A citizenship certificate, in Nepal, is the one and only significant document to acquire other primary legal identity documents such as passports, driving licenses, voter ID cards, and birth registration certificates. In the absence of a citizenship certificate, a person cannot open a bank account, pursue higher education, and cannot even be issued a SIM card.
The Constitution of Nepal 2015, unlike the Interim Constitution 2007, has widened the scope in terms of acquiring the citizenship certificate and is progressive to some extent. However, it still includes discriminatory clauses that uphold unequal rights of women to confer citizenship to either of their spouses or children. Article 11(3, 5, 6, and 7) of the Constitution consists of some objectionable clauses that do not put women on an equal footing as men regarding the transfer of citizenship to their spouses and children.
The above-mentioned article seems to directly contradict Article 11 (2) (b), Article 18 (right to equality), and Article 38 (1) (equal lineage rights of women) of the same. Article 11 (2) (b) states that “any person whose father or mother was a citizen of Nepal at the birth of such a person” shall be deemed to be a citizen of Nepal by descent. However, the term “father not traced”, is a provision to convert the Nepali citizenship of descent into naturalized citizenship if the father is later proven to be a foreigner and the need of birth of a child in Nepal acquires the citizenship by descent guaranteed under other different Articles of the Constitution purely overlooks the independent identity and right to confer citizenship of women and hence contradicts with Article 11 (2) (b).
This article will critically analyze the discriminatory provisions of the Constitution, the procedural challenges faced by a single mother to transfer her citizenship to her children, and the potential solutions to the existing problems in Nepal.
Citizenship to the children born to Nepali citizens who acquired citizenship by birth: Article 11(3)
The condition that both ‘father and mother’ of a child shall be a Nepali citizen in order to acquire the citizenship of descent by the child directly contradicts Article 11(2) (b) which provides that a person shall be a citizen of Nepal by descent if the father or mother of a person was a citizen of Nepal by descent.
Recognizing the identity of the mother in one clause and overlooking the same in another narrows the principle of equality. Thus, such equivocal provision needs revision and conformity.
Citizenship to the children born to Nepali Mothers and whose father is not traced: Article 11 (5)
This provision has impaired the independent identity of women undermining them to confer citizenship to their children only under the condition that the father of the children is unidentified. The term “father not traced” bestows the concerned authority the discretion to interpret it on the basis of their prejudice. The proviso appended with this article that provides to convert the citizenship of descent into naturalized citizenship if the father is later held to be a foreign citizen overlooks the identity of women.
The provision becomes more complicated in cases of children born to a Nepali mother whose father has abandoned them or has refused to acknowledge the relationship due to various reasons. As there are hundreds and thousands of single mothers whose children have been born as a result of rape, sexual abuse, or forced sex work. Additionally, as per the Nepal Census, 2021, there are 1 million 688 thousand and 886 children below the age of 18 years living with single mothers meaning they might face procedural challenges while acquiring citizenship certificates when they apply for their citizenship certificates (if they have not applied already).
Foreign women having a matrimonial relationship with Nepali citizens: Article 11(6)
This provision allows a foreign woman married to a Nepali man to acquire naturalized citizenship of Nepal if she wishes to. But there is no similar provision guaranteed to a foreign man who has a matrimonial relationship with a Nepali woman. The foreign man has to go through another way to acquire the naturalized citizenship but he cannot acquire the marital naturalized citizenship through his Nepali wife which is discriminatory.
The unequal legal provision applied to the equal citizen of the same nation may bring numerous legal hurdles and complexities and drives the person toward a situation of statelessness. Additionally, such provisions widen the gender gap and exacerbate gender inequality.
Children born to Nepali mother and foreign father: Article 11 (7)
Article 11(7) allows children born to Nepali women married to foreign men to be eligible to acquire naturalized citizenship if s/he has permanently resided in Nepal and has not acquired citizenship of a foreign country. Such complicated conditions set forth for Nepali women to confer citizenship to their children and the straightforward conditions in terms of men have left many single women and their children without citizenship certificates. Additionally, the proviso of Article 11 (7) stresses the need for both father and mother to be the citizen of Nepal at the time of acquisition of the citizenship along with the need of birth of such person in Nepal to acquire the citizenship of descent which again contradicts with Article 11 (2) (b).
The Citizenship Act
Almost five years after the Citizenship Act (First Amendment) Bill was tabled, the Nepal Citizenship Act 2063 was authenticated and came into force on May 31, 2023.
The passage and authentication of the Citizenship Act were widely celebrated for it explicitly ensured the rights of children born to parents who obtained citizenship of Nepal by birth to acquire citizenship. As per the data of the Nepal government, 190 thousand 726 people acquired citizenship of Nepal by birth. Thus, this act would benefit around 500 thousand people whose parents were citizens by birth.
Additionally, another significant provision of the Citizenship Act is it would grant citizenship to children of Nepali mothers whose children’s father is not identified. Otherwise, it would address the rights of the single mother to transfer her legal identity to her children in case the father is unidentified. As per the 2011 Nepal Census, 896 thousand 800 children below the age of 16 were living with single mothers. And by now, amongst them, the total eligible age to apply for citizenship is 680 thousand 533 and this act would benefit the above numbers.
Despite such positive provisions, the act does not address the right to transfer citizenship by Nepali women married to foreign men which, vice versa, has been ensured. Additionally, Citizenship Act introduced the concept of self-declaration for children of single mothers with unidentified fathers to be able to acquire citizenship certificates. The subsequent clauses provide a punishment provision for the applicant or the mother who makes the self-declaration if such declaration later proves to be false, thus, humiliating women in particular. Such equivocal provisions discard the independent identity of single mothers who have been abandoned by their children’s fathers.
The citizenship issue in Nepal has been viewed as one of the most contended and insurmountable problems in Nepali politics and society. It has been always looped and tied up with national security, sovereignty, and independence. Unfortunately, the question of national security is raised when a Nepali woman marries a foreign man albeit the threat remains intact in the case of foreigner women married to Nepali men. In this regard, too, the identity, dignity, and personality of women whether Nepali or foreign is overlooked by a patriarchal and misogynistic mentality where men are set above and women are always put below. The provision to acquire naturalized citizenship in the case of foreign women married to Nepali men and the dissimilar provision in the case of foreign men married to Nepali women only exhibit the deep-rooted patriarchal and sexist mindset.
Article 1 of the Universal Declaration of Human Rights (UDHR) reads that ‘All human beings are born free and equal in dignity and rights’ but this is completely opposite when it comes to exercising equal citizenship rights in Nepal. The unequal legal provisions on citizenship have nullified and impaired women’s dignity, personality, and independent identity. This is evidenced by hundreds and thousands of single mothers who have been disgracefully denied equal citizenship rights to themselves and their children on many occasions.
There are thousands of women who unwillingly live in abusive relationships with their husbands because they fear that separation from their husbands would deprive their children of citizenship rights as the officials would look up to their husband’s presence and his identity documents while conferring citizenship to their children. Furthermore, single mothers abandoned by their husbands suffer tremendously. And those children who have a myriad of dreams and career plans but no choice without citizenship are facing psychological trauma and do not have any idea of who their father is. And even if they know, they are unable to seek help due to several reasons.
Judgments of the Supreme Court
If we analyze the patterns of judgments rendered by the Judiciary of Nepal with regard to citizenship, the Judiciary has always been permissive, progressive, and broad-minded with regard to individual litigation. Be it the case of Bachhi Bista of 2034 B.S., the case of Sabina Damai of 2067 B.S., or Nakkali Maharjan of 2065 B.S., the court has always regarded the identity of women. In the case of Bachhi Bista, the court stated that the claims of the mother are factual whereas the father is a presumption which is a landmark and exemplary judgment for a society where there are so many prejudices against women. Similarly, the case of Sabina and Nakkali would always remain symbolic cases where the court issued an order to concerned bodies to provide citizenship certificate to children of single Nepali mothers whose father is unidentified and also ordered that citizenship should be provided to married women through their fathers irrespective of gender and marital status. However, when it comes to litigation demanding structural or policy reformation, the Judiciary is found to be a little reluctant.
The case of Sukumaya Tamang is evidence whose case was filed in the Supreme Court in 2069 B.S. but to date, the court has not been able to render any judgment on the case leaving herself and her two daughters stateless. Daughter to a Nepali citizen and married to a foreign man, she filed a case challenging proviso of Section 8(1) (a) of Nepal Citizenship Act 2063, proviso of Section 2 (2) (a), and Section 4 (5) of the Citizenship Certificate Distribution Procedure Directives 2063 being contradictory to the Interim Constitution 2063 and other International Conventions but to no avail. She is the leading example of the hardships a single woman has to endure to transfer a citizenship certificate to her children. Her struggle to acquire citizenship through her father is ongoing to date making the situation insurmountable to her and her two daughters.
Nakkali Maharjan married to Gopal Lama. They have a son. Gopal had abandoned the family after the birth of their son and had not been in touch. Since then, Nakkali and her son had been living with Nakkali's parents. Nakkali wanted to open a bank account for which she required her citizenship certificate. She applied for her citizenship at her father's address submitting her father's citizenship. The concerned officer in Kirtipur Municipality denied her citizenship application stating that married women cannot apply for citizenship through the father.
The Court issued a mandamus order to Kirtipur Municipality to issue a citizenship recommendation letter without discrimination on the basis of gender and marital status, stating that also married women have the right to acquire citizenship through the father.
A Nepali woman married to a foreign man does not make her less Nepali. A non-Nepali married to a Nepali simply cannot make the pillars of national security, sovereignty, and independence feeble instantaneously. They can be kept intact by introducing a mechanism to trace people entering and migrating to the country, cutting-edge technology to track the registration system, a mechanism to identify citizens who revoke their identity documents, and a mechanism to track the registration of people to prevent duplication and fraudulent registration.
Conclusion
Nepal is a party to many international treaties and conventions that strongly guarantees the right to nationality of a person and puts women on an equal footing as that of men in transferring, conferring, and retaining citizenship. Unfortunately, the provisions of such conventions are limited within the pages because in practice neither the citizenship issuing authorities are concerned about the provisions nor they refer to those conventions. Let alone international convention, the judgment, and precedents set by the Supreme Court with regard to conferring citizenship certificate by a woman/single mother to her child are rarely abided by. The verdicts have only benefitted the individual petitioner not expanding to protect the right of other persons facing a similar problem.
Shackled in the chains of patriarchy, the concerned authorities hold back to issue the recommendation or citizenship certificate when a single mother approaches to confer her citizenship to her children. On the contrary, they are desperate and more interested to know the whereabouts of a runaway father who has abandoned and deserted the women, children, and family but mistrusts a mother who has carried the child for nine months in her womb and taken all the responsibilities of her child single-handedly. She is asked misogynistic, humiliating questions about her single motherhood role instead of assisting and supporting her with necessary legal information.
The right to nationality should be protected by the state and should not be the unfettered discretion of administrative authorities. The authorities despite seeing the particular case with a doubtful mind and using prejudice to process the case, s/he should prudently scrutinize the fact of the case and make the procedures convenient and less cumbersome instead of entangling and jumbling the case.
The Constitution of Nepal unlike the Interim Constitution has recognized citizenship as a “right” of a Nepali citizen and is progressive in many other aspects. However, these are not enough to recognize the principle of equality and non-discrimination and to fulfill the commitments made in the international forums. To truly embrace the principle of equality and non-discrimination, the law should be equally applicable to all citizens irrespective of gender and other grounds.
The unequal legal provision applied to an equal citizen of the same nation brings numerous legal hurdles and complexities and widens the gender gap and exacerbates gender discrimination. Subsequently, the contradictory provisions of the constitution need to be amended or removed to recognize the independent identity of women to harmonize with the international conventions ratified by Nepal.
(Dechen Lama is a Practicing Human Rights Lawyer and holds a Master's Degree in Human Rights and Gender Justice from Kathmandu School of Law, Purbanchal University.)
