Friday, 30 July, 2021

Nepal Deserves Green Democracy

Jivesh Jha


At a time when Kathmandu’s air quality is recorded in the poor category, the slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Article 30 of the Constitution of Nepal which guarantees that every citizen has the right to live in a healthy environment.
Undoubtedly, stable ecological balance is the condition precedent for healthy existence and preservation of the essential ingredients of life. If Article 17 is read in the light of Article 30, the provisions guarantee every citizen of fundamental right to life - a life of dignity, to be lived in a proper environment, free from danger of disease and infection. In any environment-conscious state, environmental problems are handled strictly in the line with prevailing laws of the land and non-implementation of those green laws would amount to fraud on constitutionalism.
The Himalayan Republic has enacted various green laws for the protection of flora and fauna. The constitution, which entered into force on September 20, 2015, is one of the most progressive documents in the world which contains specific fundamental rights and directive principles, and legal mandates to central, provincial and local governments for the protection, promotion and improvement of environment.

Green laws
There are plethora of green laws incorporated under the national charter which upkeep the cause of green republic. To mention a few, an individuals’ right to live in a clean environment (Article 30), right to clean water and hygiene (Article 35), food sovereignty (Article 36), the right of state to carry out the land reforms for bringing reformation in agriculture or environment protection (Article 25), or right of consumer to have quality foodstuffs and services (Article 44) are put in place to prevent any act and omission polluting or likely to pollute the environment.
Moreover, the High Courts and Supreme Court are empowered to issue any directions, orders, determinations, or writs for the protection and promotion of environment. This way, the constitution itself has made the right to live in a healthy environment as sanctum sanctorium of human rights.
In view of the various constitutional provisions and other statutory provisions, the Supreme Court, on number of occasions, has held that that the precautionary principle and polluter pays principle are the essential features of sustainable development. In this respect, the apex court in the case of Pro Public vs. His Majesty’s Government observed that the priority should be given for lessening the impact of pollution emanating from such brick kilns that are operating in the vicinity of densely populated areas, schools, cultural and touristic zones, immediate measures are to be taken to lessen adverse impact in such areas.
Much like this, the topmost Court in the case of Surya Prasad Sharma Dhungel v Godavari Marble Industries Pvt Ltd was of the opinion that human life would be in danger in a polluted environment. This way, the court pronounced that the protection of environment leads to protection of human life. Also, the top court in the case of Kedar Bhakta Shrestha vs. Department of Transport and Ors, His Majesty’s Government of Nepal held that the policy prohibiting the new diesel tempo registration even outside Kathmandu was not bad. The highest court of appeal was of the view that every person in Nepal is entitled to avail a clean and healthy (air) environment in order to cash the right to life and liberty.
Issuing a statement, the Ministry of Forest and Environment on March 28, 2021 said that Kathmandu woke up to high levels of air pollution as air quality slipped into very poor category. To reduce the alarming high pollution levels in the capital city, the ministry urged people to adopt preventive measures like use of electric vehicles and limit of combustion. It’s time to initiate a debate as to why the environment legislations of the country not being implemented in letter and spirit. The governments should realise that right to healthy environment is a fundamental right of every citizen under Articles 17 and 30 and it includes the right of enjoyment of pollution free air for full enjoyment of life. If anything impairs the quality of life, it would amount to derogation of laws.

State’s duty
The state should acknowledge the celebrated concept of ‘Public Trust Doctrine’ which states that the state has fiduciary duty of stewardship to environmental entity of public. The resources are held in trust for the benefit and use of general public of present and future generations. We have ample constitutional provisions relating to environment which empowers the state to activate the message of this doctrine. Now, it’s time to activate the green and other environmental laws for the cause of green democracy. After all, Nepal deserves a green democracy, too.
This doctrine was invoked by the top court in the case of Yogi Narhari vs. His Majesty Government of Nepal to prevent government from conveying public resources to private enterprises.
The constitutional mandates and decisions of the court show that there is a dire need of striking a balance between regularity of development and environmental protection. So, there should be no anti-thesis between development and environmental protection. After all, development and clean environment both are essential requirements for a meaningful survival. The former gives a person means to survive while the latter provides reasons to celebrate with a good health.

(The author is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.)