SUB-REGIONAL OVERVIEW: SOUTH ASIA existences in Afghanistan for generations have been largely excluded from the operation of citizenship laws due to ethnic discrimination based on their historic connections to neighbouring countries.265 Other ethnic minority groups have been impacted by discriminatory nationality laws which either indirectly excluded population groups or ignored them entirely. Urdu-speaking ‘Bihari’ communities were excluded from accession of Bangladeshi citizenship until court intervention in 2008 due to discriminatory interpretations of the citizenship law.266 Even though many have gained citizenship, the community continues to face the same discrimination experienced while stateless. Restrictions on the basis of gender The laws of Nepal, Bangladesh, and Pakistan contain gender discriminatory provisions which deny citizenship under certain conditions.267 In Nepal, limitations within the citizenship laws mean that children born to a mother who holds citizenship by descent can only gain citizenship by descent when the father is not identified or is a Nepali citizen too.268 Further, in instances where a child is born to a citizen mother and a foreign father, citizenship can only be acquired through naturalisation (where children born to citizen fathers gain citizenship by descent). As many as 400–500,000 persons are estimated to have been rendered stateless due to these discriminatory provisions in Nepal.269 Bangladesh, Nepal and Pakistan’s laws also contain gender discriminatory provisions that limit the ability of married women to transfer their nationality to foreign spouses on the same basis as men.270 Restrictions on the basis of religion The laws of the Maldives contain religious discrimination (and potentially some gender discriminatory provisions).271 The Maldives citizenship law bars non-Muslims from being recognised as citizens of the Maldives.272 Statelessness among Muslim and ethnic minority populations in India — including persons excluded by the National Register of Citizens in Assam and SUB-REGIONAL OVERVIEW: SOUTH ASIA Rohingya refugees — is further protracted by their discriminatory exclusion from the Citizenship Amendment Act 2019.273 The Citizenship Amendment Act notably includes a pathway to citizenship for persons of all religions except for the Islamic faith, an act labelled by numerous commentators as being discriminatory on the grounds of religion.274 Citizenship Stripping In Pakistan, the introduction of digitized ID cards along with continued government discrimination stripped members of the ethnic Bengali community of their citizenship as it labelled them aliens.275 1.9 million residents were stripped of citizenship in Assam, India due to the National Register of Citizens, which declared the residents to be foreigners.276 Those unable to verify their status as citizens before the foreigners tribunal have been rendered stateless.277 In Bhutan, members of ethnic Nepali communities known as ‘Lhotshampas’ living in the south of the country were stripped of Bhutanese citizenship in the 1980s, being labelled as non-citizens through a census count.278 Childhood Statelessness There is a lack of proper provisions regarding access to citizenship for foundlings in the laws of Bhutan, India, and the Maldives and only limited protections in Afghanistan, Nepal, and Sri Lanka.279 This lack of safeguard leaves children — particularly members of ethnic minority groups who have been denied citizenship — vulnerable to statelessness. In Afghani citizenship law a child found in Afghanistan will be considered a citizen of Afghanistan if documentation of their parent’s citizenship is not available.280 Similarly, the citizenship laws of Sri Lanka provide that a foundling child of unknown and unascertained parentage will be considered a citizen of Sri Lanka until the contrary can be proven.281 The citizenship law of Nepal provides that foundling children are considered citizens by descent until their father or mother is identified.282 None of the countries in South Asia provide explicit protection for children born to stateless parents. The jus soli provision in the citizenship laws of two countries (Bangladeshi and Pakistani) may provide foundling children access to citizenship, however the practical application of these laws are less generous.283 For example, Pakistan’s jus soli provisions on paper provide citizenship to all children born in the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemy or aliens.284 However, the children of Afghani refugees who have resided in Pakistan for decades have explicitly been excluded from the operation of these jus soli provisions with the High Court of Pakistan labelling Afghani refugees as foreigners and aliens.285 Additionally, the requirement under the citizenship law of Bhutan that both parents possess Bhutanese nationality has reportedly left some children born to unwed mothers, who were unable to prove the identity of the father, stateless.286 Administrative Barriers Issues with implementation of citizenship laws were found in Afghanistan, Bangladesh, India Nepal, and Sri Lanka. Administrative and practical barriers, including security concerns, restrictions imposed by male family members and lack of financial means have fundamentally limited the ability of women in Afghanistan to gain identity documentation and to confirm their status as citizens.287 In Nepal, Dalit and Madheshi communities experience barriers to accessing citizenship and identity documents due to discrimination.288 Children born to citizen mothers and members of the LGBTQ+ community in Nepal also experience administrative barriers in gaining citizenship certificates.289 In Sri Lanka, historic statelessness among Hill Country Tamils was largely based on the discriminatory implementation of citizenship laws at the time of Sri Lankan independence in 1948 which indirectly excluded Hill Country Tamils from being able to obtain citizenship.290 Additionally, Sri Lankan refugees outside of the country have also faced administrative barriers to regaining Sri Lankan citizenship.291 In Bangladesh, inconsistent policy implementation has led to the country’s citizenship laws shifting in application from jus soli to jus sanguinis in operation.292 This “paradigmatic policy shift”293 has compounded intergenerational statelessness among children born in the country, especially among Rohingya refugees. Discriminatory administrative barriers are also largely the cause of statelessness among ethnic Bengali communities in Pakistan. Despite their right to citizenship existing under the written law,294 it is estimated that 70–80% of the Bengali population in Pakistan do not have identity documents.295 Birth Registration In India, birth registration rate were reported to be 86% as of 2016, however barriers to birth registration among Sri Lankan refugee populations and ethnic minority groups including the Kutchi community residing in border regions of the country places these populations at risk of statelessness.296 Bhutan and the Maldives report high rates of birth registration at 100% and 99% respectively.297 For Sri Lanka, the latest statistics as of 2009 shows 90% or more birth registration in the country.298 The remaining South Asian states have notably lower rates of birth registration. The latest data of birth registration in Pakistan from 2018, shows rates of only 42% of births being registered. In Bangladesh, recent data from 2022 shows that 56% of births are registered. The most recent count of birth registration in Afghanistan from May 2022 show registration rates of 42.7%. In Nepal, birth registration was reported in 2019 at 77%.v 50 51 STATELESSNESS ENCYCLOPEDIA ASIA PACIFIC REPORT 2023