Prakash Mani Sharma v. His Majesty’s Government Cabinet Secretariat and Others
Asia and the Pacific
This case dealt with the following questions: Can environmental protection be ignored in the name of development? Does the enjoyment of personal liberty under the constitution require a pollution-free environment? Is the court entitled to ask the government to adopt particular measures for reducing pollution? Arguing that the right to live in a healthy environment was protected under the Constitution of the Kingdom of Nepal of 1990 ans several laws, the petitioner demanded the court to quash a government decision allowing unfettered import of diesel taxies from India and to issue a mandamus for protecting the environment. He argued that the decision allowing the import of these vehicles and leaded petrol had a negative impact upon human health and ultimately jeopardized the existence of the historical, cultural, and archaeological significance of the Katmandu Valley. The court emphasized that the freedom of personal liberty to every citizen was constitutionally guaranteed under the Article 12(1) of the Constitution of the Kingdom of Nepal 1990. Personal freedoms at large could only be protected by a healthy environment and it was an unquestionable fact that a polluted environment deprived the right to life protected under the constitution and the laws. A healthy environment thus was a prerequisite for the protection of the right to personal freedoms under the Constitution. Therefore the state had a primary obligation to protect the right to personal liberty by reducing environmental pollution as much as possible. The court stressed that the demand for rapid development also could not be ignored. Nepal required an accelerated development process. At the same time, the state also had an obligation to protect the environment taking into account the negative impact of development upon the environment. Therefore, development and environment should proceed harmoniously. Environmental destruction could not be encouraged in the name 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 and to conduct essential studies with a view to prevent vehicular pollution outside Katmandu Valley.