certificate. As such, Nepal has ignored the same privileges to be provided to the Indian nationals.


In addition, the open border between Nepal and India can be well deemed as an informal means adopted for reciprocal movement of the people of the two countries in each other’s territory. But, there is not a single clause in any of the treaties (including the 19950 treaty), agreements, and understandings reached between Nepal and India that inscribes open border system. There is no mention of the word ‘border’ even in 1950 Treaty.


In this aspect, the then Indian envoy Sanjaya Verma had said on 25 June 2004 “In the 1950 Treaty, not a single point speaks that there must be an open border system between Nepal and India. But open border should be best construed as a symbol of intimate bond between the two neighbors.” What should be well understood is that India has accepted as there is no open border mentioned in the Treaty. However, Nepal has sincerely adhered to the notion of open border. But, India has been unilaterally adopting regulated border system as well as closed border system in some crossing-points along the bordering point, time and often in a discretionary manner.


The recent Indian imposition of the provision of identity card system for those Nepalese who moved through Bardia to India is a case in point. Likewise, the Indian authorities, before the beginning of Jana Andolan-2, adopted closed border system erratically, which created obstacles for those who moved to Indian territory via the border points located at Panchthar and Taplejung districts. Similarly, the deployment of 45,000 para-military force as Special Services Bureau by India unilaterally in the bordering areas of Nepal is also something that manifests hegemonic attitudes of India against the principle of international boundary.    


In a similar fashion, the construction of security posts and customs office along No-man’s Land can be taken as some more examples in this regard. On top of this, India had imposed ‘Economic Blockade’ to Nepal from 23 March 1989 to 30 June 1990. All the crossing-points had been closed unilaterally. There was no movement of people and goods and merchandise. This action was totally against the spirit of Article- 7 of 1950 Treaty. It has proved that the Article of the treaty is implemented in an unequal and unreciprocal manner.   


The Article- 6 of the Treaty mentions that each government undertakes to give to the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development. But the section-4 of the letter of exchange related to the article stipulates that “If the Government of Nepal should decide to seek foreign assistance in regard to the development of the natural resources of, or of any industrial project in Nepal, the Government of Nepal shall give first preference to the Government or the nationals of India.”       It shows that there is no other term rather than contrasting if one is to relate the Article-6 with its section-4 of the letter of exchange.     


Likewise, the Article- 5 of the Treaty states that “Nepal shall be free to import from or through the territory of India, arms, ammunition or warlike materials and equipment shall be worked out in consultation.” However, section- 2 of the letter of exchange conspicuously contradicts with this article by stating, “Nepal may import through the territory of India shall be so imported with the assistance and agreement of the Government of India.” But Nepal has been overlooking the provision of the section-2 and imported arms and ammunition directly from the third country without the consent of India. Undoubtedly, many Articles stipulated by the Treaty are in limbo. In this context, how meaningful will be to let survive the unimplemented Articles of the Treaty.


The Article-2 of the Treaty mentions that the two governments undertake to inform each other of any serious friction with any neighbouring State likely to cause any breach in the friendly relations. Section-1 of the letter of exchange says “To deal with any such threat, the two Governments shall consult with each other and devise effective counter-measure.” But, India has violated the provision of this agreement. For instance, in November 1962, when a border war broke out between China and India, the latter did not bother to furnish information about the same with Nepal. Nepal, too, exhibited lethargy to rope India into providing the war related information. It is pertinent to remember that after India was defeated during the 1962 border war, the Kalapani-Limpiadhura of Nepal was encroached upon by Indian militaries. So this Article has never come into practice.


Similarly, the Article-1 of the letter says, “The two Governments agree mutually to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other.” But India has not followed this section in practice. For example, 26 districts of Nepal have been adjoined with Indian territory. There are dispute, conflict, claim and counter-claims placed by India in 54 spots of 21 districts of Nepal along 1,808 kilometre borderline. The total disputed area has been estimated as almost 60 thousand hectares. This type of activity has virtually intended to disintegrate the territory of Nepal in contrary to the spirit of 1950 Treaty.                    


An assault against the liberty of expressing opinions

The Indian side, ignoring the spirit of the treaty, has cast blight on the basic tenets of the treaty by launching a severe assault against the liberty of expressing opinions of Nepali people. The recent visit of Sita Ram Yechuri, Indian communist leader, can be well taken as a maneuvered attempt of India to hold sway over the conscience of Nepali people. In a similar manner, when some Indian experts on Nepal like SD Muni, KV Rajan, Ashok Meheta and Karan Singh land in Nepal, the political atmosphere here sees a turnaround overnight. Political leaders succumb to the dictates of New Delhi in a submissive manner. As such, Nepal has never been free from the perspective of guiding herself by her own conscience even though the Treaty guarantees this liberty.


India has always inhibited Nepal from exercising its sovereign status. This fact can be safely attributed to the submissive tendencies of Nepali leaders who steer the state affairs. There were Indian Army Check-posts in 18 places in the northern border points of Nepal adjoining China from 19 February 1952 to 18 June 1970. At that time Indian soldiers were stationed in the bordering areas between Nepal and China.


The other fascinating thing is that, in his letter forwarded to the then Indian prime minister Jawaharlal Nehru on 7 November 1950, Sardar Patel (India’s well known freedom fighter), had advised and wrote “The political and administrative steps which we should take to strengthen our northern and north-eastern frontiers. This would include the whole of the border i.e. Nepal, Bhutan, Sikkim, Darjeeling and the tribal territory in Assam.”  


So, it is crystal clear that India has been reaping a lot of undue benefits at the expense of national dignity of Nepal by leveraging the lopsided Articles of the Treaty. By contradictorily interpreting the clauses of the Treaty, India is hell bent to turn Nepal into its vassal state. The Treaty is indeed serving as a ‘trump card’ for India to swell its vicious presence in Nepali political domain.  Undoubtedly, India is exerting political and psychological pressure on Nepal by misinterpreting this Treaty. And, many Nepali are not oblivious of this filthy fact.


Review or abrogation

It is, of course, rational to discuss whether the Treaty should be only reviewed or annulled at all.  Interestingly, India was in favour of annulling the treaty during the period of 1990s. Nevertheless, Indian foreign secretary Shiv Shankar Menan recently expressed willingness on behalf of India to review the Treaty as per the demands of time. Former Indian envoy to Nepal, Dev Mukahrjee had also opined, “In my perspective, the Treaty is not unequal. If it is so, it should be reviewed.” The other former Indian Ambassadors like Shiv Shankar Mukharjee, Shyam Saran, and KV Rajan apart from Indian communist leader Yechuri had also aired their views in favour of altering the thorny clauses of the Treaty.


Quite depressingly, Nepali side is still undecided as to whether the treaty should be reviewed or rendered null and void. Even though Nepali political honchos fervently raise the issues related to the Treaty, they seem flippant as far as meticulously scanning the contentious contents of the same goes. They never do home work and exercise how the treaty has adversely affected Nepal. The pathetic absence of a clear-cut perspective in the country’s political realm about the Treaty is palpable.      


After the CPN (Maoist) emerged victorious in the recently concluded constituent assembly (CA) elections, its Chairman Prachanda said that the Treaty should prevail no longer. However, CP Gajurel, who looks after foreign affairs of the party, contravened his Chairman’s remarks by stating, “There was scope for amendment to the 1950 Nepal-India Treaty.” One could say that it is the absolute asymmetry in the political spectrum of Nepal about the Treaty that has emboldened India to leverage it as a trump card.


Last item

The 1950 Treaty is inherently faulty as is evident by its unscrupulous and lopsided use. Besides, its startling incongruity with the related letter of exchange has rendered the various Articles of the Treaty completely irrelevant. As such, rather than tempering with this irreversibly defective Treaty, it will be prudent to throw it in the dustbin to give place to a new one.


It is to be noted that the last provision of the treaty i.e. Article-10 has mentioned as “The Treaty shall remain in force until it is terminated by either party by giving one year’s notice.” However, what should well fathomed is that the new treaty must not resemble the flaws of the old one.


The new treaty should be carved by taking into account the factors like mutual benefits, territorial integrity and, top of all, equality. Not to be outdone, while framing the new treaty, it behooves Nepal to pay sincere attention to the crucial subject matters like hydro-power generation, resource mobilization, human resources development, mineral exploration, tourism, border management and demarcation and industrial turnaround, among others. Otherwise, it can be safely predicted that Nepal will continue to be bullied by its Big Brotherness.


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