result of election are equally important
and sensitive. The programs of every step
have to be completed within determined
time frame. With the purpose of allowing
maximum participation of people in every
such step, the Election Commission makes an
effort to make maximum participation of the
people by carrying out wider publication and
propagation of election programs. Reasonable
time has been provided to the citizens for this
purpose.
may or may not be registered in the Electoral
Rolls or preparation of Electoral Rolls or update
thereof by the authorized officer.
34. In the Article 129 of the Interim Constitution
of Nepal it is provided that the Election
Commission shall, subject to the provisions
of this Constitution and other laws, conduct,
supervise, direct and control the election to
the Constituent Assembly, any referendum to
be held under Article 157 of this Constitution
and elections to the Local Authorities. For
these purposes, the Election Commission shall
prepare the electoral rolls. In the matter of
collecting Electoral Rolls as mentioned above,
going through the legal provision made in the
Electoral Rolls Act, 2006 and Electoral Rolls
Rules, 2012, it is provided that the Commission
shall publish a notice to that effect pertaining
to program of the same, designation of
Enrollment Officer, deputation of enumerator,
publication of program of the collection of
detail, publication of Electoral Rolls existing at
that time, collection of the name of the person
eligible for being a voter but whose name
has not been registered in the Electoral Rolls,
collection of necessary details for removing
the names of the dead persons and migrated
persons from the Electoral Rolls, collection
of details for correcting the errors existing in
the Electoral Rolls, making necessary inquiry
according to collected details for updating and
publication of the Electoral Rolls, collection of
the application made by the eligible person
whose name is omitted from the Electoral
Rolls and publication of updated Electoral
Rolls, collection of objection stating that the
name of any person cannot be included, make
inquiry into the objection and decide thereto,
collecting the details for removing the name
of the person whose name is repeated in the
Electoral Rolls and remove thereto, publication
of the final Electoral Rolls by the Enrolment
Officer after completing the process of making
claim, objection, holding inquiry and making
amendment in it. Such procedural matters
have been determined in a sequential order.
Studying these legal provisions, the law aims
at determining necessary legal provisions for
making the Election Commission capable
and ready for discharging its constitutional
obligation by keeping the Electoral Rolls exact
taking into consideration of the election which
may be held at any time.
31. Since the program of election is tight and
it is compulsory to hold election in time,
the Election Commission carries out all the
activities and preparation diligently and
carefully not to let any citizen left. If any
citizen has been left despite taking maximum
care, the remedy has been provided only from
extraordinary jurisdiction with the purpose
that it may not affect the nationwide election
program. The extraordinary remedy under
Article 107(2) is available. From this, the way
of remedy has not been closed; the provision
of extraordinary remedy is always open. Only
ordinary remedy has not been provided for
any activities of election. While providing
remedies for such activities under ordinary
jurisdiction, right to appeal to one level has
also to be provided by which the process of
judicial remedy will be delayed and it will
obstruct the election program. The right to
voting is not a fundamental right but a legal
right. Although there is no remedy under
ordinary jurisdiction for the enforcement of
that legal right, the door of getting remedy
under extraordinary jurisdiction according to
the Article 107(2) of the Interim Constitution
of Nepal has been left opened.
32. The reason of leaving the door of extraordinary
jurisdiction open by excluding the ordinary
jurisdiction is that the extraordinar y
jurisdiction of this court is a strong medium
of getting speedy and complete justice.
The programs of election are very tight and
therefore, it requires prompt remedy. There is
another reason for providing remedy through
extraordinary jurisdiction rather than ordinary
jurisdiction by the Section 25 of the Electoral
Rolls Act, 2006. It is that the election programs
have to be conducted within the time specified
by the Election Commission and the complaint
regarding election has to be settled without any
delay. Therefore, the remedy under ordinary
jurisdiction has not been provided.
35. Studying the legal and constitutional provision
discussed above the Election Commission is
an independent Constitutional body. While
exercising its function, duties and powers
under the Article 129 of the Constitution, the
33. In regard to this writ petition, the Section 25 of
the Electoral Rolls Act, 2006 has not provided
remedy only to the subject whether or not the
name of any person has been registered in, or
42
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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