Election Commission is full of authority and
competence. In the context of collection of
Electoral Rolls, the above mentioned legal
provisions provided by Electoral Rolls Act, 2006
are phase wise, sequential and transparent.
While collecting Electoral Rolls, the person
who is unsatisfied with it can make objection,
the concerned official has to make decision
according to law over that objection made and
has to update the Electoral Rolls accordingly
and publish the final Electoral Rolls. Viewing
such provision made by the Act and Rules, the
acts/activities of the Election Commission
are transparent. If the Election Commission
becomes bias against any candidate or the
Commission does any act beyond its authority
or carries out any act against law or principles
of natural justice, the concerned person
may file petition pursuant to Article 32 of
the Interim Constitution of Nepal under the
extraordinary jurisdiction conferred to this
court and therefore, it cannot be held that there
is an absence of remedy. Therefore, the claim
of the petitioner that Section 25 of the Electoral
Rolls Act, 2006 has provided excessive right to
the Election Commission and is inconsistent
with the Article 129 of the Interim Constitution
cannot be sustained.
that in the condition when the petitioner
has not claimed with specification it is not
appropriate for the court to conduct judicial
review of the law made by the legislature
based on hypothetical ground by exercising
extraordinary jurisdiction. Furthermore, the
Article 45 of the Interim Constitution, 2006
invoked by the petitioner has already been
repealed by the 5th amendment of the Interim
Constitution of Nepal, 2007 dated 2065/3/29
(July 13, 2008) that is before filing of this writ
petition at this court on 2067/8/6 (November
22, 2010). Since the petitioner being unable
to show why and how these provisions of
the Electoral Rolls Act are inconsistent with
these Articles of the constitution and has
made inexplicable claim by mentioning
the preamble and different Articles and
has claimed that the provision of the Act is
inconsistent with Article which had already
been repealed, therefore the constitutionality
of the Act cannot be examined/tested based
on such claim and it need not be considered
thereof.
37. Now to consider about the second question,
the petitioner has claimed that the decision
of the Election Commission dated 2067/7/16
(November 2, 2010) is inconsistent with the
Section 5(1)(A) and Articles Preamble of the
Interim Constitution of Nepal, Article 1, 2, 8,
9, 10, 11, 46, 63, 65 and 129 thereof and urged
for voiding that decision through the order
of certiorari. This plead of the petitioner is
complementary to the plead mentioned in the
question No 1 above and it has already been
discussed in the context of question No 1 and
therefore, it is not necessary to discuss here
about it in detail.
36. The petitioner has claimed that the other
provisions of Section 11 (1), (2) and (3) of
Electoral Rolls Act, 2063 except ‘Citizenship
Certificate’ and the provision of Section 25
(A) and (B) of the same Act are inconsistent
with the provisions of Preamble of the Interim
Constitution of Nepal, Article 1, 2, 8, 9, 10, 11,
46, 63, 65 and 129 thereof. The Preamble and the
different Articles of the constitution mentioned
by the petitioner have their own separate/
independent objectives. The petitioner has
not been able to show satisfactory reason of
why and how these provisions of the Electoral
Rolls Act are inconsistent with the provision
of the preamble or that Article. The petitioner
has the duty of showing with proof to the court
of the fact that why and how the impugned
provision of law is inconsistent with the
constitution. However, the writ petitioner has
failed to show and justify in the writ petition
as well as during hearing of this writ ‘how
the said sections of the Electoral Rolls Act,
2006 are inconsistent with the Articles 1, 2,
8, 9, 10, 46, 63 and 129 of the Constitution
except the Article 65(A) thereof and therefore
it needs not be consider thereabout. In this
subject, the Special Bench of this court in the
writ petition (2067-WS-0019) of petitioner
Sunil Ranjan Singh Vs Election Commission
and others, has established the principle
While discussing in the context of question
No 1 above, the provision of Section 11 of the
Electoral Rolls Act, 2006 which the petitioner
has urged for declaring ultra vires and void,
cannot be implemented independently
contrary to the Section 5(1)(A) of the said Act
and Article 65 (a) of the Constitution. Land
ownership certificate or certificates issued
by a government office or other body cannot
substitute the ‘citizenship certificate’ used in
Section 5(1) (A) and 11(1). It has already been
interpreted that the land ownership certificate
or other identity card may be helpful for
corroborating the citizenship, if the citizenship
certificate is suspicious or dubious while
collecting Electoral Rolls as used in Section 5(1)
(A) and 11 (1) of the Electoral Rolls Act. Since
the principle has been established from that
interpretation that the use of other evidentiary
documents apart from citizenship certificate
43
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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