the acts carried out by the Election Commission,
the provision of the Section 25 of the Electoral Rolls
Act, 2006 that restricts from raising question in the
court about the acts carried out by the Election
Commission while preparing electoral rolls is
apparently inconsistent with the Article 129 of
the Interim Constitution of Nepal, 2007. Thus, the
provisions of Section 11 (1), (2) and (3) of Electoral
Rolls Act, 2063 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, Article 1, 2, 8,
9, 10, 11, 46, 63, 65 and 129 thereof. Therefore, it is
requested to declare those provisions ipso facto null
and void. The decision of the Election Commission
dated 2067/7/16 (November 2, 2010) that has
provided for registering the name of the persons
who have not obtained citizenship certificate
based of land registration certificate, educational
certificate and recommendation of the local bodies,
is inconsistent with the provisions of Preamble,
Article 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 and therefore,
it should be declared null and void through the
order of certiorari. In addition to this, it is requested
to issue the writ of mandamus in the name of
respondent to include the name in the electoral roll
only of Nepali citizens who have obtained Nepali
citizenship certificate pursuant to Article 8(1) of
the Interim Constitution of Nepal, 2007 or whom
the concerned District Administration Office, the
authentic body for issuing citizenship certificate has
issued certificate recognizing him/her as qualified
for obtaining citizenship certificate. If the decision
of the Election Commission dated 2067/7/16
(November 2, 2010) is implemented, there will be
no any difference between the persons who have
obtained Nepali citizenship certificate and those
who have not obtained it, which will seriously
affect the nationality of the country, millions
of non-Nepalese/foreigners will become voters
which will create serious threat in the existence
of the country and cause irreparable loss and the
purpose of this writ petition will have no meaning.
Therefore, it is requested to issue an interim order
for not to implement or not to cause to implement
the decision of the Election Commission dated
2067/7/16 (November 2, 2010). Since the issue
includes the matter of Electoral Rolls which has
national importance, it is requested to provide
priority for the hearing of this writ petition.
Nepali citizen by mentioning in the clear word that
“ For the purpose of the election to the Constituent
Assembly, every citizen of Nepal shall be entitled to
vote, as provided in law.”
Since the act of obtaining Nepali citizenship is a
legal process that goes on persistently and Electoral
Roll is also continually collected, there is no legal
restriction in including the name in the Electoral
Roll after obtaining Nepali citizenship certificate.
There is no any objection in collection of Electoral
Rolls by including the names of Nepali citizens
from the provision of Section 5(A) of the Electoral
Rolls Act, 2006 and there is legal provision for giving
continuity to this process.
Whether or not the issue raised by the petitioner
that the provision of the Section 11(1) of the
Electoral Rolls Act, 2006 that “the name can be
registered in the Electoral Rolls based on land
ownership certificate or any identity card issued
by a government office, local body, government
owned organization or educational institute” is
inconsistent with the preamble and Article 1, 2,
8, 9, 10, 46, 63, 65 and 129 of the Constitution is
inconsistent with the constitution is constitutional
is the issue to be considered at the final hearing of
this writ petition. The condition has been raised that
the issue which has been entered into this court has
to be properly settled.
Right now, it has to be tested with the principle
of irreparable loss and balance of convenience
whether the process of collecting Electoral Rolls
based on the documents other than citizenship as
per the decision of the Election Commission dated
2067/7/16 (November 2, 2010) should be allowed
to be continued. In the condition that the issue
whether it will be legal to collect Electoral Rolls
based on other alternatives except citizenship
certificate is sub judice in this court, it is not
proper to implement the provision which is under
sub judice of this court based on the principles of
balance of convenience and irreparable loss.
Therefore, an interim order has been hereby issued
in the name of the respondent not to implement
the decision of the Election Commission dated
2067/7/16 (November 2, 2010) to collect Electoral
Rolls based on land ownership certificate or
any identity card issued by a government office,
local body, government owned organization or
educational institute, until and unless the final
settlement of this writ petition is made. Additionally,
this issue of collection of Electoral Rolls which
consists the nationally sensitive issue; therefore,
this writ shall be presented for hearing providing
priority. It is stated in the order of this court date
2067/8/9 (November 25, 2010).
The respondents shall be asked to submit written
response. To consider about the request for issuance
of interim order, the provisions of Article 2, 63(7)
and 65(A) have provided the right to participate in
the Election only to Nepalese citizens. Specially,
Article 63(7) has provided the voting right only to
Advocates Nur Mohammad and Brijesh Kumar
Chaudhari in their joint petition/application filed
30
Compilation of Selected Decisions of Supreme Court on
CITIZENSHIP and BIRTH REGISTRATION
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