Environment Law Case: Advocate Shailendra Prasad Ambedkar and others vs. Government of Nepal, Office of the Prime Minister and Council of Ministers and others, Writ No. 2077-WC-0099, 2078 BS
Case: Protection of the right to a clean environment and conservation of the Chure region against executive overreach via ordinance.
Plaintiff: Advocate Shailendra Prasad Ambedkar and others.
Respondent: Government of Nepal, Office of the Prime Minister and Council of Ministers and others.
Writ Number: 077-WC-0099
This case is related to the interrelationship between the right to a clean environment, sustainable resource utilization, intergenerational equity, and the limits of executive power to enact long-term environmental policies via ordinance.
Facts of the Case:
Following the dissolution of the House of Representatives, the Government of Nepal recommended and introduced the annual budget for the Fiscal Year 2078/079 through the Economic Ordinance, 2078 and related ordinances. Point No. 199 of the Public Statement on Income and Expenditure announced a policy to reduce the nation’s trade deficit by exporting mineral-based stones, ballast, and sand based on environmental impact assessments. To facilitate this, the ordinance provided customs duty waivers on the import of equipment required to construct transport ropeways from excavation industries directly to export points. The Department of Mines and Geology subsequently prepared plans to authorize excavations across 92 locations spanning 14 districts, significantly affecting the Chure and Mahabharat hill regions.
The petitioners filed public interest litigation writ petitions seeking an order of Certiorari to declare these provisions void from inception. They argued that the mass extraction and export of stone, sand, and ballast from the geologically fragile Chure hills would trigger severe environmental degradation, drop water tables, dry up natural waterspouts, and cause catastrophic floods and landslides. They claimed this policy would ultimately decertify the fertile agricultural lands of the Terai-Madhesh region, destroy biodiversity, threaten human settlements, and strip citizens of their fundamental rights. They further argued that introducing a long-term resource exploitation policy via an executive ordinance bypassed parliamentary debate, violating constitutional checks and balances and unratified trade protocols.
Legal Issues:
- Does Point No. 199 of the budget statement and the associated export policy conflict with the fundamental right of citizens to live in a clean and healthy environment as guaranteed under Article 30(1) of the Constitution of Nepal?
- Can the executive introduce long-term policies for the exploitation of natural resources with lasting environmental impacts through an ordinance under Article 114 when Parliament is dissolved, or does doing so encroach on the legislature’s authority?
- Should the court issue an interim order to halt a state economic and budget policy from execution based on the principles of environmental compatibility, intergenerational equity, and the balance of convenience?
Decision of the Court:
Supreme Court:
The Constitutional Bench issued a comprehensive interim order against the respondents. Supreme Court noted that while the state possesses self-determination over its resources, any exploitation must gravity-check the core principles of intergenerational equity and environmental compatibility. The court observed that the mass excavation and export of stone, sand, and grit carry long-term, irreversible repercussions for the nation’s environmental balance, natural resources, and biodiversity. Furthermore, the court held that utilizing emergency ordinance powers under Article 114 to implement long-term environmental policies, while bypassing the sovereign parliament, risks undermining the authority and effectiveness of the legislature. Therefore, from the perspective of the balance of convenience, immediate implementation of the policy was deemed inappropriate.
Principles Established:
- Intergenerational equity and environmental compatibility must serve as core, non-negotiable limitations whenever a nation’s natural resources are utilized or mobilized.
- The execution of policies with severe, long-term environmental impacts should not be bypassed through executive ordinances when parliament is absent, as doing so compromises legislative effectiveness and the separation of powers.
- The balance of convenience favors the protection of nature; the court will intervene to halt state economic plans if their execution threatens to cause irreversible geographical, ecological, and environmental harm to the country before the matter can be fully adjudicated.
Relevance of the Case:
The case demonstrates the judiciary’s vital role in exercising environmental checks and balances over macro-economic policies, reinforcing that economic goals like trade deficit reduction cannot override fundamental environmental rights and the preservation of fragile ecological zones like the Chure hills.
