to the Article 65(a) of the Interim Constitution,
to nullify those provisions by invoking Article
107(1) as requested by the petitioner shall
be tantamount to entertaining a moot case.
The Court does not exercise its extraordinary
jurisdiction pursuant to Article 107(1) in an
assumed potential invasion of a right. In
order to exercise the jurisdiction under the
Article 107 (1), there has to be an actual and
threatened invasion of right. In the context of
the Constituent Assembly, such situation has
already passed away. The Article 107(1) shall
not be used since the circumstance has already
been changed after the conduction of election
and constitution of the Constituent Assembly
and the potential dispute has already ceased
to exist. The US Supreme Court, in the case of
Doremus Vs Board of Education (1952) 342 US
429 has held that the court shall not intervene
if the issue has been dead owing to change
in the status. In Mills Vs Green (1895) 159 US
561, the US Supreme Court has held that no
intervention may be made if the issue has been
dead.
into commencement after drafting of the
constitution by the Constituent Assembly, as
there is no provision of a separate parliament
and its possibility, its work is being carried out
by the Constituent Assembly itself, the Court
need not intervene in this matter.
18. However, the function of Election Commission
to collect Electoral Rolls is a continuous
process. The roll collected today may be
used in any level of the elections to be held
under this Interim Constitution or a new
Constitution. The preamble of the Electoral
Rolls Act, 2006 clarifies this phenomenon.
Although the election to Constituent Assembly
has already conducted, the overall purpose
of the Act for the elections to be held under
the new Constitution, except the election of
Constituent Assembly has not extinguished
yet. Therefore, it will be expedient to address
some of the issues raised by the petitioner over
the Constitutionality of the Act.
19. The main plead of the petitioner is that names
in the Electoral Roll cannot be registered and
candidacy cannot be filed without obtaining
the citizenship certificate as the Constitution
and laws provide that no one can register his/
her name in the Electoral Rolls and become
candidate in the election without obtaining
citizenship certificate. However, the written
response of the respondents and the plead
of the interveners is that Article 8 of the
Interim Constitution has deemed those people
also as Nepali citizens who are eligible of
obtaining Nepali citizenship certificates but
have not obtained it yet. Therefore, names in
the Electoral Rolls may be included, without
obtaining citizenship certificate, on the
basis of identity cards issued by government
offices, local bodies, government owned
corporations and educational institutions, and
recommendations of the Village Development
Co m m i t t e e s a n d Mu n i c i p a l i t i e s t h a t
substantiate someone as a Nepali citizen.
16. As the Constituent Assembly has already
been constituted and there is no provision
for the constitution of another Constituent
Assembly, the matter of Election to members
of Constituent Assembly pursuant to Article
65(a) has turned out to be a dead issue now.
Therefore, the terms applied in Section 11
of the Electoral Rolls Act, 2006 need not be
declared void as sought by the petitioner in the
present conditions for the purpose of elections
to Constituent Assembly.
17. On the basis of the provisions of Section 11(1)
and (2) of the Electoral Rolls Act, 2006 of which
the petitioner has requested for declaring null
and void, in case it is assumed that there may
be a possibility that persons other than the
citizens register their names in the Electoral
Roll and even a non-Nepali citizen may also
cast vote or become a lawmaker, then one has
to also maintain that there is no arrangement
in the Interim Constitution for a separate
election of the legislature parliament or
the parliament. Because of this reason this
Constitution is the interim constitution and a
new Constitution shall come into effect only
after the Constituent Assembly frames a new
constitution passes it. After the drafting of new
constitution, the new constitution shall be
commenced and the legislature constituted
according to new Constitution and the law
relating to Electoral Rolls and Election made by
such legislature will have to be considered by
comparing with the new Constitution. Hence,
as the new Constitution shall be brought
In this context, it is worthwhile to analyze
first the Constitutional provision regarding
citizenship. The provision in Article 8(1) of the
Interim Constitution of Nepal, 2007 regarding
the citizenship at the time of commencement
of this Constitution is as follows:
Article 8: Citizenship at the Commencement
of the Constitution:
(1)
At the commencement of this Constitution,
the persons who have acquired the
citizenship of Nepal and who are eligible
to acquire the citizenship by virtue of this
Part shall be the citizens of Nepal.
20. Once a citizenship certificate is acquired as
39
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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