Tensions are high in Nepal, sparked initially by the deaths of at least four Maoist supporters by security forces following a protest over land grabbing in Kailali on 4th December 2009. Maoist protests have resumed over the failure of the government to fulfill a promise to address civilian supremacy and the constitutional position of the President.
As this briefing paper is published, the Maoists are consdering whether to extend their three day strike for an indefinite period; a strike that has brought the country to a grinding halt.
India policy is fuelling tensions. It is bolstering the influence and confidence of highly politicised Nepal Army (NA) that is firmly outside civilian control. The NA influence over the current government is a major factor in the current peace process impasse. While recognising the need for the Maoists to end violence, India needs to explain to the Indian public how excluding the Maoists - a party with the support of 40% of the electorate - will assist Maoist transformation to democratic politics.
ACHR urges the Indian government to support the formation of a national unity government in the spirit of the peace process. The risk of escalating violence is now very real and the resulting anarchy may halt even the planned visit of Indian Foreign Minister S K Krishna to Nepal on 15 January 2010.
Prior to Kailali incident of 4th December 2009, Maoist demonstrations were largely peaceful. Further violence will lead to increased security measures. Various reports by international NGOs , the UN OHCHR and the government's own bodies into prior conduct of the security forces suggest that increased security measures will inflame rather than quell violence.
As strikes resume, OHCHR has described the clashes between security forces and Maoist demonstrators as some of the worst since the people's uprising. A new round of Maoist demonstrations is set to begin on 25th December 2009. The risk of escalating violence is imminent.
II. Shrinking space for compromise
Both the government and the Maoists accuse each other of violating the Comprehensive Peace Accord (CPA). Hardliners in the ruling parties denounce support for parts of the CPA they disagree with, as evidence of 'pro-Maoist' bias. This is underlined by what appears to be coordinated political attacks on the United Nations Mission in Nepal (UNMIN).
Maoist hardliners too are emboldened. They push the moderate wing of the party to ever harder revolutionary rhetoric. The contentious and highly divisive Maoist announcements of autonomous regions, bypassing the Constituent Assembly, can be seen as part of this radicalization. They have clearly contributed to the tension.
Polarized politics is increasingly restricting the space for compromise as political commentator, Aditya Adhikari, notes: 'Even the relatively moderate groups in the traditional parliamentary parties have become so disillusioned with the Maoists that there is a real danger that rational knowledge regarding the great devastation that a military confrontation will lead to may be overwhelmed by a fear and anger that leads them into the arms of the hardliners.
III. India's damaging role
The key element of the escalating internal turmoil in Nepal remains external - it's India's deep distrust of Maoist intentions and the consequent outflanking of this country's most influential political force from the power structure.
As Nepal's already unstable peace looks ever shakier, India's role stands out as a central concern. India continues to provide unconditional support to the highly politicized Nepal Army, stoking division. Wider regional concerns raised by recent offers of Chinese military support to the NA have added momentum to that support by India. 
To understand the gravity of Indian policy it is important to understand the peace agreement. The CPA is a framework for peace. The detail of the future of the two Armies is to be completed by a Committee; a Committee that has managed to meet no more than a handful of times in the last three years.
However while the CPA is unclear about the details and the exact process, the end goals of the peace agreement are clear: both the People's Liberation Army and the NA are to be transformed. The PLA is to be integrated and the NA democratised.
The above central issue has been unilaterally rejected by India. When asked if India's position against integration of some of the Maoists into the Nepal Army risked the peace process, India's Army Chief General Deepak Kapoor replied that the journalist was arguing on behalf of the Maoists.  Arming one side is a clear violation of the CPA. 
ACHR has expressed concern elsewhere over the NA's influence over Nepal's ruling coalition.  Indian actions, combined with polarization in Nepal, have only deepened the NA's hold. NA's opposition to integration and democratization has become Government opposition. India's support to the NA explains a large measure of the current impasse and increasing crisis.
IV. Consequences of Indian policy in Nepal
Indian claims of non interference in Nepal lack credibility. To veto reform in the NA and integration of the PLA is effectively to veto the peace process. The result of India's assertive policy in Nepal appears to be increasing the prospects of a damaging period of authoritarian rule.
As journalist and political commentator Aditya Akhikari notes,
'As has become public knowledge by now, a number of people surrounding the president have been trying to convince him that there is no alternative to declaring a state of emergency and the concentration of all executive power in his hands in case the constitution is not drafted by May 28, 2010'.
Outside Kathmandu, the Maoists still enjoy wide public support and their election successes have not yet used up their political credit. Their exclusion from government would appear to have only increased their support. Maoist announcements of autonomous regions may have angered the government but they are likely to resonate with ethnic and regional groups frustrated by the stalled peace process. Any move against the Maoists in these circumstances would likely to spark widespread violence.
As ACHR underlined during a rise in tensions in May 2009, authoritarian government of whatever hue is counterproductive to Indian long-term interests. With good reason India has always maintained strong civilian control over its military. It is unclear why it has fallen into promoting the opposite in Nepal. It need not look far for the consequences. Authoritarian government has provided a fertile ground for terror as shocking events in Mumbai made clear.
Nepal's Maoists must end violence but this is only likely in the context of Nepal's Comprehensive Peace Agreement, even if the CPA requires further negotiation and clarification in some of its key elements.
This Briefing Paper examines India's role in Nepal and the need for an urgent rethink of Indian policy. India needs to explain how excluding the Maoists who have a substantial democratic support will make the Maoists more democratic in their behaviour.
The Indian government needs to explain to the Indian public why its policy positions in Nepal are in direct contravention of a peace treaty largely brokered by India. It needs to clearly elaborate how the current policy serves Indian security interests both in the short and longer term.
V. Dangerously stalled peace process
"The danger that Nepal's politics will be held captive to rightwing politics in the medium and long term still remains, not least because the Maoists and the governing parties are still to find a win-win formula to explain President Yadav's move to override the then Prime Minister Dahal's move to sack Chief of the Army Staff" - Akilesh Uphadhay, Editor, The Kathmandu Post July 2009. 
Nepal's peace process is dangerously stalled. Nepal still has two armies - the NA and the Maoist People's Liberation Army - both have sharply opposing political ambitions. The actions of the Government and its Ministers appear often deliberately inflammatory. 
Rhetoric from the Maoists is equally inflammatory. Maoist protests have made governing Nepal impossible and its cadres have continued to resort to violence and intimidation. Outside Kathmandu, the country is falling into anarchy: strikes paralyze the country; armed groups, mob violence and criminality proliferate.
ACHR's warnings of the risks of protest and the security force's response deteriorating into violence have been underlined by recent events. According to media reports, at least four Maoist party supporters and one member of the police died in a clash on 4th December 2009 in Kailali in western Nepal, where landless people had illegally occupied government-owned land. The deaths have sparked angry rhetoric. The Maoists claimed that the deaths were part of a conspiracy to provoke them and put an end to the peace process. Senior members of the ruling parties accused the Maoists of using the events as part of their plot to capture the State.
As tensions rose, the Maoists postponed protests. Urgent talks were held, yet by 6th December 2009 both sides resumed angry rhetoric. In India, the NA Chief and his substantial entourage were talking to the India media and the Indian government of Maoist insurrection, new arms supplies and the need for military conflict with the Maoists.
On 14th December 2009, the Maoists unilaterally announced the establishment of 'autonomous regions'. By 18th December 2009, the Maoists had declared thirteen autonomous states based on ethnicity and region. Political parties in the coaliation Government responded angrily accusing the Maoists of bypassing the Constituent Assembly process. Prime Minister Madhav Kumar Nepal said the announcement would "invite political confrontation". 
VI. Direct Indian interference
While the Nepal government and Maoists are mired in antagonistic threat and counter threat and increasingly violent clashes, India's role is the subject of particular concern. On 7th December 2009 amidst rising Maoist-government tension, following the deaths in Kailali, India provocatively chose to announce the resumption of supply of 'non-lethal' weapons to the NA. On the same day, the Government announced that the NA's Chief of the Army Staff (CoAS) General Chhattraman Singh Gurung would visit India and will be conferred with the honorary rank of "General of Indian Army" by President Pratibha Patil at an investiture ceremony at Rashtrapati Bhawan on 14th December 2009.
On 9th December 2009 the Indian Media was quoting unnamed sources in the Ministry of Defence reported about the requests for Tanks, artillery guns, Insas rifles, ammunition, troop carriers, bullet-proof jackets and sighting equipment by the Nepal Army. On 16th December 2009, China announced 220 million rupees of military assistance to the NA.  Wider unease over Chinese ambitions appears to have added momentum to Indian concerns.
As one newspaper noted: 'New Delhi cannot afford to take Nepal's requests lightly: when it turned down similar requests from Sri Lanka as the island nation was going to war with the LTTE, Colombo was forced to source military equipment from China and Pakistan'. 
While the exact terms of support are being decided, by end December 2009 the dubious concept of 'non lethal' appears to have been abandoned. Nepal's media was quoting Indian government sources as ready to include "any kind of military assistance." 
It is notable that prior attempts by the Defence Minister to renew arms supply in July 2009 were denied by Prime Minister MK Nepal. He insisted, at that time, that the government had no intention of resuming arms supplies and that it was all rumour. 
At that time UNMIN issued a statement of concern, underlining that it: "strongly discourages any activities, either by the NA or the Maoist Army that may be constituted as a violation of Article 5.3 of the Agreement on Monitoring the Management of Arms and Armies." 
Article 5.3 of the CPA states neither side is allowed to carry out recruitment or unauthorised replenishment of military equipment. For an arms sale to be authorised, it has to be agreed to by the Joint Monitoring Coordination Committee that includes officials from the NA, the Maoists' People's Liberation Army and UNMIN. 
These recent Indian moves are not isolated incidents. India's role in ousting the Maoist coalition is well documented. Since the elections India's Ambassador to Nepal has made repeated divisive statements including providing vocal public support to the NA and its supporters.
Indian policy has been elaborated most recently on 19th December 2009 when Indian Army Chief, General Deepak Kapoor, publicly rejected the need for reform in the NA.  He suggested integration would lead to politicization of the NA. When asked if India's position against integration of the Maoists into the NA risked the peace process, General Kapoor - joining voices in Kathmandu - replied that the journalist was arguing on behalf of the Maoists. 
India's policy needs to be examined.
Firstly, support for integration is central to the CPA. Support for the CPA represents the views of the overwhelming majority of the Nepalese electorate. Logically support for integration is in no sense unique to the Maoists.
Secondly, it is important to examine the idea that integration will politicise the NA. This assertion carries an assumption that the NA is itself not politicised. Even at best, this stretches credibility: it is only four years since the military took over in Nepal during the King's rule. There are no credible political analysts in Nepal who would seriously challenge the strong consensus view that the NA has been major political player and an obstacle to democracy throughout Nepal's history.
VII. The Phantom of Insurrection
Across the Indian establishment, there is a consensus that the Maoists intend to capture the Nepali state and establish a form of totalitarian rule. The non-Maoist Nepali political class has conveyed the same impression to Delhi.
Apart from wider geopolitical factors that lie outside this report, policy is driven by Indian domestic fears of Naxalism and in Nepal, the threat of Maoist insurrection; insurrection is the staple of briefings by the NA and their political supporters. Insurrection is emotive and easy to pin onto a Maoist party that has repeatedly used threatening rhetoric. But it is an idea that needs to be considered dispassionately.
The most forceful argument against Maoists insurrection is military. The NA is 96000 strong. It is well armed. The numbers of Maoist fighters are limited although probably higher than the Maoist estimate of 8000. They are poorly armed. Even generously estimating Maoists numbers, the odds do not favour insurrection.
Ideas of insurrection also need to be considered in the light of experience. As Akilesh Uphadhay noted during another period of tension in July 2009:
"Hardliners still persist in stoking fears that the Maoist attempt at state takeover is around the corner, despite the fact that for all the weeks since they have been pushed out of government, there are still no signs of the much drummed-up Maoist uprising in the districts and high-intensity violence across the country."
ACHR underlines that India has legitimate concerns. The Maoists have not transformed into a mainstream democratic party. Transformation was supposed to be an outcome of the peace process. The peace process has floundered and logically the Maoists remain a large threatening military and paramilitary force. But the current policy offers no coherent explanation as to how excluding the Maoists - with at least 40% of the electorate supporting them - from democratic power will help the Maoists to transform.
VIII. Consequences of Indian support
'With relations between parties already at their nadir, the Indian position is only contributing to adding fuel to the fire. As a nation that has the greatest stake in a stable Nepal, Delhi should instead be following a policy of conciliation - not confrontation - between parties. Efforts should be made by the Indian establishment to revive the spirit of the path it followed between late 2005 - when an alliance between the parliamentary parties and the Maoists was born - and the Constituent Assembly (CA) election. During that time, India was keen that the peace process succeed; it helped negotiate the complex transition from war to peace. India should not let its animosity towards the Maoists lead Nepal back to war. Delhi's position will be closely watched during Indian Minister for External Affairs S.M. Krishna visit to Nepal on Jan. 15. We certainly hope that his message will be one conciliation between parties, not that of confrontation.' - Editorial of The Kathmandu Post, 23 December 2009
Indian support has had a number of consequences. It has enabled the NA and its supporters to vehemently oppose integration of the PLA and democratization of the Army, even though both are issues of the CPA.
Indian support, particularly from the Indian Army, has encouraged the NA to resist all attempts to reform it into a modern professional force under political control exercised through a functioning Ministry of Defence (MOD), similar to the Indian model where the army is under the tightest control from a large MOD almost exclusively staffed by civil servants. The NA has resisted all attempts to set up such a MOD in Kathmandu, where what is called the defensive ministry remains a post box for Army HQ, where all power resides.
Over the last three years the NA has shown itself to be a highly politicised organisation, capable of protecting and promoting its self-governing status which, among other things, has allowed corruption to be as rampant as when it was under the monarch's direct control, if not more so:
"The indifferent treatment meted out to soldiers does not make for strong bonding. Since officers are poorly paid, corruption is rampant at various levels, especially at the very top. Indian military equipment is not popular because there are no kickbacks. A number of local factories producing clothing, boots, etc, were closed down so that these items could be 'profitably' imported. Over-invoicing is rampant and the quality of rations very poor. Corruption is rife among civilians. Money, sexual favours... anything goes. The ostentatious lifestyles of many retired generals seem well beyond their accountable income" - General Ashok Mehta (Retd),
Indian support to military has allowed the NA's increasing influence on the civilian government. This can be seen in the government's intention to promote General Toran Singh to deputy Chief of the Army Staff. Singh is directly implicated in the very grave crimes involving torture, summary execution and disappearance of numerous individuals and has been the subject of considerable international community concern. Nicole Chulick, spokesperson for the US Embassy in Nepal stated on 25th November 2009, "In the absence of a full and credible investigation clearing them of wrongdoing, the promotion of any individual implicated in human rights abuses could have consequences for our relationship [with the army]." The US has made it clear that the promotion of such officials is likely to affect US´ non-lethal military assistance. 
In another high profile case, in early December 2009 Major Niranjan Basnet was expelled from a UN mission for his involvement in the torture and subsequent killing of 15 year old, Maina Sunawar, during the conflict. He was sent home. Before Basnet arrived, on 12th December 2009, the Nepal Prime Minister communicated to the Defence Minister that Basnet should face the charges made in the Court arrest warrant. In defiance of the court and the law, the NA took Major Basnet from the airport to Army HQ. On 13th December 2009 the Nepal Police requested that Basnet be handed over. As this publication goes to press he remains in Army custody.
The media subsequently reported that the Nepal Ministry of Defence wrote to the Ministry of Foreign Affairs demanding that they write a letter to the UN expressing their concern that the government of Nepal was not consulted on the expulsion. Stunningly the Army wishes to complain to the UN that they were not consulted on an expulsion despite having knowingly sent Basnet on UN mission fully aware that he was the subject of a warrant from a civilian court, accused of torture and murder. The NA appears to have prioritised repudiation of the UN before the jurisdiction of Nepal's national courts. On 21st December 2009, again in defiance of the judiciary and her own Ministerial responsibility, the Defence Minister Bidhya Bhandari promised relatives of Major Basnet that he would be protected from what she termed civilian 'injustice'.  The silence of Prime Minister MK Nepal over this extraordinary statement that contradicts his own recommendation  can only underline the extent of military influence.
As US Senator Patrick Leahy has stated:
"In large measure, and as others have pointed out, Maina´s death will decide whether a civilian, democratic government and the rule of law will determine Nepal´s future, or it will remain dominated by the interests of the NA"
IX. Impunity and the peace process
The case underlines the damaging environment of impunity for crimes in Nepal, and their potential to damage the peace process. This was also highlighted by media reports that two Maoist cadres responsible for the 2007 murder of a prominent journalist Birendra Sah, had been promoted. At the time the Maoist party had admitted responsibility and the leadership apologized for the murder. They gave assurances to the UN that action would be taken. Yet on 3rd December 2009 the media reported that two of the accused, Mr Chaudhary and Mr Phaujdar had been promoted to secretariat members of the district unit. 
Actions of this kind by the Maoists undermine confidence in Maoist commitments and drive an Indian policy, in part, by legitimate fear of Maoist violence. As part of the peace agreement the Maoists committed themselves to the values and norms of multi-party democracy, human rights and rule of law. Yet the Maoists have continued to employ violence, intimidation and highly threatening revolutionary rhetoric. India, like the Nepalese people, has a right to demand that the Maoists behave in the manner that they have agreed to.
X. Rightward Shift
But as long as India holds its current position, it is difficult to see how the present coalition can reconcile with the Maoists. Indian support to the NA will simply embolden the military and its supporters. And without reconciliation there is little prospect of resolving the intractable peace issues of integration/democratisation, security sector reform, land reform coupled with the return of land confiscated during and since the war by the Maoists impunity and agreeing on a new Constitutional framework.
With peace stalled there will be ever more crises. Rather than weakening the Maoists, Indian policy is likely merely to assist the momentum toward authoritarianism, which given the current balance of forces in Nepal will inevitably lead to widespread violence. As commentator Aditya Adhikari underlines,
It should be remembered by those in government, however, that the repressive capacity of the Nepali state - as demonstrated by the inability to achieve a military victory over the Maoists - is limited. And the capability of the security forces - as demonstrated in the movement against Gyanendra's regime - may not have the ability or the will to confront mass mobilisation.
Nepal's peace is based on the Comprehensive Peace Agreement (CPA), which underlines the need for "power sharing and consensus". By definition support for one side is inconsistent with the need for the consensus required in the CPA. There is no solution to the stalemate in Nepal without the Maoists, just as there is no solution without including the Nepali Congress. Nepal's main political parties have repeatedly demonstrated that if they are not included in government they can make governing Nepal impossible.
XI. Consequences for India
Spillover in these circumstances is inevitable. ACHR has highlighted evidence in its earlier reports that instability in Nepal increases insecurity on India's borders.  India's current policy lacks coherence. It is failing and must be urgently reviewed.
If domestic security is the end goal of Indian policy then India has to recognise that a peace process between two sides who have agreed to work in consensus will fail if consensus is abandoned. The inclusion of Nepal's Maoists in government is central to a stable and secure Nepal.
India should to end its divisive role, support the CPA, including by providing support for the foundation of that agreement: "power sharing and consensus";
Support the formation of a national unity government including the Maoists;
In relations with the NA seek an Indian model of civilian control rather than models more redolent of Pakistan's Army;
India impresses upon the Nepal government and Maoists the immediate need for calm and restraint on both sides;
And in the medium term India should press for urgent and tangible progress on CPA implementation, including the formation of a high-level political mechanism, and, given the now obvious failings of the process, a wide ranging review of the implementation of the CPA so far. The review needs a short focused mandate led by eminent personalities whose findings will carry weight with both parties.
1. On 3rd August 2009, the International Commission of Jurists (ICJ) warned that Nepal's outdated and defective security legislation -- instruments supposed to maintain state and human security - are in themselves sources for insecurity. Kantipur report, 'ICJ: Flawed laws a threat', Kantipuronline, 3rd August 2009, http://www.kantipuronline.com/kolnews.php?&nid=207666
2. See OHCHR The April Protests Democratic Rights and the Excessive Use of Force, Findings of OHCHRNepal's Monitoring and Investigations, September 2006http://nepal.ohchr.org/en/resources/Documents/English/reports/IR/Year2006/2006_09_
3. On 20th July the media published the findings of the 'Commission for the Administration Restructure'. They found that rather than deterring crime, police actions were actually contributing to increase crime: 'criminals'esteem has been boosted due to the rampant corruption, and they now believe they can get away with anything by using political connections and money (...)and that corrupt police officers use political connections to evade action' Kathmandu Post report, 'Report lambasts police corruption Task force points out rampant irregularities in functioning', Kantipuronline 20th August, http://www.ekantipur.com/kolnews.php?&nid=205290
4. Kantipurreport, 'OHCHR-Nepal concerned about Nepal Banda Day I violence' http://www.ekantipur.com/2009/12/20/top-stories/OHCHR-Nepal-concerned-about-Nepal-Banda-
5. Akilesh Uphadhay, Kantipur report 'Maoist, non-Maoist parties on collision course', http://www.ekantipur.com/the-kathmandu-post/2009/12/17/top-stories/Maoist-non-Maoist-
6. Aditya Adhikar