1. Discriminatory Nationality Laws
As noted above, two States within South Asia have discriminatory provisions in their laws which restrict the ability to confer nationality onto children. The laws of the Maldives containing religious discrimination (and potentially some gender discriminatory provisions) and the laws of Nepal gender discrimination. Statelessness among Muslim and ethnic minority populations in India, including persons excluded by the National Register of Citizens in Assam and Rohingya refugees, is further protracted by their discriminatory exclusion from the Citizenship Amendment Act (2019). The Citizenship Amendment Act provides a pathway to Indian citizenship for ‘illegal migrants’ in India who belong to Hindu, Christian, Buddhist, Jain, Parsi and Christian faiths from Afghanistan, Bangladesh and Pakistan. Notably, Muslims are excluded from the amendment, an act labelled by numerous commentators as being discriminatory or on religious grounds.
Despite the 2023 amendment which removed some gender discriminatory aspects of Nepal’s citizenship legislation, several groups still face barriers in accessing citizenship. Previously, a child born to a single Nepali citizen mother would only gain citizenship by descent when the father is not identified. The changes provided that children born to single mothers and citizens by birth may obtain Nepali citizenship, however, extra conditions remain for single mothers to confer citizenship to their children, denying women equal right to confer nationality to their children. Further, in instances where a child is born to a citizen mother and a foreign father, citizenship can only be acquired through naturalization, even though 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.
The laws of three States (Bangladesh, Nepal and Pakistan) also contain discriminatory provisions that inhibit the ability of married women to confer nationality onto foreign spouses.
As previously mentioned, the entire reported stateless population within South Asia comprises stateless refugees, largely Rohingya from Myanmar. As outlined in the Myanmar and Southeast Asia chapters, the statelessness of the Rohingya community is largely caused by ethnic discrimination embedded in the citizenship laws of Myanmar.
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 to Bangladeshi citizenship until court intervention in 2008 due to discriminatory interpretations of the citizenship law. Ethnic minority groups including the Mosuli and Jogi (or ‘Magat’) communities who have lived semi-nomadic existences in Afghanistan from generations have been largely excluded from the operation of citizenship laws due to ethnic discrimination based on their historic connections to neighboring countries. Pakistan’s jus soli provisions on paper provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemy aliens. However, as a result of the interpretation of ‘enemy alien’ to be anyone labeled as ‘alien’, minority groups labeled as alien have largely been denied citizenship.
2. Lack of Legal Safeguards Against Childhood Statelessness
The citizenship laws of three countries (Afghanistan, Nepal and Sri Lanka) provide limited protection for foundling children, with no countries providing broad protection for foundling children. In Afghan citizenship law a child found in Afghanistan will be considered a citizen of Afghanistan if documentation of their parent’s citizenship is not available. 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. The citizenship law of Nepal provides that foundling children are considered citizens by descent until their father or mother is identified.
The jus soli provision that exists in the citizenship laws of two countries (Bangladesh and Pakistan) may provide foundling children access to citizenship, however in-practice, the application of these laws are less generous. Pakistan’s jus soli provisions on paper provide citizenship to all children born on the territory of Pakistan, except those whose fathers have diplomatic immunity, or are enemy aliens. However, the children of Afghan 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 explicitly labelling Afghan refugees as foreigner and aliens.
The citizenship laws of three countries (Bhutan, India and the Maldives) do not address access to citizenship for foundlings.
None of the countries in South Asia provide explicit protection for children born to stateless parents. The jus soli provisions of two States (Bangladesh and Pakistan) would appear to provide access to citizenship for stateless children, however their application in practice is far less certain. While there is no specific provision providing for access of citizenship for stateless children at birth in Afghanistan, however under the citizenship laws of the country stateless persons may obtain citizenship at the age of 18. Bhutanese, Indian, Maldivian, Nepali, and Sri Lankan citizenship laws do not address access to citizenship for children of stateless parents. Article 1 of the 1961 Convention on the Reduction of Statelessness states that State parties “shall grant nationality to a person born in its territory who would otherwise be stateless” either “by birth, by operation of law, or upon and application”.
3. Citizenship Stripping
In the late 1980’s, members of ethnic Nepali communities known as ‘Lhotshampas’ living in the south of Bhutan were labelled as non-citizens through a census count, stripping them of their Bhutanese citizenship. In the early 1990’s the Bhutanese government began expelling persons from their land and the country with as many as 100,000 refugees arriving in Nepal during the decade.
The history of the National Register of Citizens in Assam is politically complex and driven by ethnic and religious tension spanning back to the period of partition between India and Pakistan. In 2019, the final National Register of citizenship excluded 1.9 million residents from the list, essentially stripping them of their citizenship. Persons excluded from the National Register of Citizens must in turn apply to the government or Foreigners Tribunal to have their citizenship status verified, with those unable to verify their status as citizens rendered stateless.
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 citizenship.
4. Administrative Barriers
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. Similarly in Nepal, administrative and policy barriers affect the ability of marginalised groups including LGBTQIA+ communities and women from accessing citizenship certificates. Children born to citizen mothers in Nepal continue to face a number of administrative barriers in gaining birth registration and citizenship certificates. The arbitrary levels of discretion applied by authorities, who consist mostly of men, in issuing documentation has often denied women and their children documentation due to discriminatory patriarchal beliefs. Further, the same discriminatory discretion is seen in distribution of birth certificates, causing a lack of birth certificates among marginalized groups which presents another barrier in accessing citizenship.
Administrative and policy practice have led to the citizenship laws of Bangladesh shifting in application from jus soli to jus sanguinis in their application. This ‘paradigmatic policy shift’ has compounded intergenerational statelessness among children born in the country, especially among Rohingya refugees. In 2020, it was estimated that more than 75,000 Rohingya children have been born in Cox’s Bazar since 2017. In April 2022, it was reported that an official count found that on average 95 children were born per day to Rohingya parents in refugee camps, accounting for this, an additional 70,000 stateless Rohingya children may have been born in Bangladesh in the past two years.
In India, 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.1991 Discriminatory administrative barriers are largely the cause of statelessness among ethnic Bengali communities in Pakistan. Despite their right to citizenship existing under the written law, it is estimated that 70–80% of the Bengali population in Pakistan do not have identity documents. The position of ethnic Bengalis was worsened
through the introduction of digitized ID cards, with the government discriminating and, in some cases, stripping persons of citizenship by labelling Bengali community members as ‘aliens’.
In the Maldives, children born to non-Muslim parents, to parents of unrecognized inter-religious marriages, to one foreign parent and those born as a result of unrecognized child marriages often remain unregistered.2003 As a result, they experience denial of education as they are unable to provide identity documentation in order to enroll in school or access government services.
Birth registration rates of the countries in South Asia
Source: “Birth and Death Registration Completeness” (UN Statistics Division, April 2023); “Data Warehouse,” UNICEF DATA; “CRVS Case Studies: Bhutan” (UNICEF, September 2023).
5. Requirement of Birth Registration for Citizenship Acquisition
Birth registration is especially linked to citizenship acquisition in Bangladesh, Bhutan, the Maldives, while India explicitly provides that a birth certificate is proof of citizenship. In India, there have been multiple conflicting court decisions regarding whether an Indian passport may also prove Indian citizenship. However, India’s Citizenship Rules indicate that a birth certificate is a supporting document for many kinds of citizenship, indicating that having a birth certificate would be necessary for obtaining citizenship in most situations. Bhutan’s citizenship identification document is issued immediately after birth registration in the country. While a birth certificate is not explicitly listed as a document that proves citizenship in the Maldives, it is directly linked to citizenship acquisition as a child’s unique Maldivian identity number is issued upon birth registration. A birth certificate can also serve as evidence of citizenship in Pakistan with Computerized National Identity Cards also serving as de-facto proof. In Afghanistan, the Tazkera, the principal Afghan identity document, proves Afghan citizenship. A citizenship certificate serves as evidence of citizenship in Nepal and Sri Lanka.
6. Statelessness and Climate Change
With the highest elevation point of the Maldives being 2.4 metres above sea-level, the impacts of climate-induced sea-level rise and in turn the potential risks of statelessness caused by ‘disappearing States’ has been discussed in detail.
