Nepal’s judicial system’s process, structure, and operation might have undergone a paradigm shift over the years. Still, its prioritization of environment conservation-related laws has always been a constant.
Nepal constantly tries to balance environmental protection and economic success by enshrining several measures and articles. Every citizen is entitled to a clean and healthy environment as a fundamental right. Article 30 of the Constitution gives the victim the right to compensation for any harm brought on by environmental deterioration or pollution. The same article also instructs the state to create the legislation required to strike a balance between development and the environment.
Nepal’s advocacy for environment dates back all the way to 1800s wherein The Country Code, promulgated by Prime Minister Jung Bahadur Rana in 1854 AD contained primitive legal provisions to protect the environment, such as punishments for cutting down trees in public places, monetary fines, penalties, and confiscation. However, these laws were primitive and had narrow coverage. In recent developments, the court has delivered many landmark judgments with regard to environmental law, in 1992, the Godawari Marble Industries case (Surya Prasad Dhungel Vs. Godavari Marble Industries) the court held that a clean and healthy environment is a fundamental right to life. In a related case, Prakash Mani Sharma et al. Vs. Office of the Prime Minister et al. the Supreme Court ordered the government to close the contentious Godawari Marbles Industries because the mining operation had a detrimental effect on the Godawari area and declared the Godavari area to be a living museum of biological and cultural significance
On January 15, The petitioners, Senior Advocate Prakash Mani Sharma and Advocate Dilraj Khanal went before the Apex court seeking the annulment of Section 5(A) and 6(1A) added to the National Parks and Wildlife Conservation Act, 2029 provided through the famous Investment Facilitation Ordinance. The bench comprising Chief Justice Prakash Man Singh Raut, Justices Sapana Pradhan Malla, Kumar Regmi, and Dr. Manoj Kumar Sharma, held that the revised law conflicted with the constitutional right to a clean environment. The Court ruled that granting permissions for large-scale projects in protected areas posed a significant threat to environmental conservation, making such legal provisions unconstitutional.
The Court’s decision underscores the importance of constitutional safeguards for environmental rights and limits the scope of development projects in protected areas. The ruling highlights the ongoing tension between environmental preservation and infrastructure development in Nepal.
Justice Malla highlighted that the protected lands should be preserved for future generations using the intergenerational equality principles, even if he concurred with three other justices that the new law should be repealed. She went on to say that it would be incorrect to hold the idea that development can only occur when the environment is harmed to put the two against one another.
Time and again the issues about economic development and environmental concerns come up in developing countries. As reiterated by the court, development doesn’t necessarily mean encroaching on existing protected land.
Prime Minister Oli also mentioned cutting down the Tiger population in Nepal as they have started posing a threat to the human population. Such a problem would have never arisen if protected areas and natural habitats were not used for “development” projects. The biggest asset in the world right now is land as it is slowly becoming a scarce resource. So, in light of this, the judgment is of utmost importance for the conservation of protected areas.
While the Supreme Court of Nepal has time and again tried to ensure environmental rights and conserved there is still a big implementation and awareness gap between the law implementing as well as the citizens.
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