Deirdre Brennan is PhD candidate at the Peter McMullin Centre on Statelessness, at the University of Melbourne, where she also co-coordinates the Critical Statelessness Studies Project. Her doctoral thesis is concerned with the ‘ethics of care’ in activism against Nepal’s gender discriminatory nationality laws: how do the pervasive, yet unseen, social functions of care, relationships, and emotions, such as joy and rage, shape campaigns to “end statelessness”.
In Nepal, the governance of formal qualifications for citizenship has a relatively short history. Since 1962 (2019 B.S.), the acquisition and distribution of citizenship has been governed by the country’s constitution alongside a complementary citizenship act.One of the most important acts in this short history is the Citizenship Act of Nepal 1964 (2020 B.S.) . The 1964 act formed the basis of all future provisions on the acquisition of citizenship, including enshrining gender discriminatory nationality laws and increasing the residency requirement for naturalised citizenship from 5 to 15 years. And while the 1964 Act would go on to be amended several times, it was not repealed until 2006 when the Nepal Citizenship Act 2006 (2063 B.S.) came into effect. Importantly, now, the 2006 act became outdated as a consequence of the promulgation the the Constitution of Nepal 2015 (2072 B.S.). This has meant that for the majority of the past seven years, the country has lacked functioning legislation governing citizenship acquisition and distribution. The recent news that the bill to amend the Citizenship Act 2006 had finally been endorsed, by the House of Representatives, should thus be a cause for celebration. Passing of the amendment bill has been delayed for years by political dramas that would rival a soap opera, including numerous dissolutions of parliament, attempted power grabs, a cartographic war with India, and not to mention the repercussions of a global pandemic[1]. And yet, one glance of Nepali Twitter shows exactly why those who have been fighting for years for women’s citizenship rights, are extremely disappointed with this legislative milestone[2]. In this blog, I outline some of the major changes introduced by the bill, arguing that while the consequences of a non-functioning citizenship act for Nepali youth will be remedied in some cases, this celebration is tainted by the longer-term consequences for women’s rights, and the inevitable implications on Nepal’s ethnic, gender and sexual minorities.
In the newly amended Act, a Nepali woman’s ability to pass on her citizenship to her children remains conditional: as it was when the Act was first passed in 2006 and as it is in the present Constitution of Nepal 2015. At first glance, however, the Act and the Constitution appear gender neutral, stating that any person born to a Nepali mother or father shall be deemed a citizen of Nepal by descent. It is upon reading further provisions, in both the newly amended Act and the Constitution, that the restrictive and regressive nature of the laws (and inevitably the attitude of politicians) is revealed. Drawing on interviews conducted as part of my PhD research[3], I will first demonstrate the consequences of these gender discriminatory laws, and why, despite the hope of last week’s* amendments to the Act, little may change for some of Nepal’s young people. Later, I will highlight what little good can be taken from news of the newly amended Act.
Suraj is the son of a Nepali woman and an Indian father, he’s thirty years old and has lived in Nepal his entire life. Suraj first tried to get citizenship at sixteen years old (as is customary in Nepal), but his application was refused on the basis that his father is Indian. In our interview he noted how, ‘my mother, sometimes she cries and says “Why I gave birth to you people? I did crime by marrying a foreign man.”’ Of course that isn’t true, yet the laws prohibiting her from passing on her citizenship, in her own right and irrespective of who she married, have made her feel like a criminal. Suraj himself sees the contradictions in these laws, noting ‘sometimes [my mother] thinks “because I married a foreign man you can’t get citizenship” but I don’t think like that. It is because of the law: if you are a man and had married an Indian woman you could have got [us our citizenship] easily.’ The crux of the issue here is that women are expected to follow the father of their children, in name, in marriage and in citizenship – an ideology with its roots in France’s Napoleon era. However, the reality, especially nowadays, is that people live multifaceted lives which do not always match the state’s vision for a (nuclear and male-headed) family. This vision is also driven by the state’s longstanding desire to homogenize many aspects of Nepal, especially its cultural and linguistic diversity[4]. Women, and especially those residing at the Indian border in the Madhes region (where cross-border marriage is commonplace), thus bear the brunt of protecting the state from further ‘dilution’ or an ‘Indianization’ of Nepal by having their right to pass on their nationality restricted.
In an attempt to follow the laws and expectations of the state – which stipulated that Suraj and his siblings could acquire naturalised Nepali citizenship if they provided proof that they had not acquired the citizenship of their father – Suraj’s mother and sister travelled to India. They attempted to achieve the impossible: prove a negative. Suraj recalled how the Indian officials laughed at his mother and sister, and said ‘you are married to our man, he died in your country, he has lived in your country, and you have not come to India so we cannot give you any proof that you are not an Indian… how can we give you proof that you are not an Indian?’. In one breath, the Indian officials proved how out-of-touch Nepal’s citizenship laws really are.
Unsurprisingly, for many years, Suraj and others like him held hope that when the citizenship bill amendment would finally pass, such discriminatory provisions relating to a foreign father would be removed. Milan for example, in his late twenties, is studying hotel management but is unable to travel abroad to complete the required internship, because he doesn’t have citizenship. His father is Indian, and he has faced the same difficulties as Suraj in acquiring citizenship through his mother. Milan was, in fact, promised by his local administration office that he would get citizenship ‘after the citizenship act is passed’. Unfortunately, that promise has not come to light because the old provisions – the necessity to prove one has not acquired the foreign citizenship of one’s father – have been upheld. So long as people shoulder this burden of proof, as Suraj demonstrated is nearly impossible (even when the logistics to acquire evidence, like travelling across the open border with India, are relatively easy compared with those whose fathers are from countries much further afield) there is little to celebrate in the long-awaited passing of the bill. Furthermore, and as before, the power to distribute naturalised citizenship lies solely with the Ministry of Home Affairs. This means naturalised citizenship for the children of Nepali mothers and foreign fathers (which to-date has infamously low distribution rates)[5] is only handed out in discretionary circumstances and where people have access to, and knowledge of, legal and bureaucratic systems. Not to mention that even if Milan and Suraj are able to meet the requirements for citizenship, the very idea that they should only be entitled to ‘naturalised citizenship’[6] adds insult to injury. Known colloquially as ‘second-class citizenship’ because of the inherent restrictions of naturalised citizenship, it is discriminatory – to both Nepali women and their children (who have in all likelihood lived in Nepal their whole lives) – to refuse them ‘citizenship by descent’.
One of the other key elements, in terms of women’s rights, that casts a shadow over the much-anticipated passing of this bill, is that the atmosphere toward a woman’s independent right to transmit her nationality has not changed. Much of the debate around a single mother’s right to pass on her citizenship was driven by patriarchal ideologies and laden with misogynistic slurs. For example, in 2019, Jhapat Rawal of the then-ruling Nepal Communist Party stated:
“If a child born out of rape doesn’t have to identify their father, then rape cases will increase…Children will lose their right to know their father’s identity, and this will also lead to women indulging in immoral acts.”[7]
And so, with the House of Representatives endorsement of the bill last week, so too, came their endorsement of the notion of “untrustworthy” women. In the newly amended Act, a provision has been included which threatens punishment for a woman should she apply to confer citizenship on her child irrespective of who the father is. In cases where the father is unknown or untraceable, a woman may pass citizenship by descent to her child, if the child has resided in Nepal, and, once the mother provides a self-declaration stating the ‘father cannot be identified’. If the father is found to be a foreign citizen, the child’s citizenship is converted to naturalised citizenship, or ‘second class citizenship’. And, should the self-declaration be shown as being false – that is, the father is in fact identifiable – the mother is faced with punitive action.
Finally, as mentioned at the beginning of this essay, it is important to take stock of what good that can be drawn from the passing of the amendment bill. The children of ‘citizens by birth’ have struggled to acquire citizenship since the promulgation of the constitution in 2015. ‘Citizens by birth’ are those who acquired nationality in 2007 during a one-time distribution for people born in Nepal before 1990[8]. This was especially important for people residing in the Madhes where there is a long history of Indian immigration into the region and, as such, a history of contested citizenship and loyalty[9]. Owing to the lack of a functioning citizenship act over the past seven years, the children of those ‘citizens by birth’ lacked a functioning pathway to acquire nationality through their parents. This problem will now be remedied with news of the recently amended citizenship act. Vivek, for example, is a nineteen-year-old from Nepal’s Madhesi community, whose father is a Nepali ‘citizen by birth’ and despite his mother being a Nepali ‘citizen by descent’ could not acquire citizenship since he first tried at sixteen. He was studying journalism when we spoke, and looked to his future ominously:
“I have not been able to apply for better jobs, I don’t own a bank account. I use a bank account, but it is in the name of my mother. I don’t have a voter ID card, I can’t vote. While studying a masters or postgraduate, it is necessary to have citizenship. Then maybe if this issue is not solved then I might face a problem pursuing further studies. I feel terrible, I sometimes feel like I’m born in the wrong country, to be honest.”
The passing of the bill, which addressed Vivek’s issue, will now pave the way for him and tens of thousands like him to acquire citizenship by descent. Certainly, a cause for celebration but tainted nonetheless so long as others, like Suraj, are forced to continue looking ominously into their future. Ultimately, the problem lies with the enshrinement of gender discriminatory nationality laws into the constitution in 2015. The citizenship act was only ever going to compliment the discrimination already laid down in that document. While there are immediate forms of relief for many of Nepal’s stateless youth, the battle to repeal gender discrimination in the constitution’s citizenship provisions is the next great feat for Nepal’s citizenship-equality activists.
*This essay was first drafted on 1 August 2022. Since then, the fate of the amendment bill once again became unclear. Despite endorsement by the House of Representatives, President Bidya Devi Bhandari sent the bill back to the parliament to be reviewed. The bill will only become law once it has been authenticated by the president and this process remains pending.
[1] A more detailed timeline and overview of the cause for these delays is available in: Brennan, Deirdre ‘Struggles Towards Nepal’s New Citizenship Act: Living in the Shadows of the Citizenship Amendment Bill 2018 AD/2075 BS’ in Aziz Ismatov, Susan Kneebone, Kaoru Obata, and Dai Yokomizo (eds.) Nationality Struggles in the 21 Century and its Social Costs in Asia, forthcoming.
[2] The Nepali Sanskrit thread is here and the ‘retweets’ expand on the disappoint with the provisions: https://twitter.com/subinmulmi/status/1551135434910027777
[3] The interviews in this blog were conducted before the passing of the amendment bill and pseudonyms were used in some cases throughout this blog.
[4] Pradhan, Rajendra, and Ava Shrestha. “Ethnic and caste diversity: Implications for development.” Asia Development Bank 4 (2005), p. 7.
[5] As of 2017, Only 13 people had obtained naturalized citizenship certificates in similar circumstances, see, Mulmi, Subin “Feminist Analysis of the Citizenship Law of Nepal”, Nepal Law Review, Year 42, Volume 29, Number 1 and 2, 2020 – 2021, p.439.
[6] Naturalised citizens cannot hold the posts of President, Vice-President, Prime Minister, Head of the Federal Legislature and Head of the Federal Judiciary, Head of Security Forces, Head or Deputy Head of Federal State.
[7] Tsering D Gurung, ‘Debate over Nepali women’s right to pass on citizenship to children reignites as House Committee holds discussions on controversial provisions’ The Kathmandu Post (online, 7 March 2019) <https://perma.cc/J6ZS-6BJ8>
[8] Dannah Dennis and Abha Lal. ‘Controlling National Borders by Controlling Reproduction.’ In Nadine T. Fernandez and Katie Nelson (eds) Gendered Lives: Global Issues (SUNY Press, 2022).
[9] Krishna Prasad Pandey. “Ethnic Politics, Madheshi Uprisings and the Question of Citizenship in Nepal.” Millennial Asia (2021) 60, 65.
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