Ethnic Politics,Madheshi Uprisings and the Question of Citizenship in Nepal

I. Introduction

I want to pose the problem of citizenship debate in the Tarai with the following three cases. First, the lower and upper houses of the parliament of Nepal passed a major amendment to the Citizenship Act of 1964 in 2000 and sent it to the King for the royal seal, but he held it for a long time and never brought it into force (Bhandari, 2007 [2064 VS]; Bhandari, 2014). The aim of the amendment was to insert jus soli provisos by which those persons (largely the Madheshis) who were born in Nepal but could not prove to be of Nepali descent would benefit.

Second, the House of Representatives (lower house), reinstated by the people’s movement launched by the Seven Party Alliance (SPA) against the monarchy in 2006, substituted the Citizenship Act of 1964 with the new Act along with a more liberal jus soli proviso amid the controversies. A section of the Madheshis applauded the adoption of this proviso, but a large section of the non-Madheshis remained apprehensive, with the view that the adoption was impregnated with Indian interest. ¹

Third, the newly stipulated provisos for citizenship acquisition in the Constitution of Nepal 2015 ratified by the overwhelming majority of the Constituent Assembly enraged the United Democratic Madhesi Front (UDMF), an ad hoc umbrella forum of the major Madheshi parties. The UDMF protest was against the restrictions imposed for the political rights of the naturalized citizens and the procedures to be set in the Citizenship Act to acquire naturalized citizenship by marriage. Amid the controversy, a new bill to amend the Citizenship Act of 2006 has been approved recently by the parliamentary committee of the House of Representatives without addressing the demands of the Madheshi parties. The controversy has not been resolved yet.

These three cases raise two important questions: (a) why do the Madheshi parties and activists more often than not express concern over changes in citizenship laws; and (b) why do the non-Madheshis see the Indian factor behind the citizenship concerns of the Madheshis? The common-sense understanding of the problem is that it has roots in hill-people-dominant or majority-dominated definition of national identity that every country possesses (see also Brubaker, 1992; Gaige, [1975] 2009), because the controversy is around the rights for citizenship by birth and by naturalization. As I discuss in the concluding section, the blurred boundary between the descent-based Madheshis and the Indian immigrants in everyday life has helped develop the majority understanding of the Madheshis. A section of non-Madheshi (particularly, hill-origin) politicians, intellectuals and activists argue that liberal jus soli and naturalized citizenship provisos benefit the Indian immigrants, not the Madheshis of Nepali descent, due to Nepal’s open and porous border with India and cross-border cultural and familial ties of the Madheshis (Bhandari, 2007 [2064 VS]). This section is anxious about the inflow of Indian immigrants, as it would eventually push the native population into a minority and threaten national integrity and sovereignty. As Indians are the major immigrants (93.6%) in Nepal according to the 2011 Census (Khatiwada, 2014), the anxiety of the non-Madheshis that they could be pushed to the margins in the long run bears some logic.

The other section, the Madheshis, rejects the anxieties of the non-Madheshis outright. The Madheshis claim that the changes in Nepal’s citizenship laws directly impact them because they have cross-border familial and cultural exchanges from the ancient past which they term roti–beti (familial) relation but appear ambivalent to acknowledge their or their ancestors’ immigrant history. The marriage between Lord Ram from Ayodhya and Goddess Sita from Janakpur is a classic example. The three representative cases mentioned above best illustrate that the citizenship controversy in Nepal rests on the indifference to differentiate between the descent-based Madheshis and the recent Indian immigrants. Having studied the inflow of the Indian immigrants, Weiner (1973) had also warned that the citizenship problem in Nepal would become explosive in the future and that a conflict between the Madheshis and the non-Madheshis would emerge (see also Gaige, [1975] 2009). There is no official mechanism to record cross-border marriages, however it has been frequently reported that large number of Madheshi males are get married with Indian women annually and brought in Nepal. Likewise, another large number of Indians immigrate to Nepal in search of employment beyond official records. ² The government does not have any record of how many of those immigrants return to India and how many of them desire to settle in Nepal. The provisos stipulated for the naturalized citizenship in the Constitution and the Citizenship Act become active once the Indian women married to the Madheshis and the Indian immigrants settled in Nepal for employment decide to apply for the Nepali citizenship.

Not only do Madheshi men have marital ties with Indian women but also non-Madheshis, especially some men from Kathmandu nobilities with women from Indian nobilities, and non-Madheshis of far-Eastern districts with ethnic Nepalis from Northeast India, have such ties for long. Despite the fact that cross-border marital ties of both Madheshis and non-Madheshis exist, the national identity defined from the perspective of the hill-origin people consciously excludes the cross-border marriages by non-Madheshis as a threat to national integrity and sovereignty. Contrary to this, cross-border marriage by Madheshi males has usually been viewed as a threat to national integrity and sovereignty. A recent example is of the case of Sarita Giri, an Indian-born member of the House of Representatives from a Madheshi Party and a naturalized Nepali citizen by marriage. ³ This definition of national identity systematically constructs a framework in which all Madheshis are placed in the immigrant category and all non-Madheshis in the indigenous settler category, irrespective of their individual ancestral history. This contradiction has led to the false understanding that there is no boundary between the descent-based Madheshis and Indian immigrants. Furthermore, the fundamental principle of the framework assigns the non-Madheshis the responsibility of safeguarding national identity and sovereignty by portraying the Madheshis as a threat to the majority-based national character. On the backdrop of this spiralling tug of war between the non-Madheshis and the Madheshis, I try to bring out in this article the historical trajectory of the constitutional stipulations and citizenship laws that have appeared as a lynchpin of Nepal’s current ethno-politics since the 1950s.

I have organized this article into five sections. ‘Introduction’ begins with three cases associated with the controversy between the Madheshis and the ruling elites over the policies on naturalized and jus soli citizenship. This section situates the citizenship controversy in the wider context of the debate of immigrant/‘Indian origin’ versus native settler that has structured Nepal’s ethno-politics since the 1950s in general, and since the 2007 Madheshi uprising in particular. In section II, I briefly touch upon the conceptual note on ethnicity and citizenship. This section, particularly, deals with the notion of citizenship and how the notion is entangled with exclusionary ethno-nationalism in South Asia. In Section III, I move on to the historical trajectory of the emergence of Madheshi ethnic identity and how Madheshi ethno-political activism questioned the hill domination in terms of formulating and reformulating citizenship policies. Section IV, a relatively long one, brings out the intricacies of three aspects—constitutional provisions and legal stipulations on citizenship, alleged Indian interest and anxiety of the hill-based ruling elites—that have always been at the centre of the citizenship debate in Nepal since the 1950s. This section explores the changes in the citizenship policies since the promulgation of the first Citizenship Act of Nepal in 1952 and how these policies have been responded to by the Madheshis and the non-Madheshis. In addition, this section deals also with how these policies are tested or untested in the triad of ‘Indian interest’ in Nepal, Madheshis as ‘Indians’ and the anxiety of the hill-ruling elites about Indian penetration. Section V urges the stakeholders to come up with a practical long-term solution for the citizenship controversy, specifically by clearly differentiating between the descent-based Madheshis and the Indian immigrants.

II. Brief Conceptual Note on Ethnicity and Citizenship

The notion of citizenship itself is a political concept associated with individual liberty (Rawls, 1971; Bellamy, 2008) as it has evolved along with the notion of a nation state. Nepal also introduced the concept of citizenship when it started trying to transform from a centuries-long centralized feudal state into a democratic nation state since the second half of the twentieth century. Citizenship is a central marker of political membership and also a means of defining inclusion and exclusion criteria (Brubaker, 1992). Determining the importance of citizenship for a modern nation state, Nepal expressed its commitment to the fundamental civil, political and social rights of its citizens by transforming their status from raitis or prajās (subjects) to ‘citizens’ as late as since the 1950s. The idea of citizenship in Nepal had been derived from a civic form of nationalism, and so the ethnicity-specific concerns of the Madheshis remained in the margins. The notion of citizenship consists of not only membership in a political community but also social, political and civil rights of the members of a nation state (Marshall, 1950), and so it is inalienably linked with democratic politics (Bellamy, 2008).

Citizenship is based on the principle of exclusion—internal and external. Internal exclusion (exclusion of women, the unemployed, the homeless, criminals or the mentally ill) has been dropped as baseless nowadays, but external exclusion (exclusion of immigrants and asylum seekers) is still a contested domain (Bellamy, 2008). Asylum seekers, refugees and immigrants across the globe are the ones who are usually excluded from the citizenship rules defined by the dominant ruling community. Indian immigrants in Nepal, Indian-origin Tamils in Sri Lanka, Biharis in Bangladesh and Nepali-speaking Lhotshampas in Bhutan have been facing either the internal or external form of exclusion for decades in the due course of pursuance of a monolithic nationalist ideology of citizenship based on hill superiority in Nepal, Buddhist superiority in Sri Lanka, Bengali superiority in Bangladesh and Drukpa superiority in Bhutan, respectively (Khan, 2001).

Citizenship can also be defined as ‘a collection of rights and obligations which give individuals a formal legal identity’ (Turner, 1997, p. 5; see also Bloemraad, 2000, 2015). Bloemraad (2000, 2015) has further elaborated on three other conceptual facets of citizenship, namely rights, belonging and participation, besides legal identity or status (see also Bloemraad et al., 2008). Many countries, thus, have clearly defined the duties and responsibilities of their citizens along with the rights associated with their citizenry in their Constitutions. The rights and responsibilities of Nepali citizens have been clearly stated in the 1962 and 2015 Constitutions of Nepal, but other Constitutions remained silent except for urging the citizens to fulfil the duty of adhering to the Constitution per se. Struggles for citizenship across the globe have usually emphasized rights but have been indifferent to link the rights with the duties. The struggle of the Madheshis for citizenship rights also has followed the same path, despite that the integration between rights and duties is a prerequisite for a democratic polity to succeed.

The citizenship problem in the Tarai came to light hand in hand with ethnic nationalism emerging to counter the civic form of nationalism promoted by the hill-origin ruling elites. The non-Madheshis, largely the ruling elites, view the common culture of the Nepali Madheshis and the Indian immigrants as a potential threat to national unity like the West Pakistanis viewed the culture of Bengali Hindus and Bengali Muslims before the declaration of Bangladesh in 1971 (Uddin, 2006, p. 125). The crux of the citizenship problem in the Tarai lies not in the concept of citizenship per se but on the political rights of the naturalized citizens having different cultural roots and national blood. This is, simply, because of the lack of trust with the identity of the naturalized citizens. Even in India, the controversial amendment of the Citizenship Act of 1955 in 2019 to accommodate non-Muslim immigrants only from Afghanistan, Bangladesh and Pakistan resulted in systematic exclusion of Muslim immigrants from those countries as well as Hindu Tamil immigrants from Sri Lanka (Veeraraghav, 2019). This amendment appeared to be more anti-Muslim than pro-Hindu, incorporating only the Hindu immigrants prosecuted by the ‘Islamic’ states but not by the ‘Buddhist’ Sri Lanka (Veeraraghav, 2019).

It is not odd to see citizenship taking the driver’s seat where identity politics, either by the state or by minorities and immigrants, or by both, has become an everyday phenomenon. Bhutan, since the 1980s, has shown the worst example of disenfranchisement of its citizens having ancestral immigrant history. The 1985 Citizenship Act of Bhutan was a state-sponsored clandestine design to safeguard the Drukpa-defined monolithic nationalism by systematically stripping off the citizenship rights of the Nepali-speaking Lhotshampas (Giri, 2004; Hutt, 1996, 2003, 2005; Rizal, 2004). Citizenship is one of the key aspects of identity (Young, 1989) that has been a long-standing contestation between the hill-origin ruling elites and the Madheshi political forces on the grounds of immigrant and indigenous settlers’ polarization in Nepal.

The Madheshi uprising of 2007, which was of an ethno-political nature and had been launched against the domination of the non-Madheshis, undermined the non-political aspects of the citizenship concerns. Citizenship is a universal identity, but ethnicity is a relative, volatile and contextual claim that one makes during social interaction for certain instrumental purposes. As the citizenship struggles in late-twentieth-century society have moved towards the claims to cultural identity and cultural history (Turner, 1997, p. 8), the pressure from the descent-based Madheshis and the Indian immigrants for a flexible citizenship policy should be taken as their deep desire to participate fully in Nepali political community, not as a threat to national integrity and sovereignty.

III. Emergence of Madheshis’ Identity and Their Citizenship Concerns

Madheshis are the people living in the Southern plains of Nepal having close familial, cultural and ancestral ties with people from North Indian territories. ⁴ Their ancestors are believed to have migrated to Nepal at different points of time since the eighteenth century onwards. The formation of the Madheshi identity is not undisputed, because of internal diversities within it (Pandey, 2017). One definition of Madheshi includes all non-hill-origin groups, but another definition restricts this Madheshi label only to the Indian-origin caste groups (Pandey, 2017). The Tharus, the largest indigenous group of the plains, and other small indigenous groups are uncomfortable with the Madheshi label and rather claim their distinct aboriginal identity (Guneratne, 2009; Pandey, 2017), whereas the Muslims of the plains also prefer their religious identity, though some scholars place the Hindus and the Muslims of the plains under a single category of Madheshi (Dastider, 2000, 2013).

Many poor North Indians came to Nepal in search of livelihood opportunities during British rule in India and Rana rule in Nepal; others entered when the great famine hit Bihar in 1769–1770, and some others were encouraged to come to Nepal by the Shahs and the Ranas to reclaim virgin land of the Tarai for agriculture (Dahal, 1983; Gaige, [1975] 2009; Guneratne, 2002; Regmi, 1977). The development programmes launched during the period of Chandra Samsher also attracted a number of Indians to Nepal (Kansakar, 2003). However, this does not mean that all Madheshis are descendants of Indian immigrants, because historical evidence proves that the forerunners of many Madheshis were living with a mythical legacy in Nepal’s plains, such as in Janakpur, even before the formation of modern India (Burkert, 1997). Once they settled in Nepal’s Tarai, they were known as the Madheshis, who, principally the Hindus, now share 19.8 per cent of total population of Nepal and 36.8 per cent of that of the Tarai (CBS, 2012). The problem of citizenship is with the Indian-origin Hindu immigrants, not with the indigenous Tarai groups such as the Tharus. The emergence of Madheshi political awareness started since the 1940s but took ethnic shape only after the 1950s. During the early years of the political awareness, the Madheshis supported the Indian independence movement, and were also actively involved in Nepali Congress politics against the Rana regime (Misra, 2008). The modern history of Nepal is believed to have begun from the reign of Prithvi Narayan Shah in 1743. The Shahs and the Ranas, thereafter, ruled the country without setting any preconditions for the modern nation state until the 1950s. The state was not aware of the concepts of ‘citizens’ and ‘non-citizens’, as it did not have any citizenship law until 1952 (National Population Commission, 1983). As a result, people used to be treated only as raitis or prajās but not as ‘citizens’ with political rights; these notions consider the citizens only as subjects.

For the first time, benefitting from the liberal environment after the collapse of the Rana regime in 1951, a Madheshi-based ethno-political party, Tarai Congress, was established in 1951 to lobby for the rights of the Madheshis, but its demands focused only on the autonomy of the Tarai, recognition of Hindi as a national language and inclusion of the Madheshis in civil service; citizenship concerns remained in the margins (Hachhethu, 2009; International Crisis Group [ICG], 2007; Yhome, 2006). Concerns over citizenship rights of the Madheshis might not have appeared problematic in principle, due to the liberal provisions in the 1952 Citizenship Act. As per the Act, immigrants having at least 5 years’ domicile in Nepal became eligible for Nepali citizenship (clause 4[gha]). The liberal policy for naturalized citizenship during that time displays that either the state was not anxious of the consequences of immigration or there was an influence of the Indian interest in drafting the 1952 Citizenship Act (Gaige, 2009 [1975]). Moreover, the Madheshis also had not realized the importance of citizenship certificates, due to the high rate of illiteracy and lack of interaction of the people from formal sectors. Two provisos of the 1952 Act were important in safeguarding the citizenship concerns of the immigrants. Article 2(b) stipulates the eligibility condition for Nepali citizenship for an immigrant:

Whose father or mother was born in Nepal. The person who immigrates with the aim of settling with family in Nepal permanently.

Similarly, article 4(d) states the eligibility of an immigrant for Nepali citizenship:

Who has domiciled in Nepal for at least five years.

With these liberal provisos, the first Citizenship Act of Nepal did not leave any space to question the state’s commitment to accommodating the Indian immigrants, because, by then, the Indians were the majority immigrants to Nepal, and they still are. The relationship between the immigrant group and the citizens of the host country is quasi-contractual, as both groups claim certain rights and acknowledge certain obligations (Miller, 2008). The newly emerged Madheshi activism during the 1950s emphasized the demands for recognizing Hindi and an autonomous Tarai, which enraged the non-Madheshis on the grounds that this demand was designed to endanger the Nepali language and disregard Nepali national identity at large, since, the non-Madheshis believed, the Nepali language and hill culture had been designated as the very foundations of Nepali national identity. Consequently, the non-Madheshis came against the ‘save Hindi movement’ launched by the Madheshis in 1957, which marked the gradual emergence of ethnic polarization in the Tarai (Gaige, [1975] 2009).

The consolidation of the Indian-origin population moved further ahead when the Madheshi Liberation Movement was formed in 1956 with similar demands as Tarai Congress (ICG, 2007). Nepal Sadbhawana Parishad (NSP) was formed in 1985 to protest the report of National Population Commission, which had recommended strict measures to regulate the inflow of Indian immigrants (Gaige, [1975] 2009; National Population Commission, 1983). The NSP’s protest against the report of the Commission blurred the demarcation between the descent-based Madheshis and the Indian immigrants instead of differentiating between them. The formation of these three Madheshi-based ethno-political organizations introduced the Madheshi voice in Nepali politics. The NSP turned into the first ethnic party lobbying only for the Madheshi cause under the name of Nepal Sadbhawana Party (NSP) soon after the collapse of the partyless Panchayat regime in 1990, though the name per se does not illustrate regional or ethnic flavour but rather connotes goodwill between the Madheshis and non-Madheshis.

The Citizenship Act in 1964 replaced the Citizenship Act of 1952 with stricter measures for citizenship acquisition through naturalization (see Nepal Citizenship Act, 1964). However, still, there were enough loopholes through which the state could grant citizenship to the immigrants (Bhandari, 2007 [2064 VS]). The emergence of partyless Panchayat rule appeared as a stumbling block to the citizenship demand of the Indian immigrants, since the Panchayat rulers consciously crafted the framework of national identity solely on the principle of hill-based indigeneity. Hence, the NSP started to raise a voice against the hurdles faced by the Madheshis while acquiring citizenship certificates (Hachhethu, 2009), along with other demands similar to those of Tarai Congress and the Madheshi Liberation Movement, because Indian immigrants and descent-based Madheshis used to be understood as interchangeable. The 1990s saw the regime change from the partyless Panchayat to a multiparty democracy, but the citizenship policy remained intact.

The Maoists, during a decade-long insurgency (1996–2006), tried to upset the ‘Indian’ or ‘immigrant’ image of the Madheshis by mobilizing their lower rungs. The mobilization remained inadequate due to its anti-Indian rhetoric and the Madheshis’ ‘natural’ affinity towards India (Kantha, 2010). The insurgency appeared successful in getting at least the issues of inclusion, language, cultural rights and self-determination endorsed among lower rungs of the Madheshis, but it also absorbed the issues of ethno-nationalism (Hachhethu, 2009). The mobilization effectively articulated the popular catchphrase ‘sons of the land’ ⁵ among the Madheshis, which seems emblematic in the study of immigrants and the citizenship controversy in Nepal. At the same time, the awareness of the ‘sons of the land’ phrase added another layer of suspicion in the minds of the non-Madheshis. The non-Madheshis claimed that the Madheshis having roots in India are not eligible to claim the status of ‘sons of the land’.

The monarchy and the Maoist insurgency came to an end simultaneously after the people’s movement in 2006. The movement pushed Nepal into a new phase of political transition but forced the state to introduce a few substantial changes in its polity. The changes began with the promulgation of the Interim Constitution in 2007 for the period unless a new Constitution was declared through the Constituent Assembly. The SPA, ⁶ of which the NSP was also a member, and the Maoists agreed to declare the Interim Constitution from the reinstated House of Representatives. The declaration of the Constitution initially enraged a small section of the Madheshis but eventually resulted in their mass protest, popularly known as Madhesh āndolan (Madheshi uprising), led by Madheshi Janadhikar Forum (MJF) in January 2007. Initially, their dissent was not on citizenship issues but on the centralized structure of the state, delineation of the electoral constituencies, unfair representation in the state apparatuses and representation in the Constituent Assembly (Shah, 2007), but when the government and the MJF came into a 22-point agreement, both acknowledged the hurdles faced by the Madheshis in acquiring citizenship certificates (see Government of Nepal-MJF Agreement, 2007). Hence, they agreed to deploy Citizenship Distribution Teams to the villages for easy and accessible distribution of citizenship certificates to ease the problems related to citizenship (see No. 13 of the 22-point agreement) under the Citizenship Act 2006. This acknowledgement did not make clear whether the problem of citizenship was with the Indian immigrants or with the descent-based Madheshis. Still, both the state and the Madheshi political forces remained indifferent towards differentiating the descent-based Madheshis from the Indian immigrants.

IV. Citizenship Laws, ‘Indian Interest’ and the Non-Madheshi Anxiety

Nepal’s constitutional history is not long; neither is that of the citizenship laws. Nepal was ruled by the Shahs and the Ranas only through royal decrees and orders, until the introduction of formal statutes in the 1950s. The Rana government led by Padma Shamsher had drafted the Government Act of Nepal 1948 ⁷ as the country’s first Constitution but could not bring it into force. After the collapse of the Rana regime, the Nepal Interim Government Act ⁸ was adopted in 1951, repealing the former. This Act retained the status of the first Constitution having a practical effect on the operation of a democratic state. The new government under a democratic political set-up promulgated the Nepal Citizenship Act in 1952 for the first time and defined and regulated the citizenship acquisition procedures. The Constitution of the Kingdom of Nepal 1959 given by the King, substituting the Nepal Interim Government Act 1951, remained silent on citizenship acquisition procedures. The first three Constitutions referred to the term ‘citizen’, but none defined nor set any criteria for citizenship acquisition (National Population Commission, 1983). Before these Constitutions, the Legal Code of 1854 had used the term ‘muglāniya’ (literally, Indians) to differentiate raitis (literally, citizens, with a pejorative connotation nowadays) from the Indians.

The politics over citizenship began only after Nepal realized the need to introduce a citizenship law to discourage Indian immigrants, and also to make newly introduced democratic processes, such as elections, functional, in which the idea of citizenry appeared crucial, as the first Municipal election had been scheduled for September 1953. Nepal’s open and porous border, and the Peace and Friendship Treaty of 1950 with India, had left the inflow of the Indian immigrants unregulated. Kansakar (2003) asserts that the British rulers in India were indifferent to close the border to attract Nepali hill groups into their army and also to export its market products to Nepal. The post-Independence Indian government also followed the same track. Nepal’s realization of the need to discourage Indian immigrants and to modernize the governance eventually resulted in the form of the Citizenship Act of 1952, leaving its 1,751-km border with India open and unregulated. This Act adopted a liberal approach in accommodating Indian immigrants. The reason, according to Gaige ([1975] 2009), was the influence of the Indian government on internal politics in Kathmandu in the early 1950s. His claim bears some truth, because an Indian envoy used to be present even in the cabinet meeting of Nepal during the 1950s (Bhandari, 2007 [2064 VS]; Muni, 1973), so it is not odd to infer the influence of India while drafting important laws such as this Act. The central question here is why India is always dragged into the controversy of the citizenship policy of Nepal. It is because of Nepal’s popular understanding of the connection between India and the Madheshis, which causes a trust deficit between the Madheshis and the non-Madheshis. The history of this deficit goes back to the period of the discontinuation of the Madheshis in the Gorkhali army after the conquering of Kathmandu Valley, which caused the Gorkhalis’ suspicion of the Madheshis (Yadav, 2005). Also, the Gorkhas did not get enough support from the Madheshis during the Anglo–Nepal war, as large numbers of the latter had turned loyal to the East India Company and fought against the Gorkhas in the war (Pathak & Uprety, 2009; Sharma, 1992).

Despite this trust deficit, the 1952 Citizenship Act appeared liberal, as Nepal did not adopt provisions for citizenship test for the naturalized citizens, as practised in some Western countries. Article 4(d) of this Act states that a person having at least 5 years’ domicile, irrespective of birth or descent, was eligible to apply for citizenship. Similarly, a woman having a matrimonial relationship with a Nepali man could also claim citizenship (article 3). Moreover, a person who was born in Nepal (article 2[a]), and a person whose father or mother was born in Nepal and who desired to settle there with his or her family permanently was also considered eligible (article 2[b]). This Act principally resolved the obscurity between the ‘citizens’ and the ‘non-citizens’ and also addressed the concerns of the Indian immigrants by incorporating them within the liberal framework of Nepali citizenship policy. Still, there was a question on the effective implementation of these provisions, on the one hand, and the people were also not much aware of the importance of citizenship certificates, on the other. Hence, the optimum benefit that the immigrants could yield from this Act remained in question.

With the changed political scenario, the Constitution of Nepal 1962, first, incorporated the comprehensive definition of Nepali citizen at a constitutional level and also set more comprehensive conditions than the former for the acquisition of naturalized citizenship. The notable aspect of this Constitution is the adoption of a jus soli proviso by which those immigrants born and domiciled in Nepal before this Constitution automatically became eligible for citizenship (article 7 and 7[a]). Besides this, this Constitution did not impose any restrictions to acquire citizenship by the persons whose either of the parents was born in Nepal, and who, as a woman, had matrimonial ties with Nepali citizen at the commencement of this Constitution (article 7 & 7[b & c]). Some values of hill-based Nepali national identity were integrated into the provisos stipulated for naturalized citizenship, as immigration, national identity and citizenship are historically linked (Bloemraad et al., 2008). The immigrants aspiring for naturalization after the Act came into force must: have had knowledge of the Nepali language; have engaged in any occupation; have domiciled in Nepal for a period of not less than 2 years in the case of a person of Nepali-origin; have renounced the citizenship of her country in the case of a female married to a Nepali citizen; and have domiciled for a period of not less than 15 years in the case of other persons (article 8).

The aim of the classification of the immigrants into those of ‘Nepali-origin’ and ‘others’, with different conditions set for their naturalization, was to encourage Nepali-speaking immigrants to settle in the country and discourage the non-Nepali-speaking immigrants. The crux of this classification lies in the fact that hill-origin Nepalis express a sort of ethnic attachment with Nepali-speaking Indian immigrants, whereas the Madheshis seem more attached ethnically with non-Nepali-speaking Indian immigrants. The state, in this case, conspicuously favoured ‘Nepali-origin’ immigrants and remained suspicious of non-Nepali-speaking Indian immigrants, stipulating two unequal conditions for naturalization. Hence, the 1962 Constitution made the knowledge of the Nepali language and domicile of 5 years for the ‘Nepali-origin’ and 15 years for non-Nepali-origin immigrants mandatory. ⁹ The integration of hill values into the Nepali national identity through institutionalizing the ethnically meaningful concept of ‘Nepali- origin’ and making knowledge of the Nepali language mandatory for naturalization apparently brought out the fear of the Nepali state that the threat to the state was from the non-Nepali-speaking Indian immigrants, not from the Nepali-speaking Indian immigrants.

This stipulation benefitted the Nepali-origin immigrants from Northeast India, Burma and Bhutan but simultaneously pushed the non-Nepali-speaking Indian immigrants out of the definition of national identity. Two reasons, according to Gaige ([1975] 2009), might have worked behind this stern measure: (a) a political reason and (b) a cultural reason. The political reason was the antagonistic relation between Nepal and India during the early 1960s, and the cultural reason was the promotion of the ‘one-nation-one-culture’ policy adopted by the state based on dominant hill cultural values, similar to Bhutan’s current policy of Driglam Namzha (one-nation-one-people) (see Hutt, 2003; Rizal, 2004). The state advanced the policy of promoting hill-based national identity only to discourage the cultures and languages of Indian immigrants along with their numbers. This measure did not affect the descent-based Madheshis, but the immigrants who came to Nepal from North India around the 1950s felt truly excluded. Still, the state is unable to draw a boundary between the immigrants and the descent-based Madheshis due to the lack of a proper monitoring mechanism and systematic record of the immigrants. The countries of the Global North also have devised plans of integrating immigrants into their society to further the common national ethos already constructed by the majority by designing various types of citizenship tests (Etzioni, 2011). As soon as the requirement of knowledge of the Nepali language and adherence to a particular culture for naturalization were revoked, Nepal’s policy for naturalization appeared to be relatively more liberal in terms of integrating immigrants into the nation.

The Citizenship Act of 1964 replaced the Citizenship Act of 1952 to make the citizenship law compliant with the Constitution. The new Act borrowed several constitutional clauses of citizenship acquisition, of which subclauses 6(1[a and d]) were—the exact adoption from the article 8(2[a and d]) of the Constitution—the ones the Madheshis were feeling uncomfortable with. ¹⁰ The clause 6(1[a]) stipulates, ‘[t]hat one can speak and write the language of the nation of Nepal [that is, Nepali]’, and 6(1[d]) states, ‘[t]hat one has domiciled in Nepal for at least fifteen years’ to claim citizenship by naturalization. Neither the Constitution nor the Act defined the term ‘Nepali-origin’, but it is usually interpreted from the cultural dimension in practice that excludes the Madheshis (Gaige, [1975] 2009). The idea of the ‘Nepali-origin’ was derived from the Nepali national identity defined under a hill-centred cultural framework which places the Madheshi identity in opposition and views it as a threat to monolithic hill-based national character. This ethnically defined restrictive condition came in light of warding off the potential threat from unregulated Indian immigration. The categorization of immigrants as people of Nepali and non-Nepali-origin obviously pinched those having a non-Nepali immigrant status, but it is not clear why this equally pricked the descent-based Madheshis, whose ancestral connection with India is not traceable.

The Panchayat government formed the National Population Commission in 1983 to suggest policy recommendations aiming to control the inflow of Indian immigrants. This was the first official expression of the fear of unregulated Indian immigrants. The report (1983) submitted by the Commission clearly displayed the magnitude of Indian immigration and its consequences on Nepal’s demography and polity. The magnitude of Indian immigration to Nepal has been the crux of Indian interest and the anxiety of the non-Madheshis of Indian influence on Nepal’s citizenship laws, though, now, some Madheshi leaders and activists do not agree with this claim for political reasons. ¹¹ Currently, according to Khatiwada (2014), the foreign-born population in Nepal is 479,625, of which 449,149 (93.6%) are India-born.

Even after the collapse of the Panchayat regime and reinstatement of multiparty democracy in 1990, the Constitution of Nepal 1990 adopted the same provisos of the 1962 Constitution, and the same Act remained in force until 2006. The NSP had burned article 8 of the Constitution in December 1999 to protest against the constitutional provisions stipulated for citizenship because of not incorporating jus soli provisos (Lawoti, 2005). The intriguing point is that the Madheshi parties, activists and ideologues appeared dispassionate in differentiating descent-based Madheshis from Indian immigrants but lobbied for jus soli citizenship. For Lawoti (2005), even article 8(a) appears discriminatory, because it makes it impossible to obtain citizenship if one’s parents or grandparents do not possess a citizenship certificate. This provision affected mostly the Madheshi youths whose parents or grandparents did not possess citizenship certificates. The only difference realized is that the1990 Constitution removed the time barrier of mandatory domicile for the foreign woman having a matrimonial relation with a Nepali citizen (article 9[5]). This change benefitted a large number of Indian women who had immigrated to Nepal through marriage, but, simultaneously, the descendants of the naturalized citizens were barred from acquiring citizenship (article 9[6]). The descendants of naturalized citizens by marriage could acquire citizenship by descent through the male line. This Constitution made the naturalized citizens ineligible to take constitutional office bearings unless they domiciled in Nepal for at least 10 years after having acquired citizenship (article 125).

Nepal’s lower and upper houses ¹² made an effort to insert liberal jus soli provisos by amending the Citizenship Act of 1964 in 2000 but failed because of King Birendra’s reluctance to approve it with the royal seal. Many non-Madheshis interpreted this effort of amendment the other way round, claiming that it could lead to a ‘serious threat to national integrity and sovereignty’, which eventually led to the King’s reluctance to approve it (Bhandari 2007, [2064 VS]). By then, the NSP, only a Madheshi party which had raised the citizenship problems of the Madheshis vociferously, had already lost its popular electoral base and confined into only six seats in 1991, three in 1994 and five in 1999 elections for the lower house, so the King did not feel pressure from the NSP to stamp the royal seal on the amendment. As discussed earlier, the problem of citizenship in the Tarai is not of the jus sanguinis citizenship but of jus soli, and of naturalization, because of the trust deficit between the state, the Madheshis and the Indian immigrants. Hence, whenever the discussion over jus soli and naturalized citizenship is brought in, it turns into a tug of war between the Madheshis and the non-Madheshis, along with the alleged Indian factor in the background, because the ruling elites are primarily non-Madheshis who are usually sceptical about India’s role. The effort of amending the Citizenship Act of 1964 in 2000 had been trapped in this quagmire.

The 2006 people’s movement replaced the Constitution of Nepal 1990 with the Interim Constitution of Nepal 2007, and the Citizenship Act of 1964 with the Citizenship Act of 2006. The new Citizenship Act introduced a jus soli proviso undermining the essence of the 1990 Constitution; however, this Act also did not remain away from controversy (see the clause four of Nepal Citizenship Act, 2006). Article 8(5) of the Interim Constitution and clause four of the Citizenship Act of 2006 both state that ‘a person born within the territory of Nepal until April 13, 1990, and has been permanently domiciled in Nepal shall be the citizen of Nepal by birth’. This provision made all non-citizens born within the territory of Nepal before the stipulated time eligible for citizenship by birth, which enraged a section of the non-Madheshis (see Bhandari, 2007 [2064 VS]). The Madheshis wholeheartedly welcomed this provision, asserting that it at least addressed the statelessness of the Madheshis, whereas the non-Madheshis remained reluctant to welcome it, claiming that there was an Indian interest behind this, and so such flexibility would eventually increase the Indian influence on Nepali society and politics.

The effort of the Parliament to insert similar provisos in the Citizenship Act of 1964 in 2000 had failed on the grounds that the Indian immigrants could be a threat to Nepal’s national integrity and sovereignty. This time, the government succeeded in inserting the jus soli provisions, a long-standing, controversial issue, particularly aiming at the Indian immigrants after the success of the people’s movement and the collapse of the monarchy. Soon after the promulgation of the new Act in 2006, the government distributed citizenship certificates by establishing temporary camps in the villages and towns. The descent-based Madheshis also applauded this as a great achievement in addressing the decades-long problem of citizenship certification that the Indian immigrants had been facing, though this stipulation had nothing to do with them.

The introduction of jus soli provisos was an unexpected shift from reluctance towards the Indian immigrants’ incorporation in Nepal. The critics were wary of why the state hastily introduced such flexibility without enough research and any preconditions. For instance, Bhandari (2007, [2064 VS]) alleges that the 2006 Act was primarily targeted at issuing citizenship to Indians. This Act relieved the Madheshi political actors who had been lobbying for the jus soli policy, and so, for the time being, they remained silent. However, after 9 years of the Act, the declaration of the new Constitution in 2015 enraged a large section of the Madheshi parties, particularly the UDMF, due to the restrictions imposed on the political rights of the naturalized citizens and also the conditions stipulated for marital naturalization (Poudel, 2016). They expressed dissent against article 289(1) that restricts the naturalized citizens from enjoying certain political and constitutional positions, and also article 11(6) that sets the conditions for marital naturalization of a foreign woman married to a Nepali national (see Poudel, 2016). Article 289(1) states that

a person shall have acquired a citizenship by descent to be elected, nominated and appointed as the President, Vice-President, Prime Minister, Chief Justice, Speaker of the parliament, Chairperson of National Assembly, Head of the province, chief minister, speaker of Provincial Assembly and chief of security bodies.

Some Madheshis believed that this restriction undermined the rights of the naturalized citizens, but the other section seemed convinced that certain restrictions must be stipulated for the naturalized citizens to differentiate them from the citizens by descent (Poudel, 2016). Nevertheless, nobody, so far, has satisfactorily answered the question of why a section of descent-based Madheshis are usually passionate about naturalization and jus soli provisions. Are they more worried about the Indian immigrants than about the Madheshis of Nepali descent? One possible answer is that the problem of immigration and citizenship is, of course, the problem of Indian immigrants, whom the Madheshis feel culturally and socially connected to. In addition, identity as a citizen generally suppresses particularistic identities (Caragata, 1999) so that emphasis on citizenship identity eventually can lead to the recognition of other social identities, such as ethnic identity (i.e., as the Madheshis). Citizenship is usually considered a marker of political membership of an individual with certain rights and responsibilities, and also a means of inclusion and exclusion criteria in a society (Brubaker, 1992; Marshall, 1950; Turner, 1997), so the curtailment of the political rights of the naturalized citizens, for those Madheshis, is not a democratic practice in multicultural societies like Nepal.

Article 11(6) of the 2015 Constitution stipulates that ‘if a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a federal law’. The problem in this proviso comes from the word ‘may’, which the UDMF and Madheshi activists believe gives leverage to the state to formulate laws against their interests in future. This condition seems more liberal than the condition stipulated in the Citizenship Act of India 1955 (clause 5[c]) for the same purpose, which demands minimum 7 years’ mandatory domicile in India after marriage if a foreign woman married to an Indian national aims to apply for Indian citizenship. The clause goes like this: ‘a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration’. Simply, an Indian woman married to a Nepali national can acquire Nepali citizenship instantly after marriage, but a Nepali woman having a matrimonial relation with an Indian national must wait at least 7 years to be eligible to apply for Indian citizenship by registration. The fear the UDMF and Madheshi activists have sensed regarding article 11(6) is turning out to be true, because the parliamentary committee, amid protests by the Madheshi parties, in June 2020 has approved the amendment of the 2006 Citizenship Act, with a condition similar to clause 5(c) of the Indian Constitution. The amendment has not been passed by the parliament yet.

The suspicion of the state of the Madheshi parties surreptitiously working for Indian interests reached a new height when India imposed an embargo to support the UDMF’s protest against the Constitution of Nepal 2015, including against the provisions for naturalization discussed above. The UDMF welcomed India’s move, but other national parties directly or indirectly condemned it. India’s alignment with the UDMF pulled the latter closer to India and simultaneously pushed the non-Madheshis quite afar. The press release of the Ministry of External Affairs, India, released on 21 September 2015, had implicitly signalled the threat of an impending embargo. The press release states (italics mine):

We are deeply concerned over the incidents of violence resulting in death and injury in regions of Nepal bordering India following the promulgation of Constitution yesterday. Our freight companies and transporters have also voiced complaints about the difficulties they are facing in movement within Nepal and their security concerns, due to the prevailing unrest. (Ministry of External Affairs [MEA], 2015)

Soon after this statement, India unofficially blocked all transports to Nepal for 5 months, which paralysed Nepal’s public life. The language used in the press statement to pressurize the Nepal government to compromise with the UDMF clearly displays India’s support to the latter. The statement goes further like this:

We had repeatedly cautioned the political leadership of Nepal to take urgent steps to defuse the tension in these regions. This, if done in a timely manner, could have avoided these serious developments.

We have consistently argued that all sections of Nepal must reach a consensus on the political challenges confronting them. The issues facing Nepal are political in nature and cannot be resolved through force. We still hope that initiatives will be taken by Nepal’s leadership to effectively and credibly address the causes underlying the present state of confrontation [all italics mine]. (Ministry of External Affairs [MEA], 2015)

During the embargo, media reports were filled with India–UDMF connections vis-à-vis the Nepali state and the newly declared Constitution. As soon as The Indian Express, on 24 September 2015, disclosed the Indian government’s seven-point recommendation ¹³ for the amendment in the Constitution declared just then, which included articles 11(6) and 289 discussed above (Roy, 2015), the non-Madheshis alleged that the demand for amendment was, in reality, of India, not of the UDMF. They were struck with two critical questions after this disclosure: why does India insist Nepal amend the Constitution passed by its sovereign entity; and why does it favour only a section of Nepalis at the cost of sufferings of the other?

The Indian Ministry of External Affairs had been releasing several press notes and media briefings directly or indirectly expressing concern over the contents of the 2015 Constitution and protests of the UDMF. ¹⁴ The Nepal Parliament passed a minor amendment on the two articles (42[1] and 286[5]) of the 2015 Constitution without touching the provisos stipulated for naturalized citizenship discussed above on 23 January 2016, just 4 months after its promulgation (Koirala, 2016), as a token merely to appease India. This amendment was in no way related to the citizenship provisions. The media briefing note released on 3 December 2016 by the official spokesperson of the Ministry of External Affairs, India, also apparently illustrates the extent to which it had expressed concern over the promulgation of the Constitution and its amendment. The note states:

Our consistent position has been that peace, stability and progress of Nepal is in the interest of both India and Nepal. We have therefore been supportive of initiatives of the Government of Nepal to meet the aspirations of all sections of its society through dialogue and constitutional processes. As part of the ongoing efforts, the registering of a Constitution Amendment Bill in the Nepali Parliament on 29 November 2016 is an important step. We hope that all sides will remain closely engaged and the ongoing efforts would be concluded successfully. As a close and friendly neighbour of Nepal, India will continue to extend all support for Nepal’s peace, stability and accelerated economic development in accordance with the priorities of the people and government of Nepal [italics mine]. (Ministry of External Affairs [MEA], 2016)

This time, India blatantly aligned with the citizenship concerns of the Indian immigrants under the banner of the Madheshis, which aggravated deep scepticism and fear in the psychology of the non-Madheshis who, for long, had been viewing the Indian immigrants as a threat to national integrity and sovereignty. Such scepticism and fear are difficult to test; however, this helped exacerbate the anti-Indian posture of the non-Madheshis.

Once again, on 29 November 2016, the government led by Pushpa Kamal Dahal tabled another Constitution Amendment Bill in the Parliament, aiming to please the UDMF, but withdrew after the protest from the opposition (PTI, 2017). The same government tabled the revised version of the bill again on 11 April 2017 and was struggling hard to gather two-thirds of the Parliament by then (PTI, 2017). This bill ¹⁵ had proposed to replace article 11(6) with ‘if a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a Federal law right after she initiates the process of quitting the citizenship of her country’ (italics and translation mine) in the place of the existing provision of ‘[i]f a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a federal law’. This bill had not proposed substantial change; neither had it addressed the restriction imposed on naturalized citizens regarding appointment in the constitutional office-bearing posts (see article 289[1] stated above). The government tried to garner two-thirds of the Parliament for the ratification of the bill twice but eventually failed.

The recent development on the citizenship debate signals that it has been elevated to a political tool from a practical concern of the Madheshi mass, because the Citizenship Act of 2006 already satisfactorily addressed the citizenship concerns of the Madheshis by making all Indian immigrants born in Nepal before 14 April 1990, and domiciled there permanently eligible for citizenship by birth. The citizenship debate in Nepal, since the beginning, has centred only around how to accommodate Indian immigrants into Nepal rather than around how to develop a sustainable solution for the blurred boundary between the immigrants and the descent-based Madheshis. As soon as the eligibility of immigrants for citizenship no longer remained a legal and political problem, the focus of India and the UDMF shifted to the contents of the provisions for citizenship by birth and naturalization.

India believes that the Madheshis are an Indian-origin population, and so it has a legitimate concern for them (see Shrivastava, 2015). The non-Madheshis view the Madheshis as ethnically ‘Indians’, and the Madheshis also acknowledge that their people have a roti–beti connection with North Indian people. The problem is with both sides, as the descent-based Madheshis are dispassionate about delinking themselves from the Indian immigrants and the non-Madheshis also do not realize the difference between the descent-based Madheshis and the Indian immigrants. Even the state and the political actors are uninterested in resolving this ambiguity. Due to this unresolved ambiguity, an exaggerated image of the Madheshis as ‘Indians’ or ‘loyal to India’ and of the non-Madheshis as ‘anti-Indians’ has been sustained since the emergence of Madheshi ethnic activism in the 1950s.

V. Concluding Remarks

The controversy over the citizenship concerns of the Madheshis and the Indian immigrants is a result of the blurred boundary between the descent-based Madheshis and the Indian immigrants, because the stakeholders associated with this controversy have remained indifferent towards addressing the problem practically; rather, they have been seeking to maximize their own political benefits. The failure of the Nepali state, India and the Madheshi parties to alienate recent Indian immigrants from the descent-based Madheshis has been a source of anxiety for the non-Madheshis. The anxiety of the non-Madheshis is about Indian influence, not about the Madheshis, but the political actors of both sides have failed to disseminate this fact. The UDMF’s only aim is to appease the Madheshi mass and to expand its electorate, and so they always craft their public statements cautiously by not disregarding the sentiments of the Indian immigrants. Some other non-Madheshi activists suggest extremist proposals (such as fencing the border and imposing work permits on the Indians), and a few others do not want to come out of the age-old rhetoric of the ‘India–Madheshi nexus’. The state also does not have any mechanism to monitor Indian immigration, on the one hand, and is also not able to clarify its position on the citizenship policy, on the other. The inefficiency of the state has provided leverage to the political and ethnic actors to manipulate the citizenship debate on their own accord. Thus, the crux of the citizenship conundrum is entangled in the complex of the private interests of various stakeholders, rather than on the everyday needs of the descent-based Madheshis. The descent-based Madheshis have been forced to constantly prove their Nepaliness and differentiate themselves from the recent Indian immigrants. The Assamese Muslims also, according to Dutta (2012), are facing similar problem to keep them apart from Bangladeshi Muslim immigrants due to a new form of Hindu-Muslim binary. Since the development of the Madheshi identity is speeding up and its definition has been drawn from the trajectory of Indian immigration, the descent-based Madheshis must come up with a different set of definitions for Madheshi identity, which could set a clear boundary between them and the Indian immigrants. A new catchword, nawanagarik (new citizen), has become popular in the Nepali media to refer to the Indian immigrants who were granted citizenship by birth under the Citizenship Act 2006. Unless the descent-based Madheshis themselves appear proactive in alienating themselves from the recent Indian immigrants and creating pressure on all stakeholders to come out with the best practical solutions, the controversy over the citizenship rights of the Madheshis and the Indian immigrants seems difficult to unfold in the years to come.