It would not be unjust to say that Nepal is good at enactment of laws but poor at their enforcement. We have adopted every possible law and policy aimed at maintaining the natural environment. Still, our attempts have failed to yield any desired result. Ironically, laws and policies are the most ignored things in Nepal. If the situation was otherwise, Nepal would have succeeded to frustrate the menace of environmental pollution and truly implemented the right to clean environment to every citizen, which is one of the sacrosanct fundamental rights under our constitution.
As per the reports, Kathmandu is one of the most polluted cities of the world. The capital city spots within the top ten polluted cities. So, are we with the constitutional mandate? Our constitution, under Article 30, guarantees a clean environment to every citizen. It embodies the polluter pays principle, which aims to make the polluter liable for his alleged role in environment pollution.
Undoubtedly, progress and pollution go together. There can be no end to progress in terms of industrialization, commercialization and globalization, and consequently, no escape from pollution. Still, we cannot turn a deaf ear to the environmental protection measures, as it’s our responsibility to ensure that our development practices meet the needs of the present without compromising the ability of future generations to meet their own needs. This is the basic concept of sustainable development.
Ignorance of law
Ignorance of fact could be excusable but ignorance of law is always punishable. It’s accepted on all hands that a welfare democracy deserves to implement the laws in letter and spirit. The Constitution of Nepal guarantees the right to clean environment as a fundamental right [Article 30]. The constitution declares various rights associated with the protection of the environment. Specific provisions associated with the environment are the right to live in a clean environment, right to clean water and hygiene, right to food sovereignty, the right of the state to carry out land reforms on agriculture and environment and the right of consumers to have quality foodstuffs and services. Over and above all this, the right to lead a dignified life.
Our Constitution obliges the state to control and prevent any act or omission polluting or likely to pollute the environment. The Supreme Court and High Courts (under Article 133 and 144, respectively) can issue required direction, order or writs for this purpose.
The Constitution confers power to the federal, provincial as well as local governments to adopt and enact policies for protecting the natural environment. The Directive Principles provided in Part-IV of the constitution calls upon the local/ provincial governments to adopt policies for the protection and promotion of the environment [Article 51].
The Environment Protection Act (2019) has been enacted by the government to implement Article 30 of the Constitution. The Act aims to protect and improve the environment and to mitigate the pollution, to enforce the right to clean environment, to grant compensation to victims of environmental pollution and to implement EIA, Environmental Study and Environment Examination reports. The Act has set heavy fines for non-compliance of law and government policies. Section 35 of the Act envisages that there could be a fine of up to five million at the instance of non-compliance of EIA by a proponent. Similarly, defiance of Initial Environmental Examination would lead to a fine of up to one million.
If these laws are studied between the lines, one could draw a conclusion that Nepal’s green laws are progressive but their implementation is poor.
Heed the message
“The environment is everything that isn’t me,” said Einstein. Atharva Veda says that a pollution-free clean environment keeps all people, birds and animals living happily. In Veda, air, water, earth, sky, sun and trees are considered as deities. In Rigveda, it’s been said that fresh air works as the panacea of all diseases. It directs one not to do any act that lessens or degrades the quality of oxygen. These concepts are recognized by laws, conventions and science of today. Take an example of the Rio Declaration of 1992. Principles 4 and 25 of Rio Declaration say that peace, development and environment are interdependent and indivisible.
Kautilya’s Arthashastra said it was the Dharma of each individual in society to protect nature. Similarly, the Yajna or sacrificial fire is apparently done to worship one or other deity and it ultimately purifies the air. The Samaveda highlights the importance of the Yajna as it helps in keeping away the mosquitoes and other insects. In Padma Purana and Karma Purana, it is mentioned that the trees, like Peepal, Bel, Neem etc are the abode of the God and they are not to be cut.
In Buddhism, the principle of Simplicity preaches for sustainability and the Principle of Ahimsa (Non-violence) preaches for the love for flora and fauna. King Ashoka wanted the non-violence to be the cultural heritage of the people. The Holy Koran declares that everything is created from water. Allah is considered to be the owner of the land and mankind is the trustee, whereas other living creatures are considered to be the beneficiaries.
The problem of environmental pollution is not a noble concept. It is as old as the emergence of people on the planet. Environment is a polycentric and multifaceted problem affecting human life. We, the human beings, are nature’s best promise. But, we have turned into nature’s worst enemy by adopting all unsustainable development practices. Nepal’s major problem is the state’s weak enforcement but at the same time, our people’s little consciousness towards cleanliness is also one of the big plights.
We, the citizens, could also contribute our bit towards cleanliness by adopting proposal disposal mechanisms to dispose of solid wastes and garbage. The used things, which could not be re-used, like diapers, sanitary pads, and other wastes of the kitchen and daily chores, could be properly disposed of. Our every single effort could help the state to fight against environmental degradation.
Nepal is the land of rites and rituals. The belief and cultural practices followed here show a deep concern for the protection and preservation of the environment. Our festivals like Chhath too advocate for cleanliness and worship of sun god and waters. We deserve to stand by the messages of our sacred texts and festivals. After all, Nepal is a country of ancient origin with an environmentally-friendly population.
Undermining court rulings
Our state has neither been serious towards implementing green laws, nor have they succeeded in observing court rulings. In Amarnath Jha v Government of Nepal and Others, the Supreme Court of Nepal held that every person shall have an inherent right to live in a pollution-free environment to lead a dignified life [2073BS, Decision Number 10743]. But, are we living in a pollution-free environment? We should develop a conscious approach and strike a balance between environmental protection and development, held by the Supreme Court of Nepal in the landmark case of Advocate Narayan Prasad Devkota v Government of Nepal and Others (2066 BS, Decision Number 8521). The apex court in this case held that bad socio-economic policy of the country is to be blamed for environmental degradation. There appears to be a plethora of court rulings favoring environmental protection but like with the laws, they remain unimplemented.
Keep your legacy
Nepal is a multi-religious country where people belonging to every sect and faith live with co-existence. Our cultural legacy shows that we have never been cruel towards the environment. In fact, environmental protection is the cultural heritage of Nepal. Every religious and cultural work we perform symbolizes environmental protection. Chhath, for example, demands cleanliness of waters. The devotees offer prayers to the Sun god by standing in the waters.
In Baisakh, the first month of the year in Nepal’s Bikram Sambat calendar, people in Terai-Madhesh celebrate Jur Shital festival which also promotes protection of trees and soil. The festival begins with elders sprinkling cool water on the heads of their relatives. The family members spread water on the plants and trees. In addition to this, there is a culture of playing the traditional game Kado-Mati (mud-soil) which is similar to mud bath. These cultural practices symbolize conservation of soil, trees and water. Our holy texts, laws and court judgments too show that the country has been serious towards environmentalism.
Way forward
On June 5, World Environment Day (WED) with the theme of “land restoration,” we should evaluate if we have succeeded—or even tried—to acknowledge our cultural heritages, messages of the holy texts and green laws that were passed to preserve and advance the environment.
As a rule of state, environmental pollution is a business of shame in the environment. The environmental pollution also symbolizes that our mechanisms are not operating as per the mandate of law. Eventually, pollution rapes rule of law. Kathmandu’s deteriorating air quality and Nepal’s failure to upkeep sustainable development practices would certainly question our capability to deal with environmental menaces.
Our legal as well as cultural practices endeavor to regulate the conduct of mankind in such a manner which is conducive to nature and not adverse to nature. It’s high time for us to realize that all our sacred texts, laws, judgments, conventions and cultural practices show the proximity of mankind with nature. We cannot ignore our laws, judgments, sacred texts and holy messages. After all, it’s a matter of the environment where we breathe and live. Nepal deserves to have a pollution-free society.
Jivesh Jha is a constitutional and legal expert.
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