Schedule Format, filling up the Scheduled form
and submitted all the necessary documents before
District Administration Office, Kathmandu after
fulfilling all the required procedures. Then, the
Chief District Officer stated orally that “ ‘ descent’
denotes of father, as you have mentioned the father’s
address at Kabhrepalanchowk district, this does
not come under my jurisdiction.” Through this oral
decree, he returned me the application and all other
documents collected after following the procedure.
to both men and women. The legal as well as
constitutional provisions have provided the right
to confer citizenship to mothers as well. However,
in practice, the definition of descent is made
discriminatorily and the person who wants to derive
identity from mother has been denied of identity
and being made stateless.
The above treaties and conventions to which Nepal
is a party are the fundamental instruments of
human rights. Nepal has accepted the obligations
under them without any reservation. Article 156
of the Interim Constitution of Nepal, 2007 has laid
down that the ratification, accession, approval
and assent of the treaties shall be as determined
by the law. Section 9(1) of the Nepal Treaties Act,
1990 in the same spirit has clearly stated that: “In
case of the provisions of a treaty, to which Nepal or
Government of Nepal is a party upon its ratification
accession, acceptance or approval by the Parliament,
inconsistent with the provisions of prevailing laws,
the inconsistent provision of the law, to the extent of
such inconsistency shall be void for the purpose of
that treaty, and the provisions of the treaty shall be
enforceable as good as Nepalese laws.”
Under the heading of ‘Acquisition of Nepali
Citizenship by Descent’ in Section 3 of Nepal
Citizenship Act, 2006, it is clearly laid down that:
“A person born at the time when his/her father or
mother is a citizen of Nepal, shall be a citizen of
Nepal by descent.” Thus, under the definition of the
word ‘descent’ both father and mother have been
included. The law also has granted the right to the
person desiring to obtain citizenship to make choice
from whose name he/she has to obtain it.
Rule 3(1) of Nepal Citizenship Rules, 2006 has
clearly stipulated that: “A Nepali citizen who has
completed 16 years of age and intends to obtain
Nepali citizenship by descent certificate has make
application, in the format referred to in Schedule
1 before the concerned Chief District Officer also
enclosing the citizenship certificate of father or mother
or any other close relative within three generations
of his or her lineage and a recommendation made
by the concerned local body establishing the birth
place and relationship or duplicate copy of birth
registration certificate. “
As stipulated in the treaty our Constitution has
granted the right to mother (woman) to confer her
citizenship or identity to her offspring. However,
in practice, the official entrusted with enforcing
those rights himself has not enforced that right has
deprived me, Ranjit Thapa, one of the petitioners,
of the right to identity. Therefore, I pray for the
issuance of mandamus and/or any other necessary
order from the respected Court to provide me
citizenship from the name of my mother and
to make interpretation in case of other persons
aggrieved like me. I also pray that this writ petition
be granted preferential hearing. It is stated in the
writ petition filed at this court dated 4th August,
2008.
Apart from our constitutional and legal provisions,
the treaties and conventions to which Nepal is a
party have also assumed the right to citizenship as
a human right. Article 15 of Universal Declaration
of Human Rights (UDHR), 1948 has enshrined that
“Everyone has the right to a nationality. No one shall
be arbitrarily deprived of his nationality or denied
the right to change his nationality.” Article 24 of the
International Covenant on Civil and Political Rights,
1966 has provided that every child shall be registered
immediately after birth and shall have a name;
every child has the right to acquire a nationality.
Moreover, Article 9(2) of the UN Convention on the
Elimination of All Forms of Discrimination, 1979
has recognized that State parties shall grant women
equal rights with respect to the nationality of their
children. Our Constitution and laws also have made
the corresponding provisions. Article 7 Convention
on the Rights Childs, 1989 has further specified that
the child shall be registered immediately after birth
and shall have the right from birth to a name, the
right to acquire a nationality and as far as possible
the right to know and be cared for by his parents.
In the order of this court dated 6th August 2008 it
is stated “What has happened in this regard, why
an order as sought by the petitioner should not be
issued. The respondent shall be notified attaching
a copy of order, for submitting written responses,
through the Office of the Attorney General, within 15
days of receiving this order excluding the period of
travel enclosing the relevant documents. The carbon
copy of the notice shall be sent to the Office of the
Attorney General. The case shall be duly presented
after filing of written responses or upon expiry of
time period. Moreover, as the applicant has sought
preferential hearing and a significant issue of right
to citizenship is involved in this case, preferential
hearing shall be made of this case pursuant to Rule
63(3) of the Supreme Court Rules, 1992.”
The provisions of above treaties and conventions
have guaranteed the right to confer citizenship
The written response submitted on behalf of the
Office of the Prime Minister and Council of Ministers
18
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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