Nepal’s citizenship battles

In September 2015, Nepal passed a new Constitution that was over seven years in the making. Among other concerns, including the perceived gerrymandering at the heart of the new federal structure, many Nepalis protested the promulgation of the Constitution because it denied women equal citizenship rights. The issue of citizenship has continued to be one of enormous political concern, embroiled in debates about nationalism and patriarchy. In June 2020, it came to the fore yet again after lawmakers proposed an amendment to the country’s citizenship laws to restrict the acquisition of citizenship papers. In addition to criticism within the country, the bill also attracted international attention, with UN rapporteurs writing to the government with concerns that it appeared to be “discriminatory against women, trans and gender-diverse persons” and non-compliant with international human rights norms and standards.

Most activists and critics have tended to see Nepal’s restrictive citizenship provisions through the lens of gender discrimination. But in Nepal, gender discrimination has been inextricably linked with an ethnocentric bias against Nepalis living in the country’s southern region of Madhes. An historical overview of formal citizenship in Nepal shows that Nepal has seen periods of both expansion and restriction – and these have corresponded with the success of progressive social movements, or the rise of reactionary politics governed by an ethnocentric, patriarchal ethos.

Narrowing definitions

The history of formal citizenship papers in Nepal is less than 70 years old, with the first ever Citizenship Act being drafted in 1952. During the Rana regime, a period of autocratic rule that lasted from 1846 to 1951, the political system was based on orthodox caste-based Hindu social and legal codes. People living in Nepal were tax-paying subjects rather than citizens in any modern sense of the word. Beginning in 1951, some democratic practices were adopted, which included a multiparty political system, periodic elections, an independent judiciary, modern bureaucracy, and the granting of citizenship documents.

In an interesting contrast with the present-day citizenship regime, the Citizenship Act of 1952 did not clearly distinguish between citizenship by descent and citizenship by naturalisation. It acknowledged as a citizen anybody born in Nepal; a person permanently settled in Nepal with family, one of whose parents was born in Nepal; and any woman married to a man who was a Nepali citizen. The provisions were relatively liberal, and more importantly, as a very new form of identification, citizenship papers had not yet become essential to transactions like the buying and selling of land. This meant that despite being eligible, many Nepalis lived and worked in the country without citizenship certificates.

However, citizenship rights were rolled back in 1960, when King Mahendra Shah suspended the country’s nascent democratic experiment by banning political parties, and introduced absolute monarchy. Mahendra Shah suspended the Constitution, dissolved the elected Parliament, imprisoned then Prime Minister B P Koirala, and imposed a form of direct rule called ‘partyless Panchayat democracy’. The Panchayat system introduced a strong unitary political and cultural ethos that emphasised the homogeneity of the population, and according to anthropologist Richard Burghart, the system overlapped “the status of citizen with the category of native.” The legal importance of the citizenship document also grew significantly in this period, since it was now tied to land ownership, property acquisition and educational access.

In Nepal, gender discrimination has been inextricably linked with an ethnocentric bias against Nepalis living in the country’s southern region of Madhes.

A new Constitution came into effect in 1962 to consolidate the Panchayat regime, which was followed by an amended citizenship law two years later. The Citizenship Act of 1964 distinguished between citizenship by descent and by naturalisation, and removed provisions for citizenship by birth. Citizenship by descent was now possible through the patrilineal line only – ie, a child’s father was required to have been a citizen at the time of the child’s birth. For naturalisation, an applicant was required to speak and write in Nepali. While the Nepali-language clause was specifically intended for naturalisation, according to researcher Sitaram Bhattarai, even those applying for citizenship by descent were arbitrarily subjected to this language requirement. This had a disproportionate impact on Madhesis, people living in southern Nepal, a large majority of whom did not speak Nepali. (The 1961 census stated that 51 percent of the population spoke Nepali as their first language, although the validity of the census language enumeration has been called into question, given the radical decline in the number of languages recognised by the state: over 50 in the 1952/54 census, followed by 36 in 1961, and just 17 in 1971.) Although there was no law requiring this, officials administering citizenship papers made it mandatory for men to wear dhaka topis, hats that are native to certain groups in the hills, in photos for citizenship certificates. Old men in the Madhes tell stories of dhaka topi rental services, where a couple of hats would be passed around in every village.

Citizenship in the Panchayat period was, therefore, restrictive not only due to the laws themselves, but bureaucratic discretion that allowed officials to deny citizenship to those they perceived as ‘not Nepali enough’. Because the construction of what ‘Nepaliness’ entailed was predicated on elite, male, high-caste hill Hindu ideals, and the overwhelming majority of bureaucrats were (and continue to be) from these groups, ethnic and linguistic minorities as well as women suffered. Madhesis, in particular, were constructed in the national imagination as ‘Indians in disguise’ because of the geographical and cultural proximity to Bihar and Uttar Pradesh. In 1983, a report titled ‘Internal and International Migration in Nepal, Main Report’ (popularly referred to as the Harka Gurung report) prepared for the National Commission on Population by Harka Bahadur Gurung provided official sanction to the popular myth that many Madhesis were in fact Indian. Being a Madhesi, especially poor and female, could therefore be an almost insurmountable barrier to obtaining a citizenship certificate from the 1960s through to the 1990s.

Provisions surrounding naturalised citizenship were amended a number of times since the enactment of the 1964 law: the original draft required a two-year waiting period for foreign women married to Nepali men, but a 1976 amendment increased the waiting period to five years, and a 1982 amendment removed the waiting period completely. Since 1982, foreign women married to Nepali men, a large majority of whom are Madhesi women because cross-border marriages are common in southern Nepal, as well as in border towns in the country’s east and west, have not legally been required to wait any number of years after marriage to obtain Nepali citizenship. 

Democratic interventions

Decades of political organisation and armed conflict in Nepal culminated in the mass movement of 1990, which led to the restoration of parliamentary democracy and a democratic constitution. While the new constitution designated Nepal a ‘multiethnic’ and ‘multilingual’ nation, it continued to recognise the discriminatory 1964 citizenship law. An amendment to the law relaxed its language clause, so that one could now speak a ‘national language’, as opposed to just Nepali, to acquire naturalised citizenship. But the patrilineal basis for citizenship did not change.

Meanwhile, the fight for equal citizenship rights in the 1990s was led by women from the Badi community – Dalits who became dependent on income from women’s sex work in the process of migration and urbanisation in the 1960s. In 2005, largely as a result of their activism, the Supreme Court directed the government to provide citizenship to every child, even if the identity of their father was not clear. Such citizenship IDs, however, would include the remark “father not identified”, a provision that activists rejected since it did not meet their demand for citizenship through the mother’s name and continued to operate under a patriarchal framework.

Citizenship provisions saw a significant change in the period between 2006 and 2008, with the fall of the monarchy, the end of a decade long Maoist war, and two Madhes uprisings that led to a significant increase in Madhesi political power. This was reflected in two legal changes when it came to citizenship acquisition: a new Citizenship Act in 2006; and an interim constitution drafted in 2007 to institutionalise the gains of the popular movement, which marked a significant liberalisation of citizenship provisions. In particular, the interim constitution allowed individuals to acquire citizenship by descent through their mother or father, even as this provision was undercut in a subsequent sub-clause whereby the children born to Nepali women married to foreign men were eligible only for naturalised citizenship. While naturalised citizens did not have less rights than citizens by descent, the fact that the identity of the father still needed to be disclosed during the citizenship application process was one that many women took umbrage with.

Around the same time, Madhesi political forces negotiated a time-bound, one-time distribution of citizenship by birth for permanent residents in 2007 to address the well-documented history of denial of citizenship papers to the community. According to lawyer Dipendra Jha, 170,042 Madhesis who previously did not have citizenship were able to obtain the certificate through this provision. This event has become part of a standard chorus of nationalist opposition to citizenship equality, with conservative political forces claiming that the provision was used by Indians to get Nepali citizenship. Any expansion of citizenship rights, they argue, will only allow more Indians to fraudulently claim to be Nepalis and threaten the demographic composition of the Nepali nation.

 Beyond legislation

The role of the Supreme Court on the issue of citizenship has been a complicated one. In a high-profile case in 2019, the Supreme Court annulled about 32,000 citizenship certificates issued in 1997, because they had been granted by a political commission and did not meet the bureaucratic requirements of District Administration Office oversight. According to lawyer Mohan Karn, most of these certificates had been distributed in the districts of Saptari and Siraha, and almost all were in the Tarai. Post-annulment, most of the people who had been given these certificates were once again rendered non-citizens.

Another important judicial intervention on the issue of citizenship occurred in 2007 when the citizenship rights of gender minorities were recognised for the first time, when the Supreme Court ordered the government to allow individuals to identify themselves as male, female or ‘others’. In 2013, the Ministry of Home Affairs formally issued a directive to enable such identification on citizenship documents. Many activists criticised ‘other’ for being a superficial and inadequate catch-all for transgender and gender non-conforming people, especially since government officials frequently conflated sexual orientation and gender identification in ways that made self-identification in the citizenship certificate application process extremely difficult.

Without citizenship documents, foreign women married to Nepali men might be unable to have economic lives independent of their husbands.

However, such verdicts about citizenship have not become precedents that apex court rulings often become. According to a 2016 report by lawyers Sabin Shrestha and Subin Mulmi, the implementation of Supreme Court decisions have benefited only the concerned applicants, “the decisions, thus, did not lead to a change in the laws, obliging individuals with the same legal shortcomings to file another individual lawsuit.”

At the same time, while citizenship provisions post-2006 were more progressive than they had been since before the Panchayat period, bureaucrats responsible for issuing citizenship papers still have a great deal of discretionary power. For instance, a clause in the Citizenship Rule of 2006 states that “If a person testifying for the recommendation of somebody applying for citizenship is found to be suspicious, he/she may be investigated.” Since ‘suspicious’ is often synonymous with ‘Indian’ in popular discourse on citizenship in Nepal, this power has frequently been used to deny citizenship to Madhesis.

According to researcher Sitaram Bhattarai, another serious hurdle in realising citizenship rights is corruption: it is not uncommon for government officials to ask for bribes to process citizenship documentation. This may partly explain why 35 percent of Dalits, among the poorest community in Nepal, did not possess citizenship documents, according to a 2005 study by the National Dalit Commission. 

The politics of eligibility

It is under this context that the Constitution of 2015 rolled back some citizenship rights that had been gained through legislation in the decade prior. Individuals born to Nepali fathers, no matter what the nationality of the mother might have been, were eligible for citizenship by descent. Those born to Nepali mothers and foreign fathers, on the other hand, were only eligible for naturalised citizenship. Since naturalised citizens are constitutionally ineligible to hold any of the highest elected or appointed government positions (including the president, prime minister, chief justice, speaker of the Parliament, provincial chief minister and speaker, and chief of security bodies, among others), this threatened to create two tiers of citizenship, where some citizens have legally defined limits on their political futures, despite having a Nepali parent. Similar asymmetry was present in naturalisation provisions for non-nationals entering into matrimony with Nepalis. A non-Nepali woman married to a Nepali man was eligible for naturalised citizenship, while a foreign man married to a Nepali woman was not.

While unequal citizenship has been a prominent subject of the national conversation since 2015, the issue has come to the surface again with the proposed amendments to the Citizenship Act of 2006. The most contested part of the proposal sought to introduce a waiting period for naturalisation of non-national women married to Nepali men to seven years, even though they were not required to wait any number of years since 1982. Nepal’s ruling party Nepal Communist Party (NCP), which has an overwhelming presence in the Parliament, has defended the bill on grounds of ‘national interest’. As one NCP lawmaker stated, she was a citizen first and a woman second. This has been the tenor of much of the conversation around this bill, which remains dominated by conservative political forces. The ethnocentric notion that Madhesis are the threat is often implied, if not explicitly stated.

Those defending the bill argue that an alternative document (resembling permanent residency) will serve some of the same functions that the citizenship document does. However, so far there is no administrative and legal basis for any document of this kind. Nepalis are required to present citizenship documents for activities ranging from buying a phone SIM card to starting a bank account, applying for government jobs to registering children in schools. Without citizenship documents, foreign women married to Nepali men might be unable to have economic lives independent of their husbands. Those in abusive marriages, or those seeking or already divorced, would be particularly vulnerable to financial distress.

Both the constitutional provisions, as well as the more recent amendment bill, have been controversial and led to widespread protests. Interestingly, the protests have come from two broad groups focusing on two separate issues. Madhesi rights activists have focused on the nautralisation provision for non-Nepali women marrying Nepali men and most recently opposed the seven-year waiting period, arguing that denying citizenship soon after marriage would render many women marrying across the border financially and socially vulnerable. Meanwhile, women’s rights activists have sought to secure women’s rights to pass citizenship by descent to their children, just as Nepali men can, and protested the gendered application of naturalisation provisions, where foreign men marrying Nepali women remain ineligible for naturalised citizenship. (Technically, the government may discretionally grant citizenship to any non-national who has resided in Nepal for at least 15 years, and made contributions to Nepali society.) While both sides have demanded that citizenship clauses be changed, their priorities have been different, and there exists some friction between the two due to some Madhesi activists’ sexism, and some women’s-rights activists’ anti-Madhesi prejudice. A robust coalition between these groups has not yet emerged.

The story of citizenship in Nepal is one of patriarchal and ethnic anxieties. Senior politicians as well as some in the mainstream media frequently invoke the spectre of ‘Fijiaisation’ and ‘Sikkimisation’ – the claim about communities from other countries, particularly India, supposedly ‘taking over Nepal’ if citizenship laws were lax – to justify the hurdles and inequities in acquiring Nepali citizenship certificates. These restrictions are in place despite the fact that citizenship acquisition in Nepal is already low. While the Home Ministry holds its data dear and it is difficult for journalists and researchers to gain access, the Forum for Women, Law and Development (FWLD) estimated that in 2011, nearly a quarter of the Nepali population aged 16 and above did not have citizenship papers. Many of them are women from Madhesi and other marginalised ethnic communities, and the children of single mothers. Until the government shifts its priority from restricting citizenship for those who aren’t Nepali to granting citizenship to those who are, the problem of statelessness in the country is likely to remain rampant.