The constitutional crisis in Nepal does not portend well. The unfolding politics and violence in the Madhesh region signal an increasing breakdown of trust. All constitutions that endure are imperfect, full of ambiguities and compromises. Constitutions work if there is a minimal sense that constitutional debate is indeed the path to progress and an institutional mechanism that can meaningfully adopt the political concerns of those groups that are feeling marginalised. In Nepal, both conditions seem to be weakening. As significant an achievement as the constitution might be, the fact that many groups — women, Janjatis and Madheshis — are feeling betrayed by it is not a healthy beginning. It is simplistic to define the ensuing rift as between the entrenched elites in the valley and groups like Madheshis. Political and intellectual currents suggest that their mutual suspicion will only deepen. It is not clear that Nepal has a political party that can successfully manage these differences.
Defenders of the constitution point, rightly, to the fact that it was passed by 82 per cent of the vote. But this exacerbates the crisis of trust, rather than resolve it. It suggests that the Madheshi leadership is not effective in making its presence felt in Kathmandu; even when it does, it does not seem to carry the authority of its constituents. The sense that Madheshis feel betrayed by a process that was, in some senses, reasonable makes the problem worse, not better. This might diminish faith in representative politics.
The underlying debate is now characterised by charges of bad faith. These are always harder to assuage. Ideally, progressive constitutions in South Asia should dissociate citizenship from identity. This ideal is always hard to achieve. Given entrenched hierarchies of power, there is a fear among marginalised groups that throwing a veil of anonymity over identity is merely a ruse for perpetuating the status quo. But this ideal becomes even harder to achieve when there is a suspicion of double standards. In drawing the federal boundaries, the charge is that they have been effectively gerrymandered to give Brahman-Chhetris effective federal representation but have sidelined Madheshis. There is the larger issue of whether proportionate representation by ethnic identity is necessarily a progressive principle. It usually entrenches, rather than overcomes, the tyranny of compulsory identities. But the dropping of the proportionate representation provision will negatively affect Madheshis and, taken together with the federalism provision, has fuelled suspicion. While it is true that the constitution can still be amended, getting amendments passed on anything pertaining to state boundaries (there is no clear mechanism for changing them) or federalism is going to be near impossible.
Lack of trust now mars how the constitution is being read. For instance, it has enabling provisions for affirmative action in jobs; the fact that this issue is being deferred is fuelling discontent. The deferment of a delimitation mechanism for representation could be seen as a compromise that postpones a controversial issue to a separate process. Or it could be seen as a ruse to deny marginalised groups their due. This question cannot be settled by the text, it is a question of political judgement.
There are many progressive elements in the constitution: on LGBT rights and, arguably, quotas for women. But, alas, progressivism in South Asia always comes divided. The most potent source of regression is at the intersection of religion, nationalism and sexuality that mars constitutionalism in South Asia. While the constitution is “secular”, its conception of secularism is problematic. It defines secularism as “protection of religion and culture being practised since ancient times and religious and cultural freedom”. This clause is an oxymoron. There is a deep contradiction between the first and second half of this definition, and one can only imagine what courts will do with it. It also makes the mistake of aligning secularism with identity rather than freedom. It is an alignment reinforced by a broadly phrased prohibition on “converting” someone. It gives such wide latitude to “culture being practised since ancient times” that you wonder how counterfeit freedom will be.
This is not a progressive constitution in so far as it reeks of the language of descent. The core of a modern democracy is not where people come from, but where they are going. The obsession with descent marks a distinction between rights of citizens who are naturalised and rights of citizens by descent. The former are excluded from an extraordinary range of high offices, effectively making them second-class citizens. But most egregiously, it treats women as second-class citizens — they cannot confer citizenship to their children independently of men; in case they marry foreigners, their children will be barred from high office. But in a curious way, such a provision, along with the culture clause, exemplifies the subconscious bane of South Asia: the theme of descent makes its prodigal return. The constitution inaugurates the new; but it protects too much of the old.
But it is also in these provisions that the psycho-analytic entanglement between Nepal and India comes through. Nepal rightly insists on its autonomy. It is something India should respect. But it has also deeply internalised India. Rather than asserting its autonomy, it has let the ghost of India rule: it will short-change its own women to keep notions of purity of descent alive. The imagined Indian dominance frames this regulation of gender. India, for its part, cannot take the moral high ground on progressivism: its political culture, too, is marked by a suspicion of women’s autonomy. The same language of religious protection and “ghar wapsi” is becoming the common sense of its discourse.
India can be accused of mishandling the situation — not having a process that engaged with intelligence and discreteness with events in Nepal in the first instance, and then coming across as heavy-handed. This dialectic has been repeated before. But overt Indian intervention will probably make it harder for Kathmandu’s elites to compromise. But you also suspect that, like so much politics in South Asia, the bogey of the foreign is a ruse not to confront our own pasts. The situation in Nepal is precarious, not because there are disagreements of principle; any society will have them. But because unresolved fears, self-fulfilling suspicions and a thrall of the past still cast too much of a shadow on a moment that should inaugurate a new dawn. It will require political trust and generosity to deal with these issues, something that is in short supply in Nepal, and in South Asia more generally.
The writer is president, Centre for Policy Research, New Delhi, and contributing editor, ‘The Indian Express’.
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