Nepal — Prakash Mani Sharma v. His Majesty’s Government Cabinet Secretariat and Others, WP 2237/1990 (2003.3.11)

Supreme Court of Nepal, Joint Bench

Hon’ble Arbinda Nath Acharya,
Hon’ble Chandra Prasad Parajuli
WP No 3440 of the year 2053 B.S (1996)

Petitioner: Advocate Prakash Mani Sharma and others

Versus

Respondents: His Majesty’s Government, Cabinet Secretariat and others,

Case: Certiorari with Mandamus

Constitutional/Legal Issues

Is the court entitled to ask the government to adopt particular measures for reducing pollution?

Can environmental protection be ignored in the name of development?

Does the enjoyment of personal liberty under Art 12(1) require a pollution-free environment?

The Court held: In this case, the court found that a healthy environment is a prerequisite for the protection of the right to personal freedoms under the Constitution; that is why the state has a primary obligation to protect the right to personal liberty by reducing environmental pollution as much as possible. Relying on the concept of sustainable development, the court went on to say that environment and development should proceed harmoniously and environmental protection cannot be ignored for the sake of development. Finally, taking into account the lack of implementation of its previous judgments, the court issued a directive to enforce essential measures within a maximum of two years in order to reduce vehicular pollution in Katmandu Valley.

Order in detail:

Arguing that the right to live in a healthy environment is protected under the Constitution of the Kingdom of Nepal of 1990, the Environment Protection Act of 1997, and the Traffic and Transportation Management Act of 1992, petitioner demands the court to quash a government decision allowing unfettered import of diesel taxies from India and to issue a mandamus for protecting the environment by relying upon the reasoning that a government decision allowing the import of diesel vehicles, unscientific registration and operation systems of vehicles, and unrestricted importation of leaded petrol are resulting in negative impact upon human health and ultimately jeopardize the existence of the historical, cultural, and archaeological significance of the Katmandu Valley.

Disputing the petitioner’s demand, the respondent Cabinet Secretariat et al. argue in their written statements that His Majesty’s Government has already decided on 13 May 1996 to direct the concerned ministry to make proper arrangements to disallow the operation of diesel vehicles; what type of vehicles should or should not imported is a policy matter to be decided by the government; His Majesty’s Government is actively formulating and implementing policies, programs, laws and regulations concerning population and environment; considering the environmental seriousness of Katmandu; all the relevant government agencies are working hand-in-hand to mitigate vehicular pollution; that is why the writ petition must be quashed.

The petitioner seems most intent to raise the question of increasing vehicular pollution in the Katmandu valley. The Respondents don’t disagree in their written statements that the petitioner has standing to bring this petition before the Supreme Court. The court has also held in various cases (NLR 1996, No 1, P.33; NLR 1997, No 6, P.312) that environmental protection is a matter of public concern. Therefore, further interpretation of standing is not needed. No doubt, being concerned about the environmental issues, the petitioner has locus standii to bring the suit.

The Petitioner’s emphasis in the writ petition is a demand for a court order to prevent the operation of diesel taxis in the Katmandu valley. The Respondent Cabinet Secretariat mentions in its written statement that the government had decided on 13 May 1996 with a view to disallow the operation of diesel taxis. According to the written statement of the Ministry of Finance, the government permitted the import of vehicle only during the period from 1995/1996 to 1996/1997 fiscal years, considering the diesel vehicles adequate for public transportation as per the carrying capacity of roads; such provision ceased to operate from the fiscal year 1997. Similarly, the written statement of the Ministry of Traffic Management and Physical Development argues that the government has prescribed permissible limits for vehicular emission by publishing a notice in the Nepal Gazette on 1994/8/1, Part 44, No 16, that the density of emissions must not exceed 65 H.S.U for diesel vehicles in the Katmandu Valley in order to give effect to the Section 23 (1)(c); in the course of implementing decisions taken on 6 May 1996 and 13 May 1996, the government has begun a study on vehicular pollution of Katmandu Valley; until the completion of that study, government decided on 29 May 1996 to stop the registration of diesel taxis to be applicable in Katmandu valley, Pokhara valley, the places where the Lumbini Region Development Project applies; and published the same in Gorkhapatra (the government’s official newspaper). The written statement of the Department of Traffic Management states that the department has stopped the new registration of diesel taxis and vehicular emissions have been being monitored. Advocates presented by the petitioner didn’t disagree with the government’s efforts to curb vehicular pollution in Kathmandu valley; therefore, it cannot be said that no efforts have been made in this regard.

So far as the demands of the petitioner that the registration and operation of vehicles should be scientifically arranged in the Katmandu Valley; taxis and tempos should be substituted by big vehicles in order to decrease vehicular traffic; a ban should be imposed on the importation of unleaded petrol; those vehicles that exceed emission standards should not be permitted to operate; green energy should be promoted: these issues are certainly considerable from the stand point of environmental balance. The freedom of personal liberty to every citizen is constitutionally guaranteed under the Article 12(1) of the Constitution of the Kingdom of Nepal 1990. Henceforth, citizens are no doubt entitled to enjoy this fundamental right to the greatest extent. Personal freedoms at large can only be protected by a healthy environment and it is an unquestionable fact that a polluted environment deprives the right to life protected under the constitution and the laws. That is why the state has a primary obligation to protect the right to personal liberty by mitigating environmental pollution as much as possible. As Article 26(4) of the Constitution provides that the state shall give priority to the protection of the environment and also to prevent its further damage due to development activities by increasing the awareness of the general public about environmental cleanliness, the state is responsible to continue implementing the right to personal liberty under the Art 12(1) of the Constitution. In addition, the respondent government is also charged with an obligation under Section 9(2) of the Treaty Act 1990 to implement provisions of international conventions concerning environment those, which are already ratified. Additionally, the present world community has deemed the right to development as a third generation right. The demand for rapid development also cannot be ignored. Especially a country left behind by the wave of the development like Nepal requires an accelerated development process. At the same time, the state also has an obligation to protect the environment taking into account the negative impact of development upon the environment. Therefore, development and environment should proceed harmoniously. This court is also aware of the respondent’s inability to launch environmental protection programs as per the demand of the petitioner due to the constraints of resources and technology. Nevertheless, environmental destruction cannot be encouraged in the name of development.

This court had asked the Ministry of Population and Environment on 30 May 2000 to issue an order to produce a report before the court concerning concrete measures taken by the Ministry and other subordinate agencies in order to curb pollution; the positive consequences of these measures; and the future plans towards protecting environment. In response to the order, the Joint Secretary on behalf of the Ministry a submitted a report to the court on 25 March 2002. The report states: three-wheeled diesel vehicles have been displaced from the Katmandu Valley; since 27 May 1999 the importation of reconditioned and second-hand vehicles has been banned; since 24 December 1999 Vehicular Pollution Standard 2000, comparable with European emission standards, has been brought into force; arrangements have been made for emission testing and distribution of green stickers (though by this time the standard was fixed only for the diesel and petrol- run vehicle by the decision of 24 December 1999); now the standard has been fixed for vehicles running on liquefied petroleum gas (LPG) and natural gas (NG); in accordance with Rule 15 of the Environment Protection Regulation of 1998, a maximum 3% carbon monoxide by volume has been fixed to be applicable to petrol and diesel run-vehicles throughout the country, 1000 part per million (ppm) of hydrocarbons (HC) for four-wheeled vehicles, and 7800 ppm for two- and three-wheeled petrol and gas-run vehicles has been fixed as the permissible limits. Priority was also given to a Mass Transit System. According to the report, some of the petitioner’s demands seemed fulfilled. Along with the claim of positive results, the government has also mentioned some sort of future plans in the report. A report of the committee constituted by the Ministry of Labor and Traffic Management in order to study the carrying capacity of roads in the Katmandu Valley was also submitted on 17 June 2002 before the court by the Department of Traffic Management as per an order of this court dated 3 May 2002. The 2001 Report concerning traffic management in Katmandu Valley as per the carrying capacity also recommends measures in respect to vehicular management and carrying capacity of the roads.

In spite of the abovementioned efforts of the respondents, advocates presented by the petitioner to this court seem worried about the lack of result-oriented impact on the environment of the Katmandu Valley. Like the petitioner, this court has also been issuing directives serially in order to make the government accountable for protecting the environment on a priority basis since Surya Dhungel Vs Godavari Marbal (NLR 1996, Silver Jubilee Issue P. 169), but decisions are not being enforced effectively.

Henceforth, no one can disagree with the petitioner’s contention that environment pollution should be controlled. Especially, vehicular emissions in Katmandu Valley are resulting in serious public health problems. In this regard, the report submitted before the court by respondents also shows that the government is working towards implementing reports submitted by various study teams constituted by concerned authorities under His Majesty’s Government. In spite of this, the control or mitigation of pollution has not been recorded yet. Instead, it seems urgent to emphasis the implementation aspect. In this perspective, a directive order is issued to enforce essential measures within a maximum two years in order to protect public health from vehicular pollution due to emission from vehicles running in Katmandu Valley like tempos, taxies, buses, mini-buses, trucks, tractors etc. and to conduct essential studies or investigations with a view to prevent vehicular pollution outside Katmandu Valley.

Justice Arbinda Prasad Acharya

I concur the aforesaid opinion.
Justice Chandra Prasad Parajuli
Done on the 11th day of March, 2003