The recent controversial proposal to amend the constitution has unsurprisingly sparked demonstrations all over the country and has triggered heated debates. Apart from the obvious gerrymandering of the federal states, the amendment of the provision on naturalised citizenship has generated quite a lot of tension.

Firstly, the current amendment proposal has not retained the provisions of the Interim Constitution. In fact, the current amendment proposal is more progressive considering that the Interim Constitution did not specifically grant naturalised citizenship to a foreign female spouse right after marriage, but stated that it would be based on the provisions in the relevant act. However, the Interim Constitution was promulgated after the adoption of the Citizenship Act and the act did allow citizenship right after marriage. Although the act could have been amended by the then Constituent Assembly, there was no push for the amendment of the constitutional provision. It has to be remembered that this provision has existed in Nepal for more than 50 years. The first amendment draft of the Citizenship Act has retained the provision as well, which brings us to the argument that this amendment draft can be changed anytime to include conditions for acquiring citizenship. This would then be a matter of advocacy for a progressive Citizenship Act rather than the amendment of the Constitution. Selecting either option could have been beneficial only if the latter option did not have a major flip side to it.

The flip side

The provisions in the act cannot contradict those in the constitution. A discriminatory provision in the act cannot be challenged in court if it is provisioned in the constitution. Should the amendment of the Citizenship Act retain the provision of providing naturalised citizenship straight after marriage to foreign women and not to foreign men, it could potentially be subject to judicial review as it would be contradictory to the provisions of right to equality and rights of women in the constitution.

However, with the recent constitutional amendment proposal and the presence of a specific provision in the constitution that discriminates between a foreign female spouse and a foreign male spouse, the argument for a judicial review has become weaker. A judicial review seemed like the only way to ensure that the provisions in the act can be amended to include equal provisions for both a male and a female foreign spouse.

The Madheshi argument

The argument for preserving the ‘roti-beti’ relations by providing marriage-based naturalised citizenship to a foreign female spouse and not to a foreign male spouse stems not just from the longstanding cultural relationship with India but is also derived from the patriarchal norm that  women should shift their residence and country after marriage. This is evidenced by the provision in the Citizenship Act that prevents women with Nepali parents who are married to foreign men from acquiring Nepal’s citizenship after marriage.

The high number of cross-border marriages that take place in Madhes also means that there are many Nepali women who are married to foreign men. International human rights laws obligate Nepal to provide equal citizenship rights to women to confer citizenship to their foreign male spouse in the same capacity as men. On the one hand, such women cannot even acquire the citizenship of Nepal and need to wait for seven years in India to be granted naturalised citizenship. On the other hand, the children of such couples are also deprived from acquiring Nepal’s citizenship. Though Article 11 (7) of the constitution has allowed children born to such marriages to acquire naturalised citizenship, the authority to issue such citizenship lies with the Ministry of Home Affairs, which has not issued a single citizenship certificate of that type.

Risk of statelessness

The constitution is already discriminatory, but with this amendment, it will also become patriarchal, as it not just fails to recognise the independent notion of nationality of women but also further institutionalises the tradition of women having to leave their house and their country after marriage.

The amendment is also an opportunity for the lawmakers to address the discriminatory provisions in Article 11 (3), 11 (5) and 11 (7), but there has hardly been any discussion on it. As a result, women will still be classified as second class citizens whose legal identity is determined by the male member of the family. Thus, a Nepali woman can neither acquire citizenship without the certification of her husband or father nor can she confer citizenship to her child without the presence of the child’s biological father. This especially affects Nepali women married to foreign men, as such women cannot acquire Nepal’s citizenship, cannot confer Nepali citizenship to their children, and their nationality status in their husband’s country is not ensured. As a result, they are at a high risk of becoming stateless.

Mulmi, a human rights lawyer, works for Forum for Women, Law and Development