Supreme Court invalidates laws against construction inside Protected Areas

Last week, the constitutional bench of the country’s apex court passed its verdict invalidating the newly added two provisions in the National Parks and Wildlife Conservation Act 1973, which were introduced to allow construction of infrastructure projects inside the country’s protected areas.

In April 2024, just before the Nepal Investment Summit, the Prachanda-led government introduced an ‘ordinance to amend some Nepal Acts to facilitate investment’ that would allow the government to grant private investment, including foreign, in the country’s infrastructures across protected areas. The ordinance was subsequently endorsed by the Federal Parliament in July.

The two added provisions— 

Provision 5 (a): The Government of Nepal, if found necessary, can declare any area within national parks, reserves or conservation areas as “highly sensitive areas” by announcing it in the national gazette.

Provision 6 (1a): Except the areas specified as per Provision 5 (a), the Government of Nepal may grant approval to carry out national priority projects, projects approved by the Investment Board of Nepal or projects of national pride in areas within national parks, reserves or conservation or any buffer zones while maintaining coexistence of nature and humans.

Criticism followed immediately. Conservationists pointed out that it favoured construction over conservation where the country has made significant efforts and investment in past decades. 

These provisions, according to petitioners, allowed the government the right to declare any area inside national parks, reserves, buffer zones and conservation areas as “highly sensitive areas” and allow the construction outside those areas.

Advocates Dilraj Khanal, Prakash Mani Sharma and Padam Bahadur Shrestha had filed the writ against the Office of the President of Nepal within days after the bill’s endorsement — on the grounds that the provisions were unconstitutional.

A constitutional bench, led by the Chief Justice, is set up specifically for matters related to the constitution. A law can be considered unconstitutional if it is in direct conflict with the Constitution of Nepal.

According to the summary of the verdict released by the court, the two added provisions were against Article 30 (3) of the Constitution of Nepal, which guarantees the right to clean environment and Article 51 (g8) which prioritises the conservation of biodiversity and environment.

The SC ruled that under Article 133 (1), the two new provisions were ab initio unconstitutional and thus cancelled.

The constitutional bench included Chief Justice Prakash Man Singh Raut and Justices Sapana Pradhan Malla, Kumar Regmi, Hari Prasad Phuyal and Manoj Kumar Sharma. Of which, four favoured the petition with Justice Malla offering a concurring opinion while Justice Phuyal dissented the verdict.

What is a concurring opinion?

A concurring opinion is a statement by a judge or justice who agrees with the verdict but their rationality is different.

Acknowledging that Article 30 (3) doesn’t allow for a complete restriction in development works, Justice Malla supported the writ on the grounds of ‘precautionary principle’ — that the existence of Provision 6 (1a) opens the possibilities of hurting the environment.

What is a precautionary principle?

Precautionary principle is a legal approach that states that if a law poses possible risk to the environment, then preventive action should be taken against it.

In her concurring opinion, Malla also discussed that viewing development and environment as polarising forces may lead one to perish, emphasising on not making them mutually exclusive.  

Justice Phuyal, on the other hand, argued that the coming generations will not only look at environmental conservation but also whether it has been optimally used for development and suggested cancelling the petition.

There are 12 national parks, six conservation areas, one hunting reserve, one wildlife reserve and 13 buffer zones extending from lowland Terai to high mountains in the country that fall under the broader category of protected areas. Altogether, they cover 23.4% land area of the country.

With the verdict, the apex court has once again sided for environmental preservation. Some will view the verdict as a hard stance considering the extent of land area covered by the protected areas. A debate between conservationists and pro-construction advocates is likely to unfold in the coming days.

Previously, the Nijgadh airport had sparked a polarised debate. Pro-construction advocates argued that the airport was crucial for the country’s growth and development. While many conservationists saw it as a crime against a lively forest and its biodiversity. An extended full bench of the Supreme Court directed the government to explore alternative sites for the construction of the proposed international airport, which is still up for various interpretations, as it does not explicitly halt the project.

Additionally, the court’s verdict has the possibility of sparking another discourse — whether the decision to annul laws reflects a growing mistrust in the country’s legislative body.

In his dissent, Justice Phuyal remarked that using the law of substantive ultra vires for a petition that cannot be clearly called unconstitutional does not reflect well on the Supreme Court.

“The Supreme Court should show judicial restraint and not directly consider a law made by the legislative body unconstitutional,” he wrote, adding, “By default, it is deemed the judicial body has faith in the legislative body’s ‘wisdom, integrity and patriotism’.” The Supreme Court’s cancellation of a law made by the Parliament suggests otherwise.

What is substantive ultra vires?

Substantive ultra vires is when a decision making body makes a decision outside its jurisdiction.

Justice Phuyal also pointed out that even if the added provisions come into effect, they  will have to abide by several procedures and criteria such as stakeholder consultation, feasibility and environmental impact assessments. There should be no assumption that the concerned authorities will deliberately ignore these standards and not consider their cost while advancing infrastructures, he explained.

In his conclusion, Phuyal disagreed with the rest of the bench in scrapping the provisions stating that such a verdict will restrict infrastructure development in areas of alternative to energy sources and other robust and costly infrastructures, tourism and cross-border transport.