Prajapati Sharma is not seen to have been the
patronage as per law is against the aforementioned
legal provision as well; hence the aforementioned
decision should be revoked.
principle is the equal treatment for the equal and
different treatment for the unequal. The expectation
of unequal treatment unequally is not considered
possible and essential. From the perspective of
constitutional procedural science, such provision of
the equality is kept for the sake of making the state
more accountable under the state’s responsibility
of people’s welfare.
Upon seeing the affidavit of the respondent, Home
Ministry, description is seen to have been mentioned
that as per the decision of the date of 2069/10/5
(January 18, 2013 A.D.) of the level of honorable
Deputy Prime Minister and Home Ministry, circular
was already made to all the regional and District
Administration Offices on date 2069/10/7 (January
20, 2013 A.D.), stating to issue citizenship in an easy
way so as not to be against the Interim Constitution,
2063 and Nepal Citizenship Act, 2063 and Rule, 2063;
the children found within the borders of Nepal, but
having paternity maternity not known, from the
identification of the patron, and to leave the Chapter
of parents empty without mentioning anything by
just keeping the issue of the parents being untraced
in the record of the Office, letting it happen as per
upon finding out paternity maternity later; hence,
the present writ petition should be revoked.
In Article 22 (1) of the Interim Constitution of Nepal,
2063, a constitutional provision is seen to have
been made including that every child shall have the
right of his/her identity and name. The issue of the
children’s identity is seen to have been developed
as the content of human right by being transferred
from the parents’ rights. Likewise, the issue of their
rights has been transferred in the responsibility of
the state as well from the parents.
By raising the dispute of public litigation, there
is not dispute that the petitioner has entered the
Court by laying claim for the revocation of the
Sub-rule (6) of Rule 3 of Nepal Citizenship Rule,
2063 and Point No. 10 (7) of Citizenship Certificate
Distribution Directives, 2063. Upon looking into the
provision of Sub-clause (3) of Clause 3 of the Interim
Constitution of Nepal, 2063 by keeping at the same
place, equal provision is seen to have been made,
stating that every child found within the borders
of Nepal, having paternity maternity not known,
shall be considered a citizen of Nepal on the basis
of descent until his/her father or mother is not
found out or traced. From this constitutional or legal
provision, every person found within the borders
of Nepal, but having paternity and maternity not
known, is seen to be able to obtain citizenship on
the basis of descent.
Actually, the Article 13 of the Constitution has
expressed commitment that nobody shall be
deprived of the equal protection of the law. The
aforementioned Article is seen to have been
connected with the concept that all the citizens
are equal in the eye of law. In general sense, not to
discriminate on any basis such as religion, color,
gender, caste, ethnicity among persons to persons
is equality. In the context of fundamental rights, the
principle of equality is linked with the state actions.
To carry on the equality in the use and treatment
of the law by any person or group is the purpose of
the equality; hence, to reach up to the same status
from different statuses or to search for the equality
in the consequence is also considered as another
aspect of the equality. To show equal treatment in
the eye of law is a procedural equality, whereas, to
obtain equality in the consequence is a substantial
equality. To show equal treatment among the equal
and to show unequal treatment among the unequal
is the essence of equality.
In the present dispute, information is seen to have
been provided on date 2070/4/14 (July 29, 2013
A.D.) with the description that paternity/maternity
of the petitioner, Amrit Kumar Sharma, is not seen
to have been traced till now. Because the paternity
and maternity have not been identified, application
is seen to have been furnished in the District
Administration Office, through the patronage
of his patron, Prajapati Sharma ( Timsina) by
attaching the documents including the photocopy
of his citizenship. In the application form, the
District Administration Office, Kathmandu has not
mentioned the parents’ names and address of the
petitioner in the application form; and Prajapati
Sharma (Timsina), so-called his patron, is not
seen to have obtained the patronage from any
authorized body to nurture and provide education
and instruction as per prevailing law; it is not seen
right to confer him the citizenship as per Nepal
Citizenship Act, 2063 and same Rule, 2063.
This principle of the equality considers all as
equal before the law by deeming consequence as
secondary and stressing on the procedure; it is also
called formal equality in constitutional procedural
science. In the use of general law and in other
treatment, the state had also better not discriminate
among its citizens on any or all bases such as caste,
ethnicity, region, language, religion, color, gender or
gender identity, social origin. This principle implies
the norm that all are equal before the law; nobody
shall have the provision of prerogative or immunity
and all shall be equal in the use of general law.
This checks the right of the government to apply
discretion in the use of law. The principal base of this
While looking into the Sub-rule (6) of Rule 3 of
88
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents