Supreme Court Directs Nepal Government to Pursue 'Result-Oriented' Diplomatic Talks with UK for Equal Pension for Ex-Gurkhas

Kathmandu. The Supreme Court has issued a directive order in the name of the Government of Nepal to hold 'result-oriented' diplomatic negotiations with the British government to end discrimination in pensions and facilities for ex-Gurkha soldiers serving in the British Army.

A joint bench of Supreme Court Justices Hari Prasad Phuyal and Mahesh Sharma Paudel also drew the government's attention to directly conduct a 'bilateral agreement' between Nepal and Britain after studying the relevance of the Tripartite Agreement of 1947.

The Supreme Court issued this order while hearing a writ filed by Bhim Bahadur Limbu Tawa, coordinator of the British Gurkha Satyagraha Struggle Committee Nepal, and Lal Bahadur Ghising, chief advisor, naming the Office of the Prime Minister and Council of Ministers, the Ministry of Foreign Affairs, and the Ministry of Defence as respondents. The full text of the verdict, delivered on Falgun 13, 2081 BS, has recently been made public.

The court has ordered the government to further pursue result-oriented talks with the British government regarding the problems of ex-Gurkha soldiers through high-level diplomatic channels. The full text of the verdict stated, 'There can be no dispute that the discriminatory service facilities and pensions compared to equivalent British soldiers for ex-Gurkha soldiers, and the discrimination against Nepali citizens serving in the British Army under the Tripartite Agreement, are matters of concern for the Government of Nepal, and the Government of Nepal must take appropriate and possible action on such matters of concern.'

The bench concluded that it is the appropriate and effective measure for the Government of Nepal to take diplomatic initiatives to resolve the problem of Nepali citizens serving in the British Army.

The verdict also mentioned that the court should not interfere as the review of the treaty between the two countries is a matter to be resolved through diplomatic means and the government appears to be taking initiative in this regard. However, the court pointed out that it is not just to discriminate against Gurkha soldiers in pensions and facilities after Britain stated that a nation respecting human rights like the UK would not consider Gurkha soldiers as 'mercenaries'. Furthermore, the verdict clarified that since ex-Gurkhas are citizens of Nepal despite working in the British Army, the responsibility to provide them diplomatic protection lies with the Government of Nepal.

Additionally, the court directed diplomatic initiatives to ascertain the actual number of Gurkha soldiers who lost their lives or were injured in the First and Second World Wars and to provide necessary compensation and relief to their families. Deeming that the state has failed to adequately secure the welfare and interests of Gurkha soldiers, the court issued a directive order in the name of the government to pursue equal pensions and service facilities for Gurkha soldiers who retired before 1997.

The full text of the verdict stated, 'The present writ petition regarding the issue of discrimination in service facilities applicable to ex-Gurkha soldiers retiring before 1997 is related not only to the inequalities in the pension, salary, and promotion opportunities of Gurkha soldiers but also to the fundamental principles of justice, discrimination, and the sovereign rights of Nepal and Nepali citizens. While the Tripartite Agreement provided a framework for the recruitment of Nepali citizens in the British Army, the fact that the terms of this agreement failed to adequately secure the interests and welfare of Gurkha soldiers due to unequal power relations cannot be denied. Historical contexts of colonial-era agreements should not lead to unjust practices.'

The verdict highlighted that there should be no discrimination based on equal pay for equal work and the 'cut-off date'. The court interpreted that the significant difference in pensions made by Britain between Gurkha soldiers retiring before and after July 1, 1997, is contrary to the principles of human rights and equality. The court raised the principle of 'equal pay for equal work' under international human rights law in its verdict, stating that any individual's service benefits should be based on their 'work responsibility, contribution, and expertise', not on the country's economic condition or standard of living.

The Government of Nepal currently does not have official statistics on how many Nepalis are currently serving in the British Army and how many have retired. The court ordered the government to seek these statistics from the British government and to arrange for the Government of Nepal itself to maintain such records henceforth.

Furthermore, the court ordered the establishment of a separate body and the appointment of a liaison officer to end the situation where the Government of Nepal has no knowledge of the recruitment process of the British Army and the number of recruits.

The court also directed the government to initiate efforts to amend the 1947 Tripartite Agreement, which was made in accordance with the bilateral agreement between India and Britain, study its relevance in the current context, and create a 'bilateral agreement' that protects the interests of Nepal and Gurkha soldiers.

The court determined that the 1947 agreement between Nepal, India, and Britain was based on an unequal balance of power at that time. The court interpreted that the provision in that agreement to pay salaries/pensions to Gurkhas serving in the British Army according to the 'Indian Pay Code' was inherently discriminatory.

Interpreting that there is no legal or logical justification for the agreement and Indian laws to apply now that India and Britain have separated and the Gurkha Regiment remains with Britain, the court clarified that a 'new bilateral agreement based on equality' should be established between Nepal and Britain.

The court issued a directive order in the name of the government to amend the current arrangement where the pension received by ex-Gurkha soldiers comes through India, and arrange for it to be sent directly from Britain to Nepal (to Nepali banks). The court also instructed the government to take other appropriate actions necessary to protect the rights and interests of Gurkha soldiers.

The writ petitioners had demanded the implementation of the directive recommendation made by the House of Representatives' Committee on International Relations in 2075 BS, the scrapping of the unequal treaty, and a halt to the new recruitment process. The court dismissed the writ as demanded, stating that diplomatic matters such as foreign policy and treaties primarily fall under the jurisdiction of the executive branch. However, the court issued a special directive order in the name of the government, citing that Nepali citizens have had to endure unequal treatment in the British Army even after nearly 210 years since the start of Gurkha recruitment.