The Supreme Court has issued a directive order to the government to review and replace the 1947 tripartite agreement with a bilateral deal with the United Kingdom to safeguard Gurkha soldiers’ rights and benefits.

Releasing the full text on a writ petition filed by Bhim Bahadur Limbu Tawa, convener of the British Gurkha Satyagraha Struggle Committee, and Lal Bahadur Ghising, the chief advisor of the committee, a joint bench of Hari Prasad Phuyal and Mahesh Sharma Poudel on Thursday stated that given the current circumstances, Nepal government should review the tripartite agreement and work towards a bilateral agreement with the UK, and recommended that a study should be conducted on the relevance of the agreement.

“So efforts should be made to revise it to protect the interests of Nepal, Nepali citizens, and Gurkha soldiers by entering into a bilateral agreement [with the United Kingdom],” the apex court said.

In the petition, Tawa and Ghishing had named the Office of the Prime Minister and Council of Ministers of Nepal, the foreign minister, and the defense minister as defendants. The petitioners had requested a directive to review the 1947 tripartite agreement for Gurkha recruitment and convert it into a bilateral agreement between Nepal and the UK, as recommended in a parliamentary committee report. They also demanded that the government form a negotiation committee chaired by the foreign minister to resolve the issue.

In June 2019, ahead of the then prime minister KP Oli’s visit to the UK, a letter was sent to the British government requesting a review of the tripartite agreement. In February 2020, the Ministry of Foreign Affairs sent an official proposal seeking a review.

In its 71-page text, the Supreme Court has suggested an eight-point guidance for addressing the grievances of Gurkha veterans, particularly their demand for equal perks and pensions equal to their British counterparts.

The court has stressed that although foreign policy matters are sensitive, the judiciary has the authority to monitor actions of the executive and safeguard citizen’s rights.

However, the court dismissed the petitioners’ request to halt the recruitment process until a new agreement is made.

The Supreme Court acknowledged that due to the sensitivity of foreign policy and diplomatic complexities, it is not appropriate for the judiciary to directly intervene in the executive’s decisions, but given that this matter involves citizens’ rights, a directive was deemed necessary.

The court noted that the tripartite agreement failed to adequately protect the welfare and rights of Gurkha soldiers due to “unequal power balance.” The court emphasized that colonial-era agreements should not perpetuate unjust practices today, and called for diplomatic efforts to resolve the issue.

“Seventy-eight years have passed since the tripartite agreement, yet no review has taken place. At the time the agreement was signed, the regiments were divided between India and the UK, so it was natural for India to be included. However, since the Gurkha regiments of the UK and India are now separate, it is no longer appropriate to apply the ‘Indian Code’ conditions to Gurkha soldiers. While India was a party to the tripartite agreement, it no longer makes sense to maintain its position in the present,” the court said.

The Supreme Court emphasised that, in light of the current circumstances, it would be timely to amend the tripartite agreement into a Nepal-UK bilateral agreement that addresses the interests and demands of both parties.

It also warned that continuous discrimination against Gurkha soldiers would automatically allow Nepal to limit or terminate its obligations under the principle of reciprocity.

Recently, Gurkhas veterans also issued a fresh ultimatum to the British government warning that if there is no progress in three-way talks involving the Nepal and UK governments and agitating Gurkhas by March-end, they would resume protests and demonstrations both in Nepal and the UK.

On January 16, Krishna Bahadur Rai, chief coordinator of the British Gurkha Satyagraha United Struggle Committee, wrote to British Prime Minister Keir Starmer, asking him to fulfil their demands by March 31.

Rai has questioned if the 80-year-old tripartite agreement is justiciable under English law and the legal basis for recruiting Nepali men into the British army since 1948.

“We humbly request a political and diplomatic resolution leading to an amicable and mutual solution to honour the commitments outlined in the 1947 Tripartite Agreement that states that ‘the terms and conditions’ at the final stage do not prove detrimental to the interest and dignity of the Nepal Government,” reads the letter sent by Rai to the British prime minister.

In its eight-point guidance to the government, the apex court has instructed it to take further steps for result-oriented talks with the UK government regarding the issues of former Gurkha soldiers through high-level diplomatic channels.

Similarly, the court also ordered to confirm the actual number of Gurkha soldiers who lost their lives or were injured during the First and Second World Wars and to initiate diplomatic efforts to provide necessary compensation and redress to their families. The third point emphasises the need to take steps for equal pensions and service facilities for Gurkha soldiers who retired before 1997.

As per the Cabinet decision of 28 February 2022, Nepal and UK held four rounds of talks in London as stated by a 2018 Technical Committee Report on Gurkha Veterans.

“By 31 March 2026, we urge the UK Government to present a schedule of solutions to address all demands outlined from our talks based on the 2018 Technical Report,” reads the letter sent by Rai.

In the fourth point of the guidance, the Supreme Court has instructed the UK government for the actual data on current and retired Gurkha soldiers and to make arrangements for the Nepal government to also keep track of this data.

The fifth point says the Nepal government should receive the number of Nepali citizens recruited for the British army, and a separate body should be established to coordinate recruitment and manage Gurkha appointments, ensuring the process is transparent.

The order also calls for modifying the existing pension arrangement, under which former Gurkha soldiers currently receive payments through India, and ensure that pensions are directly sent from the UK to Nepal. The eighth point directs the government to take necessary and appropriate measures to protect the rights and interests of Gurkha soldiers.

The Supreme Court clarified that the issue of reviewing bilateral treaties and agreements between the two countries, as well as resolving them through diplomatic efforts, falls within the scope of executive responsibilities.

The Supreme Court also mentioned that issuing a writ as demanded by petitioners would be technically difficult.

“As long as there is a procedural remedy available, issuing an order to intervene in the actions of other state bodies could create further problems,” the Supreme Court stated.

But the British government officials have been stating that since 2007, Gurkhas have received the same pension under the Armed Forces Pension Scheme as the rest of the UK Armed Forces.

During a recent question-answer session in the British Parliament, British Defence Minister Louise Sandher-Jones had said that for Gurkha veterans who served prior to 2007, the 1948 Gurkha Pension Scheme generally provides comparable or better pension outcomes.

“For those who served prior to 2007, for the large majority, the 1948 Gurkha Pension Scheme provides a pension at least as good, and in many cases better, than that given to their British counterparts with identical periods of service,” she had said, according to the UK Defence Journal.