Nepal has been declared as a Federal Democratic Republic in 2015 through drafting and promulgating a new Constitution materialized by the second Constituent Assembly, elected by the sovereign people of Nepal. Obviously, each country in the world has its own remarkable strategies, guidelines, and models for figuring out who is qualified for its citizenship. Historically through recently, Nepal has adopted its own constitutional provisions for granting the Nepali citizenship to foreigners, given the socioeconomic, geopolitical, and cultural aspects of Nepal and its neighboring as well as well-wishing friendship countries. Indeed, the citizenship provision (1964) is enacted with the motive of controlling the acquisition of Nepalese citizenship to the Tibetan men who are tying to matrimonial relation with Nepalese women and avoiding the foreign men from holding power positions within Nepal, and thus resulting in a so-called gender-biased citizenship policy in Nepal. Likewise, under the Nepal Citizenship Act (1964), Nepalese authorities act to remedy the probable fear of influx from India given the open border between Nepal and India, enacting the provision of citizenship in Nepal. Recently, putting an issue under consideration into context, the citizenship amendment bill has been a hot cake in Nepal, and especially in India, following an issue of Nepali border encroachment by India. Earlier, the Nepalese Citizenship Act 2063 B.S. (2006 A.D.) imposes no restriction for foreign women marrying a Nepali man to receive a citizenship with all the rights of a citizen. But now, according to the Citizenship Amendment Bill endorsed on June 21, 2020 by the state affairs committee of the Nepalese Parliament, the waiting time to receive the Nepalese citizenship for a foreign wife of a Nepalese man has been extended to a probation period of seven-year from an automatic acquisition of the Nepalese citizenship upon marriage, without changing the waiting time for a foreign man marrying a Nepalese woman ( that is usually a 15-year period). Given the gender biased citizenship provision in the Constitution since the first law on citizenship (1952) in Nepal, the recent amendment on the existing citizenship provision in the Constitution of Nepal can be argued in favor of Nepalese nationality and Nepalese national security. Note that a citizenship card in Nepal is a symbol of the Nepalese nationality given her socioeconomic, cultural and geopolitical situation.
Note that a citizenship card in Nepal is a symbol of the Nepalese nationality given her socioeconomic, cultural and geopolitical situation.
Historically, the citizenship provisions under the legal and political backdrop of Nepal is categorized into the 3 components, namely citizenship provisions (1952-1990), citizenship provisions (1990-2006), post-2006 citizenship policy. Initially, there is an existence of the Muluki Ain regarding the provisions of citizenship to distinguish the rights and duties of citizens and non-citizens before 1952. Secondly, the 1952 Citizenship Act makes four fundamental criteria for granting citizenship, like Citizenship by birth: under it, a precondition to acquiring the Nepalese citizenship is: individuals should born in Nepal along with the intent of permanent domicile in Nepal; Citizenship by descent: the eligible conditions for granting the citizenship of Nepal are either one of parents, a father or a mother, should born in Nepal and have a domicile in Nepal. It also deals with the condition of acquiring the Nepalese citizenship under two different conditions: if parents of children are (1) the Nepalese citizens, (2) not the Nepalese citizens; Citizenship by marriage: under it, a foreign woman marrying a Nepalese man can acquire the Nepalese citizenship instantly upon marriage. However, there is no provision for a foreign man marrying a Nepalese woman acquiring the Nepalese citizenship; Citizenship by domicile: To this provision, a criterion for acquiring the Nepalese citizenship is either by birth or descent–after continuously living in Nepal for a year. Thirdly, the constitution of 1962 under the autocratic Panchayat system inherits almost the same policy regarding the citizenship issue as followed by the 1952 Act, plus two broad standard categories in relation to the citizenship based on domicile and citizenship to foreigners (a 15-year pre-condition for a foreigner to acquire the Nepalese citizenship). In this way, the 1962 Constitution depicts clearly a discrimination between men and women, suggesting a provision of the Nepalese citizenship for a foreign women marrying a Nepalese man, but not for a foreign man marrying a Nepalese women.
Initially, there is an existence of the Muluki Ain regarding the provisions of citizenship to distinguish the rights and duties of citizens and non-citizens before 1952.
Similarly, the 1964 Citizenship Act, continuing the gender-biased citizenship policy in Nepal, adopts two standards in framing the citizenship policy with respect to (a) Citizenship by descent and (b) Naturalized citizenship (a citizenship given to a foreign woman marrying to a Nepalese citizen after renouncing her previous citizenship)–which still makes a primary citizenship criterion and dominates the citizenship provision in Nepal to date. Again, the 1990 democratic Constitution inherits the gender-biased citizenship policy following the 1964 Citizenship Act. It adopts the provision of citizenship under three broad pre-requisites, namely Citizenship at the commencement of the 1990 Constitution, Citizenship after the commencement of the 1990 Constitution, Honorary citizenship (Source: Wikipedia). Thus, different provisions on the citizenship act keep on updating given the dynamic geopolitical situation of Nepal as well as the world with the course of time.
Likewise, the post-2006 period is deeply marked in the Nepalese history due to significant changes in socioeconomic, cultural, political and legal aspects, following the end of the decade-long Maoist insurgency along with the abolition of about 239 years long monarchy system and establishing a peace process in Nepal. Importantly, the 2006 Citizenship Act respects the equal status of a father and a mother while imparting citizenship to their children, and thus addressing the male lineage problem to a greater extent in the Nepalese society. Besides this, the 2007 Interim Constitution designs two regimes while setting provisions of citizenship, like Citizenship at the commencement of the Interim Constitution and Naturalized Citizenship. Correspondingly, the 2015 Constitution follows some important regimes on the issue of citizenship, such as citizenship at the commencement of the constitution, citizenship based on descent, naturalized citizenship, Non-residential Nepalese citizenship, Honorary citizenship. The recently endorsed citizenship amendment bill lies on the domain of the naturalized citizenship, and hence the problem exists. According to the 2015 Constitution, naturalized citizens are deprived of acquiring the top public positions in the country, like the Prime Minister, President, Chief Minister, Minister, and Chief of the army staff etc. To be noted, the present Citizenship Act (2006) repeals the 1964 Citizenship Act in Nepal. In this way, the citizenship issue (gender-biased citizenship, granting a citizenship to a foreigner etc in one form or the other form) has been continuously prevalent in Nepal since the inception of the 1952 Act till date.
The recently endorsed citizenship amendment bill lies on the domain of the naturalized citizenship, and hence the problem exists.
Additionally, the citizenship issue has become quite debatable and questionable while amending the bill on the Citizenship Act 2006, especially from the southern block of Nepal because of some crucial internal as well as external factors. First, the patriarchy–a rule of male-dominant family– is traditionally responsible for a system of unequal treatment between men and women in terms of citizenship provisions given the sociocultural, economic and political dimensions of the Nepalese society–regarding a man as the head of a family unit and the fundamental guard of the youngsters and resulting in a gendered thought of nationality and national character. Second, the weak implementation of rule of laws gives a space for a gender-biased citizenship regime (that is “a single mother conundrum”), despite Nepal has been a member of a number of international human right institutions. For example, even though human right advocates urge for an equal and independent status of a mother and a father while imparting citizenship to their children, the constitutional provision even in the Federal Democratic Republic of Nepal could not address such discriminatory citizenship provisions because a citizenship cannot be imparted to a child based on the rights of a mother alone independently of the status of her husband, according to the 2015 Constitution. Thirdly, the open border between Nepal and India makes a relation of bread and daughter ( “roti-beti relationship”) possible , given comparable appearances, culture, religion between the individuals of two countries. In this case, when the Indian origin Nepali citizens dominate abundantly the Terai region of Nepal, it can be a great challenge for the government of Nepal in the long-run following the federalism–and hence the agenda for citizenship has become an arguable issue in Nepal if Nepal alone has to bear all of its costs. Consequently, the citizenship issue in Nepal has been a contestable topic in relation to her sovereignty.
Moreover, the step to amend the Citizenship Act (2006) has multidimensional consequences internally and externally. First, a different waiting time to receive citizenship for foreign man (15 years) and foreign women (7 years) gives a feeling of gender disparity in Nepal. However, it should be understood that it is for all foreigners, not only for Indian people. Second, there might be dissolution of the Oli-led government through the split of the Nepal Communist Party (NCP) to create a more fragile political situation and to divert the issue of the citizenship amendment bill and the issue of the Nepalese border encroachment in Nepal. Hopefully, the citizenship amendment bill will be passed from both the parliaments given an almost two-third majority of the NCP in the parliaments. Third, there can be a blockade to Nepal from India to give a pressure to the Nepalese politicians and the Nepalese people regarding the issue of border problem, citizenship provision etc. Remarkably, Sarita Giri has been expelled from the party member for disregarding party’s whip and removed from the House of Representatives for giving a contestable argument against national interests regarding the fresh citizenship amendment bill. Given the long-established “roti-beti relationship” between Nepal and India, India should take this event as the test of nationality conducted by the Nepalese government to check the intent of foreigners why they want to take the Nepalese citizenship. Domestically, the three major Opposition parties in Nepal, Nepali Congress, Samajbadi Party Nepal and Rashtriya Janata Party Nepal, have ironically opposed the citizenship amendment bill, arguing that a new provision is against the existing provision. Externally, China always want see Nepal less dependent with India and the rest of the world. While Nepal has vividly remembered the welcome of India for the Constitution of Nepal (2015) with blockade to Nepal. That is, India always acts as a big brother of Nepal to repress Nepali people’s voices. Thus, accessing the costs and benefits of the existing citizenship provision given the federalism in Nepal, the stance of the present government in favor of the new provision of the citizenship bill is genuinely in support of the true Nepalese citizens given that a gender-discrimination issues is handled comprehensively.
Hopefully, the citizenship amendment bill will be passed from both the parliaments given an almost two-third majority of the NCP in the parliaments.
Furthermore, since several issues regarding the citizenship provisions are identified, it is important to address the root cause of such problems through rationally taking an action and practically implementing solutions. Obviously, the government of Nepal should adopt a modern scientific and digitized civic registration system (e.g., registering birth, marriage, death, collecting a threshold amount of tax from permanent residents and including other remaining vital activities of permanent residents) to track a domicile status of people and to make sure a proper and effective implementation of citizenship provisions in Nepal. However, it is not fair to adopt a “male lineage” system in the name of controlling the fear of influx. Also, either one of the parents, a father or a mother, should be able to acquire a citizenship for their children independently to address the problem of “a single mother conundrum.” Conjointly, the solution for a citizenship to a foreigner is the most critical given the geopolitical situation of Nepal. In particular, a marriage based gender-biased citizenship provision to foreigners can be eliminated through an introduction of equal wait time for both men and women along with the proof of renouncing the citizenship of previous country plus showing the intent of choosing Nepal as the person’s domicile (Source: Tuladhar and Bhandari). Most importantly, the federalism in Nepal is not economically viable, not strategically suitable. Understandably, the proposal for the citizenship bill ( for economic, social, and cultural rights, but not for political rights to NRNs as per the constitution) regarding an NRN has been approved by the the State Affairs and Good Governance Committee. Enthusiastically and eagerly, the NRNA has been waiting for the Citizenship Bill about NRNs to be passed from both parliaments without making any changes on the Committee’s proposal. Accordingly, the proper right to citizenship helps Nepal to create a situation of social inclusion and develop a feeling of true nationhood towards the Nepali soil.
Nonetheless, despite going through several political changes and adopting the norms and values of democratic notion of equal citizenship rights irrespective of race, color, gender, sex, belief, culture, and any other forms of discrepancies, there exists some restrictions in Nepal to some extent while imparting citizenship especially to foreigners because of its geopolitical and strategic location. For example, Sarita Giri , a member of Samajbadi Janata Party Nepal, takes a pro-Indian stance violating a party’s whip pertinent to the constitutional amendment of Nepal while revising Nepal’s national map. It is important to be noted that Giri is a Nepalese citizen of Indian origin. In this regard, there arises a hot debate about how to provide a Nepalese citizenship to foreigners. This is the issue upon which the Nepalese politicians are always skeptical. Hence, given the Giri’s remark , the Federal system under the 2015 Constitution of Nepal, and a sizeable population with Indian ancestry in the Madheshi region of Nepal have given some evidences supporting the doubt of the Nepalese authorities, and thus made them to change the provisions of citizenship to foreigners. Consequently, the government of Nepal has made some adjustments regarding the citizenship provisions to foreigners in Nepal such that the waiting period for the Nepalese citizenship to a foreign woman marrying a Nepalese man has been adjusted to seven years from the provision of automatic acquisition of citizenship soon after marriage. But the government of Nepal does not make any change for now for a foreign man marrying a Nepalese women because a husband’s home is regarded as a woman’s home in the Nepalese society. I think it is not unusual to amend the citizenship bill while going through practices , laws and polices of most of countries of the world. For instance, a foreigner should wait at least seven years just to give an application for registration in India. Similarly, the first generation should wait for 5 years to take a naturalization after having a Green Card in the United States. In this case, the citizenship issue is entirely a domestic concern about imparting citizenship to foreigners. Hence, Nepal can make adjustments in its policies and laws while providing citizenship to foreigners, favoring her national security rather than giving any special attention to any external force. That is, the limit for the citizenship amendment provision is that the threat due to the distribution of citizenship to foreigners should be under the control of Nepal to preserve her national security, and there should be no situation of statelessness for those who have been residing in Nepal for years.
In this case, the citizenship issue is entirely a domestic concern about imparting citizenship to foreigners.
Moving forward, since citizenship issue is a domestic issue of a particular country, no external forces exert any pressure on a sovereign and independent country, like Nepal, pertinent to citizenship provisions. Obviously, there should be no gender-based discrimination on citizenship provisions to create a situation of political stability with a practice of competitive multi-party democracy through periodic elections, economic prosperity of the Nepalese economy with the effective implementation of rule of laws (e.g., imparting “fundamental rights and human rights” to public, the “freedom of press”, a provision of “independent judiciary”, “adult franchise” etc.) and social inclusion ( e.g., “proportional representation” , i.e., reservation on jobs, education and political quotas for Dalits, indigenous people, and Other Backward Castes) of marginalized and minor groups of the Nepalese society. Truly speaking, the law does not treat Indians and other foreigners differently. Most importantly, Nepal should learn the lessons from Fiji– becoming a British crown colony in 1874, the merger of Sikkim with India in 1974, the annexation of the Crimea by Russia in 2014 and take the decision assuming that nobody is above national interests and its nationality. Finally, rather than taking changes in the provision of citizenship as a “regressive” and “discriminatory” action, it should be taken as a need of Nepal to safeguard its national security and sovereignty by all internal and external concerned forces.
Narendra Raj Tiwari (Email: [email protected])
PhD student (Economics) at Texas Tech University
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