KATHMANDU, Sept 24: The Supreme Court (SC) has ruled that refusing to grant citizenship in the name of the mother is against the constitution, issuing a mandamus in the name of the government. A joint bench of Justices Anil Kumar Sinha and Nahakul Subedi issued an order in the name of the government to grant citizenship in the name of the mother to those who do not want to include the name of their father after providing a valid reason.
Kristina Maharjan, who lives in Mahalaxmi, Lalitpur, requested a recommendation from the local municipality to acquire citizenship in the name of her mother instead of her father, citing the reason that she has never seen her father and he has not fulfilled any of his responsibilities. The local ward office refused her request saying that Maharjan, who was studying at home in maternal uncle’s home, needed to include her father's name in her application. In response, a writ petition was filed at the SC.
Responding to the same writ petition, the SC has ordered the authorities to provide her a citizenship certificate by descent as she was born in Nepal to an unmarried mother residing permanently in her maternal uncle’s home permanently since birth. Kristina's birth certificate only mentions her mother's name. The mandamus has been issued in the name of Ward Office of Mahalaxmi Municipality-6.
After obtaining the required documents, the SC has directed the Government of Nepal, Ministry of Home Affairs, and Lalitpur District Administration Office to issue a citizenship certificate to Kristina Maharjan based on descent, in accordance with Article 11 (5) of the Constitution of Nepal and Section 3(5) of the Nepal Citizenship Act of 2063 BS (first amendment, 2079 BS).
Kristina has raised concerns as her biological father has been uninvolved and has not assumed responsibilities for her, and has expressed unwillingness to mention her father's name in her birth certificate, citizenship, and other official documents. After her request to issue the documents in the name of her mother, the Mahalaxmi Municipality had previously refused to issue the necessary certificates. Overturning the decision of the municipality, the SC ordered the issuance of the citizenship certificate as demanded by Maharjan.
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The judgment provides a detailed explanation of how local municipalities should provide the necessary recommendations for citizenship applications, even when individuals opt not to include their father's name, based on the constitutional and legal provisions and principles established by the SC.
“There is significant impact on the petitioner's constitutional right while not issuing necessary documents like the birth certificate, among others, to obtain citizenship certificates without including the father's name,” the full text of the judgment said.
Information was received that Lokesh Subedi Chhetri, the father of Bindia Maharjan's daughter Kristina Maharjan, is out of contact. As it was revealed that Chhetri's address is Manhari-4, Makwanpur, the Mahalaxmi-6 Ward office on December 16, 2021 said that they are unable to register Maharjan’s birth at this ward. Maharjan could not acquire citizenship due to the lack of a birth certificate. So, she had to approach the SC.
The SC had earlier also decided that citizenship can be obtained through the name of the mother. That judgment is cited as a precedent in Maharjan's case. In the writ petition against Sajda Sapkota, including the government of Nepal, there is a provision that people born in Nepal from a Nepali citizen mother and residing in Nepal can obtain citizenship through their mother's name. The SC has consistently emphasized that citizenship certificates should not be denied to those who meet the criteria outlined in the constitution and laws, regardless of whether the father is a foreigner or a native.
There is already an established precedent that “when it is clear that one is essentially a citizen, it is not justifiable to create problems for them or play with their sensitivity by citing the provisions of the guidelines.” It is mentioned in the previous precedent of the SC that it is against the constitution and the law to deprive someone of citizenship.
"It is not relevant to ask the petitioner where did his/her father go or what happened when the petitioner requests to get citizenship in the name of the mother," said the SC. “Depriving the petitioner of obtaining citizenship despite the fact that citizenship can be obtained in the name of the mother is considered to be a violation of the law,” rules the SC.
According to the SC, an officer with legal authority must fulfill their duty. "Failing to fulfill this duty is not only a violation of equality but also a violation of justice," it is mentioned in the verdict of the SC. “It is neither fair nor reasonable to force a person who is not in physical or emotional contact or relationship to accept the child by introducing him as the father. If the state apparatus also does this, there will be no justice towards those children,” the judgment reads.
The SC has stated that citizenship should be granted if an application for a citizenship certificate is made based on the information and declaration provided by the concerned person, whether the father's 'identity' is disclosed or undisclosed.
"It is the duty of the concerned authorities and good governance to formally establish the relationship and identity of such a person with the state by making a decision as soon as possible in accordance with the essence of the constitution and law and providing the certificate of citizenship with simplicity and ease," the SC said. "If the information revealed by the petitioner is proved to be false, in such a case as the consequence should be born by the applicant themselves, it is not appropriate for the relevant authority to hesitate to proceed with legal action in regards to either the birth certificate or citizenship."
The interpretation of the SC is such that it is not in the essence of the Constitution to behave in such a way that a person is not qualified to become a Nepali citizen simply because he/she does not possess a Nepali citizenship certificate.
As distribution of citizenship certificates is a very sensitive process, the SC has said that denying granting citizenship is unconstitutional. "It is not appropriate to create uncertainty for a qualified individual to be a Nepali citizen by imposing lengthy delays for obtaining citizenship certificate for any reason or under any pretext," said the SC. SC calls on local government and local administration to play a major role. “ The Nepal government, Ministry of Home Affairs, needs to create a positive environment for issuing citizenship in the simplest manner possible," adds SC.
