Suray Prasad Sharma Dhungel v. Godavari Marble Industries and others
Asia and the Pacific
This case dealt with the questions whether the Constitution guaranteed the right to a clean environment as a part of the right to life and whether there was locus standi of NGOs or individuals working for the protection of the environment. The petitioners claimed that the respondents’ industrial activities had caused environmental degradation to Godawari forest and its surroundings. The respondents’ factory emitted dust, minerals, smoke and sands, which had excessively polluted the nearby water bodies, land and atmosphere of the said area, thus causing danger to the property, life and health of the people around. Thus the petitioners filed this writ petition seeking mandamus in the name of the respondents, to enforce the right of the people to live in a healthy environment. The court was of the view that a clean and healthy environment was part of the right to life under Article 11 (1) of the Constitution of the Kingdom of Nepal 1990. Life was threatened in polluted environment and it was the legitimate right of an individual to be free from a polluted environment. As the protection of environment was directly related with life of the human being, it should be accepted that this matter was included in Article 11(1) of the Constitution of the Kingdom of Nepal (1990). Regarding the locus standi the court emphasized that the applicant had a profound interest in the present environmental issue. In fact an environmental problem was a matter of public interest and concern. The petitioner had a strong relationship with the environmental subject of the present dispute. The present Constitution had established public interest as a protectable fundamental right. Also, environmental conservation according to the constitution was one of the basic Directive Principles of the State. Environmental conservation was one of the objectives of the applicant, so the applicant had locus standi for the prevention of the environmental degradation. The court also stressed that it was beyond doubt that industry was the foundation of development of the country. Both the country and society needed development, but it was essential to maintain environmental balance along with industry. However, the petitioner had not been able to clearly point out a specific section of the law that had not been obeyed or followed. For the purpose of mandamus, legal duty had to be definite and fixed. Therefore mandamus could not be issued. Taking into account the sensitive, humanitarian issue of national and international importance such as the protection of the environment of Godawari area, the court decided to issue directives in the name of the respondents to enforce the Minerals Act (1985), enact necessary legislation for protection of air, water, sound and environment and to take action for protection of the environment of Godawari area.