- Nepal’s Supreme Court is becoming a battleground for conservationists due to the absence of civil society voices.
- Civil society’s silence contrasts with past protests over cultural and environmental issues, which led to policy reversals without court intervention.
- The court has historically supported sustainable development but it lacks a dedicated green tribunal, making it vulnerable to accusations of being “anti-development.”
KATHMANDU — Nepal’s Supreme Court has become the last battleground for campaigners and conservationists, as knowledgeable civil society organizations remain largely silent on conservation issues with long-term repercussions.
Looking at its past record, the court has been a strong pillar of support in matters related to environmental and biodiversity protection. It’s now at the center of public attention as it looks into a critical case that could determine the fate of Nepal’s protected areas, home to some of the world’s most endangered species. But without the backing of civil society, the court, which runs the risk of public criticism and being labeled “anti-development,” is left to navigate this delicate issue alone.
“People bring their grievances to the court because we’ve adopted an access-to-justice model,” said former Supreme Court Justice Ananda Mohan Bhattarai at a Kathmandu event in February, shortly before his retirement.
In April, the government introduced a controversial law allowing private developers to build infrastructure inside protected areas — areas from which local communities have been evicted or heavily restricted. Despite the law threatening decades of conservation gains, civil society remained silent, forcing lawyers to take up the issue. “We had no choice but to take the issue to court,” said lawyer Sanjay Adhikari. “Our Constitution grants the Supreme Court the power to interpret the law.”
This silence stands in stark contrast to other public mobilizations. In 2018, when the government proposed changes to the guthi system, linked to religious and cultural land ownership, protests erupted across the country. The widespread opposition forced the government to repeal the law without needing a court order. Similarly, when the local government in Kathmandu attempted to convert a historic pond into a swimming pool, public outcry led to a reversal of the plan.
“These cases show that when civil society intervenes, the government listens and litigators like us don’t have to go to court,” Adhikari told Mongabay. “Without strong civil society, the government, which is already a necessary evil, becomes even more harmful.”
Nepal’s Supreme Court has long addressed cases related to environmental conservation. These include community forestry, faulty environmental impact assessments, hydropower projects, wetland conservation, illegal wildlife trade and resettlement caused by infrastructure projects. Public interest litigation (PIL) emerged in Nepal in the 1990s, granting citizens the right to appeal to the court to ensure their fundamental rights. Through PIL, landmark rulings on gender equality, among other issues, have prompted legislative reforms.
The court’s approach to conservation has typically focused on balancing human rights, sustainable development and environmental protection. This is enshrined in Nepal’s Constitution, which recognizes the right to a clean environment as a fundamental human right.
A major example of the court’s role in conservation was its decision to halt the Nijgadh International Airport project, which would have involved cutting down thousands of trees. The court ruled that the government needed to restart the project while considering both development and conservation. Similarly, in the 900 MW Upper Karnali hydropower case, the court mandated that the project share its benefits with local communities. The court has also ruled that forest and protected areas cannot be allocated to squatters and has required wildlife collectors to declare their collections to the government.
However, the court has its limitations. Nepal lacks a dedicated green tribunal, meaning regular judges handle environmental cases, often missing important nuances. Judges have expressed concerns about being labeled “anti-development” when ruling in favor of sustainability. As the court serves as the last resort, its decisions can sometimes backfire.
But the court has placed sustainability at the center of environmental protection when addressing long-standing disputes such development versus the environment, acknowledging sustainability as both a fundamental component of the Constitution and a legal requirement, said Bhattarai in a recent study he authored for Harvard Human Rights Review.
However, it’s not easy to convince the court, lawyers say. “Whenever we bring environmental and conservation matters to the court, it listens to experts’ advice,” said senior lawyer Prakash Mani Sharma. “But our case weakens when experts remain silent,” he added.
Legal provisions now open protected areas such as Chitwan and Sagarmatha national parks to private investment in projects including hydropower, hotels, roads and railways. While the Supreme Court has temporarily issued a stay on the new legal provisions, the matter is still sub-judice.
This situation could have been avoided had civil society acted sooner. What began with procedures to open protected areas to hydropower development eventually led to an ordinance, said Prakash Mani Sharma, adding, as no one spoke out against it, the government felt empowered to push further. According to documents obtained by Mongabay, the government is now drafting regulations that would open protected areas to hotels and permit activities such as mountain biking and motorboating.
Shrawan Sharma, a right-to-nature activist, attributed this inaction to lack of dedication to the cause of the environment among non-governmental organizations. As a result, critical issues end up in the Supreme Court, which may or may not yield the desired outcome.
Supreme Court justices themselves point to a lack of coordination between ministries as a common issue. “A ministry will come up with a policy or rule without consulting others, leaving it to the court to resolve,” said Justice Sapana Pradhan Malla at the February event.
Lawyer Sanjay Adhikari said he remains cautiously optimistic about the court’s role in safeguarding sustainable development. “While the court can falter, especially without civil society’s support, it’s still our last line of defense. If the court gives up, we risk becoming a failed state,” he warned.
Banner image: Representatives of community forest user groups organise protest in Kathmandu in February 2022. Image courtesy of FECOFUN
Citation:
Bhattarai, A. M., Sanjel, S., & Kanel, P. (2024). Environmental Protection in the Himalaya: The Role of the Nepali Judiciary in Safeguarding Human Rights and the Environment. Harvard Human Rights Journal. Retrieved from https://journals.law.harvard.edu/hrj/wp-content/uploads/sites/83/2024/08/Bhattarai-Sanjel-Kanel-Final.pd
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Nepal govt bypasses parliament to allow commercial projects in protected areas
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