Toward green democracy

Published On: June 4, 2019 01:00 AM NPT By: Jivesh Jha

Nepal’s constitution is the first national charter in the world to enshrine the provisions to advance the cause of green democracy. We need to communicate this message clearly

“One of the first conditions of happiness is that the link between man and nature shall not be broken.” —Leo Tolstoy 

As Nepal goes fully federal, the state instruments should not shy from investing in protection and promotion of environment for Nepali people have for long faced the brunt of environmental pollution: losses in agro-based industries and incomes, hunger and malnutrition and the associated pressure on national life. Progress and pollution go together, it is said. There can be no end to progress and accordingly no escape from pollution.  However, pollution cannot be justified in any civilized society. In order to curb pollution, the domestic laws of the land incorporate fair corpus of provisions aimed at integrating developmental and environmental imperatives. This way, the will of legislature demonstrates that while thinking of present, the future should not be forgotten. 

Constitution of Nepal has a plethora of provisions for advancing the cause of environmentalism. The charter explicitly declares that the right to clean environment is a fundamental right of Nepali people. The constitution has granted powers to federal units to enact laws for the protection and promotion of green democracy. Federal government (under Schedule-V), provincial governments (under Schedule-VI) and both federal and provincial governments (under Schedule-VII) have mandates to act on national ecology, sanitation, clean and healthy water, wildlife conservation and forestation. There are ways to take on board private institutes and NGOs for realizing the goals of environmental democracy.

Nepal leads 

Our constitution obliges the state institutions as well as citizens to protect and improve the natural environment. In Nepal, environment protection is pretty much the part of human rights to live in pollution-free environment with full human dignity.  This makes Nepal one of the first countries to enshrine environmental right in the constitution. But this message has not been conveyed well and misinformation is being spread. Dr Paramjit Jaswal in his popular book Environmental Law observes: “The Indian Constitution is perhaps the first Constitution in the world which contains specific provisions for the protection and improvement of the environment…The example of Indian Constitutional provisions regarding the environmental protection has been followed by other nations in world. For example, the framers of the Constitution of South Africa were greatly influenced by the provisions relating to environment protection under the Indian Constitution.”  The truth of the matter is Nepal’s constitution is the first national charter in the world to enshrine the provisions that advance the cause of green democracy. 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 reforms in agriculture or environment protection (Article 25), the right of consumers to quality food and services (Article 44) are the best examples.

Nepal observes World Environment Day on June 5 every year to protect and promote the environment. Since 1974, it has become a global platform to declare that pollution is a business of shame in environment. The milestone was set by 1972 Stockholm Declaration on Human Rights. With 26 principles, Stockholm Declaration emphasizes on pollution control and conservation of natural resources. Principle 22 envisages that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. 

Article 30 of our constitution and Section 17 of Environment Protection Act mirrors Principle 22 of Stockholm Declaration.  Parliament of Nepal has enacted scores of environment-friendly legislations which state that protection of environment precedes economic interest. Supreme Court has also stood as defender of environment protection. Environmental protection is thus very much part and parcel of Nepali life.

As we celebrate World Environment Day with the theme of “Beat Air Pollution” it’s high time for us to evaluate whether we succeeded in observing the international commitments made at different stages. China has an additional responsibility in this regard since China has been chosen the global host by the United Nations for Environment Day celebration this year. 

In Nepal, Supreme Court has pronounced scores of green judgments to advance the theme of “Beat the Air Pollution” for years. It bears mentioning a few landmark judgments here. In Prakash Mani Sharma vs His Majesty Government of Nepal (2005), the apex court observed that the priority should be given for lessening the impact of pollution emanating from brick kilns that are operating in the vicinity of densely populated areas, schools, cultural and tourist zones and declared that immediate measures should be taken to lessen adverse impact in such areas. Similarly, in Bhojraj Aire vs Government of Nepal (2004), the Supreme Court ruled that funds collected for the purpose of conservation of environment or prevention and control of pollution should be spent for the same purpose. The apex court observed that the right of persons to live in a healthy environment has been compromised with the rampant pollution in Kathmandu. 

In case of Tulak Man Lama vs Government of Nepal (2004), the court validated ban on two-stroke three-wheeler Vikram Tampo. Also, in Surya Prasad Sharma Dhungel vs Godavari Marble Industries Pvt Ltd case, the court was of the opinion that human life will be in danger in a polluted environment.

Together for environment 

This proves that laws of Nepal, as well as judicial response, are in consonance with the international standards. Nepal stands committed to cementing the cause of environmentalism. Thus the world community should reaffirm fresh commitment toward a cleaner and sustainable planet. Nepal must keep environment protection in mind while directing its efforts for development.     

It’s a truism that mere judicial pills cannot right all the environmental ills. Administrative accountability, grassroots governance, public consciousness, civic sense and corporate social responsibility are vital. Role of judiciary is as crucial.


The author is a Lecturer of Environmental Law at Kathmandu University School of Law

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