certificate and proof that she has initiated the renunciation of any other citizenship16 whereas, the Constitution is silent with respect to the ability of the foreign spouses of Nepali women to acquire citizenship through marriage. The provision17 when allows Nepali men to confer citizenship to their foreign wives if they wish and initiate proceedings renounce their previous nationality there is no provision of conferral of Nepali citizenship by Nepali woman to foreign spouse through marriage and their children. This has limited women’s autonomy regarding nationality and the ability to transmit citizenship through marriage and to their children. 12. The Proviso of Article 11 (5) of the Constitution states that a child is born to a Nepali mother whose father is not identified, such children may be given citizenship by descent in cases where the child is born and residing in Nepal. However, the citizenship would be changed automatically to naturalized citizenship in cases where the father of such child is identified as a foreigner. This discriminatory provision not only fails to recognize the independent identity of the mother but also may result in stigmatizing both mother and child in genuine cases of unknown paternity involving incidents of rape, sex-work, trafficking, migrant women workers, extra-marital relationship and similar cases. 13. The Citizenship Act denies Nepali women equal rights to acquire and retain their own nationality. According to the proviso of Section 8(1)(a) of the Act18 Nepali women married to foreign men before obtaining citizenship certificate do not have a right to subsequently obtain it. This is not only internally contradicted with the constitutional provision but also contradicts with CEDAW Article 9(1). This continues despite of the decision made by the Supreme Court of Nepal in 2008 stating that a citizenship to be issued without any discrimination on the basis of gender and marital status.19 14. Putting a special condition for women creates a discrimination against them and puts their children at the risk of exclusion of legal identity. Lack of clarification expands the discretionary power of the authorities on issuance of the citizenship, thereby making it difficult to implement this provision, especially in a non-discriminatory way.20 15. Complementing to the Article 11 (7) of the Constitution21, the Section 5(2) of the Citizenship Act22 and Section 7 of the Citizenship Rules23 deny Nepali women the right to confer their citizenship to their children by decent. Instead, such children have only the option to seek naturalization. However, the discretion wielded by state authorities in relation to naturalization is extremely wide, and the overwhelming majority of naturalization applications do not result in the conferral of nationality even after the decision made by the Supreme Court of Nepal. CASE 1 Citizenship of Nepali Mother’s Children: Rights or Discretion? Arjun Shah was born to Nepali mother, who has her citizenship by descent and Indian father who has been residing in Nepal for the last 38 years. When Arjun applied for the citizenship he was denied. Later he filed a writ at the Supreme Court in 2017 and the Court issued order to the Government of Nepal, Ministry of Home Affairs and District Administration Office, Mahottari to provide him with citizenship certificate by fulfilling due legal process. It has been more than two years now since the decision was made but his case is still under the review of the Cabinet of Nepal. Source: Arjun Shah v. the Government of Nepal, the Ministry of Home Affairs et al, Writ No. 074-WO-0518, the Supreme Court of Nepal, 2017 16. 17. 18. 19. 20. Articles 11(6), the Constitution of Nepal Articles 11(6), the Constitution of Nepal Nepal Citizenship Act, 2006 Nakkali Maharjan v, Office of Prime Minister and the Cabinet of Ministers et all, Supreme Court of Nepal, 2007. Forum for Women, Law and Development (FWLD),“Legal Analysis of Citizenship Law of Nepal”, 2016, pg. 15, available at http:// fwld.org/publications/legal-analysis-citizenship-law-nepal/ 21. The Constitution of Nepal 22. Nepal Citizenship Act, 2006 available at: http://www.lawcommission.gov.np/en/archives/13035 23. Nepal Citizenship Rules, 2006 available at: http://www.lawcommission.gov.np/en/categoryprevailing-lawrules-and-regulation 4