Since the Muluki Ain of 1910, Nepal has drafted four constitutions under different regimes and today, we impatiently await a new one after a failed attempt disappointed us for five years. Naturally, this situation led to curiosity about Nepal’s previous constitutions. One of the articles in the Panchayat Constitution of 1962—namely, Article 3 (1, 2a, 2b)—is an interesting one to discuss. The article states: “The territory of Nepal shall comprise: (a) the territory existing at the commencement of this Constitution; and (b) such other territory as may be acquired after the commencement of this Constitution.” The subsequent constitutions of 1990 and 2007 both continued with the inclusion of this article. 

Why would a state like Nepal, so limited in size and geography and with a relatively poor military strength, pose itself as expansionist? This article in the constitutions no doubt came to the attention of our two powerful neighbours and may even have created a minor security dilemma. 

Expansionist desires

The article itself sounds naive. But it is quite obvious that the article is reflecting on the territories—one-third of the then size of the country—Nepal ceded to the British after its defeat in the 1816 Anglo-Gurkha War via the Sugauli Treaty, which virtually locked and restricted Nepal from maneuvering in any direction. This colonial strategy was later continued by India after independence. Why would Nepal carelessly provoke security concerns in our neighbours with such a clearly expansionist clause? Even if expansion was its objective, it would be counterproductive to portray itself as such. Or was it simply a misguided attempt to assert territorial integrity and sovereignty? 

It is possible that Nepal carried real aspirations to restore the territories ceded with faith in international bodies like the United Nations. 

However, no official diplomatic attempts were initiated to gain back the lost territories. There seem to be a number of underlying reasons—socio-political, personality-based and global —that prevented a peaceful claim to the lands, in spite of a seemingly genuine desire to do so. The relevant periods can be seen through the lens of the kings who led Nepal: Mahendra, Birendra and Gyanendra.

Never a right time

Mahendra was the first king to enthusiastically insert this article into the constitution, about a century and a half after Nepal’s first expansionist tendencies were curtailed by the British. During Mahendra’s Panchayat regime, both the domestic social system and the international context of the Cold War were highly challenging and thus, seem to have influenced Nepal’s decisions to not pursue a territorial claim. Mahendra, however, paid great attention to national integration and the assertion of a singular national identity. Given the prevailing context of the time, his actions might have made some sense, with the 1971 India-Pakistan War that led to the separation of Pakistan and Bangladesh, and the older but unforgotten bloodshed of the India-Pakistan Partition. As a smart statesman, Mahendra understood the severity of an unconsolidated nation and incomplete national integration. Thus, the conditions were not favourable to looking beyond borders; instead, the concern was to assure the survival and territorial integrity of the state itself by first solving problems at home.

Birendra’s period (1972 -2001) had similar but arguably larger challenges. At home, he was restricted by the Maoist insurgency, the rise of ethnicity in socio-political movements and an crippling economic blockade imposed by India in 1989. In neighbouring India, the peaceful annexation of Sikkim without any international objection only confirmed the international climate propagated by the Cold War. With Tibet under China and Sikkim under India, Nepal was understandably concerned about its own survival. 

Against such a backdrop, there was no political space to attempt any extra-territorial claim, even a peaceful one. Furthermore, the influence of international diplomatic and judicial bodies were limited greatly by the Cold War. After Birendra perished in a horrific palace massacre, Gyanendra had little time to consider anything other than consolidating his own rule and ensuring the sustainability of the Shah dynasty. Obviously, he failed on both counts.

So even if the article had been inserted with a legitimate aim to regain lost territories, prevailing circumstances did not allow for the pursuit of that aim. The clause was inserted for the first time in the constitution after the dissolution of democracy and the institution of Mahendra’s direct rule in 1962. This was when Mahendra, and a significant section of Nepalis, were tired of the government’s dependency on India and wanted to assert their identity and autonomy in decision-making, independent of foreign influence. It seems that astute Mahendra, taking note of this common desire, devised this particular constitutional clause for his own interests. 

There were namely two benefits from this course of action. First, the clause helped inflame anti-Indian sentiments and lent Mahendra the moral support to facilitate his direct rule and sustain it for 16 years. Second, the clause acted as a reminder to the Nepali people of the Shah dynasty’s legitimacy as the ruling clan, as it recalled Nepal’s expansionist history. Also, having been raised amid the intrigues and paranoia of the Rana regime, Mahendra wished to remind  Nepali that they owed their existence to the Gorkhali Shah dynasty while further delegitimising the Ranas.

Asserting identity

So why did this clause persist even during democratic regimes, after the overthrow of the Panchayat? The constitutions of 1990 and 2007 both continued with the article, and this seems to once again have been closely related to Nepal’s socio-political reality. The expansionist clause directly reminds us of the contribution of the ‘core’ hill castes. Core identities are those who proclaim to have enabled the formation of a state and provided legitimacy for the state to exist as an entity in the first place. Nepal was, until 2007, highly discriminatory and exclusionist, whether in political or administrative participation. It is no secret that high-level positions of authority were mostly occupied by hill identities. As Nepal’s political parties primarily consisted of hill Brahmin-Chettris who enjoyed privileges in the social and political arena, the incorporation of this article served to sustain that privilege. 

It cannot be authoritatively asserted whether the inclusion of the article was a literal expansionist expression or whether it was simply a tool to pursue entrenchment and legitimisation of the ruling classes. Both the internal and external environments were never suitable for Nepal to pursue peaceful claims to previously ceded territories and the Shah dynasty has since been relegated to the pages of history. 

As the writing of the new constitution is currently ongoing, lawmakers need to take note and decide whether this clause deserves a place in our upcoming constitution. Its incorporation may demonstrate a renewed committment to the past and serve as a flashback to Nepal’s early history of expansion while providing ethnically divided Nepal with a reason to remain unified.

Pandey holds a Masters in International Relations and Political Science from Universidade Fernando Pessoa, Portugal