been clearly provided in that Article 107 (2)
that the extraordinary jurisdiction provided
to this court is not only for the enforcement
of the fundamental rights conferred by the
Constitution or but also for the enforcement
of any other legal right for which no other
remedy has been provided or for which the
remedy even though provided appears to be
inadequate or ineffective. Looking into the
provision of the Section 25 of the Electoral
Rolls Act, 2006, the legislature has obliviously
intended to place the subject of Electoral Rolls
prepared by the Election Commission outside
of the judicial scrutiny.
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 pursuant to
this Chapter.
25. The question that the provision of Section 25
of the Electoral Rolls Act, 2006 is inconsistent
with the Article 129 and 107 (2) of the Interim
Constitution of Nepal, 2007 had been raised
in the Writ Petition of 067-WS-0019, Sunil
Ranjan Singh v. Election Commission urging
for declaring it void. In that writ petition, the
Special Bench of this Court in its order dated
2067/9/8 (December 23, 2010) has interpreted
as follows:
28. In the context that the right to vote is legal
right and the citizens cannot exercise that
right unless their names are registered in the
Electoral Rolls, therefore, if any citizen has
been deprived from exercising voting right by
illegally not registering his/her name in the
Electoral Rolls, he/she will not have to remain
helpless of being without remedy although the
Section 25 has not provided ordinary remedy
to the citizen suffered from it. His/her right to
get remedy under extraordinary jurisdiction
for the enforcement of the legal right for which
no other alternative remedy has been provided
by the ordinary law. Therefore, it cannot be
held that the provision of the Section 25 of
the Electoral Rolls Act, 2006 has provided
excessive power to the Election Commission
and thus is inconsistent to the Article 107(2)
of the Constitution.
“To consider whether the provision of the
Section 25 of the Electoral Rolls Act, 2006
that provides that no question shall be
raised in any court in relation to the Electoral
Rolls prepared by the Election Commission
is inconsistent to the provision of extra
ordinary jurisdiction granted to this court by
the Article 107 of the Constitution. Article
1 of the Interim Constitution of Nepal, 2007
has adopted the principle of constitutional
supremacy. That provision of Article 1 is
directly dependant to the Article 107 of the
Constitution. The provisions of Article 1 and
Article 32 cannot be materialized in absence
of Article 107. Therefore, the extraordinary
jurisdiction entrusted to this court by the
Article 107 of the constitution has pivotal role
in materializing the principle of constitutional
supremacy envisaged by the constitution. The
extraordinary jurisdiction of this court cannot
be controlled or limited by any law made by
the legislature.
29. Every election either it may be the election of
national legislature, referendum or the election
of local bodies, it is conducted as national
campaign. Such elections often conducted in
the interval of five years is conducted after the
preparation of long run, continuous labor of
the civil servants, home work and expenditure
of large amount of national wealth. Such
elections have to be held in the date previously
scheduled/predetermined by the Election
Commission. If the election is not conducted
in time, not only the national resources and
wealth is spent but also it creates legal and
constitutional complications. Therefore, it
is necessary to conduct the election in the
date and time determined by the Election
Commission. Therefore, the programs of
preparation and conduction of election have
to be scheduled by the Election Commission
in prior date and should be conducted the
predetermined program in scheduled time and
date. Otherwise, election cannot be conducted
in the schedule.
26. The proviso to the Article 107(2) reads
as “Provided that, except on the ground
of absence of jurisdiction, the Supreme
Court shall not under this Clause interfere
with any proceedings and decisions of the
Legislature-Parliament concerning violation
of its privileges and penalties imposed for it.”
Making such provision the article has opened
the jurisdiction of this court for examining the
constitutionality of all the acts carried out by
all the other bodies. Therefore, the provision
made in the Section 25 of the Electoral
Rolls Act, 2006 cannot ignore or dishonor,
minimize or limit or control in any form to
the extraordinary jurisdiction provided to this
court by the Article 107 of the Constitution.
27. The right to vote is not a fundamental right. The
right to vote is legal or statutory right. Therefore,
our constitution has not incorporated the
voting right under fundamental rights. It has
30. All the steps of election from the collection
of Electoral Rolls to the declaration of the
41
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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