Amarnath Jha v. Office of the Prime Minister and Council of Ministers

The 2017 monsoon in Nepal brought incessant rainfall within a very compressed calendar, resulting in flash floods and landslides across a vast swathe of Terai’s plains. An Initial Rapid Assessment (IRA) by the Ministry of Home Affairs showed that the disaster claimed 141 lives, injured 117 persons, displaced over 460,900 people, and left 24 missing. Damage to houses, infrastructure, and productive resources was severe with 65,000 houses destroyed and over 120,100 partially damaged. Amarnath Jha, the plaintiff in this case, was from Saptari, the region that was perhaps worst affected by the floods. Days of unrelenting rainfall there led rivers to burst across their banks, inundating houses and blocking critical medical care for inhabitants. Jha, in his initial appeal argued that flooding and the subsequent inefficiency by the Government of Nepal to coordinate humanitarian aid and build appropriate embankments resulted in inhabitants having to drink unsafe rainwater and starve. The Court, taking note of this, issued an interim order which held that Article 16 of the Constitution which guarantees the right to live with dignity, Article 35 which ensures the right to basic health and emergency health services, and Article 36 as well as 37 which guarantees the right to food and shelter had been violated as a result of the government’s failure to initiate flood mapping and mitigation measures. Moreover, the subsequent full judgement particularly took note of how climate change will impact rainfall, snowmelt, and Glacial Lake Outburst Floods (GLOCFs) in the Himalayas leading to increased risk of flooding in urban and rural areas. As such, the judgement recalled the Government’s obligation under the United Nations Framework Convention on Climate Change of 1992 to address the impacts of climate change on water resources and agriculture, to create a comprehensive and integrated plan for the protection and rehabilitation of areas particularly affected by drought and floods. It also referenced Article 8 of the Paris Agreement, to which Nepal is party, which underscores the importance of emergency preparedness, early warning systems, and comprehensive risk assessment. In keeping with this, it also urged the Government to comply with the Sendai Framework for Disaster Risk Reduction and the Yokohama Guidelines for Natural Disaster Prevention that outlines the sovereign responsibility of each state to protect its citizens from natural disasters. Further, in recognizing this to be the first case of its kind and cognizant of how these disputes will likely become more common in the future, the judgement held that pursuant to Section 26 and 28 of the Environmental Protection Act, 2019 all three levels of the federal government are to be held responsible for developing policies, strategies, and action plans to reduce the adverse effects and risks caused by climate change. Finally, it emphasized the increasing interconnectedness between environment, climate change and human rights law and how the Court must exercise its authority to protect public interest and environmental justice. In the final judgment the bench issued an order of mandamus to ensure not just immediate relief packages but also long term rehabilitation to the victims; and, to reduce the damage caused by flooding of the Khado River by constructing dams and embankments in places where there is risk of flood.