1. Introduction
The case Adv. Bigyan vs. Government of Nepal revolves around a public interest litigation challenging the government’s amendment to policies governing infrastructure in protected areas. The amendment allowed large-scale hydropower projects, reducing environmental safeguards. The case was taken to the Full Bench of the Supreme Court to address issues of sustainable development and environmental protection.
For a complete analysis, download the full document at the top of the page.
2. Case Background
The petition was filed by advocates Bigyan Singh Bista and Basanta Joshi in response to an amendment made to the Working Policy on Construction and Operation of Physical Infrastructure inside Protected Areas. The amendment permitted larger hydropower projects within these areas, and reduced the required water discharge for projects over 100MW capacity, which the petitioners argued would negatively impact biodiversity.
3. Petitioners’ Claims
The primary claims included:
- Nullifying the Amendment:
The petitioners argued that allowing major projects in protected areas posed risks to the environment. - Interim Order:
A request to temporarily halt the amendment’s implementation until the case was decided. The Court granted this stay order on June 20, 2022.
4. Legal Issues
The case raised three critical questions:
- Can protected areas be used for infrastructure projects?
- Is the Working Policy a legislative document subject to judicial review?
- What is the role of sustainable development in the relationship between environment and development?
5. Supreme Court’s Analysis and Ruling
The Court addressed each issue as follows:
- Protected Areas for Infrastructure:
The Court found no legal prohibition against constructing infrastructure in protected areas under existing laws, including the National Parks and Wildlife Conservation Act and the Industrial Enterprises Act, which allow land use for designated “national priority” projects. - Policy vs. Legislation:
The Court ruled that the Working Policy was a policy document without a legal source, thus not subject to judicial review. Only primary or secondary legislation contradictory to the Constitution can be challenged in court. - Sustainable Development:
Emphasizing sustainable development, the Court underscored the importance of balancing environmental conservation with national development. It acknowledged the role of hydropower in green energy, promoting both environmental and economic growth.
6. Directive Orders Issued
The Supreme Court issued four directive orders, instructing the concerned authorities to create procedural guidelines or directives for implementing the National Parks and Wildlife Conservation Act. These directives were aimed at ensuring that infrastructure projects within protected areas adhere to principles of sustainable development.
7. Conclusion
The decision in Adv. Bigyan vs. Government of Nepal underscores the delicate balance between environmental conservation and infrastructure development, advocating for sustainable approaches. By affirming the need for both ecological protection and economic growth, the Court set a precedent for future cases involving protected areas and infrastructure projects.
For more details on the decision and its implications, download the full document from the link provided above.
