Monday, June 14, 2021

Kathmandu’s hazy skies: Time to make polluters pay

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It’s very disappointing to see that Kathmandu is at the cusp of suffering the most adverse effects of climate change, pollution and the stripping bare of natural resources. Nepali people could sense the burn of environmental pollution: losses in agro-based industries and incomes; infection, disease and the associated pressure on national life.

As the air quality in Kathmandu has deteriorated recently, Ministry of Education, Science and Technology on March 29 ordered schools to close for four days, i.e., till April 2. If Kathmandu’s air pollution has climbed to hazardous level, who is to be blamed for this? Can’t we reach a conclusion that the constitutional guarantees have temporarily been suspended? Or, enforcement agencies are not properly working? It means the atmosphere of Kathmandu remains a deadly for people. This way, the environmental damage is causing public nuisance for all to see.

In India, the similar situation arose before the people of Ratlam municipality.  The District Court found the municipality guilty because of their inaction in combating pollution which then raised people's ire. Later, the same verdict was upheld by the High Court and the Supreme Court. In the case of Municipal Corporation of Ratlam v Birdhi Chand (1981), the apex Court of India held that environmental damage is in the nature of Public Nuisance. The Court observed that the liability would be imposed on the public authorities for their failure to mitigate the nuisance caused by environmental pollution. If the message of this ruling is something to be persuasively acknowledged, Kathmandu municipality or the other governmental agencies could be held liable for their inaction in combating ecological imbalances.

Green laws for green democracy

Constitutionally speaking, right to clean and green environment is individuals’ fundamental right in Nepal. The Constitution of Nepal adopts and enacts plethora of green laws to advance the cause of green Republic. To mention a few, an individual’s 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 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.

So far as law-making is concerned, Central government under Schedule-V, entry 27 (national and international ecology management, national park, national forest policy, wildlife and wetlands, carbon services), provincial governments under Schedule-VI entry 19 (management of national forest, water resources, water resources and ecology within province), and both governments under Schedule-VII entries 12, 18 and 23 have mandates to act on national ecology and of course, on sanitation, clean and healthy water, wildlife conservation or forestation. Local government has been empowered under Schedule 8 to act on the matters relating to environment conservation; biological diversity; or conservation of watershed, wetland, wildlife, mines and minerals. This way, environmental protection is the shared responsibility of the central, provincial and local governments. Nevertheless, there are ways that they could partner with private citizens as well as NGOs for realizing the goals of environmentalism.

Apart from this, there are other legislations as well which host provisions for outlawing pollution. For instance, Section 18 of Environment Protection Act, 1997 (2053 BS) empowers the prescribed authority to impose fine of up to 100,000/- on a person found guilty of causing pollution or violating the provisions of the Act, 1997. The Country Criminal Code, 2074 BS (2018) incorporates plethora of penal provisions against polluters. Section 111 sets out imprisonment of up to three years or fine of NPR 30,000/- or both on a person found guilty of causing water pollution; Section 112 provisions for imprisonment for a term of one to five years against a person found causing pollution; and Section 113 is there to slap a fine of up to NPR 25,000/- for the act and omission causing disturbance to public roads, rivers or other public places.

Even though Nepal has adopted and enacted scores of progressive environment-friendly laws, the problem lies in implementation.

Even though Nepal has adopted and enacted scores of progressive environment-friendly laws, the problem lies in implementation. HLA Hart, a jurist of Analytical School of Jurisprudence, has rightly said that enactment of law is one thing while implementation is the other. Green laws would emerge as mere black letters unless implemented in letter and spirit.

Green judgments

 The Supreme Court of Nepal has pronounced scores of rulings that supplement and supplant the very concept of environmentalism and green democracy. This scribe takes this opportunity to share some of the landmark judgments.

 In the leading case of Prakash Mani Sharma v. His Majesty Government of Nepal, the apex Court 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, and immediate measures are to be taken to lessen adverse impact in such areas.

Similarly, in Bhojraj Aire v. Government of Nepal (2061 BS), the Court was of the opinion that the 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 badly compromised with the rampant pollution in Kathmandu.

In Tulak Man Lama v. Government of Nepal (2061 BS), the ban of 2-stroke three-wheeler Vikram Tempo was held to be valid. The Court observed that 12 to 14 seats Micro-bus could be allowed to ply on the roads of Kathmandu—instead of huge smoke emitting Vikram tempo.

Also, in Surya Prasad Sharma Dhungel v Godavari Marble Industries Pvt Ltd, the Court 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.    

Meanwhile, the top Court in the case of Kedar Bhakta Shrestha v Department of Transport and Ors, His Majesty 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 environment in order to cash the right to life and liberty, a sacrosanct fundamental right.

The current ecological imbalance faced by the people gives us a message that the green laws and the court rulings are limited to papers only and they are yet to come into effect.

What next?

In fact, 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.

Provincial governments could be directed by the Center to prepare and publicly disclose a plan for air and solid waste management and prepare a report annually to demonstrate the progress on that plan. The Central government could formulate a policy allowing the government to block grants allocated for the Provincial governments if they fail to comply with the plans of Central government aimed at ensuring hygienic environment.

In India, environmental science has been introduced as a compulsory subject from school education to university level (in compliance of the verdict of MC Mehta v. Union of India). Nepal also deserves to adopt similar initiatives.  

Over and above it all, the Polluter Pays Principle, envisaged under Article 30(2) of the Constitution and Principle 16 of Rio Declaration, needs to be implemented.

Over and above it all, the Polluter Pays Principle, envisaged under Article 30(2) of the Constitution and Principle 16 of Rio Declaration, needs to be implemented. MP Jain, a celebrated commentator of Constitutional Law, in his book Indian Constitutional Law argues that “the principle of polluter pays means that one who carries on a hazardous activity is liable to make the good loss caused to another person by such activity.” In other words, the polluter pays principle aims to fix absolute liability on the polluters for the harm caused on environment.

The Supreme Court of India in the case of MC Mehta v Union of India (1997) held that the polluters should not only be asked to compensate to the victims of pollution but also be asked to pay the cost of restoring the environment. In our context, the hospitals, industries, or other activities causing pollution should be punished under polluter pays principle.

Let's pause and think: where are we heading towards? Those green laws enacted under the constitution and other legislations are not mere cosmetic arrangements but like lamppost showing vivid paths. Nepal deserves to have a green democracy in true and material sense. Keith Hawkins, an environmentalist, has rightly said, pollution control is done in a moral, not a technological world.

Published on 31 March 2021    

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