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Thursday, July 28, 2016

India-Nepal Open Border System Debate amidst Natural Calamity and Constitution Making Process

*Dr. Shreesh Kumar Pathak

In diplomatic circles, on varied grounds, some countries may be labelled as weak or strong nation but the ultimate power lies with Mother Nature. Still, science is unable to predict Nature’s course and impacts. The devastating quake has jolted Nepal very deeply. The calamity has definitely shaken the humanity but not its will. Nepal is trying hard to recover from the calamity and to reconstruct the essential structures.
Nepal is already going through the toughest job of constitution making on the path of polity. Constitution making is not an easy exercise especially if the nation has varied populations and different colours of pages in its history book. Before the process of constitution making reaches its culmination, Nepal had to face a profound degree of natural calamity. International community has helped open-heartedly which maintains the belief in humanity and in global fraternity. In the process a country can understand the significance of cobweb of relationships with other countries. For the meaningful conduction of relationships the role of an effective and strong political system cannot be denied. A well-thought, far-sighted constitution is first prerequisite in order to build a great nation-state.
As the dust settled; with undying spirit, the people of Nepal has come in a position to initiate the process of restructure almost everything which is ruptured, a long-expected consensus on constitution-making among the stakeholders of political society has also surfaced recently (Pokharel 2015). Calamity has played definitely a significant role in this consensus. Amidst the calamity and constitution making process, this would not be improper to discuss an old but relevant debate about open border system of India and Nepal. A nation must want to explore varied possibilities of cooperation through its borders for further development in all other fields as the chances of establishing polity are improving. Nepal is geographically surrounded by its traditional friend India. India and Nepal enjoy an open border system following India-Nepal Friendship Treaty, 1950. Open border system has its own pros and cons. This is a high time to settle the debate by concerned shareholders that in which ways India and Nepal are going to manage its borders with its associated prospects and problems.

*Dr. Shreesh Kumar Pathak, Assistant Professor, Department of Political Science, Galgotias University, Greater Noida.
India-Nepal Open Border System
There are at least three reasons which make borders with Nepal so special. At first Nepal is surrounded by land at all the 3222 km of its frontier, it has no access to any ocean (Hans 2010:6). This landlocked status has great impacts on the economy of Nepal, as it relies on its neighbours for importing goods from third world countries. The second is that Nepal has only two neighbouring countries, which are the countries with the biggest population of the world, China and India. Nepal's northern Himalaya region borders on the Tibetan autonomous region of China, in the south, east and west it is surrounded by India's states of Uttar Pradesh, Bihar, West Bengal and Sikkim. Thirdly, the open border between Nepal and India permits people of both countries to cross the border without a visa and to take goods, even for everyday usage across the border without paying any sort of customs. Besides the economic relations across the border, Nepal and India's people are closely tied with cultural and social threads, especially in their border areas. Therefore, the open border gives the opportunity for people to live their social life unrestricted of the frontier.

In an advance stage of political development, a well bounded ethnic entity may evolve where people and groups inside the boundary are ‘likely to exhibit ‘opportunism’ in their alliances, interaction patterns and cultural borrowings, as they seek personal and group advantage unhampered by border restrictions of rigid loyalty”  (Levine 1972:99). 
But this interconnectedness and interactions can make changes in the ethnographic profile of border areas, which may generate political risk and threats for social and cultural entity of the area and the country (IDSA 8 June 2012). People from both countries are free to enter each other’s territory from any point on the border, while the movement of goods is allowed along 22 designated transit points (Das 2008:879). People in border areas of both sides often develop a natural interdependence in case of an open border system, geographical compulsions justify the relationship. Open borders are also very much open for criminals, smugglers, terrorists and wrong doers in the absence of strong border security and management. In this way, the people with ill intentions can use the facility of open border in order to fulfil his ill purposes. 
Hence, open border has its own pros and cons. The open border system shows greater mutual trust, strong bond of relationship, natural interdependence and deeper cultural and social affinity. But the facility of the open border system can be exploited by wrong persons as well. This exploitation of the open border system can jeopardise the bilateral relationship. Often, neighbouring nation involves in allegation and accuses to each other for any worse happenings in the border region. Rather than to improvise the internal security system, for each nation, it is easy to accuse and make further allegations. The open border system is a positive development, but due to the fragile system of border mechanism and management, all the bad things are credited to the open border system. Some voices, especially concerned politicians, security establishments, and academia from each side of the border criticise the system of open border and advocate for either closing or tightly regulating the border. 
The open border system can prevail between two countries only based on mutual understanding, good neighbourly relations, religious sentiment, the same topography, social similarities, and family relationship. These factors are evident in case of India and Nepal; and that’s why the open border system has been prevailing for more than sixty four years.  Some political elites of both nations share a very close contact. In India’s long struggle for independence, many Nepalese leaders paid their contribution against the colonial ruler. Many Indian leaders too helped a lot in the process of establishing democracy in Nepal. Institutionalisation of democracy in Nepal is vital not only in Nepal but it also in the greater interest of India. This open border system has made a convenience even for officials and bureaucrats. They can roam easily across the borders and this makes them efficient to formalise any policy level advancement which is important for the bilateral relationship. The people in border areas of both sides are even connected socially with nuptial ties and they share in-laws relationship across the borders. The open border system offers the very convenient facility to them and because of it, they easily able to do their social and family duties without any bureaucratic hurdles (Shreshtha 2008).  So similar to the strong economic relations, there are close social linkages across the border. People on both sides of the border are deeply related to each other through kinship, culture and religion, which may be due to the history of the creation of the frontier and migration to the border area. The two countries are tied together in many ways, the differences are hardly visible in the border areas and entering the other country is so easy, that the national border even seem to disappear.  

The Nepal-India border, let it be repeated, stands up as the ideal frontier of South Asia. It is open, porous, and respectful of identical demography and sensibilities on the two sides allow unimpeded commerce and yet keep national identities and respects sovereignties” (Dixit K.M. 2006). 

The concept of an open border between India and Nepal was institutionalized in the Treaty of Peace and Friendship that the two countries signed in 1950. Provisions in the treaty (MEA 1999:273-75), wherein citizens of both countries are provided equal rights in matters of residence, acquisition of property, employment and movement in each other’s soil, provide for an open border system between India and Nepal. The open border system between India and Nepal has not been functioning for centuries as common people have the perception. Actually, the concept of an open border formally began in the 19th century after the delimitation of the India-Nepal boundary in 1816 and the restoration of Naya Muluk  in Nepal in 1860 (Border Issues of Nepal 17 Jan 2010). During the period of colonialism in Indian sub-continent, the British continued the open border system policy arguably by two reasons: Firstly, like Maharaja Ranjeet Singh, the English had seen the undying spirit and bravery of the Gurkha and they too recruited them in Indian Army and another reason might be economical, though small but Nepal was a new marked for the finished goods of Indian factories. Hence the British had sufficient reasons let open the border continuously. It was essential to afford unhindered cross-border movement of not only for goods but also for the people; therefore, the idea of an open border system prevailed.  

Independent India sustained this practice to nourish further the established and continuing linkages. The emergence of China and its continued interest in the region justifies India’s stand on the open border system. For the security complex of India, the Himalayas are always considered as a natural boundary / barrier, which prevent the attacks on India from the north. Nepal in its north share some portion of the great Himalayas, hence both nations are very much integrated with their security interests. The open border system hence is best suited policy decision by both countries which effectively addresses the security concerns of the two countries. Cross-border interactions through open borders has made possible over the years the fusion of ideas, religions, social customs and helps to make settlements of people in each other’s territory. Without the unrestricted flow of people across the borders, it would not be possible. In both countries, religious places and several institutions have played a very significant role in strengthening the social and cultural relations between India and Nepal. Places like Pashupatinath, Lumbini, Janakpur, and Muktinath in Nepal and Kashi, Gaya, Rajgir, and Haridwar in India are visited by people from both countries (Kansakar 2008:19).  
With the open border system, the two countries enjoy the same level of economic and trade freedom. Bilateral trade and micro level trade inputs are flourishing due to the unrestricted flow of people.  
One major aspect is the income that accrues to Nepal in the form of salaries, remittances, and pensions from the Gurkhas recruited into the Indian army. As part of the tripartite agreement between Nepal, India, and the United Kingdom, Nepal allowed the recruitment of Gurkhas in the Indian army, because it faced the burden of rehabilitating 200,000 soldiers discharged from the British Indian army at the end of World War II” (Muni 1992:180-82). 

As a landlocked country, Nepal has to depend on India to access to the sea through a passage. Maximum part of its imports has to pass through India. India, as a trading partner shares a major chunk of its global trade and is its biggest trading partner. India is the largest trading partner of Nepal in terms of both export as well as imports.  India absorbs 67.5% of total trade consisting 66.9% of total exports and 67.6% of total imports (World Bank Trade Policy Review Report 2012:13).  With the expansion of globalisation, Nepal too has accepted the impact of liberalism and consumerism. This growing consumerism and increasing aspirations of new Nepal have offered opportunities in countries like India to get benefited by the growing market in Nepal. And India is taking all the necessary steps to strengthen the Indo-Nepal trade ties even more and stable lines. Due to availability of cheap labour, Indian merchants and entrepreneurs have invested heavily in Nepal, which also offers them tax breaks for setting up joint ventures.  
On a different note, an open border system is not a good idea if the region has problems like terrorism, illegal migration, fake currency, drug trafficking and human trafficking and etc. Open border system demands continuous coordination, cooperation, and transparent intelligence sharing between the two states. The instability of Nepal in its political affairs often brings great uncertainty and it affects badly the mutual trust and bilateral mechanisms like open border system. In this scenario, the disadvantages generally outnumber the advantages of open border mechanism. Then, security analysts often reiterate the ill effects of the open border system and they advocate at the same breath the regulated border or the complete closing of the open border system. Some prominent disadvantages of this system are following: 
  • Territorial disputes and encroachments 
  • Transgression of the border by insurgents and terrorists 
  • Spilling over of domestic unrest in Nepal across the border into India
  • Cross-border illegal activities like smuggling, gunrunning, trafficking in drugs and humans, etc. (General Population Conference 2001:22). 

Cross-Border Movement of Terrorists, Insurgents, and Criminals 
An open border allows easy egress to insurgents and terrorists. In the late 1980s, at the time of inception of cross-border terrorism at larger scale, Sikh and Kashmiri terrorists sneaked into India via Nepal, as the border between India and Pakistan was fenced, making infiltration through it difficult. In later years, many insurgent groups in the northeast, such as the United Liberation Front of Asom (ULFA), the National Democratic Front of Bodoland (NDFB), and the Kamtapur Liberation Organization (KLO), also misused the open border (Shreshtha 2006:63). In 2003, these insurgent groups are reported to have shifted their base to Nepal after being chased out of Bhutan. It has also been reported that they are increasingly sneaking into the Nepalese territory and forging links with the Maoists. Their plan is to establish a safe sanctuary in Nepalese territory and engage in the supply of arms and ammunitions to various insurgent groups operating in northeast India and red corridors of the country (IDSA Comment 27 January 2014). In recent years, it has been reported that many terrorists involved in numerous bomb blasts in the country have sneaked through the porous and poorly guarded Indo-Nepal border. Yasin Bhatkal, co-founder of Indian Mujahideen had been nabbed by Indian authorities in August 2013. He was allegedly behind 11 major bomb attacks in Indian cities including New Delhi, Mumbai, Bangalore, Ahmadabad, Pune, Surat etc. That had killed many people. He was arrested from the porous border between India and Nepal. This was another big catch for Indian security agencies after the arrest of Abdul Kareem Tunda, a key Lashkar-e-Tayyaba operative and expert bomb-maker, also from the India-Nepal border on August 16, 2013 (India Today Online 29 August 2013). 
Apart from insurgents, many hard-core criminals pursued by Indian security forces escape into Nepal through the open border. There they set up criminal syndicates and smuggling gangs and carries out the smuggling of drugs, fake currency, arms, gold, and explosives (Annual Report-MHA 1999-2000). It was reported that Dawood Ibrahim visited Kathmandu several times and utilized his connections with Pakistan’s Inter-Services Intelligence (ISI), business houses, Nepalese politicians, and the criminal underworld for large-scale hawala transactions (India Today 12 June 2000). Similarly, criminal groups operating in Bihar and Uttar Pradesh use Nepal as a sanctuary from where to mastermind crimes like kidnappings, extortions, car-theft, etc. minor criminals, too, cross over to the other side to keep away from the Indian police. The growing of madrasas along the Indo-Nepal border is also a source of major concern for Indian security agencies. It is reported that nearly 1,900 madrasas have come up along the border, 1,100 in India and 800 in Nepal (Riaz 2008:187).  
Along with madrasas, many Islamic non-governmental organizations (NGOs) have cropped up in the Muslim majority areas in Terai region. Although most of these madrasas and NGOs cater to the social and educational needs of the local people and the waves of Bangladeshi migrants who are settling along the border areas, but under the influence of the ISI, in the guise of madrasas and NGOs, some are engaged in anti-India activities (John 2007:26). The use of Nepalese territory by the ISI as a base to carry out anti-India activities since the 1990s is also another matter of serious concern for India’s security establishment (Das 2011:18). The ISI has been so far able to establish a wide logistical network in Nepal to help its agents enter India to carry out insurgent activities.  
Significant investigations on the hijacking of Indian Airlines plane IC814 convincingly proved the ISI’s involvement in that episode (Press Release-MHA 2003). Intelligence reports also suggest that the ISI is funding many madrasas along the border, which are often used as a stage for anti-India propaganda and as a recruiting centre for terrorists. In the past few years, there have been reports alleging the ISI’s involvement in pumping fake currency notes into India to destabilize its economy. Arrests of persons involved have provided clues into how many Nepal-based criminal syndicates are used by the ISI to smuggle in fake currency through the open Indo-Nepal border (The Indian Express July 03 1999). In 2005–2007, Pakistan and China had shown interest in opening consulates in the Terai. This was, however, not permitted by the Nepalese government on India’s request. The fact that Nepalese soil, which is misused by external agencies, is corroborated by the patterns of global terrorism and assisted by many non-state actors (Nepal Press Digest 2001:490).  
The terrorist and Maoist rebels have gained benefits from the open border. They have misused it for the transaction of illegal arms and ammunitions. However, the common people of Nepal and India fear insecurity for their life and property. Not only the Indian and Nepali nationals cross the porous border without any restriction, but these days some Pakistani, Bangladeshi, Sri Lankan and even Afgan and Iranian nationals infiltrate into Nepalese territory, misusing the open border to some extent (Border Nepal, 25 May 2011). Their similar face, attire, posture and behaviour resemble the Nepalese and Indian nationals. Some of the Pakistani, Iranian, and Myanmar infiltrators are in quest of refuge in mostly western nations through the United Nations High Commissioner for Refugees (UNHCR) office in Katmandu (Shreshtha 2008). In one sense, the porous border has helped to initiate rebellious activity in both nations to some extent. Therefore, Indo-Nepal open border management system is going to be difficult for the common people of both countries.  
Unrestricted migration over the years has produced territorial pockets dominated by people originating from the other country. According to official estimates, there are 2.2 million Nepali citizens residing in India (Border Management 2004:60) Unofficial estimates put the figure at approximately 6 million. Nepalese generally comes to India in search of better employment opportunities. There are three types of movements from Nepal. The first is that of people who come on a daily basis to buy goods for domestic needs. Such movement is usually confined to the border region. The second type is that of seasonal migrants, who generally travel to India to find work during agricultural off-seasons. The third type of migrants moves on a long-term basis and generally settles down in India. In the second and third cases, migrants spread out both to neighbouring areas as well as further away from the border (Nepal’s Troubled Tarai Region 2007:23). In recent years, due to the intensification of the Maoist movement and the consequent threats to their livelihood and security, the number of Nepalese migrating to India has increased (Regugee International 2007). The net effect of such migration, in extreme cases, is the clamour for a ‘homeland’, as was witnessed in the hill district of Darjeeling adjoining the Indo-Nepal border. In the 1980s, these Nepali speakers demanded a separate homeland under the aegis of the Gurkha National Liberation Front. It is believed that the agitation received support from across the border (Indian Express 2 February 1998). 
A similar phenomenon is also unfolding in Nepal’s Terai region, which is preponderantly inhabited by Madhesis. Madhesis are of Indian origin and constitute a substantial portion of the population in the Terai region. They are highly dissatisfied with their present state of affairs and are agitating for a fair representation in Nepal’s political, administrative, and military establishment (IPCS 12 August 2013). If this problem is not addressed urgently, the incipient Madhesi movement might flare up into a major secessionist movement in Nepal. An open border and a sympathetic population across the border, along with repressive government measures, could lead to its spilling over into India, causing severe unrest in the border region.  
Illegal activities, such as the smuggling of essential items and fake Indian currency, gunrunning, and trafficking in drugs and people, are quite rampant along the Indo-Nepal border. Smuggling of essential items from Nepal to India takes place because of the differential tariff rates that prevail in the two countries. This problem is compounded by Nepal’s decision to import these goods far in excess of its requirements. A portion of these goods get diverted to Indian consumption centres even before entering Nepal. In addition, a number of other items are smuggled in, including Ganja and hashish, different types of herbs, vegetable ghee, and cardamom, as well as goods from third countries. Conversely, urea, sugar, industrial explosives, gutkha, etc. are being smuggled from India into Nepal (Annual Report-MEA 2012-13:30-31).  
The Indo-Nepal border is an easy route for the smuggling of arms and ammunition as well. Arms ranging from sophisticated AK47s and 56s to country-made weapons are smuggled across the border through the districts of Pilibhit, Lakhimpur Kheri, and Bahraich. Insurgencies in the two countries and the emergence of criminal gangs, especially in the states of Bihar and Uttar Pradesh, create demand for these weapons. Various Indian insurgent groups, Maoists, various criminal syndicates, and individual couriers are actively involved in such arms smuggling (Anuual Report –MHA 2012-13).  

Another illegal activity that has emerged as a major concern for law enforcement agencies is the trafficking of women and children from Nepal. Hundreds of women and children are smuggled in from Nepal for commercial exploitation (Pradhan 2007). According to some estimates, approximately 200,000 Nepali women are in Indian brothels and nearly 7,000 Nepali girls are sold in India every year. This trafficking takes place, especially via the border districts of Bihar and Uttar Pradesh. A voluntary group has mapped around 1,268 unmanned routes along the Indo-Nepal border, which facilitate human trafficking (The Hindustan Times 2008, February 20). 

Demands for Closing the Open Border 

The adverse consequences of an open border have led from time to time to demands for its closure. A demand for closing the border first came from people in the northeast, who did not view favourably the continued migration of Nepalese into their region. Nepali migrants in the northeast basically followed the Gurkha soldiers who were recruited by the British Indian army to guard the north-eastern frontiers. These settlers worked as labourers in the coal mines, oil refineries, and tea plantations, and also as dairy farmers and kitchen helpers. There was harmony between them and the locals till the late 1970s, after which the ‘sons of the soil’ movement swept Assam and the adjoining states. Locals began to express resentment at the presence of Nepali ‘foreigners’ amongst them and demanded their expulsion. The agitation against the Nepalese first started in Assam and then spread to other states. 

In 1980, violence against Nepalese was witnessed in Manipur for the first time. Meghalaya soon followed suit. In 1986–1987, in Shillong, Jowai, and other parts of Meghalaya, Nepali settlers were targeted and hounded out of the state. Such violence also spread to other states, such as Mizoram and Nagaland. All this resulted in a large-scale exodus of Nepalese from these states (Nath 2006:44).  
In subsequent years, the misuse of the open border by criminals, terrorists, and smugglers provided the spark for the demand to close the border. The ISI’s increasing use of Nepalese territory to launch anti-India activities have provided further ammunition to such a demand (Parliamentary Debates 2003). Advocates of this course of action argue that security considerations, one main reason for keeping the border open, no longer exist given the improvement in Sino-Indian ties. Moreover, given that international crime and cross-border terrorism have now become fundamental security concerns, an open border is seen as a hindrance in tackling these threats. 

In the case of Nepal, it has been a more vocal proponent of a closed border (Das 2008:888). The Nepalese people have generally been apprehensive about being inundated by Indian migrants through the open border. This fear has been compounded by the fact that it shares borders with two of the most densely populated Indian provinces, Uttar Pradesh and Bihar. These states also suffer from intense population pressure on agricultural land and provide meagre employment opportunities – factors that invariably force people to migrate in search of land and economic opportunities. Everybody in the border area has not social relations with India or does not get the benefits of the open border. A special example is the Tharus, an ethnic group living spread across the Terai. Many Tharus are rice farmers and as people have the possibility to purchase cheap rice in India; it is hard for them to get good prices on rice. Generally, Tharus don’t have social relations across the border. They do not appreciate the open border system. Politically, two sorts of views are generally prevailed (Hans 2010:23). One favours an open border system and others are against it. Obviously, there are two possibilities of judging the open border, a positive and a negative one. Both are deeply connected to different images of Nepal-India relations and constructions of the two states. There are different perspectives on the border and on India, some people feel close to India, for some it seems to be a threat.  

Given the close social, economic, and cultural linkages that exist between the two countries, closing the border is not a sensible or feasible proposition. Such a step would be a retrograde and adversely affect people at the individual level as well as the economies of the two countries. A more prudent step would be to better manage and regulate the movement of goods and people across the border. Aware of the enormous costs involved in closing the border and realizing that what is actually needed is better management of the border, the government of India has been adopting a three-pronged approach in this regard. Firstly, it has put in place, along with its Nepalese counterpart, bilateral mechanisms to better manage the border in a coordinated manner. Secondly, it has begun to deploy security forces to supplement state forces that hitherto have been principally engaged in guarding the border. And thirdly, it has begun to initiate the building up of better infrastructure in the border regions to improve connectivity and enhance the accessibility of these areas to security forces.
An open border has proved beneficial for both India and Nepal. It has resulted in the forging of close social-cultural ties and economic interdependence has made their relationship special. The open border can be the symbol of friendship and cooperation between the two countries and for closer economic and social relations with the local population, as well as it can symbolize a threat to personal business and for the independence and security of the nation. The existence and contents of these different views also gave the impression of an internal separation in Nepal and the importance of being original Nepalese. Presently, India and Nepal both have new security concerns and challenges to meet. For India, the ISI of Pakistan using Nepal as a launching pad for terrorist activities in India is becoming an issue of grave concern. The open Indo-Nepal border facilitates free movement of such people once they reach Nepal. Here it is not the open border, but weak governments, who do not cooperate in an adequate way, which lead to border problems. Now in the changing scenario, one can expect better coordination at diplomatic level and better cooperation at policy and population level between India and Nepal in order to get benefitted mutually with their borders.


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