The Plight of Second Class Citizens

Sushant Nepali, DNPPF Fellow

Have you ever come across the notion that women in Nepal are considered as second class citizens? If so, have you ever wondered, what exactly does that mean? In this blog, we will try to unveil the discriminatory aspects of our citizenship laws so as to comprehend why women are indeed relegated to the status of second-class citizens in Nepal.

The renowned German-American Psychologist, Erik Erikson opines that "in the social jungle of human existence there is no feeling of being alive without a sense of identity”. However, in the context of Nepal, the Citizenship laws have been designed in a way that completely undermines the identity of a woman. And this lack of identity passes on to her next generation as they are prima facie discriminated against by our laws. The patriarchy that has always been an unwanted part of our society is the major contributing factor behind such discriminatory laws. Patriarchy is prevalent in our society in almost every sector, but validating it through legal provisions is a testament to  an unjust society, where women’s identities are harmed perpetuating intergenerational discrimination. However, the incompetence of lawmakers to grasp the concept of gender equality and weave it into the canopy of citizenship laws have resulted in a pool of stateless individuals, which needs to be resolved through significant legal and constitutional reforms.

The democratic norms and values prevents the state to discriminate amongst its citizens and assures all its citizens the right to equality before the law through its laws and policies, however, laws and policies of Nepal have been discriminatory towards the 51.13 % of its entire population i.e. women. The state has completely refused to provide them the dignity that is inherent to themThis has resulted in a glaring disparity where men can independently acquire and pass on their citizenship, while women are deprived of the same rights.

The Constitution of Nepal itself has laid a foundation of discriminatory provisions that has classified women as second-class citizens. As per the constitutional provisions and the prevailing laws, the children born to Nepali mother and foreign father can only be entitled with naturalized citizenship whereas the children born to Nepali father and foreign mother are privileged with citizenship of descent. Even when a man has no history of his father and mother living in Nepal except for himself, he can confer citizenship by descent to his child independently. Conversely, a woman, whose all familial ties have lived in Nepal and obtained citizenship, cannot confer citizenship by descent to her child if her spouse is a foreigner. This means, if a woman wishes to confer upon her child citizenship by descent, she has to prove that the father of the child is a Nepali citizen or the father is unidentified. If ever the father of such a child turns out to be a foreigner then the citizenship by descent is converted to citizenship by naturalization by the virtue of the same law. This fuels the regressive belief that descent is all about patriarchy and male lineage not just in practice but also in the texts of laws.

Not only that, the administrative hurdles faced my women are even more troublesome. Even when both the parents of a child are Nepali citizens, a mother's citizenship certificate is not trusted by the officials and the child requires their father’s citizenship certificate to obtain his/her citizenship. This is a sheer mockery of gender equality as men do not have to go through such struggles. Be it an intended constraint on the freedom of women or an unintended disregard of the practicability of women’s rights, in Nepal, citizenship rights seem to be men’s rights exclusively.

The plight of single mothers is another heartbreaking reality that needs attention. In order to provide citizenship to their child, they have to declare that the father of the child is 'unidentified'. However, the woes of single mothers do not end there. A single mother has to endure unimaginable hardships while conferring citizenship by descent to her child. The society stigmatizes the status of single mothers and throws intrusive questions such as -"Who is the father?", “Were you married when the child was born?”, "What is the nationality of the father?","Why don’t you bring the father of the child?". This further victimizes the women who have survived rape, human trafficking, or sexual exploitation and the case is no different for women who decide to be single mothers by choice.

The laws of Nepal also prevent women from getting citizenship on their own after marriage. According to the clause 4(5) of the Citizenship Certificate Distribution Procedure Directives 2006, married women have to submit additional documents such as a marriage registration certificate, a copy of the citizenship certificate of their husband or father-in-law, support from (sanakhat) either by their husband, mother-in-law, father-in-law, or brother-in-law, and a copy of the citizenship certificate of their father, mother, or brother from the maternal side. It is important to note that this additional requirement is only for married women and not married men. Where the citizenship law explicitly mentions that a person can obtain citizenship by descent in the name of his/her father or mother, imposing one more restriction on women contradicts the principles of gender equality.

Moreover, the provision of Section 8(1)(a) of the Nepal Citizenship Act 2006 prevents Nepali women married to foreigners from obtaining a citizenship certificate of Nepal if they had not acquired it before getting married, regardless of the fact that her parents are Nepali citizens and are permanently living in Nepal. The additional requirement in this provision is contradictory to Article 11(2) (b) of the Constitution of Nepal 2015, which states that any person whose father or mother was a citizen of Nepal at his or her birth is a Nepali citizen by descent.

Also, when men have got the exclusive right to confer Nepali citizenship to their foreign spouses, why Nepali women are not entitled to the privilege to confer Nepali citizenship to their foreign spouse? The only way foreign men can obtain citizenship of Nepal is through naturalization.  In order to obtain naturalized citizenship, they have to wait for a minimum period of 15 years and fulfill the conditions set out in Sub-section 4 of Section 5 of the Nepal Citizenship Act, 2006. I don’t think there is any rational explanation that can justify such a discriminatory and derogatory treatment of women. The only way out is that either both sexes should have the right to confer citizenship to their spouse or both sexes should be subjected to the conditions set out in Section 5(4) of the Act. Endowing one sex with privileges and excluding the other sex without any rational explanation is what makes it an utterly gender-biased and unjust law.

The unequal and discriminatory citizenship laws have not only affected Nepali women but also their children. A child born to a Nepali mother and a foreign father is only entitled to receive citizenship by naturalization. And the hurtful consequence of this provision is the fact that, a child born to a Nepali mother and a foreign father cannot hold any higher official posts in the government such as President, Vice-President, Prime Minister, Chief Justice, Speaker of the House of Representatives, Chief of State, Chief Minister, Speaker of a State Assembly and Chief of a security body because only the persons who have obtained the citizenship of Nepal by descent can be elected, nominated or appointed in the abovementioned posts. The right of representation and the right to hold office under the State are the two most important rights that make up citizenship. How disappointing it is to realize that the children born to Nepali mothers and foreign fathers are not entitled to those higher official posts just because their father is a foreigner, while the reality is different for children born to Nepali fathers and foreign mothers.

The constitution and the citizenship laws of our country are prima-facie gender-discriminatory which means, the framework of the constitution and the citizenship laws have been designed in a way so that women are treated as if they are less of citizens than men. Among many others, the independent rights of women to acquire and pass their citizenship to their husbands and children have been restricted. It has made it impossible for a woman to live her life without depending on her identity upon her father or her husband. The lawmakers and public administrators need to understand that the elements of patriarchy in social, political, and legal structures is harming women knowingly and unknowingly. 

Citizenship is proof of identity and thus an essential document for every sphere of life. When citizenship laws are discriminatory, the injustice lasts a lifetime for any individual. And in our case, improving the law itself is not sufficient to eliminate inequality if administrators of the society fail to implement the laws to meet its real motive. Therefore, it is important that we uphold the dignity of women in our society by restructuring the laws and implementing strict regulations to overcome administrative challenges to ensure gender equality.

For An Enterprising Nepal