Tuesday, June 10, 2008

Nepal’s new Constitution: Lessons from India

Media analyses of the historic change taking place in Nepal have focused attention on the fall of the kingdom, the rise of the Republic, and the lessons for India from the Maoists’ success in joining the political mainstream. As Nepal’s Constituent Assembly gets down to frame its new Constitution, the Indian experience in working its Constitution is bound to cast its shadow on the contours of Nepal’s Constitution.

It is in this context, I found Abhishek Singhvi’s article in Indian Journal of Public Administration (Vol.LIII, No.4, October-December 2007) very insightful. It would have been better if Singhvi, a columnist himself, chose this subject for one of his columns, in order to reach out to wider readership. But probably he thought he would do justice to the subject in a professional journal, which is yet to have an online presence.

The article titled ‘Federalism’, begins with an elaborate discussion of key aspects of Indian experience with federalism. In the second part, he deals with ‘Lessons for Nepal’. To quote him, “While making a threshold voluntary disclaimer regarding expertise on Nepalese affairs, the author suggests that, at least as an outsider, it appears that adapted Indian federalism, minus its several drawbacks and vitiating elements, may be a valuable starting point for future models of Nepalese federalism.”

Here, I will sum up some of the interesting ideas put forward by him in the article:

• If Nepal chooses to adopt the broad scheme of legislative power by adopting three lists similar to the Indian scheme, it may choose, unlike India, to place residual powers of legislation in the state list (in Nepal, it would be the proposed autonomous regions based on different factors like ethnicity, geography, language etc.) and not in the Parliamentary list, subject to the fact that residuary legislative power in regard to taxation alone may be put in the Parliamentary list. This recommendation of the Sarkaria Commission, not implemented in India, would be a desirable change to put greater federal momentum under the new constitutional scheme.

• Secondly, an intergovernmental council or other similar consultative mechanism must not only be created for regular meetings of federal and constituent units, but unlike India, its meetings should be legally mandated at intervals of not more than two months each and its recommendations should be made binding, unless reasons in writing are recorded by the central government for not acting upon the recommendation within a time bound schedule. Such reasons in writing must additionally receive affirmative parliamentary approval at least by resolution.

• Article 256 of the Indian Constitution, empowering the Central Governemnt to “entrust either conditionally or unconditionally” to a state government (subject to the latter’s consent) any function “in relation to any matter to which the executive power of the Union extends” is a salutary provision. Nepal could consider including similar counterparts but should use it much more liberally than India has done.

• Whether Nepal chooses the model of having states at the regional level or autonomous councils at a more decentralized level or both, the question may well arise as to whether any central government representative or emissary is at all required for the governance of the regional or sub regional unit. The need for a Governor would be a debatable issue. Even an emergency intrusive power akin to President’s rule under Article 356 would not justify the creation of a permanent post akin to that of the Governor, as a Central government representative can be dispatched to the individual unit for such intervention. “I would therefore incline to the omission of such a post altogether”, says Singhvi. It is virtually impossible to police and implement the subjectivity inherent in the appointment of governor, he says.

• A potential All Nepal Service should prevent the monopolization of the best within the All Nepal Service by the Central Government as has unfortunately happened in India.

• The Inter State River Water Dispute Tribunal award, should ipso facto and ipso jure be given the same force and sanction as a decree of the apex court to make it binding.

1 comment:

aandthirtyeights said...

Very interesting points. Is there any way one can access this article anywhere?

On another note, if I remember correctly, the old Nepal Constitution did have a provision in it with something similar to the basic structure doctrine. Wonder if that will continue to exist...