such situation, it is not only violates the right of
the petitioner but also the fundamental rights
of her mother Ganga Maya conferred by the
Article 13 and 20(1) not to issue citizenship
certificate to the petitioner citing the reason
that her father has not been traced out despite
the petitioner’s mother Ganga Maya has been
proved to be the citizen of Nepal from her
citizenship certificate. Such an act of making
discrimination against women on the ground
of sex infringes the women’s right to equality.
The Court enforces such infringed rights under
Article 107(2). There is an express provision
in Article 33 (m) and ( n) of the Interim
Constitution of Nepal, 2007 that it shall be the
obligation of the State to effectively implement
the international treaties and conventions
to which Nepal is a party and to eliminate
discrimination of all types. The act to deny
to provide Nepali citizenship certificate to the
petitioner violating the Constitution, statutes
and conventions to which Nepal is a party, on
the ground that her father has not been traced
out, cannot be acceptable for this court. The
Court takes this matter seriously. Such an act
is a mockery to the rule of law.
and tradition that consider men as superior
than women.
Article 26 of the International Covenant on Civil
and Political Rights, 1966, to which Nepal is a
party, has provided that:
Article 26. “All persons are equal before the law
and are entitled without any discrimination
to the equal protection of law. In this respect,
the law shall prohibit any discrimination and
guarantee to all persons equal and effective
protection against discrimination on any
ground such as race, colour, sex, language,
religion, political or other opinion, national or
social origin, property, birth or other status.”
15. Article 26 of ICCPR is a provision corresponding
to the right to equality provided by Article 13 of
our Constitution. According to the provision
of that Convention discrimination cannot be
made among men, women or even third gender
on any ground. According to Article 26 of that
convention the State parties have to formulate
laws to prohibit discrimination based on sex.
Article 1 of UN Convention on the Elimination
of All Forms of Discrimination, 1979 reads
as follows: “For the purposes of the present
convention the term ‘discrimination against
women’ shall mean any distinction, exclusion
or restriction made on the basis of sex which
has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status,
on a basis of equality of men and women, of
human rights and fundamental freedoms in
the political, economic, social, cultural, civil or
any other field.”
13. Nepal has become a party to ICCPR, 1966,
CRC, 1989 and CEDAW, 1979. y Pursuant
to Section 9 of Nepal Treaty Act, 1990 after
becoming a party to those conventions, the
provisions of the conventions are enforceable
instead of Nepal law, if the provisions of these
conventions are inconsistent with any Nepal
law. In the condition that there is no debate
on the fact that the petitioner’s mother is a
Nepali citizen, the act of denying her Nepali
citizenship certificate on the ground that her
father has not been traced out when there is
no contention on the fact that the mother of
petitioner is a Nepali citizen, has violated her
right conferred by the Article 13 and 20(1) of
the Interim Constitution of Nepal, 2007.
Apart from this, Article 2 (a), (b), (d) and (f) are
also important which are as follows:
2. State parties condemn discrimination against
women in all its forms agree to pursue by all
appropriate means and without delay a policy
of eliminating discrimination against women
and, to this end, undertake:
14. It has been proved that petitioner’s mother
Ganga Maya Damai is a Nepali citizen from
her Nepali citizenship certificate bearing the
No 1353 issued by District Administration
Office, Dolakha on 13tIt It h May, 1988. Even
in such situation it has been denied to issue
citizenship certificate to the petitioner on the
ground that her father has not been traced out,
such an act has not only violated the rights of
the petitioner and her mother conferred by the
Interim Constitution of Nepal, 2007 but also
the rights conferred by different conventions
to which Nepal is a party. The treaties and
conventions to which Nepal is a party have
forbidden discrimination between men and
women and have also abolished the customs
a)
To embody the principle of equality of men
and women in their national constitutions
or other appropriate legislation if not yet
incorporated therein and to ensure through
law and other appropriate means, the
practical realization of this principle.
b)
To adopt appropriate legislative and other
measures, including sanctions where
appropriate, prohibiting all discrimination
against women.
d)
To refrain from engaging in any act or
practice of discrimination against women
and to ensure that public authorities and
institutions shall act in conformity with
52
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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