A LEGAL DISCUSSION ON RIVER POLLUTION IN BANGLADESH

JESMUL HASAN: Environmental pollution is as old as the civilization itself. It has become a major concern in the last few decades. It is the byproduct of the development of civilization and in fact a price for the progress. It is more prone in case of Bangladesh. River pollution of Bangladesh is mainly caused by the industrial waste, polythene, plastic, illegal occupational and fossil fuel. The water resource of Bangladesh becomes a major health hazard due to arsenic contamination, inadequate solid waste and industrial effluent management. Necessary steps are to be taken to protect the environment for our own existence. The River is one of the most important and beautiful elements of our nature. So the Conservation of river is very necessary for our healthy life.

In this paper, I discussed about it on the basis of the news, which was published on 31.03.2019 in the Daily Star about the polluted situation of the Surma River.

Now, I am discussing about the legal provisions of different Acts which are related to the protection of Rivers in Bangladesh.

The Environment Conservation Act, 1995

Almost 18 years ago in 2002, the Environment Conservation Act of 1995 was amended by banning the production and use of plastic and polythene. After amending the Environment Conservation Act of 1995, the section 6A was added, which discuss about the prohibition of production and use of plastic and polythene.

The section (6A) provides, If the Government, the Director General’s advice or otherwise agrees that all or any other type of polyethylene shopping bag, or any other product or any other product made of polyethylene or polypropylene, is harmful to the environment, by notification in the official Gazette, all over the country. Or to produce, import, market, sell, display for sale, store, distribute, trade in such particular area A purpose of transportation or used for commercial purposes are to stop or notification, subject to the conditions of those operations or management issued instructions may be such to comply with all relevant persons shall be bound to:

Provided that such instructions the following shall apply, namely:

(A) If the goods described in the notification are exported or used for export purposes;

(B) The instruction shall not apply to a specific polythene shopping bag unless the same is mentioned in the notice.

Explanation – In this section, “polythene shopping bag” means any bag, bag or other container made of polyethylene, polypropylene or any of its compounds or mixtures, which may be used for the purpose of buying or selling any product or for carrying anything

But the news of the Surma River shows the picture of the non-application of this section.Because if the section shall be applied properly the production and the use of plastic and polythene would have been closed. For that plastic bottles and polythene could not be the reason of pollution of the Surma River.

Therefore, we can say that due to the lack of the proper application of the section 6A of the Environment Conservation Act of 1995, the production and use of the plastic and polythene (which are very harmful for not only rivers but also environment) is not closed even today. As a result the Surma River and others (Buriganga, Turag, Padma, Karnaphuli, kapatakkha, etc.) are in the confluence of pollution.

The National River Protection Commission Act, 2013

On the other hand, on 2013 the Government of Bangladesh enacted a new law to protect the rivers in Bangladesh, which is known as the National River Protection Commission Act of 2013. The object of this Act is “One needs to ensure multi-dimensional use of the river for illegal occupation of the river, water and environmental pollution, river pollution caused by industrial factories, construction of illegal structures and restoration of various irregularities and restoration of normal flow of the river, proper maintenance of the river and construction of water as transportable.”

When we read about the objects of the River Protection Commission Act and think about the duties which are entrusted to the Commission, the question arises whether it’s proper implementation is possible or not?

The main function of the River Protection Commission is to keep the river free from illegal possession and protect from pollution.

Now a millennium number question is that who are the illegal occupants of the Rivers and who are polluting the rivers by through wastes??

Most of the occupiers and pollutants are Industrialists or politically powerful persons who are come from the upper class or powerful area of our society. Sometimes, we can see that the government or government organization are related to such illegal occupation or pollution of the river. For that reason, the administration cannot perform properly to stop such illegal occupation or pollution of rivers.

In this situation, the River Protection Commission is established for performing a strong role to protect the rivers. But it is a question that whether the Commission has enough power to prevent the illegal occupation or pollution of river is or not?

To clear this point, we have to look at the function of the Commission. The section 12 of the Rivers Protection Commission Act of 2013 discusses about the functions of the Commission. In this section, it has been said that the Commission has right to recommended to the government to take various activities to protect rivers. The section 12(d), 12(h), 12(m) has said that the Commission will take action to prevent water pollution, environment pollution and river pollution by industry.

However, the environment quality standard is necessary for doing such type of activities. That means the amount of pollution on the basis of which, the Commission will start its work.

Now, the question is who will measure and analyze the level or amount of pollution. There is nothing about in the Act, 2013. So we can say that the Commission has right to only recommend to the government to take necessary steps to conserve rivers.

Another thing is the section 3(2) of the Act 2013 says that the Commission can file a case in its own name. But we cannot see such type of action by the commission.

Water Act, 2013

According to the section 2(5) of Water Act of 2013, Rivers are included as a reservoir. The section 20 of the Water Act of 2013 has said that the National Water Resources Council, constituted under section 4 of this Act, will work to keep the rivers water or stream in normal.

The section 22(3) of the Water Act of 2013 provides that the authority has power to impose necessary restrictions to ensure proper management of reservoirs.

On the other, the section 28 of the Act prohibits water pollution in all respects.

But the present condition of our rivers (including the Surma river of Sylhet) provide us that the implementation of this Act is not effective still now.

Penal Code, 1860

Rivers have been one of our sources of fresh water since ancient period of time.People in our region have been using river water for various tasks including agriculture, cooking,bathing and washing clothes.

The section 277 of the Penal Code,1860 discuss about the Fouling water of public spring or reservoir. The section provides “Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred taka or with both.”

Now if we follow the news report of Daily Star about the pollution of the Surma river, then we find that due to inadequate use of contamination river water, the people in the surrounding from various diseases of Skin and Stomach. So we can say that the water of the Surma River has lost its utility due to pollution.

For that such pollution of Surma river is an offence under the provision of the section 277 of the Penal Code, 1860. Not only the pollution of Surma river but also the pollution of all the rivers which water are used by Public is an offence under this provision of the Penal Code.

Finally it can be said that the non application of the section 277 is also responsible for the critical condition of our rivers.

National Environment policy, 2018

New challenges are being created in all sectors of Bangladesh including land, agriculture, water resources, health, education, biodiversity etc. For this, effective polices and agendas are being adopted to protect the environment, the ecosystem and all the beaches of Bangladesh in line with the Sustainable Development Goal, 2030. In the context of environmental catastrophe and its adverse effects in Bangladesh, the government has placed importance on conserving and improving the environment.

For this reason, the Article 18A has been added in the Constitution of the people’s’ Republic of Bangladesh as the fundamental principle of State Policy by 15th amendment of the Constitution.

The Article 18A provides that “The state shall endeavor to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the present and the future citizens.”

So we can say that the Conservation of environment and biodiversity is our fundamental duty. Therefore, a number of sectors have been identified to achieve the overall goals of environmental management in the National Environment Policy, 2018.

The point 3.2 of the National Environment Policy, 2018 has been given the importance of water resource management.

The point 3.2.1 of the Policy states that State will take proper step to ensure the environment-friendly use of all water resources in the Country. Rivers are one of the main habitats for water resources. For that, the protection of the river is very important to protect water resources.

Another, the point 3.2.5 states that the water bodies and water resources like Haor-baor, Canal, River, etc should be kept free from pollution.

The point 3.2.36 states that all types of development plans which are in conflict with rivers, reservoirs and environment should be reevaluated and adapted to conserve the environment as needed.

Context of TURAG RIVER Case

In the judgment of the Turag River Case, the Honorable High Court Division declared all the rivers, including the Turag, are “living human beings”.

Now the question is that,

What does ‘living human being’ mean?

What is its meaning – significance?

The status of a living human being means accepting that a river holds the rights of human beings as a living human being. Before deciding on a human being, like his opinion, good and bad prices have to be paid, so should the river. You have to listen to the river before you talk about it. If you have to tie the river, lift the groin at the base of the river and tilt it to the river, then lift the river water and use it for other purposes. It is important to keep a constant search for anyone who wishes to hold his hand, like it or not, and we need to know the will of the river even before it interferes with the river.

It is important to remember that even though the declaration of a river as a living entity sounds new to our ears, there are many examples of it in earth. Long ago, the Huanganui River in New Zealand was given human rights as a living human being. On March 27 2017 the court of the country granted the ‘living people’ rights to the Ganges and Jamuna rivers in India. The Uttarakhand High Court in their judgment issued the order to protect these two rivers as ‘living human beings’ and protect them from pollution. What will happen to a living entity, the river cannot catch us in the process. The language of the river is different. Then who will be its interpreter or guardian?

The Uttarakhand high court has appointed two senior government officials in the state as legal guardians of the two rivers. The court has kept his door open for both of them till the Day of Resurrection. The greater, the burden and burden of litigation, as soon as the court is informed of any negligence in any act of river protection and pollution, the court will not allow the river to stop after the date.

In Bangladesh our court has given the legal guardianship of the National Rivers Protection Commission to protect all rivers, canals, bills and reservoirs of the country. The river protection commission will perform all duties including protection of river, river, canal, water reservoir, conservation, removal of illegal occupation, and prosperity.

But we already know that the National River Protection Commission has not such type of power.

In order to ensure that the river protection commission can play an effective role as an independent institution, the government has been given four points in the judgment:

1. Determination of severe punishment and penalties for treating rivers, canals, bills and aquaculture as a crime. In connection with these matters, the River Protection Commission Act, 2013, has to be amended.
2. In order to take the project along the rivers, the National River Protection Commission will have to take an official letter. The court has directed the cabinet secretary to convey the matter to all departments in the government.
3. A digital database should be created through satellite to identify and determine the location of all rivers, canals, bills, reservoirs. The database should be open to the citizens of all the Unions, Thana, Municipalities, Districts and Divisions of the country.
4. Any citizen can collect river information, map and information with fixed fees before start any project beside any river.

The court also provides that,

1. Each district, thana, union council and their respective jurisdictions should make a list of illegal occupants of the river and publish it in the newspaper.
2. If his name is in the list of river occupants for borrowing from a person’s bank, he will be considered ineligible for getting the loan. Bangladesh Bank was instructed to take appropriate action in this regard.
3. In case of taking any project along the river-river, the Commission will have to take the minor.
4. The Ministry of Shipping has been directed to take steps to make the river protection commission an effective and independent institution.
5. All schools, colleges, madrasas and universities should be taught about river requirements and river pollution for one hour every two months.
6. At least one hour of river-related meetings should be held in two months for the participation of workers of all the big and small industries in the country.

The weaknesses of the Judgment of “Turag case”:

The honorable high court has also directed to send a certified copy of their verdict to the Prime Minister’s Office so that the Department can take effective action. The court has realized that without the intervention of the Prime Minister, the whiskers will not stop. No one does any work in his own house without the direction of the Prime Minister’s Office. A river protection committee is to be formed in each upazila, district and division of the river protection commission. How many of it was formed? Where there have been many meetings, like all district committees, the chairman of the committee is the Deputy Commissioner. Although the Deputy Commissioner is superhuman, it is almost impossible to attend all the meetings held in the district only once a year. Therefore, they were obliged to leave as many meetings as possible in one meeting. Without the hawks, the national conservation committee will not work with national meetings.

Now I explain a real example of such weakness,

As per the provisions, the Deputy Commissioner (DC) of Bogra is the President of the District River Protection Committee. The Karatoya River was occupied by a wall in front of his office right before his eyes on March 26 of 2019. No action was taken by the DC. But former DC declared that river occupation is illegal and he stopped the construction in past.

So we can say that if the river protection committee is not accountable and transparent enough to proceed, then the verdict will remain in the document.

Hence, for ensuring the accountability and transparency of the River Protection Committee, I think a judicial representative must be included in the Committee or Commission. Otherwise we cannot touch our goal about the protection of rivers.

Currently, the Bangladesh Inland Water Transport Authority (BIWTA) and the Ministry of Shipping are working jointly for removing illegal occupation of the Turag and Buriganga rivers in Dhaka. But I have some confusion about the result of such action. Because such type of action was taken in past but the result is not effective.

In spite of such confusion, it is really good news for us that on 25.07.2019 a part of the Turag River is opened (which was illegally occupied) as a canal, named the Turag Canal.

Same type of action is underway in Chittagong to recover the illegally occupied area of the Karnaphuli. We have not received any significant news of such an operation in the area of the Surma River and anywhere else in the country.  The government has also started dredging to restore the navigability of the river.  But this process has already been questioned.

About this matter Dr Ainun Nishat says “They think that the river became dredging and then increased. This is a very wrong decision. If we are dredging the river,we will get it for two or three years as deep channel. After that it will be filled again. It is important to remember that the river not only flows water, it also flows. If you say poly, it will be a little wrong, if you say sediment, it will be pure. The thing to do in this case is, the width of the river has to be controlled. However, it will not be straight cut. The normal course of the river has to be controlled. If you have a satellite image of the Jamuna water flow, it will be changing some distance. We refer to these rivers as braided rivers or rivers. In this case, when mathematical and geographical calculations can be taken out of the normal flow of the river, then he can calculate the deep channel of the river. If you can do that, you can determine the waterway.”

Finally we have to wait about 10-12 years for measuring the actual effect of such expenses of billions of Taka for the purpose of river dredging and the adverse impact on the environment.

Jesmul Hasan: Student; Department of Law and Human Rights, University of Asia Pacific.