June 23, 2021

Praveen's Webspace

writing, mostly, on contemporary issues of human rights, politics & social justice

Citizenship and naturalisation

Madhesis do not want provisions that might compromise their relations with people across the border

The debate over the citizenship has once again flared up in Nepal as the government is set to register an amendment proposal in Parliament to modify the constitution for the second time. One of the key issues for the amendment proposal is to allow naturalised citizens to hold top state positions. This has almost divided the country in terms of views and opinions. Such a division can easily be traced in the mainstream media itself among a plethora of opinion pieces and news stories.

The issues of Madhes have always been looked at as India’s agenda. For the Madhesis, it is not a surprise. Such an attitude towards them has existed since the enactment of the first citizenship act—Citizenship Act of 1952 and promulgation of past constitutions. The same attitude had worked 40 years ago. The politics of citizenship in Nepal, that American researcher Frederick H Gaige in his book Regionalism and National Unity in Nepal wrote in 1975, is still relevant.

In the last few decades, Nepal has gone through vast political changes, which were never possible without the overwhelming participation of the Madhesis. Unfortunately, the attitude of a section of Nepali society towards Madhesis, which make up around 30 percent of the country’s population, remains unchanged. According to Gaige, nationalism fostered by anti-Indian feelings among Kathmandu’s elites was an important factor contributing to the citizenship restrictions included in the 1962 Constitution. When the constitution was being written, reinforcing the king’s position at the apex of Nepal’s political system, anti-Indian feelings were at a peak in Kathmandu. Similar kind of nationalism contributed to the regressive citizenship provisions in the new constitution.

When the new constitution was being drafted last year, border-centric protests of the agitating Madhesis backed by India had cut off Kathmandu’s lifeline. This was after the government’s crackdown on the movement, resulting in the killing of three dozen Madhesis. The government and ruling political parties exploited anti-Indian sentiments to thwart their movement. The anti-Indian sentiments were fundamentally anti-Madhes sentiments during the protests last year. This has contributed to imposing restrictions on naturalised citizenship based on marriage in the new constitution.

Cross-border linkage

Madhesis cannot curtail their association with India, which is based on an age-old relationship. The marriage of Sita, daughter of King Janak from Janakpur (Nepal), and Ram, the crown prince of Ayodhya (India) is still commemorated in Janakpur during a festival ‘Bibah-panchami’. Madhesis fear that the discriminatory provision on citizenship will affect their relations and family bonds with the people of India. Although there is no official data of the number of Indian women marrying Nepali men, many families in Tarai have at least a woman member from India because of the cross-border marriage practice. The new constitution, though it provides naturalised citizenship to these women, bars them from holding top state positions. The Madhesis do not want any provisions that might compromise their roti-beti relations with people across the border.

Although previous constitutional provisions and laws on citizenship had restrictions in general, they had never discriminated against naturalised women based on marriage. The interim constitution, implemented in the country for almost a decade,  puts the bar of 10-year residency in Nepal on naturalised citizens; they were not restricted from holding any constitutional posts. Likewise, Nepal Constitution of 1962 and 1990, which were drafted and enacted under the autocratic Panchayat regime, granted foreign women marrying Nepali men naturalised citizenship, which was of equal status with citizenship by descent.

But the new constitution has denied equal status to foreign women married to Nepali men.

Specious argument

Many people argue that liberal citizenship provisions would help India convert Nepal into a ‘Fiji’. But the example of Fiji is not relevant in our context. India’s British rulers had taken the Indians to Fizi as bonded labourers. After generations, the Indians have gained equal status.

The argument that no country allows  naturalised citizens to become the head of state is also untrue. Some countries like the US do not allow it, but there are some, including India, Armenia, Brazil and Germany, that do. Any citizen, by descent or naturalised, can become the prime minister of India, as per the Indian constitution.

Change in attitude

‘Nativity’ cannot be the sole criterion for allowing people to hold top state positions. It is not a legally sustainable argument. International law is also relevant in the context of the Madhesis in Nepal. While evaluating nationality claims, international laws and best practices for citizenship worldwide require countries to consider the applicants’ genuine links such as social, cultural, and economic ties with a country. Simply providing marriage-based naturalised citizenship to someone today does not make them the president or the prime minister the next day. They have to be actively involved in politics; they have win elections. And they must be capable of running the country.

The Madhesis are not Indians. The issue of marital naturalised citizenship for foreign women that the Madhesis raise is not an Indian agenda. It may be of concern to India because of security reasons as it seeks stability in the Madhes due to the open border. It is time for Nepali opinion makers and lawmakers to change their views and attitude towards the Madhesis. This is an opportunity to end the resistance of Madhesis.

This Op-ed originally published by The Kathmandu Post can be accessed here.