Amendments to the Constitution of Nepal: First (2016), Second (2020) and the Article 274 Procedure

The Constitution of Nepal was promulgated by the second Constituent Assembly on 20 September 2015 (Ashwin 3, 2072 BS), replacing the 2007 Interim Constitution and establishing Nepal as a federal democratic republic. It sets up a bicameral federal Parliament consisting of the House of Representatives (lower house) and the National Assembly (upper house), alongside seven provincial assemblies. Under Article 84, the House of Representatives has 275 members: 165 elected through the first-past-the-post system from single-member constituencies and 110 through a proportional representation system.

Since promulgation the constitution has been formally amended twice. The First Amendment was endorsed by the then Legislature-Parliament on 23 January 2016 and authenticated by President Bidhya Devi Bhandari on 28 February 2016, adjusting provisions on inclusion and electoral delimitation. The Second Amendment was passed by both houses in June 2020 and authenticated on 18 June 2020, replacing the national map embedded in the country's coat of arms. Both amendments followed the procedure laid out in Article 274 of the constitution.

The First Amendment grew directly out of the unrest that followed the 2015 promulgation. Madhesi and Tharu groups in the southern Tarai plains protested that the new constitution did not adequately reflect their representation, and the protests were accompanied by a months-long disruption of cross-border supplies. To address some of these grievances, the major parties brought an amendment touching three articles: Article 42 (right to social justice), Article 84 (composition of the House of Representatives) and Article 286 (the Constituency Delimitation Commission).

Article 42 was revised so that the principle governing the inclusion of marginalised groups in state bodies was framed as 'proportional inclusion'. Articles 84 and 286 were amended so that population would be treated as the primary basis, and geography as the secondary basis, when drawing the 165 first-past-the-post electoral constituencies, while ensuring each district retained at least one constituency. This responded to the long-standing complaint that the Tarai, despite holding roughly half the national population in a fraction of the districts, was under-represented under a geography-weighted scheme.

Parliament passed the bill by a large two-thirds majority (more than 460 members in favour, with seven against), but several Madhesi-based parties boycotted or opposed the vote, arguing the changes did not address their core demands on federal boundaries and citizenship. As a result, the First Amendment is widely viewed as a partial measure that eased, but did not resolve, the constitutional dispute with Madhesi and Tharu movements.

The Second Amendment changed Schedule 3 of the constitution, which prescribes the national coat of arms (national emblem). The amendment replaced the map of Nepal shown within the emblem with an updated political map that depicts Limpiyadhura, Lipulekh and Kalapani, areas in the far north-west along the border with India, as Nepali territory. The change therefore embedded Nepal's territorial claim in the constitution itself rather than in ordinary law.

The sequence of events moved quickly. The Council of Ministers approved the new map on 20 May 2020, after India had earlier published a map showing the contested areas within the Indian state of Uttarakhand. The constitution amendment bill was subsequently registered and tabled in Parliament. On 13 June 2020 the House of Representatives passed it unanimously (reported as 258 votes in favour, none against), and on 18 June 2020 the National Assembly likewise passed it unanimously (all voting members in favour). President Bidhya Devi Bhandari authenticated the amendment the same day, 18 June 2020.

Nepal grounds the claim in the Treaty of Sugauli of 1816 between Nepal and British India, which it reads as placing all land east of the Kali (Mahakali) River within Nepal; Kathmandu identifies Limpiyadhura as the river's origin. India has continued to assert its own position over the areas. Because the dispute concerns territory, the amendment is politically significant beyond its narrow textual change to a single schedule.

Article 274 governs how the constitution may be changed and also sets hard limits on what may be changed. It provides that no amendment may be made in a way that is prejudicial to the sovereignty of Nepal, the territorial integrity of Nepal, the independence of Nepal, or the sovereignty vested in the people of Nepal. These are treated as unamendable core principles, so a supermajority alone cannot override them.

For all amendable provisions, a bill to amend or repeal any article of the constitution may be introduced in either house of the federal Parliament. To pass, it must be approved by a two-thirds majority of the total membership of each house separately, the House of Representatives and the National Assembly. After both houses approve the bill it is presented to the President, who authenticates it, at which point the amendment takes effect.

The two amendments illustrate the constitution's two principal fault lines. The First Amendment addressed internal questions of identity, inclusion and federal representation raised by Madhesi and Tharu communities, while the Second Amendment concerned an external territorial dispute with India. They also show the contrast between contested and consensual amendment: the 2016 changes passed amid boycotts and were seen as incomplete, whereas the 2020 map amendment achieved rare cross-party unanimity in both houses.

The unamendable clauses in Article 274, combined with the requirement for a two-thirds majority in each house and provincial consent for boundary and Schedule-6 changes, make Nepal's constitution comparatively rigid. As of this writing only these two amendments have been adopted, and proposals to further amend the constitution, for example on federal structure, electoral thresholds or representation, recur regularly in Nepali politics without yet clearing the high bar that Article 274 sets.