Nexus of open border with India
Indian Foreign Secretary Nirupama Rao has said, during a seminar on ‘Challenge in India’s Foreign Policy’ at National Defense College in New Delhi on 21 November 2010, that India shares an open border with Nepal and the issue of security co-operation on the open border, tackling common threats like arms smuggling and criminal elements who operate along the border, were matters of mutual concern. She further said, it has to safeguard peace, security and development with our own borders.
In the same way, the then Indian Army Chief Deepak Kapoor said- at least sixteen terrorists had sneaked through Nepal into India and traveled to the troubled Kashmir in 2009, taking advantage of the open border. It has made challenge, posed by India’s open border with Nepal. This is revealed by the whistleblower website WikiLeaks, publicized a cable classified as ‘secret’ by the United States government.
In addition, Indian Minister of State for Foreign Affairs Praneet Kaur has said that it is the danger of anti-India elements exploiting the open border using Nepali soil to create security problems in India. It was expressed during the visit of a group of young Nepal MPs at the invitation of Ministry of Foreign Affairs of India on 24 November 2010.
Besides, an exclusive interview of Indian Ambassador to Nepal was published in a daily broad sheet on 29 April 2010 regarding the security concern of India in relation to open border regime. Ambassador had indicated some of the points such as misuse of open border, entrance of unwanted element to India via Nepal, need to vigil potential cross-border terrorist activities etc.
On the other hand, United States Country Report on Terrorism- 2009 has cited that the large ungoverned space along the Nepal-India border exacerbates the vulnerability. As a result, extremist group could make Nepal as a transit, especially into India. The report has given an example that Laskar-e Tayyiba (LT) member Muhammad Omar Madni traveled through Nepal en-route to New Delhi in June 2010.
These are some of the examples of the hindrances of open border regime between Nepal and India. In fact, the open border system is not working well to maintain peace and security, law and order in both the nations.
In this context if we look back at the history of Nepal-India border management system, basically there was a closed border system in ancient period. No one could enter into Nepal without special permission from the Rana prime minister. Practice of controlled/regulated border system was started after the Sugauli treaty of 1816. However, it can be said that as soon as Nepal restored Naya Muluk (Banke, Bardiya, Kailali and Kanchanpur) from British India on November 1, 1860; open border system unknowingly came into practice between the two countries.
The border was more open after India’s independence in 1947. Furthermore, it was wide open after Nepal’s democratic movement in 1950. This allowed Indian politicians, bureaucrats and technicians to travel without any restriction. Ultimately, Nepal-India border was fully opened after the construction of Tribhuvan highway in 1956, linking Kathmandu to Raxaul, Indian border town. As a result, anyone could cross the border and shuttle back and forth many times a day without any interrogation
Treaty and agreement
There may be a question: is there any treaty or an agreement or formal letter of exchange between Nepal and India to prevail the open border system? In answer: there is nothing in black and white. No such document has been identified, which has made the border open between two countries. Then, how the border was made open between Nepal and India? The answer may be- the border was open slowly, unknowingly and unofficially. None of the government obstructed to the border open. It was the border slackness to make easy Nepali youth’s travel to and from India to get recruited in the Gorkha regiment of the British army. The next reason was to make ease to export the British and Indian goods and merchandise to Tibet via Nepal. In return, it was to import the Nepalese raw hides and skins, herbs, plants and timber to India.
Some people assume, the 1950 Treaty has promulgated the open border system. Others say, the treaty has inspired this system. But this is not the fact. If we read the whole treaty, not a single clause has been spared for the open border management system. The only matter is mentioned in Article 7 of the Treaty as the reciprocal movement of the people, but it is not the open border. It states: “The Government of India and Nepal agree to grant, on 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 privileges of a similar nature.”
It means, this Article has allowed the movement of people on a reciprocal basis with a similar treatment, accepted by both the countries in each other’s territory. In one sense, if India or Nepal alone wants to implement a new border management system, that will not be applicable, until the other nation agrees. But no provision has been mentioned in the 1950 Treaty for open (unrestricted or unobstructed) movement of people in each other’s territory. In other words, it is not mentioned that the border between two countries must be opened.
Second, this scribe had written an article in a daily newspaper concerning the regulation of border. In response to this article, Sanjaya Verma, Counselor of Indian Embassy, Kathmandu wrote in the ‘letter to the editor column of the same daily supporting that “it is not mentioned open border system between two countries in any of the Articles of Nepal-India Treaty. However, open border is an emblem of close relation of friendliness, existed between two countries, since ancient times to this date” (Space Time Daily, July 2, 2004). This reveals that the 1950 treaty has not mentioned that the border must be open.
It is to be mentioned that there was a practice of passport / permit system in bygone days. Even the Nepali residing for long or permanently settled down in any foreign country would require prior permit or passport to enter into Nepal. Such permission could be possessed from the embassies or consulates of Nepal in the respective country or from the Alainchikothi in Patna- India, as mentioned in the paragraph four of the Passport Regulations- 1952, (Nepal Gazette- April 22, 1952).
In the same way, permit / rahadani was necessary for Nepali even to go from one part of Nepal to another via Indian territory till five decades ago. At that time, rahadani would be issued from Rahadani Goswara of Munsikhana and district Badahakim. But rahadani system unknowingly disappeared after the construction of Tribhuvan highway.
On the other hand, if we make a study on the existing Immigration Act and Regulations, Article 3 (1) of the Immigration Act-1992 (First Amendment-1993) says: “No foreigners are entitled to enter into the Kingdom of Nepal and reside in Nepal without having passport and visa.” At the same time, Article 2 (B) defines ‘foreigner means any person who is not a citizen of Nepal for the time being, as it must be understood.’ In this context, Indian citizens are also foreigners in Nepal. Therefore, it signifies legally that even the Indian nationals need visa and passport to enter Nepal, according to the existing regulations. It is the legal arrangement made by the Government of Nepal. But this arrangement has not come into force due to lethargy of the government organizations.
Whatsoever may be the bygone days as it has become the history. But if we have to establish peace and security for the prosperity of both nationals, there should have some reformative measures in Indo-Nepal porous border management system. In fact, the existing system has somehow created a muddle for the people of both nations. Keeping the border wide open has made it easy for unwanted elements to run their activities freely. So we have to visualize the cross-border security concern of both frontiers in an international perspective. Hassle of border management should be tackled not only in the perspective of India’s security concern, but also Nepal’s concern as well, since Nepal and India are neighbours and the border is common to both. If there are some incidents in one side, it affects on the other frontier sooner or later. Assurances must be ensured to and from each other for the security of both nationals. Therefore it is relevant and legitimate to implement the regulated border system to obstruct the extremists and terrorists; and to improve the situation of peace and security, law and order; and social life of general people of Nepal and India.