Enforce SC Verdict On Border Regulation


Border management is a type of arrangement in which passengers cross the boundary of one nation and enter the adjoining one without any hassle. It is to facilitate the cross-border movement of people, goods and services in a legitimate way. Different countries have adopted one of the three different systems of managing their borders vis-à-vis their neighbours. It is either the open border system or regulated or close border system.

Open border refers to a system where a traveller of one country can visit and move around in another country without any restriction and interrogation. The regulated border system is an arrangement under which a traveller or a visitor from one country must produce valid travel documents before the immigration officials, while entering into another country. Closed border is a system whereby a ban is enforced. No traveller can cross the border and enter the neighbouring country, no matter how valid travel documents he/she might have possessed.

A regulated border system has been adopted between Nepal and China. However, inhabitants of 30 kilometres of the frontier can travel to other side to see relatives, showing ID card to the border control authorities. Nepal-India border is open since long. It was brought into operation with good intention, but it has been misused by unwanted elements. Both the countries are facing various challenges of the open border directly or indirectly and knowingly or unknowingly. 

Court verdict

In the above-mentioned subject matters, the Supreme Court has ordered in the name of nine concerned ministries, including Office of the Prime Minister, Ministry of Foreign Affairs, Defence, Finance, Home Affairs, Law, Justice and Parliamentary Affairs, Tourism and Culture, Forest and Environment and Land Management. The SC has recently released the full text of the mandamus order issued two years ago. In response to a writ petition, filed by senior advocate Dr. Chandra Kanta Gyawali, this writer and other three advocates, the apex court justices Prakash Man Singh Raut and Purushottam Bhandari issued the verdict.

The court verdict could be summarised in ten points. First, the concerned authorities must make extra arrangements for effective regulation of the open border between Nepal and India by initiating a review of the treaty agreement between two countries. Second, it has to fulfil the responsibilities in accordance with the constitution of Nepal and other existing laws, international laws, bilateral treaties and arrangements to be reached between Nepal and India to protect Nepal's territorial integrity, independence, sovereignty, nationality, self-respect and rights and interests of Nepali citizens. Third, the security agencies should make effective security system at the border-crossings and make the travellers entering Nepal show their official identity cards at the immigration office or security agencies. Fourth, it has to keep records of the same to regulate and manage the movement in the border areas. 

Fifth, the government should set up designated border crossing-points, using technologies such as drones and CCTVs for effective surveillance to make the monitoring by security personnel. Sixth, to expand and strengthen further relations between two countries, border issue should be resolved through dialogue, understanding, co-operation, equality, trust and respect, in a way not to let be raised the issues again. Seventh, the government cannot be shy away from its responsibility to control illegal activities at the border, citing tradition or any other causes. Eighth, congenial atmosphere should be created between Nepal and India through high level experts and border diplomatic mission.

Ninth, the government agencies should sign additional treaties and agreements, if needed, based on equality and mutual interests through political and diplomatic initiatives, to ensure effective management and regulation of the open border between Nepal and India. 

Tenth, it has become necessary to stop illegal and criminal activities, taking place in the bordering areas. Manage people's movement across the international border and to deal with them locally, provide local language training to the staff working at the customs offices and the security personnel deployed at the border points. These are pertinent items as mentioned in the verdict.

The SC verdict is relevant on the security concern of both Nepal and India as per the need of time. Actually, the open border has more or less challenged the security system of both the countries. Abdul Karim Tunda, one of India's most wanted top twenty Lashkar-e-Taiba terrorists and mastermind of 1993 Mumbai bomb blasts and Yasin Bhatkal, co-founder of the Indian Mujahedeen, a militant group banned in India were arrested by Nepal Police in Kathmandu and Pokhara. They were handed over unofficially to the Special Cell of Delhi Police on 16 August 2013 and 28 August 2013, respectively. Similarly, industrialist Tulsiram Agrawal was abducted from Biratnagar and taken to Betiya of India on August 11, 2006 and released paying Rs. 200,000 in ransom.


In this regard, the then Indian external affairs minister Sushma Swaraj, during her visit to Nepal on 28 July 28, 2014, said that 'open border between our two countries’ moulded our unique relationship. However, this has also been misused for criminal activities in the border areas, such as human trafficking, import and export of illegal drugs, smuggling of fake Indian currency notes.' In the changing situation, open border system has created trouble in maintaining peace and security, law and order in both India and Nepal. There are some challenges from free and unrestricted cross-border mobility. The unrestricted border has indeed been responsible for all sorts of negative security implications.         

For the security reason and not to let misuse the open border, Nepal-India open border must be regulated in a phase-wise manner in accordance with the SC verdict. It is to be mentioned that air route has been regulated on October 1, 2000 after the Indian Airline aircraft was hijacked from Tribhuvan International Airport. So it not wise to wait for another disastrous incident to happen just for taking steps to regulate the surface route as well.  

(The author is a border analyst and former board member at the Institute of Foreign Affairs.)         

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