Project Topics
Get Complete Project Material File(s) Now! »
Chapter 2: The Literature Review
This chapter starts out by identifying citizenship and gender as a problem that has been acknowledged and studied globally. After laying out the global context of the gender citizenship, literatures that link the concepts of law and justice to citizenship and gender are briefly discussed. The goal of doing so is to see citizenship as both a legal and social justice issue. The focus becomes narrower after that, and a brief history of the gendered citizenship provision of Nepal is described. This description is relevant to show the progression and changes that have taken place over in citizenship provisions that existed in different constitutions in different times. Following that historical briefing are the sections that survey existing literatures on the topic of Nepalese citizenship provision and its negative impact on law, society and culture. This chapter ends by putting forward the dominant public groups’ argument in favor of the existing citizenship provision. Finally, it also offers a peak into the ways in which the following chapters challenge and refute the dominant public rhetoric that surround Nepalese citizenship provision and create an alternative public discourse on the topic of the Nepalese citizenship provision and its impacts.
The History of Gendered Citizenship: The Global Context
Citizenship has been a gendered concept since its inception. The classical model of citizenship, as forwarded by Aristotle, is also a gendered concept because within that framework men get the priority at the expense of complete negation of women’s identity and agency.
“the Greek model is largely inspired by the writings of Aristotle, particularly his account of citizenship in The Politics, written some time between 335 and 323 BC…To be a citizen it was necessary to be a male aged 20 or over, of known genealogy as being born to an Anthenian citizen family, to be a patriarch of a household, a warrior – possessing the arms and ability to fight – and a master of the labor of others, notably slaves. So, gender, race, and class defined citizenship…As a result, large members were excluded: women (though married Athenian women were citizens for genealogical purposes); children; immigrants. (Bellamy 31)
Derek Heater, the writer of a A Brief History of Citizenship also outlines the discrimination prevalent in the classical model of citizenship. Heater writes, in the classical time, “citizenship was not only designed in the image of men, the adult male citizen was the ideal human being – an interpretation embedded in Aristotle’s definition of citizenship. Women, it was widely held, had neither the physical nor mental qualities to participate in that role” (121).
J.G.A Pocock in his essay “The Ideal of Citizenship Since Classical Times” describes the concept of citizenship discussed in Aristotle’s Politics (30). In that account of what is citizenship and who is a citizen, men occupied the center stage. Pocock writes that Aristotle forwarded some “prerequisites” (31) and only upon the attainment of these prerequisites could a person qualify as a citizen. And these prerequisites were mostly those that favored men over women, and free men over the enslaved ones. “For Aristotle the prerequisites are not ours; the citizen must be of a male of known genealogy, a patriarch, a warrior, and the master of the labor of others (normally slaves), and these prerequisites in fact outlasted the ideal of citizenship, as he expressed it, and persisted in Western culture for more than two millennia” (31). Pocock is true about the persistence of these requisites. Nepal’s model of citizenship as existing in current time exhibits these patriarchal norms and values in the most obvious and discernible ways.
The Roman model of citizenship after the Greeks was also similar to the Greek model in terms of how it included or excluded women . Bellamy also describes such continued exclusion of women from the conceptual framework of citizenship. Bellamy writes, “Eligibility for Roman citizenship was at first similar to the criteria for Greek citizenship – citizens had to be native free men who were the legitimate sons of other native free men” (39). In that sense, both the Greek and Roman models of citizenship was constructed after men and for men alone, and at the cost of exclusion of women.
Many contemporary researchers, theorists and historians too have written about such exclusionary models of citizenship as they exist in the contemporary world. Most of these contemporary models take after the classical Greek and Roman models (Bellamy also writes how these models have become instrumental in shaping and influencing the future models of citizenship and the debates that surround them).
In her article “Gender Justice, Citizenship and Entitlements” Anne Marie Goetz explores the way gender and citizenship are connected. She argues that because of policies that empower men at the cost of women, systems with limited rights and entitlements are created for women.
She writes, “The consequence of systems of male capture and bias in rule-making institutions is the creation of limited membership rights and capabilities for women—constrained citizenship rights in the state, for instance, or circumscribed roles in the family and community,” (32). In such cases “gender justice is postponed” (32), and case of the constitution of Nepal and its existing citizenship provision is one of such cases.
Lister talks about the inclusionary and exclusionary modes of citizenship in “Citizenship: Towards a Feminist Synthesis”. According to her, there are exclusionary model/tendencies within the citizenship, and they are “inherently gendered” (28), and they reflect “women’s long-standing expulsion from the theory and practice of citizenship” (28). Nepal’s existing model of citizenship is also an exclusionary one in this sense of the term.
Mukhopadhyay in Gender Justice, Citizenship and Development talks of the biased legal codes that discriminate against women. According to her, “this bias arises on the basis of inequality of treatment between the sexes, where masculine privileges and masculine right prevails over the rights of women (and children) conferring on the latter an inferior legal status sometimes termed second-class citizenship” (61). The proposed research adds to the volume of such scholarship by examining the way legal codes operate to marginalize women and reduce them to a second-class citizen in Nepal.
In the Introduction chapter of their book Gender Equality, Dimensions of Women’s Equal Citizenship McClain and Grossman write “Citizenship itself, as historical research readily reveals, has always been a deeply gendered concept, bound up with the exclusion of women as full citizenship” (4). Similarly, Nira Wickremasinghe in Sri Lanka in the Modern Age writes that the existing concept of citizenship in post-independence Sri Lanka is still a “male one” (181). The proposed research adds to the existing volumes of literature that examine the gendered nature of citizenship. It does so by doing a case study of Nepal’s existing citizenship provision and the way it affects women.
Citizenship and Gender Justice:
Ann- M Field in his article “Contested Citizenship: renewed hope for social justice” frames access to and exclusion from the citizenship as social justice. Focusing primarily on gay and lesbians, and their rights to citizenship and its social implications, he proposes an alternative model of citizenship that is more inclusive and adheres with the principle of social justice.
Field notes, “he exclusion of individuals perceived as other on the basis of gender, sexual identity, race, ethnicity, or disability is a definite concern to those of us who deeply value social justice” (1). He elaborates that excluding any social groups from the benefits of citizenship and its associated advantages is unjustifiable. For him citizenship does simply mean a ticket for enjoying the rights and privilege like access to education, jobs, passports. He argues that citizenship needs to be understood in a wider spectrum of phenomenon that marks the current world like globalization, open borders, movement, and inclusion and exclusion. He explains, “In fact, by being part of a broader social discussion not limited to holding a passport, citizenship becomes a lens for understanding not simply who is included in the territory of the state, but also who is excluded or marginalized by the state and its policies” (4). Field emphasizes that the notions of inclusion-exclusion and representation that are associated with the citizenship make it a social justice issue.
Field frames the concept of citizenship and gender as a lens to understand marginalization, the intricate power relations, and hierarchies that is embedded in the social structure. In the case of Nepal, inclusion/exclusion of women from the equal citizenship right tells a larger story of women’s position and status within the broader social and cultural structure too, and the citizenship rights endorsed by the constitution in a way legalize these unequal power relations existing within that social and cultural structures.
For Field, the very idea and conception of citizenship is also tied to the idea of hegemony. He writes, When understood in sociological terms, citizenship is viewed as a hegemonic project. It is contingent upon the subordination of specific bonds of gender, race, class (Jones) and sexual identity to support the claim of universality implied in the formal-legal model of citizenship…although we are granted formal-legal citizenship, it is clear that citizenship is experienced in a less than equal manner by differently situated individuals. (7).
Here Field is talking about how state policies about citizenship and its experience reinforces existing hegemonic concepts of gender, marriage, and heterosexuality. The Nepalese citizenship provision in 2016 Constitution reflects this hegemonic arrangement.
In her article « Gender justice, citizenship and entitlements » Goetz defines gender justice “as the ending of, and the provision of redress for inequalities between women and men that result in women’s subordination to men” (4). She explains that citizenship is closely connected to the issue of gender justice because state as the guarantor of basic human rights can employ legal tools, among other things, in order to secure gender justice and also redress any injustice of the past. “The terms and conditions of membership of national communities, the entitlements and obligations of citizen, become part of the debate on the meaning of gender justice” (19) she adds. According to Goetz gender justice can take one or all of the three forms: gender justice implies the right for choice, the absence of discrimination and the presence of political, civil, and economic rights (21). And the state, as the guarantor of these rights has the obligation to respect and protect these rights for all of its citizens, including women, without any bias and prejudice. However, Goetz adds, sometimes “the patriarchal mindsets and social relations that are produced in the private sphere are not contained there, but infuse most economic, social and political institutions. Indeed, the term gender justice provides a direct reminder of this problem of institutionalized bias by reminding us that justice itself, in its conception and administration, is very often gendered, responding to a patriarchal standard derived from the domestic arena” (18).
Nepal’s case study of the gendered citizenship provision is an example of how such gendered norms, that are most often formed in the domestic sphere and transported into the political, social, and economic arena through social and legal policies, undermine the concept and process of gender justice.
Goetz also uses the term “gender justice” as a phrase that address the relationship between gender, citizenship, and the rights associated with citizenship entitlement. In her article, Goetz particularly takes up the issues of “gender based injustices from which women suffer” (15), “problems of blatant injustice or hidden biases in the law and legal practice” (16), and she calls for the need of a version of “social justice that challenges male privilege” (19). She argues that as a result of male domination and higher status during rule and policy making, structures with limited rights and entitlements for women are created. “The consequence of systems of male capture and bias in rule-making institutions is the creation of limited membership rights and capabilities for women—constrained citizenship rights in the state, for instance, or circumscribed roles in the family and community,” (32). In such cases “gender justice is postponed”, and case of the constitution of Nepal and its existing citizenship provision is one of such cases.
Gender Justice and Law:
Ratna Kapur talks about different approaches that are instrumental in reaching an understanding of the concept of gender justice within the arena of law. The first of these approaches is the protectionist approach. Within this approach, laws that treat men and women differently are created on purpose. The overt intention is to protect women, and the logic behind this intention of protection is the idea that men and women are inherently different, and that women are weaker which is why they need to be protected. Within this approach, women are seen and treated primarily as wives and mothers, which means they are considered subordinate to the man, the husband or the father of their children. Women are also treated as people incapable of rational thinking and decision making.
Nepalese lawmakers argument formed in defense of the existing citizenship provision portray a similar picture of women in Nepal by implying that women Nepalese women are weak, uneducated, fragile, which is why they are under the greater risk to being exploited by Indian men to serve their purpose of entering Nepal and exerting influence in important state matters. According to the law makers, the existing citizenship provision will protect both Nepalese women and the country from such foreign intervention.
Another approach views and analyzes “law as an instrument of patriarchy” (221), and this approach “examine the ways in which gender justice in law is informed by and serves to reinforce patriarchal social relationships” (Kapur, 127). This is the approach most often adopted by feminist projects while studying law to analyze its implications on women. This research project examines the way existing citizenship provision acts as the instrument of patriarchy and in doing so further marginalizes and victimizes women under pretext of protecting them.
History of gendered citizenship provisions in Nepal
In their work, “The Gender Biased Problems of Citizenship and Statelessness in Nepal” Nepalese sociologists Indu Tuladhar & Surendra Bhandari trace the history of citizenship policies in Nepal till now, and they conclude that all citizenship provisions, starting from the first one in 1952 till the latest citizenship provision in the Constitution 2016, were gender biased. They Bandari and Tuladhar conclude that all the citizenship provisions in Nepal till now have had two consistent problems: First, they adopt a patriarchal model of citizenship, where the lineage pass down from the fathers’ name, and second, they discriminate between men and women on the basis of nationality and marriage. They note “The 2015 Constitution is not the first one to legitimize a gender-biased citizenship policy in Nepal. Indeed, such a policy has been in force in Nepal since the first law on citizenship was enacted in 1952” (2). In its inception in 1952, the citizenship provision was guided by the motive of not allowing the Tibetan men tied to matrimonial relation with Nepalese women to acquire the citizenship of Nepal. The existing citizenship provision reinforces the same idea of keeping the foreign men from holding power positions inside Nepal.
Table of Contents
1. Chapter 1: Introduction to the Research
2. Chapter 2: The literature Review
3. Chapter 3: Patriarchy: Reflected and Reinforced in the Nepalese Citizenship Provision.
4. Chapter 4: Impacts on Women: Humiliation, Disempowerment and Statelessness
5. Chapter 5: Conclusion
GET THE COMPLETE PROJECT
Gender and Citizenship in the Constitution of Nepal, 2015.
