as the work congruent to law. Not to confer to the
petitioners with citizenship stating that it was not
clear whether the father was from home country or
a foreigner is against Article 13 (1), (2) and Article
20 (1) of the Interim Constitution of Nepal, 2063, as
well. It is seen that in the aforementioned Article 13
(1), provision that all the citizens are equal before
law and in Sub-article (2), provision no citizen is
supposed to be discriminated based on gender has
been made. Similarly, in Article 20 (1) it has been
accepted as a fundamental right that a woman is
not supposed to be discriminated simply because
she is a woman; in this condition, although it has
been justified from her citizenship certificate of
Nepal that the petitioners’ mother Anita Sapkota
is a citizen of Nepal, the work of not issuing the
citizenship certificate of Nepal by showing the
base that it was not traced whether the father
was from home country or a foreigner, it is seen
that the petitioners’ mother was discriminated
on the ground of just being a woman; hence, the
aforementioned work of the opponent is seen to be
like that of defeating the constitutional provision.
Court, instead of helping in friendly manner in the
sensitive issue such as citizenship, the opponents
are found to have made the petitioners lingering by
refusing to confer citizenship certificate, pretending
this and that. Such work cannot be considered as
responsible and legal work.
Hence, petitioners’ mother has possessed the
citizenship of Nepal and their father has been
disappearing; hence, there is no obstacle present
in conferring citizenship by mother’s name and
mandamus has already been issued before this by
this Court on this issue; but, even though all the
District Administration Offices are seen to have
been circulated, the work of not conferring the
petitioners with the citizenship by mother’s name
is unjust; hence, it is decided that mandamus is
supposed to be issued on the name of the opponents
to immediately confer them with the citizenship by
mother’s name.
Moreover, though the condition that it has been
explained in the affidavit of the opponent the Office
of the Prime Minister and the Council of Ministers
that circular has already been done for the universal
enforcement of the aforementioned precedent of
Sabina Damai, and in course of pleading, the joint
attorney of the government side has explained
that the government is always positive regarding
conferring the certificate is present, petitions have
been frequently furnished stating that citizenship
could not be obtained by mother’s name; from this,
this Court feels that condition is still existing in
which the petitioners have been facing complication
in vain. The condition to obtain citizenship by
mother’s name is a difficult condition in itself;
hence, it appears that if negative thought is retained
towards this, additional inconvenience is put on
the marginalized women. Hence, according to the
spirit of the order made in the present case and the
order made in the case of Sabina Damai, it is decided
that directive order shall be issued on the name
of the Government of Nepal to confer and to get
the citizenship conferred by mother’s name easily
in the condition that the citizenship is supposed
to be obtained, without posing unnecessary
complication, in the cases of such circumstances,
arrange provision to monitor as well for not letting
any complaint remain regarding this by setting up
complaint hearing mechanism under the Ministry
of Home Affairs. By providing information of this
decision to the opponents through the Office of the
Attorney General, strike off the record of the writ file
and do with the document file as per rule.
Precedent propounded by this Court is to be looked
into regarding the citizenship that can be obtained
by mother’s name. Regarding this, extensive and
detailed interpretation has been made in the case
of including Sabina Damai versus the opponent
Office of the Prime Minister and the Council of
Ministers (N.L.M 2068 Number 2, D. No. 8557).
In the aforementioned case, precedent has been
propounded that no citizen can be deprived of
obtaining citizenship certificate by any official
prescribed by not understanding the constitution,
law and covenant relating to human rights or by
giving wrong logic and meaning of the law, and
that hardship has to be faced in order to obtain
citizenship certificate cannot be acceptable; even
if anyone of the parents is a citizen of Nepal, such
person can obtain the citizenship of Nepal.
According to the aforementioned constitutional and
legal provisions and precedent doctrine, the person,
who was born from a Nepalese citizen father or
mother in any geographical part of Nepal, has the
right to obtain citizenship certificate from that same
district. Without being a citizen, no one can exercise
political and civic right, to acquire immovable
property, exercise the right to take part or cast vote
in any elections or exercise the rights that are to be
exercised only by the Nepalese citizens. After having
been qualified due to being born in Nepal and after
furnishing application in the format prescribed in
the law by fulfilling necessary rule, it is a right of every
qualified person to obtain the citizenship certificate
of Nepal by easy and simple manner. However,
in the situation of the application furnished by
fulfilling the minimum process as per law for the
sake of obtaining citizenship, on the ground of the
aforementioned precedent propounded by this
Justice
I am with the decision
Chief Justice
Bench Officer: Indira Sharma
2072/12/02/03 (Tuesday, 15th March, 2016)
101
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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