Reassessment of the Harka Gurung Report

Dr Bipin Adhikari

The population of Nepal is growing very fast. The 1991 Nepal census was a widespread national census conducted by the Nepal Central Bureau of Statistics. The rate of population growth has frightened everybody. However, the pressure that the country is facing on the population front is not only internal. The Indian people moving into Nepal and finally settling here are one of the major factors behind increasing population pressure. The effects of this migration are not only demographic, but socio-political and economic as well.

Although the changeover in Nepal during the last five year is ominous for democratic consolidation of the country, it is nevertheless a challenge as well. It must be reminded here that the movement for restoration of democracy, made possible by the blockade imposed by India was a response to the determination of the then government to implement what is popularly known as the Harka Gurung Report. Harka Gurung led a government Task Force created in August 1983, which submitted a long list of recommendations after a long and thorough study into the problems, to safeguard national interests. The other members of the Task Force were Upendra Pradhanang, Dr Chandra Bahadur Shrestha, Dr Chaitanya Mishra, Dr Durga Prasad Ojha, Dr Parthiveswar Timilsina, Dr Bal Kumar K.C., Dr Bidya Bir Kanshakar and Santa Bahadur Gurung. Most of the 70 recommendations of the Taskforce for controlling internal and international migration were related to the regulation of the Indo-Nepal border. It is in the national interest of Nepal that the recommendations of the report be studied and put to planned implementation process. This also requires broad-based dialogue with concerned stakeholders.The excerpts of the report are as follows:

International Border
It is clear that the free movement of people across the open border between India and Nepal has accelerated the migration process between the two nations. This is the cause for the increase in illegal businesses which is a matter of deep concern for both nations. In this background it is necessary to regulate the free movement of people across the border. Movement of people across the Indo-Nepal border should only be allowed through specific points agreed upon by both sides. Movement from other areas must be restricted.

Three stages have been proposed for the process of regulation of movement of people across the Indo-Nepal border. In the first stage, the provision for making the people moving across the border register their names in the specified check posts must be made within this fiscal year. One year after this provision has been made, entry permits must be provided as a start to the second stage. Residents of area within 10 kms from the border must be provided multi-entry permits and others must be provided single-entry permits. In the third stage, requirement of Passport must be enforced for travel between India and Nepal.

In order to effectively control illegal businesses between India and Nepal, expansion and strengthening of border patrols in necessary. Alongside, import of luxury items from overseas must be banned.

Immigration and Population Policy
With regards to national interests, arrival and activities of the foreigners in Nepal must be controlled to a certain degree. Being a small nation with limited resources, the state of Nepal must have special control over immigration. Since the majority of the migrants to Nepal are Indians, it is necessary to include Indians in any program related to immigration for it to be effective. The process of name registration in the border and provision of entry permits are the preliminary steps in this direction. To discourage the departure of able population necessary for development and the immigration of unnecessary foreigners, a national policy must be formulated without further delay. Since uncontrolled migration can have a negative impact upon the family planning programme, the national policy on population must prioritize the regulation of international migration. Short-term and long-term programmes must be formulated in this regard.

The current policy on citizenship appears to encourage immigration. The number of people acquiring citizenship by descent has increased unexpectedly after the change in citizenship by birth and naturalization. Changes need to be made in the prevailing law, rules and Constitution regarding citizenship.

According to Nepal's Constitution of 2019, part 2, Article 8(d), a person of Nepalese origin is eligible to acquire naturalized citizenship after residing in Nepal for 2 years and for people not of Nepalese origin the requirement is 15 years. But the term "person of Nepalese origin" has not been defined in the Constitution or any law. Therefore this term being controversial, discriminatory and ambiguous must be removed from the Constitution.

The term "either of whose parents was born in Nepal" in Part 2, Article 7 (b) of the Constitution must be amended to "either of whose parents are Nepalese citizens". According to Citizenship Act of 2020 section 3(4), orphans found in Nepal whose fathers are not identified will be assumed to be Nepalese citizens by descent. The term mothers should also be added in this provision.

Provisions regarding citizenship by marriage or adoption or honorary citizenship must have the same requirements as naturalized citizenship. Naturalized citizenship must be differentiated from citizenship on hereditary basis or citizenship by birth. Naturalized citizens must be declared ineligible to occupy Constitutional or military positions. Naturalized citizens must be eligible for public posts whether by appointment or election only after 10 years of acquiring the citizenship.

Persons other that children born of naturalized citizens before and they acquired their citizenship or minors accompanying them to Nepal must be eligible only for naturalized citizenship.

The current provision enabling political personalities to recommend for citizenship must be removed. Only recommendation of authorized official and the fulfilling of legal requirements must enable a person to acquire citizenship by birth or on hereditary basis. Similarly a naturalized citizen must be disallowed from making recommendation for citizenship.

In order to address the concerns of people who have not taken temporary certificates, special courts must be set up is each district to certify in reference to the applications made and review suspicious cases and cancel citizenships and penalize the wrongdoers if the need be.

Provisions must be made to publish a list mentioning naturalized citizens, revoked citizenships and reclaimed citizenships for public reference. Registration offices must be established in the central level to register births, deaths, events and citizenship. Administrative and legal provisions must be made keep up to date voter's lists in the zonal and district levels.

The requirement of presenting citizenship certificate must be applied only for - sale of property, loan from public institutions, acquiring passport, appointment to public or other institutions, candidature in elections, or other matters requiring the differentiation of citizens from non-citizens.

The artificial steps taken by the government in the name of trade diversification has resulted in an increase in undue foreign influence. Therefore foreign influence must be controlled in the trading sector. Involvement of domestic players must be encouraged along with institutional development in this regard. Import of luxurious, semi-luxurious or provocative items but be prohibited. Special legal provisions must be made to punish people who discourage this trade upheaval.

Clear policy must be made to limit the role of foreign entities in both internal and international trade. In order support the involvement of public representatives in trade businesses, foreign nationals must be allowed to own only up to 49% of shares of the Traders Public Limited being set up under the Nepal Company Act. Foreign nationals must be allowed to be involved in Private Limited Companies that only conduct trading activities between India and Nepal with the goods originating in these two countries. But the dominant shareholding in these companies must be allotted to Nepalese citizens other than the naturalized ones.

Legal provisions may be made to allow Indian owned companies to establish and run in Nepal only to import and sell products held to be essential for the public by the government. But restrictive provisions must be made for such companies in view of industrial development regarding such goods in Nepal. To protect the interests of small and medium sized domestic businesses, foreign involvement in any institution, firm, partnership or cooperative entity other than Public or Private Limited Companies must be banned. Auditing of public institutions, agencies and foreigner involved institutions must be conducted by Nepalese auditors only. The amount of profit flowing out of the country must be controlled. The amount that is allowed to be taken out of the country (in Nepali currency) according to the accounts must be exchanged only through banks.

The Commercial Policy of 2039 mentions allowing foreign investment and technology into the export market. Such policy to encourage foreign businesses in export market is not desirable hence must be discarded. To protect public welfare by maintaining healthy competition in the market and to prevent monopolistic practices by an individual, company or any particular group regarding any good, trade or business, a law controlling monopolistic practices must be enacted.

Mobile or street vendors must be allowed to conduct businesses only after acquiring permission from the relevant local bodies. Owners of shops situated in markets specified by the government must be made to acquire certificates from the relevant local bodies. Such certificates must only be given to Nepalese citizens. The current practice where any foreign company or institution can create advertisements or such services via agencies must be stopped.

The current industrial policy of Nepal protects small and cottage industries for Nepali citizens. The administration must still check to see if foreigners are involved, indirectly or invisibly in the establishment or management of these industries. The government must specify the priority of the industries that are likely to have foreign participation in each fiscal year. Technical services, management and market services regarding such industries must be according to the parameters specified by the government. The locations of the Industries that are allotted for foreign involvement must be specified by the government. Such industries must not be allowed to run in government established industrial areas.

Industrial Business Act of 2038 which gives concession to hotels and transport businesses within 8 kms from the border. In order to strengthen border administration, the Industrial Policy and the law must be amended to disallow the establishment of such businesses in such areas. In order to shift such industries to area adjacent to the highways provincial industrial plans must be formulated and implemented.

Labour and Employment 
National Policy on labour and employment has a great effect upon internal and international migration. Currently there is no clarity in the policy regarding labour and employment and implementation of legal administrative provisions has been incomplete. The working of the Ministry of Labour and Social Welfare has focused more upon social welfare and traditional works so a separate Ministry for Labour and Employment must be created.

The Nepal Factories and Factory Workers Act of 2016 and the rules made thereunder in 2019 have not been effectively implemented. This legislation and the rules must be enforced upon the industries duly registered in the country by this fiscal year. These provisions must be gradually expanded to cover other business areas. Work permits must be made compulsory for Indian citizens to work in Nepal.

The Nepal Factories and Factory Workers Act, 2016 (Section 47) and Industrial Business Act, 2038(Section 10) have separate provisions regarding the restriction on employment of foreign workers in Nepal and in general are favourable towards foreign immigrants coming in and getting Nepali citizenship. These laws should be amended so that they are compatible and also reduce the time period for which permission can be granted to employ foreign workers. Provisions to provide skill enhancing training for Nepali workers must be made. Industries providing such training must be given tax concessions proportional to the amount spent on such training.

Laws regarding foreign investment and technology must be amended to make the inclusion of Nepali citizens compulsory in a way that with respect to the proportion of investment to labour, foreigners do not form the majority. Both short-term and long term planning must be done to include Nepali workers in the businesses conducted by non Nepali citizens and provide minor, medium or high level skill training.

In order to fulfill the demand for labour required in development programmes, the National Planning Commission and the proposed Ministry of Labour and Employment must make necessary plans and programmes for updated forecast and mobilization of unskilled and skilled labour. The role and responsibility of Labour administration in skill development training must be defined. Greater institutional cooperation and coordination must be developed between the institutions that are providing the same kind of professional training.

In big construction plans, foreign contractors tend to employ more of foreign labour than Nepali labour. To discourage this, relevant laws must be amended to provide concessions to contractors employing Nepali labourers. Additionally employment of foreign labourers in government sanctioned projects must be prohibited. Foreign workers must be made to register their names in the Labour department and renew it every year. The training programmes conducted by the labour department must focus upon providing employment to the labourers and such programmes must be conducted from the coming fiscal year onwards.

The number of voters from the Terai region has been seen to have increased abnormally with regard to the National Referendum, General Elections and local body elections. The reason for this must be found out via an investigation.

In order to promote national unity, harmony and development, the time for foreign music on Radio Nepal must be limited and programmes in local languages on family planning, agricultural, soil conservation and other developmental programmes must be aired. Along with this foreign cinema and newspapers must be controlled.

Harka Gurung, the main architect of the report has been seen quoting American poet Robert Frost's 1914 poem frequently ever since. Indeed, the poem "Mending Wall" explains the persistence of problem along the Indo-Nepal border ever since the report was out:

Before I built a wall I'd ask to know
What I was walling in or walling out
And to whom I was likely to give offense.
Something there is that doesn't love a wall.
That wants it down.
He will not go behind this father's saying
And he likes having thought of it so well
He says again good fences make good neighbors.                               

There is nothing to disagree with Harka Gurung: "good fences make good neighbours." The challenge is – can the politicians in this post-1990 environment take up these national issues once again in their right perspective and make sure that the population influx is checked, and Nepal's age-old identity, sovereignty and independence is not jeopardized under any design.