– Pitamber Sharma

The position of both Nepal and the then British-India, and later independent India hinge on the interpretation of the origin and nomenclature of the Kali river in its headwaters. The fact that there was no map attached to the Sugauli Treaty leaves room for speculation but most maps prior to 1856 name the main channel of the river originating in Limpiyadhura as the Kali. It was only since 1879 that the river originating in Lipulekh was designated as the Kali by the Survey of India giving a new name Kuti Yangti to the main channel of the Kali river.

Nepal’s Borders and the Sugauli Treaty

Nepal borders two Asian giants China and India. With the signing of the Nepal-China Border Agreement in 1960, Nepal-China Border Treatyin 1961 and the Nepal-China Border Protocol in 1963 the 1439 km northern boundary with China has been settled. The determination of the trijunction point between Nepal, India and China could add around 50km to the Nepal- China border. The border with India is approximately 1880 km in length of which 1233 km is land border and 647 km is riverine. About 60 rivers and streams form the riverine border, the longest and notable are that of the Mechi river (80 km) in the east and Mahakali river (over 225 km) in the west
(Shrestha 2019).

Sugauli Treaty 1815/16.(1), named after the place where it was concluded, signifies a watershed in Nepal’s geopolitical history. Nepal’s borders with India were defined by the Sugauli Treaty and the Boundary Treaty of November 1, 1860. While the former defined Nepal’s eastern, southern and western borders   with the then British India, the latter restored the we stern Tarai districts of Banke, Bardiya, Kailali and Kanchanpur which were taken away by the Sugauli treaty.

Sugauli treaty signified the end of Nepal’s imperial ambitions of creating a strong Himalayan defense against the expanding power of the East India Company. The Company declared war on Nepal on 1 November 1814 on the pretext of disputes related to the districts of Seoraj and Butwal in the south. By 1790 Nepali army had crossed the Mahakali to overrun Kumaon and then Garhwal in 1804 and lands between the Jumna and Sutlej in 1806. The Company was naturally alarmed by Nepal’s swift expansion and with the instigation of local feudal rulers was on the lookout for opportunities to thwart and repulse the Gorkha expansion. The harsh and insensitive nature of Gorkhali rule in subjugated territories only aided the Company’s designs (Regmi 1999).

The Anglo-Nepal war 1814- 16 was not Nepal’s choice. Nepal was neither prepared for the war nor the outcome that followed. By 1815 the imperial Gorkha extended nearly 1500 km from the Tista in the east to Sutlej in the west along the Himalayan arch (Gurung 1989) with sizeable areas in the Tarai plains. But by 1815 the momentum of the Gorkha conquest had weakened considerably. Unlike the consolidation of the Baisi and Chaubisi prinicipalities, the new territories in the west beyond the Mahakali river were new acquisitions and retaining them called for considerable political/administrative acumen as well as military tact and vision which Nepal was clearly unable to muster. Militarily, the Nepali army had extended itself much beyond its logistics limits for a sustained campaign of either expansion or consolidation. Also, by its very act of expansion Nepal had become a strategic challenge to the expanding British power in
India. But the war that had gone in Nepal’s favour in the initial phases gradually turned against it to the point that Nepal was forced to agree to the cessation of hostilities, and eventually to ceding of territories secured since the 1780s in the east, west and south.

The Sugauli Treaty was a treaty imposed by the victorious Company and it was with extreme reluctance and considerable procrastination that Nepal agreed to abide by the treaty on March 4, 1816, although some have tended to question the very legality of the treaty (See Chaptrer 9). What is abundantly clear is that Nepal had limited, if any, role in the drafting of the treaty. But the Company desirous of not unduly harming Nepal’s economic interests and ‘gratify’ the Nepal durbar agreed to rescind some of the provisions of the treaty by a Supplementary Boundary treaty on December 11, 1816 which returned the Tarai lands east of the river Rapti.

This is indicative of the fact that in the implementation of the Sugauli treaty, much as the Company would have liked, Nepal’s concerns could not be entirely ignored. This betrays the Company’s perception that its immediate as well as long term interests could be best served only by ensuring that amity was maintained between British India and Nepal. For
Nepal, humiliated as it was by the defeat, the aftermath of the Sugauli treaty was no time to pressurize the British on specific issues regarding the delineation of the border. To that extent it appears that both the victorious as well as defeated parties were in no hurry to resolve all the outstanding issues that emerged as the task of delimitation and demarcation of the border began to unfold.

Implementation of the Sugauli Treaty and Boundary Demarcation

The Sugauli treaty did not have a map attached to it. The boundary mapping and delineation began soon after the 1816 treaty from the eastern sector and continued at various scales and time intervals throughout the 19th and 20th centuries (Shrestha, 2000,2019, 2021). In many areas the main (Jange) and secondary pillars have also been erected. However, a complete mutually endorsed demarcation of the boundary does not exist even after two centuries of the signing of the Sugauli treaty.

The toposheets of the Survey of India based on the survey of 1924-27, and revised editions (1957-74) thereafter, provide an overall picture of the Nepal- India boundary from the British and, after independence the Indian perspectives. But a
complete set of boundary maps (strip maps) at sufficient scale that locate the main (Jange) and secondary pillars endorsed by both the countries are not yet available. In December 1980, after a prolonged hiatus, Nepal and India agreed to constitute a Joint Technical Committee to scientifically update existing boundary markers and prepare large scale maps of the Nepal- India border. The Group was active for almost 27 years between November 1989 and December 2007. Although 97% of the border between Nepal and India has reportedly been aligned and demarcated by the Group a comprehensive Nepal- India border protocol has yet to be mutually endorsed.(2)

India has insisted that the boundary protocols should be jointly endorsed as sector wise strip maps are completed.
Nepal wants a comprehensive boundary protocol to be jointly endorsed by the two countries upon the completion of the entire exercise so that areas of contestation and disputes are resolved once and for all times. The Indian approach is to
allow the problem in disputed areas to continue to remain neglected, and by implication maintain the status-quo in the
field that favours India. Nepal’s approach is to earnestly address the issues for good so that irritants in bilateral relations
are removed forever.

There are dozens of areas (86 according to one count) where disagreements prevail but the major disputed areas are the north-western boundary related to the origin and course of the Mahakali (Kali) river in the upper reaches and the Susta- Narshahi area down-stream of the Gandak barrage along the Gandak river boundary in the south. Both of these disputed areas are riverine borders. The chapters in this volume mainly focus on these two dispute  and explore the historical, political, legal, hydrographical and geographic/cartographic aspects and nuances of these disputes to present a coherent picture of the origin and evolution of the problem over time. Every dispute has two and sometimes more than two
sides or perspectives. The effort has been to present as many perspectives so that Nepal’s position on the issues can be more objectively appreciated. Nepal- India boundary disputes in the Mahakali river and the Susta-Narshahi area(3) have
been of a long standing and date back to the immediate aftermath of the Sugauli treaty. Both disputes are a legacy of British rule in India. In both instances independent India has not only toed the lines pursued by the erstwhile colonial masters, but taken a quietly entrenched position marked by a singularlydetermined attitude to ignore its smaller neighbour. The Indian side has been quite resistant to even providing a political space
for sustained and reasoned discussion on these disputes.

The fall-out of this attitude has been that the disputes have not only tended to shadow bilateral relations as a whole, but also provided political fodder for interested parties on both sides.

Materials and Documents

Maps and archival documents as are available in the public domain are largely from British-Indian sources and, as would be expected, reflect contemporary British- Indian perceptions. Official documents and correspondence from the Nepal side are not accessible to the public. Official correspondence between the local revenue collectors/district administrations of disputed areas and the central government in Kathmandu during and after the Sugauli Treaty well up to the 1950s could provide valuable insights into Nepali central/local perceptions on the areas of disputes. The public discourse on these disputes have largely been based on British-Indian archives. The contribution of  Nepal’s official documents and relevant material to the exploration of the disputes has really been quite minimal. Also, both the Nepali and Indian governments, except for some occasional communique to react to contemporaneous
political developments, have not issued formal position papers with respect to the disputes.

With respect to the Kalapani-Lipulekh controversy in the Mahakali border there is also a third side whose perception and understanding on the issue carries weight because it concerns the trijunction point between the three countries – Nepal, India and China. China and India signed a border trade agreement in 1954 through the Lipulekh pass. Nepal was not consulted by either party. Nepal and China had not established diplomatic relations at that time. Nepal and China concluded the Sino- Nepal Boundary Agreement 31 in March 1960, Boundary Treaty in October 1961, and Boundary Protocol in 1963 and 1988. Since India was not a participant the tri-junction, i.e the point where the borders of the three countries converge, could not be ascertained and established.

The pass was opened for India- China trade in 1992. This was reiterated in May 2015 when the two countries agreed to expand border trade through the pass. In all these instances Nepal was not consulted although Nepal objected to the agreements. The Chinese at one point seemed to suggest that Lipulekh was the tri-junction point but Kalapani was on the Nepal side (Shrestha 2015) dismissing arguments about the origin of the Kali river in Limpiyadhura. The action of India and China gave the undeniable impression that Lipulekh pass was tantamount to the tri-junction. Indeed, that is the argument that Indian diplomats and commentators have frequently made. It also appears that in all these decades Nepal has not seriously pursued the issue with China. Consultations with China based on Nepal’s historical position
and evidence are called for to clarify the Chinese position with respect to Lipulekh pass and the tri-junction point in the border between the three countries.

Nepal’s own historic position with respect to maps and documents has also been wanting on another front. Except for the Nepali Military Survey department map of 1942 the maps in the archives of the Survey Department of the Government of Nepal are not accessible even to researchers, much less to the public. In 1975 the Survey department published a map of Nepal leaving the Kalapani- Lipulekh boundary undemarcated. But the 1985 map of the same department departed from the earlier map and showed a demarcated boundary following the Lipukhola to Lipulekh with Kalapani on the Nepal side.(4) These maps from the government seemed to suggest that Lipulekh was the trijunction and the origin of the Kali was Lipulekh and that Nepal’s main concern was with Kalapani and not the true origin of the Kali which is the boundary as stipulated by the Sugauli Treaty. This was of course a unilateral action on the part of Nepal but todate no explanation has been forthcoming with respect to Nepal’s vacillating position on this boundary during that period. Such instances only undermine Nepal’s arguments. Nepal’s position has been vindicated by the new mapshowing the true origin of the Kali in Limpiyadhura in May 2020.(5)

This was a reaction, made imperative by a broad-based Citizen’s campaign as well as calls from political parties, to the map published by the Survey of India in November 2019 and the construction of the Kalapani-Lipulekh road access by the Indian military. However, clarifications on Nepal’s historic positions with respect to the establishment of the Indian military base in Kalapani and the origin of the Kali river, and the unexplained decades-long delays in reacting to it are called for. For a small country like Nepal confronting a big and powerful neighbour with regional and global ambitions is possible only through reasoned discussions based on history, documents, facts and evidence. The chapters in this volume provide the background for understanding and dealing with the different facets of the Kali river and Susta-Narshahi boundary disputes.

These chapters use available material to make sense of the disputes from the perspective of both parties. The materials on which the chapters are based are not wholly new or novel. Nevertheless, these should facilitate in appreciating the nature and significance of the disputes in light of the Sugauli Treaty and why the issues remain unresolved even after over two centuries.

The first essay in the volume by historian Tri Ratna Manandhar – The Sugauli Treaty : Historical Perspective and Present Context – presents the context as well as the content of the Sugauli treaty. He shows that Nepal’s renunciation of all claims to territories lying to the west of the Kali river was a tacit and voluntary acceptance by the British that all territories to the east of the Kali, including the river itself from its original source, Limpiyadhura, downstream were possessions of Nepal.

Nepal-India Boundary Issue: River Kali as International Boundary by political geographers Mangal S. Manandhar and Hridaya L Koirala is a reprint of an article that appeared in the Tribhuvan University Journal in 2001. It is the first article on Nepal’s northwestern boundary dispute to appear in an academic journal, and the arguments made and the historical maps that accompany the article have been the basis for subsequent discussion and the evidences marshalled by Nepali scholars on the international boundary status of the Kali river.

A historical and strategic perspective on the Kali river boundary dispute is provided by Dwarika N Dhungel et al in their contribution entitled Kali River: Nepal’s North- Western Boundary with India. A Historical and Strategic Perspective. They show that the primary interest of the British was in exploring and controlling the shortest and safest trade route to the highlands of Tibet and central Asia. Since the Kali river was already ratified as the border river in the Sugauli treaty, the only recourse for the British was to unilaterally redefine the course of the Kali river not as the main channel of the river as is customary but as a stream originating from Kalapani springs. They trace developments in Nepal-India relations with respect to the Mahakali border dispute and highlight the strategic significance of the Indian position.

From a river hydrology and morphological viewpoint the Mahakali river dispute is really about (i) identifying the main channel of flow of the river, and (ii) locating the true area of origin of the river. Jagat K Bhusal, a trained hydrologist seeks to address both these issues in his contribution Origin of the Kali River: A Hydrological and Morphological Perspective. He uses the technically and academically established and legally accepted tools of hydrology and morphological analysis in providing powerful insight into the dispute.

Maps of the north-western area of the Nepal-British India border have been available since 1817-19. Geographer Narendra Khanal in his contribution Maps and Cartographic Piracy of Kali River in the North-western Border: An Assessment assesses 36 maps that are available in the public domain depicting the northwestern border area from the times immediately after the Sugauli treaty to more recent times. Khanal shows a deliberate British strategy to gradually shift the origin and course of the Kali river from Limpiyadhura east wards to the south of Kalapani springs, even when the Sugauli treaty does not envisage a ridge boundary in the north-west.

The contribution by professional hydrologist Bhusal and political scientist Dhungel entitled Susta Dispute in the Southern Border: Nature and Evidence details both the nature of the dispute and documents to support Nepal’s claim on the disputed area. They show that the shift in the river course has been a result of periodic floods as well as human intervention in the form of Tribeni canal and Gandak Barrage. Nepal and India both had agreed on the Rozar Martin map of 1817 and boundary pillar agreement of 1845 as well as the fixed boundary principle in the fluid border. The authors show that abiding by these agreements would resolve the boundary dispute in the Susta area.

In his contribution Nepal- India Border Dispute: Nature of Dispute, Claims, Counter Claims and Way Forward Prabhakar Sharma, a professional surveyor/engineer with international experience on international boundaries, brings this perspective to bear on the Mahakali as well as the Susta border disputes. Sharma refers to international practices in resolving the dispute and the technical methodology used in delineating the boundary.

The final chapter of this volume – International Law on the Dispute Between Nepal and India Over the Main Source of the Kali River – Senior Advocate Surendra Bhandari offers a legal perspective based on international law and precedence to elucidate the nature of contentions of the Kali river dispute between Nepal and India.

The paper elucidates international judicial decisions related to boundary disputes drawing the lessons and principles that could be relevant to Indo-Nepal boundary disputes on the Kali river. He shows that legally there are four issues involved: the identification of the origin and flow of the main channel of the river; contested maps and the conditions upon which maps become valid and acceptable evidences; the question of territorial sovereignty by virtue of military occupation of territories over a long period of time; and finally the indifference and benign negligence on the part of an aggrieved party to bring the dispute to the attention of the presumed aggressor over a long period of time. Bhandari suggests that seeking international judicial remedies through arbitration, or the International Court of Justice are the two options available for
the two countries.

Summing Up
The chapters in this volume help establish three facts related to Nepal’s position with respect to the Mahakali boundary. These are (i) that the Sugauli Treaty explicitly specifies the Kali river as the western boundary between Nepal and India. Since the origin of the river is not specified the implication is that the Kali river in its headwaters is the main channel of the river that originates in the snows and glaciers of the Himalayas, and therefore the tri-junction point would be the point in the pass or ridge above the rivers’ origin where the boundaries of the three countries converge, (ii) that all territories east of the Kali river belong to Nepal, and (iii) that Nepal has never agreed or acceded to the occupation of any lands east of the Kali river to any other country or power. There are no documents or maps that Nepal has endorsed with the then British-India or with independent India to the contrary.

The position of both Nepal and the then British-India, and later independent India hinge on the interpretation of the origin and nomenclature of the Kali river in its headwaters. The fact that there was no map attached to the Sugauli Treaty leaves room for speculation but most maps prior to 1856 name the main channel of the river originating in Limpiyadhura as the Kali. It was only since 1879 that the river originating in Lipulekh was designated as the Kali by the Survey of India giving a new name Kuti Yangti to the main channel of the Kali river. The boundary proposed by India does not follow the Lipukhola but a north-westerly ridge south of Kalapani springs and on to Tinker and Lipulekh.

The British – Indian administrative control (land revenue, tax records etc) of Byansi settlements east of the Kuti Yangti has been detailed by some authors to come to the conclusion that the areas have effectively been under Indian rule for over a century. But de facto control of an area does not automatically give the status of a de jure ownership.

Similar arguments have been made with respect to the occupation of Kalapani by the Indian military since the early 1950s (Pathak and Pant 2020) ignoring the fact that both India and Nepal have recognized the disputed nature of the area. Nepal also claims to have land revenue records from Byansi settlements. Byansis, it should be noted, have historically been a transhumance community seasonally moving from high to low pastures with their livestock and maintaining community as well as administrative links in areas they inhabit and migrate.

the Susta-Narshahi area Nepal’s position rests on accepting the Rozar Martin map jointly prepared in 1817, and accepting the fixed boundary principle agreed in demarcating the Mechi river boundary and later in 1845. This would provide the basis for determining the shift of the Gandak river since 1817 and demarcating the boundary following the thalweg of the river at that time. India’s refusal to accept both these premises used in resolving the Mechi river boundary has really been the main hindrance to a lasting solution of the dispute. The chapters in this volume while shedding light on the evolution and causes of the disputes, and clarifying the position of Nepal also provide pointers to how the disputes may be addressed by both the parties to reset Nepal India relations in so far as the boundary disputes are concerned.

Notes

1) The Sugauli Treaty was proposed on December 2, 1815 and concluded on March 4, 2016.

2) A Boundary Working Group was constituted in 2014 to oversee technical work related to the maintenance and monitoring of the Nepal-India boundary.

3) These disputes came to public attention much later. Susta-Narshahi dispute gained public attention in Nepal in the 1960s and has been off and on in the press particularly at times when the Joint Border meetings are in the offing. The Mahakali dispute (popularized as Kalapani dispute by the Nepali media) became widely known only since 1996 during and after the debate for the ratification of the Mahakali Treaty. Wider public interest on the Nepal-India border issues was contributed largely by Buddhi Narayan Shrestha’s book Nepalko Simana (2000).

4) An official of the Survey Department during that time, who did not wish to be named, reportedly said that the 1985
boundary was in response to India’s indication at the time that they were willing to accept Lipukhola as the boundary if Nepal agreed to fix the tri-junction point at Lipulekh. Nepali authorities may have seen this as an opportunity to resolve the issue forever. However, India later backtracked and refused to vacate the Kalapani area.

5) Based on the new map the Curriculum Development Centre of the Ministry of Education, Science and Technology
of the Government of Nepal published a self-study resource book on Nepal’s land area. However, the book was
withdrawn by the Government on explicit orders of the Prime Minister soon after objection from the Ministry of Land
Management citing inaccuracies in some data and encroachment on the Ministry’s jurisdiction. To date the Ministry
has not corrected the inaccuracies in the publication and provided official data on the total land area of Nepal based
on the new map.

References
Cowan, S. (2018). Essays on Nepal: Past and Present. Kathmandu: Himal Books.
Cowan, S. (2020). The Gorkha War and its aftermath, The Record. Accessed on, Nov 14, 2020.
Government of Nepal (2077BS). Nepalko Bhubhag ra Sima Sambandhi Swadhdhya Samagri, (Self-study material regarding Nepal’s land area and borders). Bhaktapur: Curriculum Development Centre, Ministry of Education, Science and Technology.
Gurung, H. (1989). “Making of a nation”. In Nature and Culture. Random Reflections. Kathmandu: Saroj Gurung.
Maxwell, N. (1970). India’s China War, Bombay: Jaico.
Pathak, S. and Lalit P. (2020). Kalapani aur Lipulekh. Ek Padtal (Kalapani and Lipulekh. An Investigation), Nainital: Pahad.
Regmi, M. C. (1999). Imperial Gorkha. An Account of Gorkhali Rule in Kumaon (1791-1815). New Delhi: Adroit.
Shrestha, B. (2000, 2019). Nepalko Simana (Nepal’s Borders). Kathmandu: Bhumichitra/ Ratna Sagar.
Shrestha, B. (2021). Nepal Sambandhit Aitihasik Sima Naksa Sangraha (Nepal Related Historical Border Map Collection). Kathmandu.

Writer Introduction: 

(Pitamber Sharma. Former Professor of Geography, Tribhuvan University, and former Vice-Chair of the National Planning Commission of Nepal. He is currently associated with Resources Himalaya Foundation, a not-for-profit organization working on environment and livelihood issues in the Himalayas. He has worked widely on issues of urbanization, environment, tourism and regional development. His publications include Urbanization in Nepal (1989), Market Towns in the Hindu-Kush Himalayas (2000),Tourism as Development (2001), Unravelling the Mozaic (2008), and Some Aspects of Nepal’s Social Demography (2014). He holds a PhD in Urban and Regional Planning from Cornell University, USA)