In the first part of this article titled “The (Anti) National Identity Card!” published a little more than a month ago on My Republica, I had argued how a Supreme Court (SC) interim order had come as a big relief for the general public. The apex court’s order had essentially stayed the government's decision to make the National Identity Card (NIC) mandatory to get various vital services from government as well as private institutions, until a final decision on the issue. I had also mentioned how these NICs were being printed in India and the USA by a French company. I had concluded the article with the belief that the 'stay of execution' by the Supreme Court had to function as a beacon of hope - a lifeboat in a sea of red tape - hoping that the court would keep this lifeboat afloat through the final verdict. After all, it was a joint bench of SC justices Manoj Kumar Sharma and Til Prasad Shrestha that had issued an interim order to the government not to make the NIC mandatory!
So, the hope was that the SC's verdict would be upheld. But from the very outset this apex court order hardly proved effective at all- like a lifebuoy made of paper! The different departments of the government, in total disregard of the apex court's order, continued and continue to ask for the NIC or the NIC number for a range of services including social security allowances, pensions, etc., and for issuing passports.
It was believed that the court’s order would more significantly dent the NIC program, which is a program that was initiated with the support of the Asian Development Bank and has seen the Nepal government invest billions of rupees in it since then. In fact, the NIC belongs to that special category of projects which get increasingly greater heaping helpings of bureaucratic love on, well, bureaucrats, solely because who doesn't love throwing money at a problem?
Problems Galore: From Passports to Pensions
The Passport Act, 2076 BS (2019) is the main basis for the distribution of passports in Nepal. Under this Act, until the Ministry of Foreign Affairs (MoFA) issued a procedure for the distribution of electronic passports in 2078 BS with a provision of presenting the NIC, the Nepali citizens were obtaining passports through their citizenship certificates. The foreign ministry’s move not only violated the Constitution of Nepal currently in force but also curtailed the fundamental rights conferred by that very Constitution. It's as if the government decided to play musical chairs with legal documents; when the music stops, half the citizens are left standing!
Not only that, but from time to time, the government has changed the format of citizenship certificates, thereby rendering previously distributed citizenship certificates invalid, which forces citizens to produce a new citizenship certificate showing family relationships - because who doesn't love a good family tree!? As a result, we have witnessed chaotic crowds at district administration offices across the nation, where it's every citizen for themselves in a bureaucratic Dashain fair!
Aatish Karki, Tripti Ghimire and Dr Dwarika Nath Dhungel write in a joint article that appeared in Republica's sister publication Nagarik daily: "When some of us raised concerns regarding why previously distributed citizenship certificates were not accepted to the Secretary of the Cabinet, our voices went unheard. It felt as if we had to plead and curry favor to obtain a national identity card based on the new citizenship certificate, and with little time left to fly abroad for studies, we were left helpless. The agony of having to suffer to get a passport based on such a national identity card is deeply troubling."
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Eventually, a writ petition was filed on April 19, 2022, requesting the Supreme Court to issue an interim order and other appropriate directives to remove the need for the NIC. The first hearing on the case took place just two days later on April 21, but with no considerations at all for the predicaments faced by ordinary citizens or the fundamental rights granted to the people by the Constitution, the then Justice Dr Anand Mohan Bhattarai of the Supreme Court declined to issue the requested orders and instead included the matter in the long list of court cases - because what's a few more months or years in the grand scheme of waiting rooms!? The matter, since then, has remained within the records at the court, and after scheduling five hearings little or no real development has taken place. The next date for the hearing is 20th of October 2024—do note the date, everyone!
Meanwhile, when film actor, script writer and director Bishwa Basnet, who had to go to the US to attend a felicitation program, approached the Department of Passports to renew his passport, he was asked to produce his NIC or the NIC number. Dissatisfied with the officials’ “unnecessary demand” for the NIC to renew his passport, Basnet filed a writ petition at the Supreme Court on September 29, 2024. The court issued an interim order the very next day to the authorities to renew Basnet’s passport on the basis of his citizenship certificate. The interim order cited the court’s previous interim order issued on August 23 and ruled that the authorities renew Basnet’s passport on the basis of his citizenship certificate. The court also ordered the officials to furnish reasons in writing within seven days, if they decided not to renew his passport on the basis of his citizenship certificate.
History of NIC
On 30th June 2010, the Government of Nepal announced the idea of a National Identity Card in its annual policies and programs and budget statement. Later on 17 of July 2010, the National Identity Card Management Center was established. Along came the merger, and it became effective on October 14, 2018, with the Department of National Identity Card and Civil Registration. The rebranding was done but the motive behind the whole idea of enforcing the NIC remained questionable.
Next came February 11, 2020, when the National Identity Card and Registration Act was also passed- as if to add another layer of confusion into the mix. This is how NICs entered Nepal. First of all, the citizens of Taplejung district began receiving NICs from the fiscal year 2075/76 BS. The NIC became a compulsory requirement for Nepalis seeking new passports, and later it was made compulsory for other services. “The details of as many as 15.4 million individuals have been collected while 4.6 million identity cards have been printed so far," said an official at the National Identity Card Management Branch. However, only 1.1 million NICs have been distributed so far!
Controversial and Unrecognized by Constitution
There was also controversy over whether the traditional Nepali attire and cultural representations of Nepali society were acceptable under the NIC. Besides, the Constitution of Nepal does not recognize the NIC. Thus, the imposition of such a concept that undermines the essence of the nation and making the need for it compulsory to access basic services provided by the state has resulted in huge inconveniences for thousands, including the elderly and disabled.
Since the recent natural disasters, it has become harder for citizens receiving social security allowances to get an NIC. Still, no such order has been issued by the relevant government department to set aside the NIC as a requirement for social security allowances, because who needs basic necessities during a disaster, right?
Meanwhile, the government also issued a notice on June 24, 2024 in the National Gazette, under the provisions of Sections 3 and 10 of the National Identity Card and Registration Act, stating that the NIC, which is completely alien to the Constitution of Nepal, will replace the Nepali Citizenship Certificate with regard to accessing services provided by the state as well as the private sector - for nothing screams "efficiency" like replacing one recognized document with one that is not recognized!
This government notice has forced the general public - especially the elderly, women, the disabled, and people of far-flung areas - to suffer in total bewilderment even when it comes to receiving something as rightful as social security allowances. In regards to this again, an advocate, Ram Bahadur Raut, alias Rameshwar Raut Matridas, and others, filed a writ petition at the Supreme Court on July 12, 2024, stating that an order be issued against the notice published by the government in the Nepal Gazette on June 24, 2024. Meanwhile, thousands of citizens have been facing hardships in districts across the country as services once provided based on citizenship certificates now suddenly need an NIC. It is a heart-rending spectacle to see citizens over-burdened and striving to get identity cards with the help of somebody else. The whole process resembles a really bad reality show and there's no prize at the end, either!
A division bench of Supreme Court Justices Dr Manoj Kumar Sharma and Til Prasad Shrestha heard the writ petition filed by Raut and others on 23rd of August 2024 and issued an interim order to stay the implementation of the mandatory requirement for the NIC till a final decision on the matter is reached. Accordingly, the Supreme Court's order is commendable; all the legal experts who helped in this respect are worthy of appreciation. But one thing that should not be overlooked is that had an adequate hearing taken place on the writ petition filed against the Ministry of Foreign Affairs' decision to make the NIC mandatory for obtaining a machine-readable passport, the terror of the NIC would not have fallen upon the heads of citizens today. Additionally, the current order appears to have been based on the issuance of a circular from the Department of National ID and Civil Registration (DoNIDCR) dated 22nd of July 2024, regarding social security allowances.
According to advocate Raut, the government’s move to make the National Identity Card mandatory has hijacked Nepali citizens' right to property guaranteed by Article 25, right to privacy guaranteed by Article 28 and cultural rights guaranteed by Article 32(3) of the Constitution. There is also a great risk of private information of Nepali citizens reaching the hands of foreigners through the national identity cards, he asserts.
Contempt of Court
As soon as the Supreme Court interim order stayed the mandatory requirement of a National Identity Card for public services, including, yes, pensions, former government employee Chaturbhuj Pandey, who believed that the NIC is anti-national, waltzed into the Pension Management Office clutching a copy of the court's decree. Having had no access to his pension since the beginning of the fiscal year 2024/25, together with his much-awaited Dashain allowance, Pandey approached the head of the Pension Management Office, pen in hand, asking him in writing to release his blocked pension. Spoiler: it was futile. The officials there at first did not even want to register his application.
After an unnecessary argument, his application was grudgingly accepted. Pandey then went to the DoNIDCR, where he met the director. He asked for a directive to release his pension and, to his astonishment, found the director misread and misinterpret the Supreme Court's interim order, claiming it did not even mention pensions. "Perhaps read the court's order again?" he said, leaving Pandey to head home with a sense of resolve and hopes for a positive outcome.
During his next visit to DoNIDCR, Pandey, a retired bench officer from judicial services, insisted that the Supreme Court's order applied to all services, including pensions. After all, hadn't the court made it amply clear that NICs shouldn't act like a gatekeeper to any service? But the official was about as receptive as a brick wall. Fast-tracking to the second week of September 2024, Pandey decided he had enough of this bureaucratic tango and filed an application at the Supreme Court against the chiefs of both the Pension Management Office and DoNIDCR for contempt of court. The first hearing on his application was conducted on September 22, 2024, presided over by Justices Dr Manoj Kumar Sharma and Mahesh Paudel. Pandey, who is himself a lawyer, argued his case, and the division bench was convinced that both government officers were indeed in contempt of court. Suddenly, a hitherto application transformed into a full-fledged case, and on 1st October 2024, the defendants were served court summons to explain in writing why they should not face consequences for contempt of court. Due to the Dashain holidays which began just a day after the court sent them the summons, the government officials in question are yet to furnish their written responses to the apex court.
Pandey quotes the Financial Comptroller General of the country as saying that there are about 50,000 former civil servants like him who have not received their pensions since the current fiscal year 2024/25 began in mid-July this year.
Another Burden on Citizens
A citizenship certificate is needed by the state to provide services to its citizens. And some other services may require other documents and certificates. Provisions are already in place for this. The NIC just adds another unnecessary headache for another must-have document, because one more headache does not matter in the big bureaucratic life! We all must face and bear the burden of the required laws, physical structures, technologies, and financial costs of the public procurement process. It is a fact of government and ordinary citizenship life. But another one (one that has been brought into question even by the Supreme Court) just adds to the painful process and adds to the daily misery faced by tens of thousands. Hooray to democracy!
The Department of National ID and Civil Registration, after causing much pain to the citizens, through a notice dated 25th August 2024 claimed that it has opened avenues wherein by scanning a QR code, the citizens can fill in the particulars to get their NIC numbers. This, however, does not establish whether the threat has been dissipated. And nothing has been said about when the cards will be ready; neither is it certain when those who filled out the forms and submitted their photos would get their cards, because suspense is what keeps the citizens engaged, right?
The basic problem the people of Nepal are facing is whether the constitutional citizenship certificate is to be treated as authoritative or the NIC - being sought in lieu of it- is to be regarded as authoritative. As a matter of fact, the NIC cannot substitute the citizenship certificate — it’s kind of like trying to replace your smartphone with a dial-up; it just doesn't work! How many more documents does the state need for it to recognize its already much maligned citizens? Instead of facilitating things, the state is just piling on the burden and forcing citizens to approach more offices and stalls in order to get any bureaucratic work done. The constitution says sovereignty lies with the people. For how long will we, as citizens, be fooled by this distortion of facts?
It has also been observed that the government appears to cover up its incompetence by misinforming the people that the NIC is required to receive social benefits and other services - it’s classical misdirection! Simply put, it’s quite astonishing how the government has not owned up to problems that are integrally connected to the lives of the people, for instance, the imposition of the “unconstitutional” NIC to replace the constitutional ID which is the citizenship certificate. Besides that, the people's representatives in parliament have maintained a deafening silence on this issue - maybe they are all on a well-deserved holiday? The government and members of parliament are called upon to take note that government policies and actions that contribute to the misery faced by everyday people will simply not do. There has to be a huge outcry and backlash from the people not only against the requirement of the NIC as a substitute for the citizenship certificate but also for its abolishment.
