Jivesh Jha

At a time when the haze has engulfed the Kathmandu Valley, it’s imperative to take steps towards establishing environmental courts as the goal of meaningful enforcement of environmental laws can be achieved by enlightened public opinion, vigilant bar and sensitised judiciary.
Recently, Kathmandu has been ranked under the place which is on the very cusp of suffering the most adverse effects of air pollution. This shows that effective implementation of environmental laws has become an uphill task under current legal regime. As the cases involving environmental degradation and conflict over natural resources involve assessment and evolution of scientific and technical data, there is a dire need of establishing Environmental Courts on regional basis with professional judges and experts drawn from ecological science, keeping in view the nature of cases and expertise required for its adjudication. If green benches are operational, the environmental cases would be resolved without much delay. Moreover, specialised courts or Green Benches may play crucial role in consolidation of internationally established environmental principles into domestic legislations, including that of constitution, and it will ultimately help the state to achieve constitutional environmental order. Beyond this, there will be consistency and stability of the environmental normative frameworks.

International precedent
If international experiences are something to be taken into cognizance, there appears some of the developing as well as developed states to have established comprehensive and promising Environmental Courts. India is the third country following Australia and New Zealand to have given life to such system. The Supreme Court of India underscored the need of establishing Environmental Court in the case of MC Mehta v. Union of India (1987).
In 2010, the Government of India established National Green Tribunal (NGT) under Article 21 of the constitution which guarantees every person breathes fresh air. The NGT has the principal Bench in New Delhi with regional benches in Pune, Bhopal, Chennai and Kolkata. Each Bench has specific geographical jurisdiction covering several states in a region.
However, in Japan and Korea, the administrative bodies (Environmental Disputes Resolution Commissions) are engaged to resolve the environmental disputes. China has established an articulate system of Environmental Tribunals at the regional and local levels. While invoking the powers conferred under Supreme Court Rules, the apex court of the Philippines has established 117 local and regional trial courts especially to adjudicate environmental conflicts. Likewise, Environmental Courts and Tribunals are in existence in Pakistan too to ensure expeditious disposal of environmental cases.
Unequivocally, there is an inseparable nexus between climate change and human rights. The Constitution of Nepal, which entered into force on September 20, 2015, expressly hosts a plethora of fundamental rights that supplement and supplant right to clean and green environment to citizens.
There are scores of green laws incorporated under the national charter which upkeep the cause of green Republic. To mention a few, an individuals’ 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 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.
Moreover, the High Courts and Supreme Court are empowered to issue any directions, orders, determinations, or writs for the protection and promotion of environment. This way the constitution itself has made the right to live in a healthy environment as sanctum sanctorium of human rights. In this respect, the Himalayan republic witnesses a new constitutionalism, a unique blend of human rights and international environmental principles, to foster purposive and progressive environmentalism.
Understandably, the problem of environment degradation is a social problem. In a developing country, like Nepal, it is truism that there should be developments but that development should be in closest possible harmony with environment, otherwise, there would be development at the cost of environment which would ultimately result total devastation.
An environment tribunal could have specialised and exclusive jurisdiction with capacity to integrate subject matter and different types of legal proceedings. Justice Holmes, a US Supreme Court judge, has rightly said “life of law has not been logic; it has been experience.” So, the law has to grow in order to satisfy the needs of fast changing society. If pollution appears as menace, it’s the failure of the executive and the courts need to step in the vacuum created by the political/apolitical branches of the government.

Ways ahead
The apex court in the case of Surya Prasad Sharma Dhungel v Godavari Marble Industries Pvt Ltd was of the opinion that human life would be in danger in a polluted environment. The court pronounced that the protection of environment leads to protection of human life.
In the context of emerging environmental jurisprudence, it is the solemn duty of the court to render justice by taking every aspect into consideration, including that of striking a balance between development and environment. It would be easier for an environmental tribunal to adjudicate environmental matters effectively by adjusting coherence among ecology, economics and ethics. Ultimately, environmental principles like sustainable development, Environment Impact Assessment (EIA), or Polluter Pays Principle (PPP) would have meaningful implementation in society, for the state deserves to uphold the very concept of green democracy. Over and above it all, an environmental court could appear as environmental adjudicators, not environmental governors.

(The author is a Judicial Officer at Dhanusha District Court, Janakpurdham).