What seemed to like an addressal to all citizenship questions in the country, the new amendments could not accommodate all.
By Vivek Baranwal
In his address on December 26, Prime Minister Pushpa Kamal Dahal mentioned the resolution of the stateless issue crediting it to his accounts of achievement. He is but only partially right.
The same December, I turned 22 and it has only been six months since I am no longer a ‘nobody’ for the Nepali state. Thanks to the long-held, much-needed amendments to the Citizenship Act, 2006. It was followed by Citizenship Regulations (Third Amendment), 2023.
The citizenship bill after being authenticated by the President became law on May 31 last year. However, the Supreme Court on June 4 put short-term stay on the law and, in a dramatic move, cleared the way for implementation vacating the temporary stay on June 22.
While a few district administration offices (DAOs) published notices on their websites calling for citizenship applications from children of citizens by birth and from Non-Resident Nepalis, most DAOs’ sites have no such notices, let alone for children—of citizen by descent single Nepali mothers, and of Nepali mothers and foreign fathers.
Not all children of citizens by birth are receiving citizenship certificates. Why?
Most DAOs issued a similar notice calling upon children of citizens by birth to submit at least 10 documents to get recommendations from the ward offices. For instance, I attached a few more than the required 10 documents and finally obtained my citizenship.
The amendments, pushed by stakeholders and backed by the Constitution, resolved the statelessness of individuals like me whose father is a citizen by birth and mother by descent. Of my cousin whose parents both are citizens by birth and of a friend’s friend (who wants to remain anonymous) in Biratnagar whose father is a citizen by birth and mother acquired naturalisation by marriage.
The issue of being stateless, under ‘by birth’ or commonly referred to as ‘janmako aadhar/janmasiddha wala’, has since been thought resolved completely.
However, Ashok Sahani from Bhadrapur of Jhapa (Province 1) has been still waiting for his citizenship—for a decade now. His father is a citizen by birth and his mother died without having one. Notably, his mother’s parents both had citizenship by descent. Besides, he has his mother’s death registration certificate, family relationship certificate (photosahit ko nata pramanit pramanpatra), and his parents’ marriage certificate but to no avail.
On similar grounds, 26-year-old Ruby and her 23-year-old brother Ajay Kumar, and 24-year-old Ram Kishor Mukhiya in Dhanusha (Madhes Province) have been denied their citizenship.
Individuals are meeting the same fate in conditions otherwise too, where the mother holds citizenship by birth and the father does not have citizenship, or the mother holds citizenship by birth and the father died without acquiring citizenship but his death registration certificate is available (and in some cases also his voter’s card).
Because of the constitutional provision that both parents must have Nepali citizenship, say advocates Raksha Ram and Mohan Karna, still many are denied citizenship.
“Before the amendments came into effect, the issue seemed negligible, however, a good number of individuals have reached me seeking a resolution,” Karna, located in Biratnagar, told me over the phone.
Ram told me, referring to Article 11 (3), “Had it been ‘or’ instead of ‘and’ in the Constitution, no such issue would have existed.”
The said article and Clause 3 (4) of the amended Act state—a child of a citizen having obtained citizenship of Nepal by birth before September 20, 2015, shall, upon attaining the age of majority i.e. 16, acquire the citizenship of Nepal by descent in case the child’s father and mother both are citizens of Nepal.
Advocate-duo Ram and Karna share a common view that a constitutional amendment could give a resolution in the long run. However, neither of them sees that coming anytime soon.
Meanwhile, they suggest that individual writs (if) filed at the Supreme Court are a ready-to-go move. But concerns remain over the due process that may be expensive, hassled and likely not accessible to marginalised individuals, emphasised both the advocates.
Deepti Gurung, Executive Director of the Citizenship Affected People’s Network Nepal, highlights that the decision to distribute citizenship by birth following the Interim Constitution (2006) lacked so much homework that it created more complications.
In a Yadav family in Kalaiya of Bara (Madhes Province), the mother has citizenship by descent and the father died without acquiring any (but had voter’s card). They gave birth to four daughters—of which, two are married in India and two in Nepal—and two sons.
Elder son Bashdev received citizenship by birth from Nagarikta Toli in 2006, but the rest siblings could not meet the age eligibility.
According to Gurung, leaders then cared more about creating a bigger vote bank than installing a full remedy to statelessness through citizenship by birth, which is consequently now “dividing families.”
“How practical and by principle it could be—to provide citizenship to one sibling and deny to the same-blood other siblings,” she said, adding: “The provision to provide citizenship by birth was scrapped with the introduction of the new constitution in 2015. Now, what type of citizenship should be provided to the remaining siblings? Nobody knows.”
First of all, Bashdev should have been given citizenship in the name of his mother, a Nepali citizen by descent. However, the officials did not stay true to their jobs then and now for the remaining siblings looms a legal complication.
Gurung laments that were the citizenship laws not discriminatory to Nepali mothers, most children—whose fathers acquired citizenship by birth and mothers held citizenship by descent—would never have to suffer statelessness. The same could have been applied to children whose fathers were unknown and mothers held citizenship by descent.
Clear laws but practical complications for children of citizen by descent single Nepali mothers
Although there were provisions for Nepali mothers holding citizenship by descent to be able to transfer citizenship to their children before the amendments of 2022, they lacked implementation.
After the Regulations came into effect, DAOs in separate notices called in the application from children of citizen by descent single Nepali mothers attaching as many as 19 documents, including the application form and two self-declarations that the father cannot be identified—one by the mother and another by the child.
It is deeply patriarchal for mother (as a woman) to be obliged to declare her husband is unknown, said Gurung. Authorities asking for over one and a half dozen documents is unequivocally disrespectful to the mother, an equal citizen of the country—intending to pass on citizenship to her child, who has been guaranteed citizenship and the right to life with dignity by the Constitution. See the list issued by the district administration offices Parsa and Bara.
Interestingly, the DAOs Dang, Rupandehi, and all three in Kathmandu Valley asked for around 10 documents to issue the same citizenship. Also, point-to-be-highlighted, Parsa and Bara DAOs asked for educational certificates from applicants while Dang, Rupandehi and the Valley DAOs sought no such documents.
What’s the complication with granting citizenship by naturalisation to children of Nepali mothers and foreign fathers?
A major complication lies in the fact that the Ministry of Home Affairs issues citizenship by naturalisation—as stated in Rule 8 (4) of the Regulations. The district administration only collects the application and passes it to the Ministry.
From a case experience for Advocate Ram, it has been five years since one of his clients applied for citizenship by naturalisation at the Home Ministry. He questions the competency of the Ministry’s bureaucracy and mechanisms.
A mid-20s man, who wants to remain anonymous, was born and brought up in Birgunj. His mother is a Nepali citizen by descent and his father is an Indian citizen. He demands the right to issue citizenship by naturalisation to children of Nepali mothers and foreign fathers to be delegated to the district administration.
For this to happen, Ram says that the Act would need to be amended.
Citizenship: right to have rights
In Nepal, the citizenship certificate is mandatory to exercise and access all the rights conferred as a citizen of the state. For instance, to open a bank account; get hired for a job or start a venture of own; apply for driver’s licence, national identity card and passport; cast vote in elections; apply for scholarships/fellowships abroad; and so on.
But all of these seem a far-fetched privilege for individuals like Ashok, Ruby, Ajay, Ram Kishor, siblings of Bashdev, and yet thousands more.
Gurung, the executive director, and Advocate Karna suggest, that for long-term resolution, the complications regarding citizenship should be pursued and established as serious violations of human rights rather than a tool for electoral politics. For this, voices of stateless need to be built stronger and amplified well, they assert.
This piece is a work under the Civil Society Media (CSM) Fellowship – Madhes Pradesh based in Janakpur.