Pursuant to Article 119 of the Constitution, the Minister for Finance of the Government of Nepal shall lay before the joint sitting of both Houses of the Federal Parliament an annual estimate setting out, inter alia, an estimate of national revenue and the money required to meet the charges on the Federal Consolidated Fund. Following the coronavirus pandemic and the subsequent lockdown however, Budget Draft for the fiscal year 2021/22 was passed through an Ordinance. The petitioners in this case argued that adoption of the national budget through Ordinance was largely unconstitutional and more minutely, took contention with point no. 199 of the Draft which held that stone, gravel, and sand was to be exported to reduce the country’s trade deficit following an Environmental Impact Assessment (EIA) report.
The petitioners claimed that excavation of stone, gravel, and sand would reduce the fertile plains of the Terai and Madhesh to barren land. The major geomorphic process in Churia coupled with weak geology, heavy rainfall and tropical weathering also means that region already experiences rapid fluvial erosion. Consequently, if excavation were to go ahead, entire villages would face increased vulnerability to floods and agricultural practices indigenous to the Terai region would be lost. The petitioners argued therefore, that allowing excavation along the Chure Range would be a flagrant violation of Article 30 of the Constitution which stipulates that every citizen has the right to a clean and healthy environment. The petitioners specifically made their claim based on Chure’s increased vulnerability to climate change.
The Constitutional Bench of the Supreme Court, in this case, sided with the petitioners and held that excavation of stone, gravel and sand would be tantamount to “ecocide” and against the norm of environmental justice and inter-generational equity. The Court also acknowledged that although the State exercises permanent sovereignty over natural resources as a constituent right of self-determination, precedent set by the Court prompts that the precautionary principle be applied. The Court iterates that environmental complexity is increasing in Nepal due to climate change and urges the government to be mindful towards the life of and within the Chure and not view it solely from an economic lens. The Court also referenced that as party to several international environmental treaties, the State has a positive obligation to preserve wetlands, protect biodiversity, and curb the illegal trade of endangered species. It also referenced the UN Human Rights Council resolution 48/13 acknowledging the right to a healthy environment as a fundamental human right. In keeping with this, an interim order from the Court stopped the draft budget from going through and the Court also halted the planned excavation of the Chure range with an order of Certiorari.
|06/06/2021||Decision||Download||The court's full decision.|