Supreme Court Rules on Right to Change Derogatory Surname, Directs Policy Formulation

Feeling insulted due to his surname 'Bishwakarma', Nar Bahadur from Rupandehi developed a desire to change his surname. He submitted an application to the local registrar's office of Butwal Sub-Metropolitan City-3, requesting the issuance of a new citizenship certificate with his chosen independent name/surname. In the application, Nar Bahadur also demanded a change in the names/surnames of his wife, Sunita Bishwakarma, and his children.

Nar Bahadur proposed his changed name as George Everest and sought to change his wife's name from Sunita to Alisha Everest, his son's name to Jacob John, and his daughter's name to Jemima George, submitting the request to the District Administration Office, Rupandehi.

On Shrawan 15, 2075 BS, the District Administration Office corresponded with the Ministry of Home Affairs of the Government of Nepal seeking necessary directives on whether issuing an identity card with the chosen name and surname was permissible. Upon receiving a decision through a Secretary-level decision on Ashar 3, 2076 BS, stating that such issuance was not permissible, Nar Bahadur became even more dissatisfied.

'Right to Citizenship with Chosen Name and Surname'

Nar Bahadur felt that the Secretary-level decision perpetuated discrimination that had existed for centuries. Nar Bahadur, who is also the General Secretary of the Human Awakening Campaign Nepal organization, approached the Supreme Court with a writ petition demanding the right to adopt an independent name and surname and the annulment of the Secretary-level decision.

His claim was to seek a mandamus order against the respondents to issue a citizenship certificate based on the name and surname chosen by any Nepali citizen if they find their name or surname insulting.

Nar Bahadur decided to legally challenge the Ministry's decision, which he felt contradicted Article 16 (Right to Live with Dignity) and Article 18 (Right to Equality) under the Fundamental Rights of the Constitution of Nepal, as well as international conventions and agreements to which Nepal is a party. The writ petition, demanding the annulment of the Ministry's decision and the right to choose their own name/surname, finally received a Supreme Court verdict on Shrawan 27, 2082 BS.

The Written Response Submitted to the Court

After the case was filed, the Ministry of Home Affairs sent a written response to the Supreme Court stating that since criminal activities and other important government documents and records are prepared based on citizenship, details mentioned in the citizenship certificate cannot be amended repeatedly except for minor technical errors.

The Home Ministry's written response stated, "Citizenship has already been obtained under the name 'Nar Bahadur Bishwakarma,' and the current prevailing law has no provision for reissuing citizenship under a chosen 'independent name.' While the caste system is accepted as an ornament of human civilization and culture, and the state guarantees non-discrimination based on caste or surname (right against untouchability), the claim of being allowed to change the surname itself is not legally sound. The petitioner's demand appears to lack concrete legal basis and evidence; therefore, we request the dismissal of this 'meaningless' writ petition."

The Home Ministry's response further mentioned that repeated changes to the identity card would create inconvenience and confusion for the individual when exercising their rights, and thus, there was no situation requiring the reissuance of a new citizenship certificate or identity card based on the chosen name and surname as requested by the petitioner.

The Ministry of Federal Affairs and General Administration, named as a respondent, responded that the issuance of citizenship certificates is done by designated bodies of the Government of Nepal in accordance with prevailing laws, and local levels have been carrying out registration tasks, including birth registration, thus placing the matter under the purview of the Ministry of Home Affairs.

The Ministry of Education, Science and Technology responded that since citizenship was already obtained under the name Nar Bahadur Bishwakarma, the petitioner's claim to obtain citizenship under a newly chosen 'independent name' was not legally sound, and mentioning a name or surname would not infringe upon the right to live with dignity.

The Office of the Prime Minister and Council of Ministers responded that claiming insult due to having a 'Dalit surname' does not appear logical, and while the path for legal remedy against insulting acts is open under the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068, repeatedly changing the details of an already issued citizenship certificate is not permissible.

The response stated that calling the surname 'Bishwakarma' insulting is inherently discriminatory and constitutes an offense against other citizens of that surname, and the demand to adopt the surname 'George' without any concrete facts or basis is illegal, prejudiced, and arbitrary.

Individual Identity is Private Choice in Democracy

Senior Advocates Dinesh Tripathi and Dr. Dinmani Pokharel, and Advocate Mohan Sashankar, representing the writ petitioner Nar Bahadur, asserted that in a democracy, an individual's identity is a matter of private choice. They argued that a person's right to change their name or surname is a natural right, and the state cannot confine citizens within a certain 'level.'

They argued that living with an insulting surname or identity is akin to living in mental captivity and demanded a mandamus order to issue citizenship and minor identity cards based on the chosen name/surname.

Deputy Attorney General Sanjeev Raj Regmi argued that the organization lacks the locus standi to file a writ petition on such a purely personal matter as surname change, and the procedure for correcting errors in citizenship or other documents is clearly stipulated in the Nepal Citizenship Act, 2063, and its Regulations.

He argued that if discrimination occurs, the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068, would apply, and changing the surname itself is not the legal remedy; punishing the discriminator is the real remedy.

The Supreme Court Verdict

The Supreme Court issued a mandamus order stating that the name change request should not be granted, but directed the legal arrangement for changing a surname if the individual finds it insulting.

In the full text of the mandamus order issued by the joint bench of Justices Sapana Pradhan Malla and Tek Prasad Dhungana on Shrawan 27, 2082 BS, it was stated that a directive should be issued to formulate a clear guideline with objective criteria and procedures to address the issue if any Nepali citizen finds their surname insulting or wishes to change it for any other valid reason, and implement it nationwide.

The court canceled the Secretary-level decision of the Ministry of Home Affairs dated Ashar 3, 2076 BS, and related correspondence, to the extent that they prohibited the change of a surname perceived as insulting or discriminatory by the petitioner.

The full text stated, "If the petitioner wishes to change only their former surname and adopt only the respectable surname of their choice, then the revised surname chosen by the petitioner should be recorded in the citizenship and minor identity cards of his wife and minor children by completing the procedure under the Nepal Citizenship Act, 2063, and the Nepal Citizenship Regulations, 2063."

The court held that Section 17 of the Nepal Citizenship Act, 2063, grants the right to 'correct errors,' and this should be interpreted not narrowly but as a means to expand human rights and constitutional rights.

The court stated, "If someone's surname insults them, then maintaining that identity is a form of legal error." It further stated, "The spirit of the law is more important than the letter of the law; allowing the change of an insulting surname to a respectable word should be considered an advanced form of the 'detail correction' process."

Rule 16 of the Nepal Citizenship Regulations, 2063, provides for an individual wishing to correct details such as name, surname, or age on their citizenship certificate to apply with necessary proof.

The full text of the court order stated, "If a citizen's 'surname' on their citizenship wounds their human dignity, invites caste discrimination, or hurts self-respect, then denying the constitutional right to change such an insulting surname and adopt a respectable surname chosen by the individual is contrary to the essence of justice."

The court determined that ensuring justice is not only about keeping the court doors open but also guaranteeing an environment where citizens can live with their heads held high in society.

The full text stated, "Protection from any form of insult and contempt is a fundamental right of the citizen. If the state's administrative machinery denies a citizen's demand to change a discriminatory surname in the name of administrative complexity, it weakens the social contract between the citizen and the state."

The court stated that the true essence of justice and constitutional propriety lies in correcting such surnames and castes from a human rights-oriented perspective to free individuals from the discrimination and pain suffered due to derogatory caste surnames that wound self-esteem.

The full text stated, "Forcing a citizen to carry a caste and surname that denotes an insulting identity against their will is contrary to modern jurisprudence and human rights principles. It is observed that this writ petitioner faced insult, contempt, discriminatory behavior, and discrimination in society due to the 'Bishwakarma' surname." The full text concluded, "The assurance of justice is achieved only when the state creates an environment that prevents citizens from insult and respects self-determination."