नेपाल सरकार कानून, नीति, नियम तर्जुमा गर्न अब्बल देखिए पनि तिनको कार्यान्वयन गराउन भने असफल भएको देखिन्छ।

जिवेश झा

नेपालको संविधानले वातावरण संरक्षण र प्रवर्द्धन सम्बन्धी विशिष्ट मौलिक हकहरूको प्रत्याभूति गरेको छ। संवैधानिक व्यवस्थाले राज्यसंयन्त्र र व्यक्तिलाई समेत वातावरणको संरक्षण र संवर्द्धनमा भूमिका खेल्न प्रेरित गरेको भए पनि वेलाबखत काठमाडौं विश्वका प्रदूषित शहरमध्ये अब्बल स्थानमा आउँछ। यो भनेको संविधान र प्रचलित कानूनको उचित कार्यान्वयन नहुनु हो।

५ जूनमा विश्व वातावरण दिवस मनाइरहँदा वातावरण प्रदूषण बढेर काठमाडौं अन्तर्राष्ट्रिय स्तरमै कुख्यात हुनुका कारणबारे गम्भीर चिन्तन गर्नुपर्ने देखिन्छ।

संवैधानिक व्यवस्था

नेपालको संविधानको धारा ३० मा ‘प्रत्येक नागरिकलाई स्वच्छ र सफा वातावरणमा बस्ने पाउने हक हुनेछ’ भन्ने उल्लेख छ। धारा ३५ (४) मा ‘प्रत्येक नागरिकलाई स्वच्छ खानेपानी तथा सरसफाइमा पहुँचको हक हुनेछ’ भन्ने उल्लेख छ।

खाद्य सम्प्रभुताको हक धारा ३६ ले सिर्जना गरेको छ भने कृषि वा वातावरण संरक्षणमा सुधार ल्याउन भूमिसुधार सम्बन्धी कानून तर्जुमा गर्ने राज्यको अधिकारलाई धारा २५ ले सुनिश्चित गरेको देखिन्छ। गुणस्तरीय खाद्य पदार्थ र सेवाहरूमा उपभोक्ताको हकलाई धारा ४४ ले स्थापित गरेको छ।

उच्च तथा सर्वोच्च अदालतलाई वातावरणको संरक्षण र संवर्द्धनका लागि कुनै निर्देशन वा आदेश गर्न अधिकार दिइएको छ। वातावरण संरक्षण सम्बन्धी हकको उल्लंघन भएमा उचित कानूनी उपचारका लागि अदालत पुग्ने मार्ग पनि प्रशस्त गरेको पाइन्छ।

वातावरण सम्बन्धी यस्ता प्रावधानले अन्ततः नेपालको हरित गणतन्त्र (ग्रीन डेमेक्रेसी)लाई टेवा पुर्‍याउँछ।

‘पब्लिक ट्रस्ट डक्ट्रिन’ अनुसार प्राकृतिक सम्पदाको प्रभावकारी व्यवस्थापन गर्ने जिम्मेवारी राज्यको हुन्छ र प्राकृतिक सम्पदाको अनुचित प्रयोगबाट वातावरणमा पर्ने जोखिम न्यूनीकरण गर्न निरोधात्मक र पूर्व सावधानीको उपाय अपनाउन पनि राज्यको विशेष जिम्मेवारी हुन्छ।

‘प्यारेन्स प्याट्रिया’ सिद्धान्तले पनि वातावरण संरक्षण गर्ने दायित्व राज्यसत्ताको हुने भनेको छ। र, नेपालको संवैधानिक व्यवस्थाले पनि यी स्थापित सिद्धान्त आत्मसात् गरेको पाइन्छ।

कानूनी प्रावधान

राज्यका संयन्त्रहरूले बाध्यकारी संवैधानिक प्रावधान र अदालतको आदेश अवज्ञा गरेकै कारण आज नेपालको वातावरण प्रदूषित भइरहेको छ।

वातावरण संरक्षण ऐन, २०७६ ले वातावरण अध्ययन प्रतिवेदन विना विकास निर्माणसँग सम्बन्धित प्रस्ताव ‘पास’ हुने परिकल्पना गरेको छैन। उक्त ऐनको दफा ३ अनुसार प्रस्तावकले विकास निर्माण सम्बन्धमा वातावरणीय अध्ययन प्रतिवेदन सरकार समक्ष पेश गर्नुपर्ने परिकल्पना गरेको छ।

राष्ट्रिय प्राथमिकता प्राप्त विकास आयोजना, राष्ट्रिय गौरवका योजना, एकभन्दा बढी प्रदेशमा निर्माण कार्य गर्नुपर्ने आयोजना लगायत विषयसँग सम्बन्धित विकास निर्माणको हकमा वातावरण अध्ययन प्रतिवेदन वातावरण मन्त्रालयमा पेश गर्नुपर्ने भनिएको छ।

यस्तै, प्रदेश सरकारको अधिकार क्षेत्रभित्र पर्ने विषयसँग सम्बन्धित विकास निर्माण सम्बन्धी कार्य वा आयोजना सम्बन्धी प्रस्तावको हकमा सम्बन्धित प्रदेश कानूनले तोके बमोजिमको निकाय समक्ष प्रतिवेदन पेश गर्नुपर्ने व्यवस्था छ।

स्थानीय निकायको अधिकार क्षेत्रभित्र पर्ने विकास निर्माण सम्बन्धी कार्य वा आयोजना सम्बन्धी प्रस्तावको हकमा पनि संक्षिप्त वातावरणीय प्रतिवेदन वा प्रारम्भिक वातावरणीय परीक्षण प्रतिवेदन भए सम्बन्धित स्थानीय निकायमा पेश गर्नुपर्ने व्यवस्था छ।

दफा १० ले वातावरणीय प्रतिकूल प्रभाव न्यूनीकरणका लागि आयोजना निर्माणका क्रममा, आयोजना सम्पन्न भएपछि वा आयोजना कार्यान्वयनका क्रममा केकस्ता उपाय अवलम्बन गरिने हो भन्ने सम्बन्धमा समेत प्रस्तावकले वातावरणीय व्यवस्थापन योजनामा उल्लेख गर्नुपर्ने व्यवस्था गरेको छ।

वातावरणीय अध्ययन प्रतिवेदन स्वीकृत नगराई विकास निर्माण वा आयोजना कार्यान्वयन गराएको पाइएमा सो निर्माण कार्यमा सरकारले रोक लगाउन सक्ने व्यवस्था दफा १३ ले गरेको छ।

दफा १५ ले प्रदूषण नियन्त्रणका लागि सवारीसाधन, होटल लगायत अन्य स्थानका लागि मापदण्ड नेपाल सरकारले निर्धारण गर्न सक्ने प्रावधान तोकेको छ। दफा १८ ले वातावरण संरक्षण तथा प्रदूषण नियन्त्रण सम्बन्धी जाँच वा परीक्षण गर्न नेपाल सरकार वा प्रदेश सरकारलाई अधिकार प्रदान गरेको छ।

वातावरणीय अध्ययन प्रतिवेदनको पालना भए/नभएको सम्बन्धमा अनुगमन तथा निरीक्षण गर्ने जिम्मेवारी वातावरण निरीक्षकलाई हुने परिकल्पना दफा २१ ले गरेको छ। दफा ३५ ले वातावरणीय प्रभाव मूल्याङ्कन प्रतिवेदन स्वीकृत नगराई वा स्वीकृत प्रतिवेदन विपरीत हुने गरी कुनै प्रस्ताव कार्यान्वयन गरेमा ५० लाखसम्म जरिवाना हुने व्यवस्था गरेको छ। संक्षिप्त वातावरणीय अध्ययन प्रतिवेदन स्वीकृत नगराई वा स्वीकृत प्रतिवेदन विपरीत कार्य भएको पाइएमा पाँच लाख रुपैयाँसम्म जरिवाना हुने व्यवस्था छ।

यस्तै, प्रारम्भिक वातावरणीय प्रतिवेदन स्वीकृत नगराएमा वा सो विपरीत हुने किसिमले विकास निर्माण कार्य अगाडि बढाइएमा १० लाख रुपैयाँसम्म जरिवाना हुने व्यवस्था छ।

स्थानीय सरकार सञ्चालन ऐन, २०७४ को दफा ११ ले प्रत्येक स्थानीय तहलाई सरसफाइ सम्बन्धी मापदण्डको कार्यान्वयन र सो सम्बन्धमा नीतिनियम बनाउन र कार्यान्वयन गर्न/गराउन अधिकार प्रदान गरेको छ। आधारभूत स्वास्थ्य, सरसफाइ, स्वच्छ खानेपानी, सरसफाइ सचेतनाको अभिवृद्धि लगायत फोहरमैला सङ्कलन, पुनरुपयोग, प्रशोधन, विसर्जन र सोको सेवा शुल्क निर्धारण र नियमनका लागि पनि स्थानीय निकायलाई नै जिम्मेवारी प्रदान गरेको छ।

यही ऐनले जैविक विविधताको संरक्षण, वातावरण संरक्षण र स्थानीय स्तरमा वातावरणीय जोखिम न्यूनीकरणका लागि समेत आवश्यक कदम चाल्न स्थानीय निकायकाई नै जिम्मेवारी तोकेको छ।

सरसर्ती हेर्दा वातावरण सम्बन्धी नेपालको कानून प्रगतिशील नै देखिन्छ।

न्यायिक दृष्टिकोण

सर्वोच्च अदालतले विभिन्न समयमा विभिन्न मुद्दामा वातावरण संरक्षणका लागि सरकारलाई निर्देशन दिंदै आएको पाइन्छ। उदाहरणका लागि ‘अमरनाथ झा विरुद्ध नेपाल सरकार समेत’ (२०७३, निर्णय नं. १०७४३) लाई लिन सकिन्छ।

उक्त मुद्दामा आनन्दमोहन भट्टराई र सुष्मलता माथेमाको संयुक्त इजलासले विधिको शासन भएको मुलुकमा जनताले सुरक्षित वातावरणमा सम्मानपूर्वक बाँच्न पाउनुपर्ने नैसर्गिक र अहस्तान्तरणीय अधिकार हुने भनी व्याख्या गरेको छ।

‘वातावरण, जलवायु परिवर्तन र मानव अधिकार सम्बन्धी कानूनको बढ्दो दायरा र चासोलाई अदालतले अवश्य पनि गम्भीरतापूर्वक हेर्छ र हेरिनुपर्छ। स्वस्थ र सुरक्षित वातावरणमा बस्न पाउने जनताको हकको हर तरहबाट सम्मान गरिनुपर्छ’ भन्ने समेत बेहोरा उल्लेख गरी प्रस्तुत मुद्दामा नजीर प्रतिपादन भएको देखिन्छ।

‘अधिवक्ता नारायणप्रसाद देवकोटा विरुद्ध नेपाल सरकार समेत’ (२०६६, निर्णय नं. ८५२१)मा सर्वोच्च अदालतले योजनाकार एवं सरकारले योजना बनाउँदा आर्थिक विकास र औद्योगिक विकास तथा वातावरण संरक्षणलाई ‘ब्यालेन्स’ गर्न सक्नुपर्छ, आजको २१औं शताब्दीको विश्व स्वच्छ वातावरणको आवश्यकता र महत्त्वबारे सचेत हुनुपर्छ र वातावरण विनाश गरेर आर्थिक विकास स्वीकार्य हुन सक्दैन भन्ने नजीर स्थापना गरेको छ।

सर्वोच्च अदालतले उक्त मुद्दामा पब्लिक ट्रस्ट डक्ट्रिन अन्तर्गत नेपालको प्राकृतिक स्रोतमा नेपाल सरकार ‘ट्रस्टी’ सम्म मात्र हुने र नेपालको प्राकृतिक स्रोतको कुनै कानूनी आधार बेगर छाडा रूपले केवल नाम मात्रको राजस्व बुझाएको भरमा मात्र वातावरणमा प्रतिकूल प्रभाव पार्ने गरी कार्य गर्न दिन नहुने भनी सरकारका नाममा आदेश गरेको पाइन्छ।

उक्त मुद्दामा ‘वातावरण प्रदूषण वास्तवमा राज्यको खराब सामाजिक आर्थिक नीतिको कारण नै हुने हो। यदि यस पुनीत कार्यमा कार्यपालिकाले आफ्नो संवैधानिक कर्तव्य पालना गर्न ढिलाइ गर्छ वा पछि पर्छ भने नागरिकको मौलिक हकको अभिभावक अदालत चूप लागेर बस्नु हुँदैन। वातावरण जोगाउन सर्वोच्च अदालतले पाएको संवैधानिक आदेश पूरा र पालना गर्नुपर्ने’ सिद्धान्त प्रतिपादन गरेको देखिन्छ।

यसरी हेर्दा सर्वोच्च अदालतले मातहतका अदालतलाई वातावरणीय न्यायको प्रत्याभूति जनतालाई दिलाउन आवश्यक पहल गर्न/गराउनका लागि दिशानिर्देश गरेको देखिन्छ। नेपालको संवैधानिक व्यवस्था, प्रचलित कानून र अदालतका आदेशलाई समष्टिगत रूपमा हेर्दा वातावरण संरक्षणका लागि राज्यको नीतिनियम बलियो भए पनि कार्यान्वयन भने फितलो भएकोमा दुई मत छैन।

नेपाल गम्भीर हुनैपर्छ

नेपाल सरकार कानून, नीति, नियम तर्जुमा गर्न अब्बल देखिए पनि तिनको कार्यान्वयन गराउन भने असफल भएको देखिन्छ। संविधानको धारा ३० ले प्रत्येक नागरिकलाई स्वच्छ वातावरणको हक हुने भने पनि जनता प्रदूषित वातावरणमा सास फेर्न बाध्य छन्। यस्तो परिस्थिति उत्पन्न हुनु नै गलत हो। संविधान र प्रचलित कानूनको घोर उल्लंघन हो।

‘प्लास्टिकजन्य प्रदूषण निर्मूल पारौं, वातावरणमैत्री विकल्पको उपयोग गरौं’ भन्ने यस वर्षको विश्व वातावरण दिवसको नारातर्फ हामी कति गम्भीर छौं? सन् २०२३ मा प्लास्टिक प्रदूषण नियन्त्रणमा गम्भीर भई वातावरणीय कानूनको पूर्ण पालना गर्दै नेपालको वातावरण स्वच्छ बनाई सुन्दर र सफा मुलुक निर्माण गर्नुपर्छ। अन्यथा विश्व वातावरण दिवस मनाउनुको कुनै अर्थ छैन।

(लेखक संवैधानिक कानूनका अध्येता हुन्। हाल धनुषा जिल्ला अदालतमा शाखा अधिकृत पदमा कार्यरत छन्।)

सोमबार, २२ जेठ, २०८०, ०९:१४:०० मा प्रकाशित
https://www.himalkhabar.com/news/136196

Environmental protection is not only a constitutional goal but also a cultural heritage of Nepal

Our legal as well as cultural practices endeavor to regulate the conduct of mankind to preserve nature. We need to realize that all our sacred texts, laws, judgments, conventions and cultural practices show the proximity of mankind with nature.

Jivesh Jha - 5 June, 2023

@NepalLiveToday

• Read Time 5 min.

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Einstein has rightly said, “The environment is everything that isn’t me.” Environment is a polycentric and multifaceted problem affecting human life. We, the human beings, are nature’s best promise. But, we have turned into nature’s worst enemy by adopting all unsustainable development practices.

Undoubtedly, progress and pollution go together. There can be no end to progress in terms of industrialization, commercialization and globalization, and consequently, no escape from pollution. Still, we cannot turn a deaf ear to the environmental protection measures, as it’s our responsibility to ensure that our development practices meet the needs of the present without compromising the ability of future generations to meet their own needs.

The problem of environmental pollution is not a noble concept. It is as old as the emergence of people on the planet. Atharva Veda says that a pollution-free clean environment keeps all people, birds and animals living happily. In Veda, air, water, earth, sky, sun and trees are considered as deities.

In Rigveda, it’s been said that fresh air works as the panacea of all diseases. It directs one not to do any act that lessens or degrades the quality of oxygen. These concepts are recognized by laws, conventions and science of today. Take an example of the Rio Declaration of 1992. Principles 4 and 25 of Rio Declaration say that peace, development and environment are interdependent and indivisible.

Environment protection: A religious affair 

Environmental pollution was controlled rigidly in ancient times. It was not only an affair limited to an individual but the society as a whole accepted its duty to protect the environment, held by the Supreme Court of India in the case of TN Godaverman Thrimulpad v Union of India (2002).

In Amarnath Jha v Government of Nepal and Others, the Supreme Court of Nepal held that every person shall have an inherent right to live in a pollution-free environment to lead a dignified life [2073BS, Decision Number 10743].

Kautilya’s Arthashastra said it was the Dharma of each individual in society to protect nature. Similarly, the Yajna or sacrificial fire is apparently done to worship one or other deity and it ultimately purifies the air. The Samaveda highlights the importance of the Yajna as it helps in keeping away the mosquitoes and other insects. In Padma Purana and Karma Purana, it is mentioned that the trees, like Peepal, Bel, Neem etc are the abode of the God and they are not to be cut.

In Buddhism, the principle of Simplicity preaches for sustainability and the Principle of Ahimsa (Non-violence) preaches for the love for flora and fauna. King Ashoka wanted the non-violence to be the cultural heritage of the people. The Holy Koran declares that everything is created from water. Allah is considered to be the owner of the land and mankind is the trustee, whereas other living creatures are considered to be the beneficiaries.   

Nepal is the land of rites and rituals. The belief and cultural practices followed here show a deep concern for the protection and preservation of the environment.   

Socio-cultural legacy

Nepal is a multi-religious country where people belonging to every sect and faith live with co-existence. Our cultural legacy shows that we have never been cruel towards the environment. In fact, environmental protection is the cultural heritage of Nepal.

Every religious, cultural work we make, symbolizes environmental protection. See, Chhath festival. It’s the festival demanding cleanliness of waters. The devotees offer prayers to the Sun god by standing in the waters.

In Baisakh, the first month of the year in Nepal’s Bikram Sambat calendar, people in Terai-Madhesh celebrate Jur Shital festival which also promotes protection of trees and soil. The festival begins with elders sprinkling cool water on the heads of their relatives. The family members spread water on the plants and trees. In addition to this, there is a culture of playing the traditional game Kado-Mati (mud-soil) which is similar to mud bath. These cultural practices symbolize conservation of soil, trees, and water.

Our holy texts, laws and court judgments too show that the country has been serious towards environmentalism. We should develop a conscious approach and strike a balance between environmental protection and development, held by the Supreme Court of Nepal in the landmark case of Advocate Narayan Prasad Devkota v Government of Nepal and Others (2066 BS, Decision Number 8521). The apex court in this case held that bad socio-economic policy of the country is to be blamed for environmental degradation.

Constitutional goals

The Constitution of Nepal guarantees the right to clean environment as a fundamental right [Article 30].  The constitution declares various rights associated with the protection of the environment. Specific provisions associated with the environment are; the right to live in a clean environment, right to clean water and hygiene; right to food sovereignty; the right of state to carry out land reforms on agriculture and environment; and right of consumers to have quality foodstuffs and services.

The Constitution obliges the state to control and prevent any act or omission polluting or likely to pollute the environment. The Supreme Court and High Courts (under Article 133 and 144, respectively) can issue required direction, order or writs for this purpose.

The Constitution confers power to the Centre, provinces as well as local governments to adopt and enact policies for protecting the natural environment. The Directive Principles provided in part-IV of the constitution, calls upon the local/ provincial governments to adopt policies for the protection and promotion of the environment [Article 51].

The Environment Protection Act, 2019 has been enacted by the government to implement Article 30 of the Constitution. The Act aims to protect and improve the environment and to mitigate the pollution; to enforce the right to clean environment; to grant compensation to victims of environmental pollution; and to implement EIA, Environmental Study and Environment Examination reports.   The Act has set heavy fines for non-compliance of law and government policies. Section 35 of the Act envisages that there could be a fine of up to five million at the instance of non-compliance of EIA by a proponent. Similarly, defiance of Initial Environmental Examination would lead to a fine of up to one million.

Way forward

On June 5, World Environment Day (WED), with the theme of “Beat Plastic Pollution,” we should evaluate if we have succeeded—or even tried—to acknowledge our cultural heritages, messages of the holy texts and green laws that were passed to preserve and advance the environment.

As a rule of state, environmental pollution is a business of shame in the environment. Environmental pollution also symbolizes that our mechanisms are not operating as per the mandate of law. Eventually, pollution rapes rule of law. Kathmandu’s deteriorating air quality and Nepal’s failure to upkeep sustainable development practices would certainly question our capability to deal with environmental menaces.   

This year’s event, which is being hosted by Cote d’lvoire in collaboration with the Netherlands, comes with the added duty of leading a worldwide movement against plastic waste.

Our legal as well as cultural practices endeavor to regulate the conduct of mankind in such a manner which is conducive to nature and not adverse to nature.  It’s high time for us to realize that all our sacred texts, laws, judgments, conventions and cultural practices show the proximity of mankind with nature. It’s time to implement our green laws, to acknowledge the messages of our cultural practices and to revive our heritage of environmental protection.  

#WorldEnvironmentDay

https://www.nepallivetoday.com/2023/06/05/environmental-protection-is-not-only-a-constitutional-goal-but-also-a-cultural-heritage-of-nepal/

Act now to strengthen green democracy

Jivesh Jha

2023/05/265 mins read

Those green laws are not mere cosmetic arrangements but like lampposts showing vivid paths

The Environment Protection Act, 2019 is a comprehensive piece of legislation, enacted primarily to give effect to Article 30 of the Constitution that guarantees the citizens’ right to fresh air and clean environment.

Introduced to consolidate environment laws, this Act assures victims of pollution a reasonable amount of compensation from the polluter. The main legislative intentions are to ensure the right to a clean and green environment, maintain balance between environment and development, and protect communities from adverse environmental impacts and climate change. While celebrating World Environment Day (WED) on June 5 with the theme of “Beat Plastic Pollution,” we need to analyze whether we have succeeded or even tried enforcing the green laws meant for protecting the environment. This year’s WED has put on Cote d’ivoire, the host of the event in partnership with the Netherlands,  one more responsibility: To lead a global drive against plastic pollution. In 2018, India hosted the WED with the theme of “Beat Plastic Pollution.” It’s high time for India to realize that their fight against plastic pollution was not robust and their failure made the United Nations Environment Program carry the same slogan in 2023 as well.

The 1972 Stockholm Conference on Human Environment laid the foundation for the Environment Day celebration the world over, and has been held yearly on June 5 since 1973. The first WED was held in the USA with the theme of “Only one Earth” in 1974. The 1972 Stockholm Declaration, adopted at the end of WED events held at Stockholm from June 5 to 16 with the participation of 114 states, set the milestone by adopting 26 principles that emphasize pollution control and nature conservation. In 1987, the idea of rotating the center of environmental activities under different themes by selecting different host countries began.

A Green Charter

The Constitution of Nepal has stipulated the right to a clean environment as a fundamental right.  The charter has specific provisions associated with the environment like the right to live in a clean environment, right to clean water and hygiene; right to food sovereignty; the right of the state to effect land reforms on agriculture and environment; and the right of consumers to have quality foodstuffs and services.

The law obliges the state to control or prevent any act or omission polluting or likely to pollute the environment. The Supreme Court and High Courts (under Article 133 and 144, respectively) can issue required directives, orders or writs for this purpose.

The charter has conferred powers to all tiers of government in this regard. In reference to the charter, the government of Nepal, under schedule-V, entry 27 (Environment management, national parks, wildlife reserves, wetlands, national forest policies, carbon services) and provincial governments, under schedule-VI, entry 19 (Use of forests and waters and management of environment within the state) and both governments under schedule-VII, entries 12 (Ayurvedic medicine, veterinary, Amchi and other professions), 18 (Tourism, water supply and sanitation) & 23 (Utilization of forests, mountains, forest conservation areas and waters stretching in inter-state form) have to  work on issues of ecology, sanitation, clean and healthy water, wildlife conservation and afforestation.

The Directive Principles provided in part-IV of the charter call upon the local/provincial governments to adopt policies for the protection of the environment (Article 51). In partnership with the private sector, NGOs, communities, religious and cultural groups, the government can take  measures for environmental conservation.

 

A climate-friendly polity

The Environment Protection Act, 2019, meant to  implement Article 30 of the charter, aims to protect and improve the environment and to mitigate pollution; to enforce the right to a clean environment; to grant compensation to victims of pollution; and to implement EIA, Environmental Study and Environment Examination reports. It imposes on the state duties like setting standards to reduce and regulate emissions, hazardous waste, vehicular pollution, industrial pollution and pollution from  hotels, restaurants and equipment. Unlike the Act of 1997, the 2019 Act has outlined measures for dealing with climate change and controlling the emission of greenhouse gases (GHGs).

The center has exclusive jurisdiction over identification of areas emitting GHGs, determination of their national reference level, specification of open or green areas, identification of polluted areas, prevention of development activities therein and participation in carbon trading with foreign countries.

Moreover, the Act specifies various roles and functions for provincial governments. Provinces have to develop plans and policies for environmental protection at their levels. Section 3(2)(c) of the Act allows local governments to oversee  related environmental study reports, including EIA. Central and provincial governments can also set up laboratories to test or analyze samples of pollution under Section 18.

 

Gray area, green judgements

The Act has envisaged heavy fines for non-compliance of laws and government policies. Section 35 of the Act stipulates imposing a fine of up to five million rupees at the instance of non-compliance of EIA.

Also, defiance of Initial Environmental Examination would lead to a fine of up to one million rupees. A vast discretionary power is given to law enforcing officials. Minimum fine is not fixed leaving vast discretion, so the provision requires correction. The imposition of a minimal fine in violation of this law may help defeat the spirit of law itself. Also, the Act has no provision of reward for those making  exemplary contributions to environment conservation and protection.

The Local Government Operation Act, 2017 has given local units the power to enact laws, policies and other measures for the protection and promotion of green democracy. Section 11(2)(i) has given local bodies  the power to adopt and enact measures to curb pollution and to ensure clean water and fresh air. Over the years, the Supreme Court has issued judgments on environmental issues. Decades ago, in Surya Dhungel v Godavari Marbles Pvt Ltd (1995) case, it observed that environmental pollution and degradation would be a threat to living beings, so a healthy environment is a requisite for better human life and livelihood. In Pro Public v HMG Nepal (2006, Decision Number 758) the court  sought immediate steps for decreasing the adverse impact of pollution from brick kilns located around densely populated areas, schools, cultural and touristic zones.

Summing up, our green laws are like lampposts and not mere cosmetic arrangements. Nepal deserves to have a truly green democracy. As an ancient country of environment-friendly people, Nepal cannot survive with unsustainable development practices. Environmentalist Keith Hawkins has rightly said: Pollution control is done in a moral, not a technological world. The Himalayan republic has enacted a number of green laws for promoting green democracy. It’s high time to make a pledge for a robust fight against pollution in all forms.

The author is a Judicial Officer at Dhanusha District Court, Janakpur

jhajivesh@gmail.com

 https://theannapurnaexpress.com/news/act-now-to-strengthen-green-democracy-42935

#constitution#green democracy

 

Act now to strengthen green democracy

 deserves to have a truly green democracy. As an ancient country of environment-friendly people, Nepal cannot survive with unsustainable development practices. Environmentalist Keith Hawkins has rightly said: Pollution control is done in a moral, not a technological world. The Himalayan republic has enacted a number of green laws for promoting green democracy. It’s high time to make a pledge for a robust fight against pollution in all forms.

https://theannapurnaexpress.com/news/act-now-to-strengthen-green-democracy-42935

The Annapurna Express 

26 May 2023 (Date of Publication)

The author is a Judicial Officer at Dhanusha District Court, Janakpur

jhajivesh@gmail.com

 

Voice for the voiceless: How the loan sharks fleece the poor in Tarai and what may be done to stop it

 

The unruly money lending business by loan sharks is making the poor further poorer and the rich more richer. It is maximizing pain for the poor while ensuring maximum happiness for the minimum number of people.

Jivesh Jha - 8 April, 2023

The state’s sole business should be to host plans and policies for maximizing the happiness and minimizing the pain among the subjects, said Jeremy Bentham. Introducing the principle of utility in his popular work An Introduction to the Principles of Morals and Legislation published in 1789, he argued that the object of all legislations must be “the greatest happiness of the greatest number”.

Expounding the theory of utilitarianism, Bentham argued that the governmental actions should be to foster happiness or pleasure and oppose actions that cause unhappiness or harm. In this respect, he favored a political structure where the state’s politics and economics are designed for promoting prosperity among the people.

Under Nepal’s current legal regime, money lending is such a profitable business where the money lender makes a fortune by making the debtor agree on a sum which is much higher than the actual transaction taking place. In every village and town of Madhesh Province, you will find a few money lenders whose job is to lend money to the poor and needy persons. The Tarai courts are filled with loan cases. Surprisingly, the district courts have more than 75 percent of Tamasuk (loan deed) cases.

In fact, borrowing and lending is not an illegal tender but truth and fairness ought to be the two attributes that need to prevail in the entire money-lending business, which the Tamasuk trap does not ensure.

Tamasuk trap

In Madhesh, there is a practice of making loan deed (Tamasuk) of much higher principal amount than the real transaction undertaken between the parties. If a loan debtor pays the amount to the creditor on time, then in such a case, he would have to bear the actual principal amount along with its interest. But, if he fails to reimburse the loan amount on time, the creditor would invoke the jurisdiction of the court by producing the loan deed, which generally sees an agreement between the debtor and creditor where the debtor has agreed to pay the amount within a stipulated time frame and in case of otherwise, the creditor would have all rights to realize the money by all legal means. In fact, the actual transaction does not appear on deed. Rather, it’s a subject of mutual understanding.

Let me explain this situation with an example. If Mr A, who is a money lender, provides loan to Mr B with a sum of NPR 500,000 then Mr A will prepare a loan deed of NPR 1500,000 to which Mr B will agree, on record, to pay 1500,000 with interest at the rate of 10 percent annually within a stipulated period which is prescribed in the deed. This has become a reality in Terai-Madhesh. It’s also a medium to make black money into white.   

The high voltage drama starts in case of any default or breach of agreement or say in case of non-payment of loan on time. The money lenders find the Benches of courts as perfect forums for realizing their claims. As law recognizes documents, which have evidentiary value, the courts pass judgments in favor of money lenders who have produced the original copy of the loan deed.

In addition, the moneylenders seek stay order on the properties of the loan receiver (debtor).  So, the money lending business has become an easy means of earning out of proportion.

A judge recording statements in a money lending case (or cases relating to loan deeds) does not inquire about the source of income of the loan provider. In courts, there is an established practice of not asking a money provider to prove if there was any banking transaction done by him on the date on which he has provided the sum to the borrower. So, in loan cases, the source of income remains outside the purview of judicial determination.

Generally, the deed is made in backdate–before Bhadra 1, 2075 (17 August 2018), the date of implementation of National Civil Procedure Code 2074 BS (2018). After all, the Code of 2074 requires the loan deeds of 50,000 and more to be registered at local bodies. Tamasuk (loan deed) stands valid for ten years from the date of its making.

Practices in South Asia

In Pakistan, the provincial governments are empowered to enact laws on money lending. Take the example of Pakistan’s Punjab Money Lending Ordinance (1960). It provides arrangements for money lending in the jurisdiction of the province of Punjab, Pakistan. Under Section 2(b), capital is defined as the sum of money which a money lender invests in the business of money lending. Section 3 provides mandates for license. It provides that money lending shall be carried in accordance with the terms and conditions prescribed under the license. The District Administration Office is empowered to issue licenses. Section 5 provides that the license would be canceled when the court finds a money lender carrying fraudulent transactions. If a money lender is found showing the loan amount of the sum advanced to be in excess of that actually advanced plus legitimate expenses incurred, then in such a case, their license would be canceled. Section 13 obliges money lenders to maintain accounts.

Like in Pakistan, the state governments in India have jurisdiction to adopt laws on the subject of money lending. Each state has their money lending related law in India. But, the laws are almost similar in nature. Take the example of Maharashtra. The Maharashtra Money-lending (Regulation) Act (2014) provides that no money lenders shall carry on business of money lending except in the area for which he has been granted a license and except in accordance with the terms and conditions of such license. Section 10 provisions that every year the license needs to be renewed. Section 18(2) provides that the Registrar shall issue an order stating the instrument or conveyance as invalid and may order for restoration of possession of property to the debtor who has executed the instrument or conveyance as security for loan advanced by money lender. Simply put, if a loan receiver has transferred his plot of land in the name of creditor against the loan, then the same transfer could be annulled at the order of the Registrar. Section 23 provides that the actual amount of loan and interest under transaction shall only be valid. Section 25 provides that each of the lenders would provide debtors a legible statement as to the amount of loan advanced during the year; total amount of repayments received and the principal amount and interest due at the end of year. Section 39 envisages that whoever carries on business of money-lending without obtaining a valid license, shall on conviction, be punished with imprisonment of either description for a term which may extend to five years or with a fine which may extend to 50,000 or with both. Bangladesh’s Money Lenders Act (1993) has similar provisions.  

Protect the poor     

Article 56(6) of the Constitution of Nepal obliges the federal, provincial and local governments to protect the fundamental rights and to promote egalitarian society. Right to property has been guaranteed as a matter of fundamental rights under Article 25. The unruly money lending business has become a bane in the country. It’s making the poor further poorer and the rich more richer, which goes against egalitarianism. Ultimately, this whole jurisprudence of Tamasuk is maximizing pain and minimizing pleasure; ensuring maximum happiness for the minimum number of people. And, it goes against Bentham’s theory of utilitarianism. This Tamasuk business neither secures poor persons’ right to property, nor does it promote egalitarianism. It’s high time for the government to emerge as a true custodian of fundamental rights and protect the rights and interest of the subjects, as they have reached a social contract with the electorates to protect their rights and concerns.

Given the misuse of law and lenders’ attitude of earning out of proportion through Tamasuk, the government could adopt a law, requiring the courts to seek the source of income of the loan provider. Along with this, there could be a legal arrangement demanding proof of banking transactions done between loan debtor and creditor on the day of making of Tamasuk. Like in Pakistan, the District Administration Offices could issue licenses to money lenders. Money lending should not be done without a license.

In case of Tarai-Madhesh, courts could adopt a practice of mandatorily referring the loan cases, where both parties are present before the court, into mediation for amicable settlement. Its high time money lending business is reformed and strictly dealt with. Above all this, government and private banks should introduce easy schemes of providing loans to the needy ones at the time of their need.  

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

#Tamasuk #Loan #LawOnLoan #Nepal

 jhajivesh@gmail.com

https://www.nepallivetoday.com/2023/04/08/voice-for-the-voiceless-how-the-loan-sharks-fleece-the-poor-in-tarai-and-what-may-be-done-to-stop-it/

Nepal’s Tort law lacking in its implementation

Jivesh Jha (The Annapurna Express)

2023/04/17

5 mins read

The tort law is more in the nature of compensatory jurisprudence, as it seeks to guarantee compensation to the aggrieved party from the wrongdoer

Tort is a civil wrong that is committed by one toward another for which unliquidated damages could be claimed. As it’s a private wrong, the injured party herself/himself has to file a suit for compensation. If at any stage, the injured party wishes, s/he may agree to a compromise with the tortfeasor (defendant), and withdraw the suit filed by him.

In case of crime, even though the immediate victim is an individual, the criminal wrong is considered to be a public wrong (wrong against the public at large) or wrong against the state. In case of tort, the ends of justice are met by awarding compensation to the injured party. The law of tort is important as it seeks to ensure the right of the persons.

However, in Nepal, there is no stringent applicability of the tort law. We often hear people raising their concerns over medical negligence, adulteration of food, environmental pollution or use of loudspeakers that causes nuisance. But people remain reluctant to move the court to resolve these issues by penalizing the outlier.  People just turn a blind eye to these cases.

 

The question is why is there non-applicability of tort law in Nepal?

A costlier and time-consuming litigation process often prevents the aggrieved party from seeking compensation under tort law. The lack of pro bono lawyers in this law field could be another factor. More importantly, Nepalis have become habitual of claiming rights without fulfilling their duties. This is the major factor behind violation of people’s rights.

However, the state has a duty to create a conducive atmosphere to protect the rights of persons and to implement the tort law.

Tort under Civil Code

The National Civil Code, 2017 hosts provisions regarding tort law. Section 672(1) provides that no person shall do or cause to do any act or omission, negligently or otherwise, to cause harm to other’s body, property or legally protected interest. This way, tort results from the breach of such duties which are not undertaken by the parties themselves but which are imposed by law.

Winfield says the tortious liability arises from the breach of a duty primarily fixed by the law. In the words of Salmond, “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”

 

The Code, 2017 prescribes that guardians would have to bear liability if their child/ward of below 14 or person with insanity commits civil wrong and causes harm to others. Section 675 provides that the employer would be liable for the act or omission of his employees. This arrangement is in recognition of the common law doctrine of “Respondeat Superior” which means master is responsible for the act of his servant.

Section 676 provides that the owner of pet animals would be automatically liable for any injury or property damage the pet causes. The law places liability on the house owner for the loss or damage caused to any person as a result of the collapse of the house. These arrangements recognize the concept of vicarious liability which provides that the state, owner or employer would be held liable in respect of loss or damage either to property or to a person.

The owner of the concerned property would be liable for the loss or damage caused to any person as a result of an explosion owing to a failure to adopt safety measures, emission of excessive gas, tree lying down, or discharge of any toxic substances (Section 678). Similarly, the owner of a dwelling house would have to bear liability for the loss or damage caused to anyone as a result of any kind of solid waste or goods thrown from his house (Section 679). 

These arrangements are exceptions of vicarious liability and in recognition of the position laid down by the House of Lords in Rylands v Fletcher (1868). In this case, it was held that the employer could not escape the liability for the damage caused to the plaintiff, when the escape of water from a reservoir which was constructed by the defendant from an independent contractor flooded the plaintiff’s coal mine.

Section 680 prescribes that a person who commits trespass to another’s property shall be liable for any loss or damage resulting from his act of trespassing. Section 681 provides that each of such persons would, except as otherwise provided, be jointly and severally liable for any damage caused by that act, in proportion to the culpability of the tort committed by each person.

Jurisprudence of tort 

Section 682 explicitly and authoritatively envisages that the person who commits the tort shall have to pay compensation to the aggrieved party. The provision intends to ensure real and proximate damages to the aggrieved. This way, it recognizes the doctrine of Remoteness of Damages which suggests that test of reasonable foresight and test of directness should be applied at the time of inflicting liability. Still, the aggrieved party would have to file a lawsuit within six months from the date on which such an act of civil wrong was done against him [Section 684]. 

In Rigby v Hewit (1850) and Greenland v Chaplin (1850), the Courts of Exchequer, England, held that liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer. In Re Polemis and Furness, Withy and Co Ltd (1921) case, the Court of Appeal, an English court, held that a person is liable for all the direct consequences of his wrongful act.

In general, the jurisprudence of tort rests on the foundation that “things speak for itself”, which is the basic essence of the doctrine of Res Ipsa Loqitor and where there is right, there is remedy, which is the basic spirit of the doctrine of

 ubi jus ibi remedium.

Implementation matters

In the words of jurist Hohfeld, rights come with duties. Salmond was of the view that one cannot claim his rights unless he fulfills his duties. Our actions should not cause harm, injury or annoyance to the other. For instance, if Mr A throws garbage on the street that causes nuisance to Mr B, then in such a case, Mr A would be liable to compensate Mr B for the loss caused to him. After all, “We, the people of Nepal” deserve to have a naturally clean environment and a rule of law state, for the Constitution and prevailing laws aim to achieve a welfare state.

The tort law aims to protect the rights of people. It’s more in the nature of compensatory jurisprudence, as it seeks to guarantee compensation to the aggrieved party from the wrongdoer. In a rule of law state, the state agencies and people should not turn a deaf ear to the tort law.

#Tort #Law_of_Tort  

jhajivesh@gmail.com

https://theannapurnaexpress.com/news/nepals-tort-law-lacking-in-its-implementation-41011

Certificate of Appreciation from Amity University, Gwalior, India

 

 

I was invited as a Guest Speaker in this international conference organized by Amity University 

(2-3 March, 2023)

 

On Judicial Appointments in South Asia

It was published in Tehelka Magazine, an eminent magazine in India. 

While Delivering Special Address at an International Conference organized by Amity University, Gwalior, India

 I had made deliberations on Cyber Security and right to privacy laws in India and Nepal 

As a Special Guest ! I am thankful to Prof Dr Vijay Srivastava, organizing Secretary of the Conference, for providing me opportunity to share my views ...

 

Wonder how democratic values were consolidated in ancient times? Look back to Vedas and scriptures

Dr Upendra Kumar Tripathi and Dr Anoop Kumar's "Vedic Tradition of Law & Legal System" provides a concise introduction to the concept of Veda, Dharma, perspectives of Bhagvad Geeta and other scriptures on constitutional and legal arrangements.

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Jivesh Jha - 25 February, 2023

 @NepalLiveToday

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The Vedas are the most authentic repository of knowledge to support mankind in every pursuit of life. The Vedic scriptures say that every individual possesses a soul. Therefore, every individual is entitled to respect, dignity, equality and fair treatment.

The concepts of equality, fraternity, dignity or positive discrimination were prevalent in the society during the early Vedic period. The references of it were found in scriptures, like Vedas, Upnishad, Yajnavalkya’s Smiritis, Manusmiriti, Mahabharata, Ramayana, Kautilya’s Arthasashtra and among others. Dharma was the essence of rule of law and pivotal on which universally accepted rights/facts revolved. The obedience of law and order was considered to be the sacred (fundamental) duty of every person. It’s high time for the academia and governments to make robust efforts to revive and uphold rich social values of the ancient times.

In this context, Dr Upendra Kumar Tripathi, Professor of Vedic Science at Banaras Hindu University (BHU) and Dr Anoop Kumar, Assistant Professor of Law at BHU, have brought an edited book, Vedic Tradition of Law & Legal System which provides a concise introduction to the concept of Veda, Dharma, perspectives of Bhagvad Geeta and other scriptures, constitutional and legal arrangements relating to Vedic system.

Key issues and principles

The book brings together a collection of 35 chapters which provide a critical investigation into Veda’s key issues, principles, concepts, comparative frameworks, judicial decisions, recent trends in judicial review, global precedents and world’s constitutional as well as judicial position in protecting and promoting the Vedic views and tradition.

The book delves deep into the concept, doctrine and practices enshrined under Smiritis, Vedas and Hindu scriptures. It tries to find answers to why modern democracies are failing to uphold the social values of the past. The conceptual underpinnings are refreshing because they come through verses of Holy Scriptures which are meaningful in real life and they show vivid paths to foster a sustainable democracy.

A 35-page long “Introduction” to the book by the authors is like an icing on the cake. Dr Tripathi and Dr Kumar, whose recurring theme has been the search of Vedic tradition, provisions and practices of Holy Scriptures and recent legal and judicial trends in the world, provide an incisive and in-depth analysis of the authoritative texts, laws and Sanskrit verses.

In introduction, Professor Dr Upendra Kumar Tripathi and Dr Anoop Kumar argue that Vedas, as the source of law, provide foundation for the evolution of law. “Veda, Samhita, Brahmana and Upnisad primarily constitute the foundation of Vedic tradition of law. This knowledge database is utmost significant for the welfare of individuals in present day social order and state structure,” they write.

The laws for regulating Hindu society from time to time are codified in Smiritis. The Smiritis have laid down definite rules and laws to guide the individuals and communities in their daily conduct and to regulate their manner and custom.

The Manu Smiriti remains one of the finest embodiments of classical law and of fundamental importance in any study of law in Vedic tradition.  The book is divided into five parts with as many as 35 chapters written by different distinguished scholars. The first part of the book contains 15 chapters that relate to “Dimensions of Vedic Jurisprudence and Tradition.”

Views on legal system

In the first chapter, Justice BN Srikrishna, former judge of the Supreme Court of India, writes: “The most important and the earliest of the metrical Smiritis is the Manava Dharma Shastra or Code of Manu. It is closely connected with the Mahabharata, of which three volumes alone (III, XII, XVI) contain as many as 260 of its 2684 Shlokas.”

Justice Srikrishna further writes that Vedanta teaches us that all humans are one family. The Universal Declaration of Human Rights (UDHR), 1948 states that all human beings are born free and equal in dignity and rights. This fundamental human value is seen as Vednatic thought. Geeta, in Chapter-6, Verse 29, says all humans are equal, argues he.

He further argues that justice is identical with divine reason, with the divine nature and essence, which, being eternal and immutable, excludes all ideas of arbitrariness.

 Malbika Majumdar, a former Professor of Delhi University, unravels facets of Mimamsa jurisprudence. According to her, the idea of law continues to grow and the process never seems to be ending.

RP Rai and Kiran Rai in their chapter, entitled, “Influence of the Vedas on Hindu law and the Role of Uttar-Mimamsa” argue that the Vedas are the oldest religious texts still in use and the Hindu law is considered to be among the world’s oldest known system of jurisprudence.”

Kavitha Balakrishnan in her chapter “Legal Trajectories of Ancient India: Reflections in Smiritis” writes that each country develops legal system according to culture developed through ages. She highlights that sacred law (Dharma), evidence (Vyavahara), history (Charitra) and edicts of kings (Rajasasana) are the four legs of law.

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In addition to this, there is a pressing need of re-designing the legal education programs to promote Indic values, write Gigimon VS and Adithya Anil Variath in their chapter.  Also, Harekrishna Satapathy’s chapter examines Vedic views of legal education.

Sapindar Kaur in “Diversity in Concept of Dharma and its Relationship with Indian and International Legal Thought” argues that diversity in Hinduism is there because it consists of sects, sub-sects, communities with varied traditions and inclusive of Buddhism, Jainism and Sikhism.

Kartikey Singh Somvanshi in “Vedic Knowledge: A Symphony of Modern Era” discusses Vedic traditional texts and their utility in present legal structure. Durgesh Shukla has discussed laws and politico-economic principles given by Chanakya.

In “Tracing the Development of Dharma from Ancient to Modern Society,” Mozamil Ahmad writes: “Over time, Dharma has operated as a unifying force for the diverse evolving customs. The Sashtras like the religion of Hinduism are not Monolithic, the continuous interpretations and re-interpretations offer society to rediscover itself again and again. The continuous comparison of the sources of Dharma with the modern legal tradition merges to contribute towards a better society.”

In the 12th chapter, Paragati Bajpai shares instances which suggest that Dharma is the source of law. “Dharma and law are interwoven even in present time and cannot be separated.” In the succeeding chapter, Paranjul Dalela and Shirish Parashar have also discussed Dharma as source of law from a different perspective.

Sruti Badu discusses the juristic personality of idols in India in 14th chapter. In the 15th chapter, Mitsu Parikh and Ankitashri Tripathi discuss the verses of Bhagvad Geeta as the source of law. “Prosperity has bred greed and corruption. Reminding oneself of our magnificent past and enriching scriptures and knowledge of their essence can bring back the balance we need to develop into thoughtful beings and evolve,” they write.

Live and let live  

The second part of the book hosts eight chapters that delve into the study of constitutional provisions and environmental concerns from the lens of Vedic tradition. In the 16th chapter, Amar Pal Singh and Shivani Chauhan discuss the fundamental duties. “The whole idea is determinable on the basis of Dharma which involves both moral and legal duties to be discharged without any exception,” they write. They cite a Sanskrit verse which says there are only two conclusions of all 18 Puranas and the commentaries of Vyas: Welfare of others is virtuous and teasing others is sin.

“We should nurture and raise a generation that would sacrifice one (person) for the sake of the family; give up a family for the sake of a town; sacrifice a town for the benefit of the nation; and also leave the earth for the benefit of the soul.”

Professor VS Mishra, who teaches Law at Banaras Hindu University, discusses constitutionalism and rule of law. The judiciary has created a congenial environment for sustaining democracy and the rule of law through transformative constitutionalism, he argues.

In the 18th chapter, the book devotes a good deal of sections to explaining the land administration. In the 19th chapter, Pavithra R shades light on Mimamsa rules. The chapter argues that Mimamsa rules could help to resolve conflicts, as they serve as tools to address the problems of contemporary days.

Pragyan Deep Agarwal and Sunny Khatri present a description on Hindu temples and argue that temples are the backbone of Vedic culture.

Nitish Rai Parwani in his chapter discusses the state and nation. He argues that a nation is more stable than a state, for a nation can survive even without sovereignty.

Saurav De explores Vedic literature to explain different dimensions of environmental protection. He explains how Vedas embody verses in protection of the natural environment. Nistha Tiwari too explains environmentalism through the lens of Vedic tradition.      

The third part of the book embraces four chapters which give a perspective on criminal law under Vedic tradition. In the 24th chapter, Akhilendra Kumar Pandey, a professor of law at BHU, discusses the laws given by Manu, Yajnavalkya and other scholars. He argues that punishment should ideally be uniform. He believes that the doctrine of guilty mind, deterrence as one of the justifications, uniformity and individualization of punishment were very much present in old Indian traditions.

Rajasi Guharoy, Assistant Professor of Law at Adamas University, Kolkata, discusses the instances that suggest that the basic principles of law remain the same as it was during the Vedic period. Indrajeet Dey, an advocate at Calcutta High Court, discusses about Vedic tradition and sentencing policy. In modern world, where there is a debate about introduction of castration as form of punishment for offenders of sexual violence, the Mahabharata and Bhagwat Purana have dealt with such issues already, he argues.

“There is a need for spiritual education amongst the persons running the system as well as the convicts who are seeking to correct themselves,” says Professor Guharoy.

The 27th chapter of the book written by Vishnu Pandey discusses the concept and forms of punishment in Vedic tradition. He discusses the theories laid down under the writings of Manu, Yajnavalkya, Kautilya, Katyayana, among others. 

 The fourth part of the book includes three chapters on family laws in Vedic tradition. The Vedic views of inheritance, marriage, gifts to married daughters, Mitakshara and Dayabhag schools, rights of women and children under Vedic as well as modern legal system have been discussed in this part. In this section, Brajkisore Swain, Saugata Talukdar and Aradhna Nair have contributed their insightful chapters.

Under the fifth part, the book presents views on commercial law from the perspective of Vedic tradition. Mayank Paratap in his chapter argues that some of the living examples of basic principles of contract law can be seen in Hindu scriptures. Uniformly, all Smiritis lay down that a person is competent to contract only after he attains the age of 16 years. Kautilya in Arthasashtra states that forced or fraudulent transactions shall be null and void. Contract without free consent is also considered invalid by the Smiritis. “Only a significant difference between modern law and Dharmasastra is that if the former is considered with only conduct of the human beings, the latter dealt with both conduct and character.”

The concluding part of the book carries five chapters which provide lucid views on taxing system, patenting and intellectual property rights from the Vedic perspective.

The editors Dr Kumar and Dr Tripathi in Introduction write: “The book presents perceptions of different authors on the various facets of Vedic tradition of law and legal system. A common concern visible in this book is that the legal tradition of Bharatvarsh should be explored in comparison with contemporary legal regimes.”

Reason to read

If there is one reason to read Dr Tripathi and Dr Kumar’s timely exposition it is their endeavors to give conceptual clarities on the Vedic science and its impact on modern legislations, and its role in upholding fundamental freedoms, rule of law and constitutionalism since ages. They do not only discuss Vedic philosophy from an Indian perspective but also devote a good deal of section for international precedents. Their book should be a mandatory reading for lawyers, judicial officers, adjudicators, journalists covering Vedic and legal affairs, teachers and students of various streams, including that of social sciences and law.

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

https://www.nepallivetoday.com/2023/02/25/wonder-how-democratic-values-were-consolidated-in-ancient-times-look-back-to-vedas-and-scriptures/

 jhajivesh@gmail.com