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JUDICIAL activism in environmental protection goes beyond the mere enforcement of the statutory provision of the environment laws and embraces restitutionary as well as injunctive relief. Bangladesh, like many other developing countries, is facing multitude of environmental problems such as air pollution, hazardous wastes, land degradation, water pollution, etc. But the current regulatory arrangements and institutional frameworks for enforcement are both inadequate and ill-equipped to resolve the burgeoning environmental problems in Bangladesh.

Public interest environmental litigation has been developed in Bangladesh through judicial activism to establish collective rights of people. Through the process, the High Court has applied its its jurisdiction under Article 102 of the constitution to safeguard citizens’ environmental rights. In addition to that, the judicial redress mostly relies on the human rights arguments based on constitutional provisions related to the right to life (Article 31 and 32), the writ jurisdiction of the courts (Article 44 and 102) and the statutory obligations of public agencies.

In Bangladesh, public interest environmental litigation has been initiated by non-governmental organisations rather than individuals. The Bangladesh Environmental Lawyers’ Association has played a pioneer role in introducing public interest litigation in general and has filed numerous writs for the protection of environment, in other words public interest environmental litigation, in particular. The Human Rights and Peace for Bangladesh is another non-governmental organisation which has initiated a substantial number of public interest litigation writ petitions for the protection of environment.

The judiciary allowed public interest environmental litigation for the first time in the case of Dr Mohiuddin Farooque versusÌýBangladesh and others. In the case, the judiciary pavedÌýthe wayÌýfor public interest lawsuits by broadly defining the phrases ‘person aggrieved’ to include anybody who, while not directly impacted, has a sufficient interest in the subject matter. The petition challenged the constitutionality of Tangail’s experimental flood action plan scheme. After the court decision, the government revised the project, abandoning the original proposal and implementing an environmental impact assessment plan in consultation with local residents.

There was no constitutional provision for environmental protection before the 15th amendment, which included Article 18A. Thus, Dr Mohiuddin Farooque v Bangladesh (1996) was the first legal acknowledgement of environmental protection. During the 1996 general election campaign, a petition was filed to challenge the nuisance and sound population. The court ordered the attorney general to take the necessary action to avoid damage to public and private property during election campaigns.

In another case of Dr Mohiuddin Farooque versus Bangladesh and others, the right to environment was expressly recognised as being included in the right to life. Dr Farooque filed this petition as a potential consumer seeking redress for the failure of the authorities to take effective and efficacious measures in dealing with the consignment of 125 tonnes of skimmed milk powder imported by Bangladesh and found by the Atomic Energy Commission to contain a high concentration of radioactivity. The judgement addressed several critical concerns for the first time. While the authorities were directed to adopt necessary measures to ensure a proper testing of milk, the scope of constitutional right to life was given a broader meaning. The right to the environment was clearly recognised as part of the right to life. The court held that ‘Right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of the workers, their means of livelihood, enjoyment of pollution-free water and air, bare necessaries of life, facilities for education, development of children, maternity benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent with human dignity.’

The judicial activism through public interest litigation has also helped to protect rivers from being encroached on. In the case of Bangladesh Environmental Lawyers’ Association versus Bangladesh and others (2000), judicial intervention was sought to protect the only river flowing through Dhaka from being illegally encroached on.

In some public interest environmental litigation cases, the judiciary invoked the international environmental law to protect environment and directed the government to adopt legislative and administrative measures under environment treaties which Bangladesh ratified. In the case of the Bangladesh Environmental Lawyers’ Association versus Bangladesh and others (2003), the association filed a petition to challenge the operation of ship-breaking yards in Chattogram. It claimed that the yards were operating without environmental approvals, causing major environmental deterioration and posing serious health hazards to workers and local populations. The court observed that Bangladesh, being a signatory to the Basel Convention, is obliged to follow the norms laid down in that convention.

In another writ petition by the Human Rights and Peace for Bangladesh versus the government of Bangladesh (2009), the High Court ordered relevant authorities to stop the pollution of the water of the River Buriganga with effective measures and to take steps to seal all the sewerage lines linked with the river.

It is clear that the activism of the higher judiciary has played a pivotal role in the protection of environment and developing environmental jurisprudence. Despite the enormous success of public interest environmental litigation, the judiciary is yet to recognise the principles such as the polluters-pay principle, precautionary principle, sustainable development, absolute liability which have been recognised by the judiciary of other countries.

Unfortunately, in the judicial system of Bangladesh, there are a very few instances of environmental matters where suo moto intervention has been applied. In most public interest environmental litigation, the principal reliefs are interim orders which are declaratory rather than compensatory. Therefore, the authorities concerned should incorporate the principles to protect the environment more effectively.

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Kanak Kanti Karmakar is a lecturer in law and justice in the North East University Bangladesh, Sylhet; and Pritom Kanti Karmakar is a student of law in Stamford University Bangladesh, Dhaka.