provides that a person must be a Nepali citizen
to become member of the Legislature-Parliament
and to become the Prime Minister accordingly. In
Article 63 there is provision about the constitution
of the Constituent Assembly which also provides
that a person must be a Nepali Citizen to become
a member of Constituent Assembly and Article
129 of the Constitution provides that the Election
Commission shall prepare the Electoral Roll subject
to the provision of the Constitution. From the above
constitutional provision it is clear that only the name
of the persons who have obtained Nepali citizenship
certificate have to be included in the Electoral
Roll. Therefore, the other provisions of Section 11
(1), (2) and (3) of Electoral Rolls Act, 2006, 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, Articles 1, 2, 8, 9, 10, 11, 46,
63, 65 and 129 thereof. Therefore, these provisions
should be declared void ab initio pursuant to Article
32 and 107(1) of the Constitution.
ownership certificate or any identity card issued
by a government office, local body, government
owned organization or educational institute. That
decision is inconsistent with the Preamble and
Articles 1, 2, 8, 9, 10, 11, 46, 63, 65 and 129 of the
Interim Constitution of Nepal, 2007 and Section
5(1) (A) of the Electoral Rolls Act, 2006. Therefore,
it is requested to declare that decision void through
the order of Certiorari.
A person whose name is registered in the Electoral
Rolls can also become candidate in the election,
and therefore, it will be unconstitutional to register
the name of the person who has not obtained the
citizenship certificate in the Electoral Rolls. The
respondent Election Commission cannot determine
whether or not a person is Nepali citizen however;
it has to make arrangement of exercising the right
to adult franchise only to the persons who have
obtained Nepali citizenship certificate. A person
who has already been proved to be a Nepali citizen
can subsequently become a voter. No person can be
determined whether he/she is a Nepali citizen after
making him/her the voter at first.
The Section 11(1) of the Electoral Rolls Act, 2006
provides that while registering the name of a person
in the Electoral Rolls, the Enrollment Officer may ask
the concerned person or his or her family to submit
the citizenship certificate, land ownership certificate
or any identity card issued by a government office,
local body, government owned organization or
educational institute, setting out his or her date
of birth or age or place of his or her residence.
Likewise, in the Section 11(2) it is provided that in
the case of failure to submit the evidence sought
pursuant to Sub-section (1), the Enrollment Officer
may ask such person to submit a recommendation
of the concerned Ward of the concerned Village
Development Committee or Municipality. Likewise,
in Section 11(3), it is provided that the name of a
person who fails to submit the recommendation
referred to in Sub-section (2) shall not be registered
in the Electoral Rolls. Providing so it is stated that
nothing shall be deemed to bar the registering of
the name of a citizen of Nepal in the Electoral Rolls
merely by the reason of his or her failure to submit
the Nepalese citizenship certificate.
The lifestyle, religion, culture and face of the Tibetan
Refugees living in the northern part of Nepal and of
the Bhutanese Refugees living in the eastern part of
Nepal are similar to the Nepalese people and they
also have matrimonial relationship with them.
There is no debate on the matter that a child born
from the matrimony with the refugees is a foreigner
according to the prevailing law of Nepal. However,
the refugees and their children are foreigners,
despite this, they can study in Nepalese Schools and
they have the academic certificate issued from the
schools of Nepal. Some of the foreigners have land
ownership certificate also. Taking into account of the
condition that anyone can take benefit of the open
border, it is absolutely necessary to register name in
the Electoral Rolls only on the basis of Citizenship
certificate. Thus, if the Electoral Roll is prepared on
the basis of land ownership certificate and academic
certificate without obtaining citizenship certificate,
serious crisis may raise over nationality.
In the Section 25 of the Electoral Rolls Act, 2006 it
is provided that no question can be raised in any
court about different acts carried out by Election
Commission. Article 129 provides about functions,
duties and powers of the Election Commission. That
Article has not restricted from raising question in
any court over the acts carried out by the Election
Commission. The Act cannot restrict from raising
question in any court of the matter in which the
constitution itself has not restricted in raising
a question in the court. The constitution must
clearly mention about the subject about which no
question can be raised in the court. In the condition
that when there is no provision in the Article 129
restricting from raising question in any court on
In Section 25 of the Act, it is provided that no
question may be raised in any court about the
following matters: (a) As to whether or not the
name of any person has been registered in, or may
or may not be registered in, the Electoral Rolls of
any election constituency; (b) As to the preparation
of the Electoral Rolls by the enrollment Officer or
the authorized person deputed by him or her or
the alteration made by the concerned Official in
the Electoral Rolls. Invoking the above mentioned
provision the Election Commission has decided on
2067/7/16 (November 2, 2010) to register the name
of the person in the Electoral Roll based on land
29
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