Siddhi B. Ranjitkar: Nepal-India Treaties
By Siddhi B. Ranjitkar
Nepalese political parties have been advocating for revising the Nepal-India Peace and Friendship Treaty of 1950 since a long time. However, they often forget to do so when they are in power. The leaders of the Communist Party of Nepal-Maoist (CPN-Maoist) also have been propagating for revising the Treaty of 1950. After securing the majority seats in the upcoming Constituent Assembly, and the possibility of having its major say in the government, probability of the CPN-Maoist revising the treaty has increased. The treaties signed by both the past governments of India and Nepal, have been unequal and patronizing; therefore, the need for revising the treaties.
Recently, in response to the demand of the CPN-Maoist for revising the Treaty of 1950, the Indian foreign ministry officials have publicly said that the Government of India has been ready to rework the Treaty of 1950. The Nepalese experts in foreign affairs have said that India has geared up the review of the Treat of 1950 even in 2001 but the Nepalese side has not taken up the issue seriously since then and has remained the possible revision of the treaty idle.
For various reasons, there has been a need for amending the Treat of 1950. First of all the treaty was signed by the last hereditary Rana Prime Minister and the Government of India practically in the interest of the Rana Prime Minister not in the interest of the Nepalese people. Second, both the then-Nepalese Prime Minister and the Government of India signed the Treaty of 1950 to suit the international political situation of that time. Third, certain clauses of the treaty have made it an unequal treaty.
Currently, the international political scenario has been quite different from what was in 1950; the Nepalese Government has been the Government of the People not of a single clan. So, both the Government of Nepal and the Government of India need to amend the Nepal-India Peace and Friendship Treaty of 1950 for making it mutually beneficial.
Let us see what are the major provisions made in the Treaty of 1950. Some Articles of the Nepal-India Peace and Friendship Treaty of 1950 signed on July 31, 1950 are as follow: 
Article I: The two governments agree to acknowledge mutually and respect the complete sovereignty, territorial integrity and independence of each other.
Article II: The two governments hereby undertake to inform each other of any serious friction or misunderstanding with any neighboring state likely to cause any breach in the friendly relations existing between the two governments.
However, certain major provisions are hidden in the letters of exchange made by both the Governments of Nepal and India. For example, the letters exchanged between Nepal and India and attached to the Treat of 1950 stated, “Neither government shall tolerate any threat to the security of the other by a foreign aggressor. To deal with any such threat, the two governments shall consult with each other and devise effective counter measures.” This provision came to light only after ten years when Former Prime Minister of India Jawaharlal Nehru made a statement concerning an incident in Nepal.
Article V recognizes Nepal’s rights to import “arms, ammunition or warlike materials and equipment necessary for the security of Nepal.” Though this article of the treaty contained the provision that the procedures “for giving effect to this arrangement” would be worked out through joint consultations, no formal or procedural restriction was ever imposed on Nepal’s rights to acquire arms. However, the contents of the letters exchanged and attached to the Treaty of 1950 restricted the import of arms and ammunition from third countries to Nepal through India as long as India could supply arms and ammunition as required by Nepal.
Article VI lays down that “each government undertakes in token of the neighborly friendship between India and Nepal to give to the nationals of the other in its territory, national treatment with regard to participation in industrial and economic development of such territory and to the grant of concessions and contracts to such development.”
It was stated in the letters exchanged that “in regard to Article VI of the Treaty of Peace and Friendship which provides for national treatment, the Government of India recognizes that it may be necessary for sometime to come to afford the Nepalese nationals in Nepal protection from unrestricted competition. The nature and extent to the protection will be determined as and when required by mutual agreement between the two governments.”
Nothing was done subsequently to determine the nature and extent of protection to be given to the Nepalis as nationals of a relatively underdeveloped country according to the author Mr. Shaha.
Article VII guarantees the nationals of one country in the territory of the other reciprocity in the manner of “residence, ownership of property, participation in trade and commerce, movement and privileges of a similar nature.”
Despite this provision made in the treaty of 1950, the Government of Nepal was not in a position to allow unrestrained immigration of Indian nationals into the country. The Government of Nepal had always had a law forbidding the sale of land to foreigners including Indians according to the author Mr. Shaha.
Nepal, India and Britain signed a tripartite deal in 1947. “A separate tripartite agreement signed by Nepal, India and Britain in November 1947 provided for the retention of the specific number of the existing Gorkhas battalions by India and Britain and for the continued recruitment of Nepali nationals for the Indian and British armies.” 
Under this tripartite agreement, Nepal allows Gorkhas to work in the British and Indian armies. Currently, nearly 40,000 Nepalese Gorkhas are working in the Indian Army. There is a possibility of fighting Gorkhas against Gorkhas if Nepal continues to permit Nepalis to work for the British Army. So, terminating the agreement on this matter with the British is urgently needed.
The Government of British East India Company signed an unbalanced agreement with the then Government of Nepal after the war between Nepal and the British India in 1816. After the decisive war of 1814-1816 between Nepal and British India, the Government of East India Company forced the Government of Nepal to sign an unequal treaty with Nepal in 1816 that was known as the Treaty of Sugauli, as it was done in the area called Sugauli. According to the author Mr. Shaha, the Treaty of Sugauli of 1816 deprived Nepal of one-third of its territory. The Government of Nepal lost its rights to choose advisors from any country it liked. . This provision made for the restriction of hiring foreign advisors was also hidden in the Treaty of 1950 under the exchanged letters.
Nepal and Great Britain signed a new treaty in 1923. “Article 3 of the Treaty of 1923 also provided for close consultation and cooperation between Nepal and Great Britain through exchange of information should any serious friction or misunderstanding arise between the signatory states and their neighbors. Article 4 obliged each of the High Contracting Parties to use all such measures as it may deem practicable to prevent its territories being used for purposes inimical to the security of the other.” 
The Nepal-India Treaty of 1950 was probably the hybrid of the Treaty of Sugauli of 1816 and of the Treaty of 1923. Instead of improving the unequal deals of the past, the Government of India made a new deal with the then-weak Government of Nepal to act as a patronizing partner rather than correcting the unequal treaties signed in the past, and included some provisions made in the past agreements in it making the agreement between unequal partners.
Shortly after the Treaty of 1950 and following the Article that stated, “the two governments hereby undertake to inform each other of any serious friction or misunderstanding with any neighboring state likely to cause any breach in the friendly relations subsisting between them”, India and Nepal set up military checkpoints along the Nepal-Tibetan frontiers manned jointly by the Indian technicians and Nepalese military personnel.  However, the Government of India pulled the Indian technicians out of the Nepal-Tibetan borders and its military liaison at its embassy in Kathmandu at the request of Nepal in August 1970.
In October 1956, Indian President Rajendra Prasad addressing the audience of the participants in the banquet hosted in honor of the visiting president said, “any threat to the peace and security of Nepal is as much a threat to the peace and security of India. Your friends are our friends and our friends yours.” This statement of the Indian President provoked strong criticism in the Nepalese political circle and some of the politicians went to the extent of accusing India of reducing Nepal to a status of her satellite. 
On April 13, 1959, Indian Prime Minister Jawaharlal Nehru said, “From time immemorial the Himalayas have provided us with a magnificent frontier. Of course, they are no longer as impassable as they used to be; but they are fairly effective. The Himalayas lie mostly on the northern border of Nepal. We cannot allow that barrier to be penetrated for it is also the principal barrier to India. Much as we stand for the independence of Nepal, we cannot allow anything to go wrong in Nepal or permit that barrier to be crossed or weakened because that would be a risk to our own security.” 
On June 28, 1960, Prime Minster of India Jawaharlal Nehru made a public statement that any attack on Nepal would be regarded as an attack on India referring to an incident occurred in Mustang, Nepal.
In response to the Indian Prime Minster’s statement the then-Prime Minister of Nepal B. P. Koirala stated, “Nepal is a fully sovereign independent nation. It decides its external and home policy according to its own judgment and its own liking without ever referring to any outside authorities. Our Treaty of Peace and Friendship with India affirms this. I take Mr. Nehru’s statement as an expression of friendship that in case of aggression against Nepal; India would send help if such help was ever sought.”
Prime Minister of India Nehru responded the Nepalese Prime Minister Koirala’s statement as follow: I think that the Prime Minister of Nepal Mr. B. P. Koirala has said is completely true. The statement I made struck many people as perhaps a novel statement but it was merely stating what the position has been for the last ten years, you may say even more than ten. I am saying ten years because there was a treaty ten or nine years ago with Nepal. . Prime Minister Nehru was referring to the provision made in the letters attached to the Treaty of 1950.
In 1965 the then Prime Minister of Nepal Kirtinidhi Bista stated that India had not consulted Nepal either at the time of the Sino-Indian Armed Conflict of 1962 or during the Indo-Pakistan war of 1965, the commitment to the mutual security based on the Treaty of Peace and Friendship of 1950 had fallen into disuse and by the same token were no longer binding on either party.  If the India had requested Nepal to join the wars in question Nepal needed to oblige to send its troops following the provision made in the letters exchanged, and attached to the Treaty of 1950.
A new phase of the Indo-Nepalese relationship was set when Indian Prime Minister Mrs. Indira Gandhi visited Nepal in February 1973 and demonstrated the India’s new position on the Indo-Nepalese relationship after the Bangladesh war of 1971. She reminded the Nepalese Prime Minister of “we have to appraise each other of important developments” following the Indo-Nepal Treaty of 1950, and asked Prime Minister of Nepal Kirtinidhi Bista to inform her about his visit to China in the previous November. After some hesitation, Nepalese Prime Minister Bista complied with the demand of the Indian Prime Minister. 
It was quite clear that Indian rulers wanted to make Nepal a buffer state. So, they kept real influence over the Nepalese rulers in the past. Indian Prime Minister Indira Gandhi even bullied Nepalese Prime Minister Kirtinidhi Bista into telling what he had discussed with the Chinese leaders when he visited China. It was too much for the Prime Minister of independent nation. All these things certainly warranted the review of all the treaties Nepal have had with the Government of India in the past.
Current Government of Nepal needs to state all the treaties signed by the British Indian Government and then the Government of India with the Government of Nepal at various times are null and void. Then, a new treaty should be signed between Nepal and India. A new treaty should be a revised version of the treaty of 1950 based on the principles of no interference in others’ affairs. Nepal as a landlocked country should have an access to the sea and the free passage following the international covenants.
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