per the law that only proves that the person
is a Nepali citizen. Moreover, in the event
that the Constitution stipulates qualification
for citizenship and someone attains that
qualification there would be the problem of
identification and therefore, he/she has to
obtain citizenship certificate so as to identify
himself. Even if a person if qualified for
becoming a citizen, it does not mean that the
citizens need not obtain citizenship certificates
for the purpose of voting and becoming
candidates in elections. In democratic system
the state cannot compel anyone to do some
act. In other words, though the State may
not compel everyone to obtain citizenship
certificates still, if anyone is wishes to exercise
his or her political right through voting right
in the capacity of a Nepali citizen, then he or
she has to obtain citizenship certificate so as
to introduce himself.
and therefore this need not be repeated here.
The Section 11 (1) and (2) of the Electoral Rolls
Act, 2006 which have been challenged by the
petitioner needs to be examined/considered
in relation the articles 8 (1) and 65(A) and
Section 5(1) (A) of the Electoral Rolls Act, 2006.
23. In Section 5(1) (A) of the Electoral Rolls Act,
2006, it has been provided that a person has
to be a Nepalese citizen for being eligible for
casting vote. It has already been interpreted
above that the term “Nepali Citizen” means
“ the person who has obtained Nepali
citizenship certificate”. If any legal provision
gives otherwise meaning, disregards it or
restricts or controls the meaning of the above
mentioned provision of the 5(1)(A) or the
provision that a person has to obtained
citizenship certificate for being registered as
a voter is against the constitution and thus
against the Article 8(1) and 65(A) and is hence
unconstitutional. Viewing from this point
of view, to make the provisions like “land
ownership certificate”, “ identity card issued by
a government office, local body, government
owned organization or educational institution”
and “recommendation of Village Development
Committee or Municipality” in the Act and
gives equal status to these documents to that
of citizenship certificate is to be maintained
that the legislature has exercised the power
beyond the limit. Since the term “ citizenship
certificate” used in Sub-section (1) is clear
in itself and therefore, the legislature cannot
add the other documents substituting the
citizenship certificate. It has to be understood
as maintaining the necessity of citizenship
certificate for the registration of name in the
Electoral Rolls, the Enrollment Officer may
ask for submitting the documents mentioned
in Sub-section (1) and (2) including land
ownership certificate for corroboration and
verification of the citizenship certificate
if citizenship certificate seems unclear or
confusing.
Therefore, it cannot be agreed with the pleas
of the learned advocates representing the
respondents and intervener that the obtaining
or not obtaining of a citizenship certificate
does not make substantive effect in including
names in the Electoral Roll. Thus, there is
no debate on the fact that the essence of
qualification of Nepali citizenship set forth
in Article 65(a) of the Interim Constitution
of Nepal, 2007 and Section 5(1) (a) of the
Electoral Rolls Act, 2006 invariably refers to a
Nepali citizen who has obtained citizenship
certificate.
21. It has been already discussed above that
whether the provisions “ land ownership
certificate or any identity card issued by a
government office, local body, government
owned organization or educational institution
of the Section 11 (1) of the Electoral Rolls Act,
2006, except the term “citizenship certificate”
and the provision “ recommendation of Village
Development Committee or Municipality”
of the clause (2) of the same section are
inconsistent with the Article 65(A) of the
Constitution. However, while interpreting the
constitution and law, harmonious construction
has to be made to it for giving sense to the true
intention of the legislature. While examining
the constitutionality of any law, it has to be
presumed that the law is consistent with
the constitution. It is a recognized principle
that a law has to be declared ultra vires
only if it clearly crosses the limits set by the
constitution.
24. The petitioner in his writ petition has claimed
that the provision of Section 25 of the Electoral
Rolls Act, 2006 is inconsistent with the different
Articles of the Constitution. The provision of
the Section 25 is as follows:
Section 25. Not to raise question in court: No
question may be raised in any court about
the following matters:
22. It has already been discussed above that the
claim made in this writ petition in regard to the
Article 65(A) is moot because the election of the
Constituent Assembly has already conducted
(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
40
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