Public
nuisance[1] of brick kilns smoke in
Kathmandu valley, Nepal
By Sanjeev Poudel, M.A.
Sustainable Development Practice
Course: Law, society
and sustainable development
Institution: TERI School
of Advanced Studies
Website: https://www.terisas.ac.in/uploads/MPD152.pdf
Email: sanjeevdevs@gmail.com
Introduction
Issue
and problem
Kathmandu
valley is the capital city of Nepal surrounded by five municipalities making
the valley major urban area of the country. The valley is situated in 1325
meter above sea level surrounded by hills and mountains. With its topography
severe air pollution within the valley makes life vulnerable and life
threatening at times. As evident from the Joshi’s article[2] brick kilns industries are
responsible to lead the air pollution inside the valley.
Brick kiln industries are
often known for polluting surface air within the periphery of the people residing.
These are the type of industry who manufacture bricks with the fuel help of
coal and fire wood. These industries have a nature of smoke outlet through
chimney which not only affects the environment but also covers human for the
respiratory disease. The air pollution itself opposes with Right to Life, Right
to clean environment, Right to freedom to express, also impact on public
health, national heritage, and biodiversity amongst others.
Brick kilns have now
become problematic as the rate of urbanization has increased from the rural
areas as well. The rate has gone up high due to Maoist insurgency since 1996. The
migrated population usually lives in the peri-urban areas of Kathmandu valley
which is now nearby brick kiln industries which were installed before the
housing projects started in peri-urban areas in the valley. To meet the demand
of the houses required to the migrated population unregistered and
non-authorized brick kiln industries started which records to be 125 kilns in
2003[3].
The problem not only lies
in loose monitoring from the executivebodies but also the use of traditional
technology named Bulls Trench Kilns (BTK) easily adopted by Nepalese
entrepreneurs. This technology emits a black smoke flume in the atmosphere
leading to respiratory disease to the people living around the kilns.
Now the air pollution
from the industry has been felt so close by people living around; hence the confrontation
next to the closure of the industry is coming ahead. To support the same, a mandamus[4] writ was filed by advocate
Prakash mani Sharma, et.al. on behalf of Pro-public in 2002 against the
respondent Cabinet Secretariat, His Majesty government (HMG), Singa Durbar,
et.al.[5]
Mandamus
writ: Pro-public Vs Cabinet Secretariat
The
mandamus writ was filed by Pro-public as a locus standi of representative
standing of the citizens of Kathmandu valley and surrounding municipality. The
petitioners have emphasized on unregulated non-registered brick kilns industry
in the valley with the base of fundamental right to clean and health
environment, Environment protection Act 2053 Bikram Sambat (B.S)[6],
Environment protection regulation 2054 B.S. and Industrial Enterprise Act
2049 B.S.
This essay is based on
the mandamus writ filed by Pro public in the brick kiln case. Firstly, this
essay determines the response of various actors, institutions, factors
(environmental, legal, social, political) responsible for the monitoring and
evaluating the brick kiln industries. Secondly, whether court has considered
various national and international law on
the mandamus decision. Finally, also interprets the directives of Supreme Court
of Nepal on the Pro-public Vs Cabinet Secretariat. While this essay analyzes
the directives of the case, it shall support Supreme Court of Nepal and
petitioners to consider environmental cases in more holistic approach.
Response:
various actors, institutions, factors (environmental, legal, social, political)
Below
listed in the table is the response of various actors and institutions
according to the rights, rules, regulations and acts.
|
Rights,
Rules, regulations and acts |
Actors
and institutions |
Response
|
|
Constitution |
|
|
|
Article
26 (4) of Constitution of Kingdom of Nepal, 2047[7] |
|
“that
the state shall give priority for preventing adverse impacts of environment
emanating from the ongoing physical developmental activities and make special
arrangement for the protection of endangered animals, forest and vegetation”[8]. |
|
Section
25 (1) |
|
Right
to occupation |
|
Ministry |
|
|
|
Ministry
of Environment[9] |
|
Dismissal
of Writ |
|
Joint-Attorney
behalf of government |
|
Dismissal
of Writ |
|
Rules,
regulations and acts |
|
|
|
Environment
protection regulation (EPR) 2054 BS[10] |
|
|
|
Environment
protection Act (EPA) 2053 BS[11] |
|
|
|
Industrial
Enterprise Act 2049 BS |
The
Department of cottage and small scale industries, Industrial promotion board |
Dismissal
of Writ |
|
Section
5 and 6 of Local administration act 2028 B.S. |
District
administration office |
Dismissal
of Writ |
|
Work
Classification Act 2057 |
|
|
|
International
laws/ declaration referred by court |
|
|
|
Stockholm
conference 1972[12] |
|
|
|
Earth
Summit –Agenda 21[13] |
|
|
Judicial Activism
Judcial
activism also can be seen in this case through court as it has been issuing
directives to Government when environmental law did not exist in the mandamus
case of petitioner Surya Prasad Dhungel Vs Godavari Marble Industry in 2049
B.S. In the Pro-public case, it was the contempt of court and compliance of
order was not maintained by the government agencies. Hence, court gives the
decision on its own with the base report of the research and studies carried
out in air pollution in the Kathmandu valley.
Supreme
Court’s directives
The
Supreme Court directives[14] are from
the case Pro-public Vs Cabinet Secretariat given by the Justice Kedar Prasad
Giri on 10th December 2007. Now, this essay will analyze and
interpret the four directives given by the Supreme Court.
First directive: Court
demands the coordination and integration among the concerned ministries,
departments and civil society. The decision taken by the concerned stakeholders
for the implementation of effective monitoring of the industry is commendable.
However, extraneous factors like political aspect play a vital role in the
decision making. Political parties have their own share of ministries and
departments which seems next to impossible to be coordinated while the country
is in transition phase. Although, pressure from the civil society is vibrant in
Nepal the bureaucrats are again helpless when the decision maker has their own
vested interest lying.
Second directive: Court
asks the committee to assess the impact on the industry and national
constructions. Also further study the proper alternatives to replace those
industries. Here the court is being pro-environmental and asks government to
replace the industries who use traditional technology. According the EPA 1997
and EPR 1996, the brick kiln industry should not be nallowed to operate in the
radius of 1 kilometer from residential area and five kilometers from the
forests. This directive has not considered the issue of employment to
semi-skilled labor after replacement and migratory people.
Third directive: The court
asks to administer the brick kiln industry where tourist flow is higher and in
schools in particular. If government had administered the industry the problem
of air pollution would have been reduced significantly. In this case, the court
is reminding the duty of the government to closely monitor smoke outlet
industries.
Fourth directives: The court asks to install pollution reducing
devices as mandatory for the entrepreneurs. It is not considered here whether
semi-skilled or unskilled workers could master the new technology within
certain period of time. This would be an extra burden to the industry for the
training purpose for the adoption of new technology.
Although, court has tried
to take the holistic approach in the directives introduction to some principles
in the directives would be more effective. Principles like Polluters pay
principle, Precautionary principle, Principle of Absolute Liability are not
referred to in particular. There is no provision of natural justice to
industries as the impact assessment of the closure of such industries is only
mentioned. The court has not
mentioned in any form the Monument Act of Nepal.
Conclusion
The
actors responsible for the effective monitoring and evaluation of the brick
kiln industry has taken the decision as per the acts, rules and regulation
however these institutions have taken the decision in surface without
effectively implementing the same. Each of the boards and institutions asked
for the dismissal of the writ. However, when court seeks reply from these
institutions, they don’t reply within time which leads to contempt of court.
Hence court had to take the decision on its own as a part of judicial activism.
Court seems to be pro-environmental as it has taken into consideration all the
aspects of national and international law. With that, also the industry
enterprise act is taken into consideration making decision holistic.
Suggestions
The
court has taken decision with the consideration of public at the larger
interest. Besides, court would have approached for adversary process which
would protect the rights of entrepreneur and balance the environment and
development. The directives of the court also suggests for the installation of
efficient technology however it should have taken into consideration the
adoption of the technology by the unskilled and low paid labors. Further, labor
safety would also be other aspects which need to be considered.
Way
forward
If
the population of Nepal is considered it is only 27 million and the problem of
Brick kilns industry is concentrated in urban areas. Coordination among the
ministries to solve the problem at the grass root level would ultimately
achieve the goal of sustainable development.
Justice delayed is
justice denied in the democratic countries. It is envitable to face the destruction
of the environment where development takes place. The rationale only occurs
when there is an optimum triggering impact on the environment and development
provides a public good at the larger interest for instance an industry
providing huge number of employment to semi skilled worker in the location
where labor migration is at utmost. The process of shifting towards effective
and efficient technology is better for the environment and human mankind. The
crux of the problem always lies on how fast the entrepreneur adopts the new and
costly technologies. To all the intent and purposes while approaching for
sustainable development traditional knowledge and scientific knowledge should
be diffused for the innovative development and reduce the public nuisance. This
would eventually intensify the social, human, financial, natural and physical
capital of the country for the betterment of life in overall.
[1] A nuisance which
affects the public at large. http://dictionary.law.com/Default.aspx?selected=1682
[2] Joshi SK,
Kathmandu University Medical Journal (2008), Vol. 6, No. 1, Issue 21, 3-11,
Retrieved from NAME OF THE ARTICLE? http://brickclean.net/reports/Report%20Joshi%20-%20Environmental_health_effects_of_brick_kilns_in_Kathmandu_valley.pdf on 25 Jan 2013
[3] Brick Kilns in
Kathmandu valley. Retrieved from http://nepjol.info/index.php/HJS/article/view/189/793 on 25 Jan 2013
[4] The type of writ
directing a public authority to perform its fundamental duty. Retrieved from http://dictionary.law.com/Default.aspx?selected=1203 on 28 Jan 2013
[5] Nepal -- Prakash Mani Sharma, and
others. v. Cabinet Secretariat, H.M.G, Singh Durbar, and others, writ 3027/2059
(2007.12.07) (Supreme Court of Nepal) (regulation of brick kilns in the
Kathmandu valley). Retrieved from http://www.elaw.org/node/5760 on 15 Jan 2013
[7] http://www.servat.unibe.ch/icl/np00000_.html. Accessed on 03
Feb 2013
[8] Nepal -- Prakash Mani Sharma, and others. v.
Cabinet Secretariat, H.M.G, Singh Durbar, and others, writ 3027/2059
(2007.12.07) (Supreme Court of Nepal) (regulation of brick kilns in the
Kathmandu valley). Retrieved from http://www.elaw.org/node/5760 on 15 Jan 2013. Pg 8
[9] http://moenv.gov.np/moenvnew/index.php. Accessed on 03
Feb 2013
[10] http://www.lawcommission.gov.np/en/prevailing-laws/func-startdown/491/ . Accessed on 02
Feb 2013
[11] http://www.nepaldemocracy.org/documents/national_laws/environment_protection_act.htm.
Accessed on 02 Feb 2013
[12]
http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503
. Accessed on 02 Feb 2013
[13]
http://www.fao.org/sard/en/sard/2070/2071/index.html
. Accessed on 02 Feb 2013
[14] Directly Quoted
from: Nepal -- Prakash Mani Sharma, and
others. v. Cabinet Secretariat, H.M.G, Singh Durbar, and others, writ 3027/2059
(2007.12.07) (Supreme Court of Nepal) (regulation of brick kilns in the
Kathmandu valley). Retrieved from http://www.elaw.org/node/5760 on 15 Jan 2013. Pg 11.
