While the "Bangladesh Environment Conservation Act" was passed in 1995, the case of "Dr Mohiuddin Farooque v Bangladesh (1996)" received the first-ever judicial recognition in terms of environmental aspects in the following year. As per the 15th amendment of the constitution for the People’s Republic of Bangladesh, “the protection and improvement of the environment and biodiversity” has been confirmed under Article 18(a) of it. Our higher judiciary has no original jurisdiction on environmental aspects and its writ jurisdiction has been used several times to safeguard and preserve our environment in the past two decades.
Noise pollution has been a major problem in Dhaka for the past few decades. Among the many effects, the increased noise pollution has been shown in studies to have an adverse impact on child development and impairing learning abilities at all levels. It is evident from the past data that Dhaka city's urbanization plan has always been reluctant to overlook the impact of noise pollution.
The power conferred under section 20 of the Bangladesh Environment Conservation Act, 1995 and the Environment Conversion Rules, 1997 have divided localities into five sub-categories: Silent area, residential area, mixed area, commercial area, and industrial area. The hospitals, educational institutions, and offices fall under silent areas and are directed to keep the lowest use of noise -- 45 decibels in the daytime and 35 decibels in the nighttime.
Similarly, residential areas are permitted to a limit of 50 decibels in the day and 40 in the nighttime. The industrial areas are allowed to concede the maximum level of noise -- 75 decibels in the day and 70 in the night. Areas up to a radius of 100 meters around hospitals or educational institutions or special institutions/establishments identified/to be identified by the government are designated as silent zones, where the use of horns of vehicles or other audio signals and loudspeakers are strictly prohibited.
Despite the need and supporting clauses in the Environmental Courts Act of 2010, as of now, only two environmental courts and one environmental appellate court has been established in Bangladesh. In terms of reducing noise pollution, the current provisions of the original act directed in a way that, in cases of the social, political, and cultural event, the permissible limit can be exceeded if permission has been obtained three days before the event or, in urgent situations, it can be obtained one day earlier before the event.
The rules relating to constructions states that “no construction machines used to process and break-down building materials (including bricks, stones, etc) shall be used within 500 metres of any residential area and such machineries cannot be used between 7 pm and 7 am except without the permission of the concerned authorities.”
In reality, the law enforcement agencies have barely put effort to mitigate noise pollution and enforce law in the concerned area.
What the law decides
The higher judiciary has always taken the lead in upholding environmental protection, not just in terms of noise pollution, but in many other areas as well. By liberalizing the concept of “locus standi” in “Dr Mohiuddin Farooque v Bangladesh (1995)” the term “person aggrieved” was interpreted as “anyone who, despite not being personally affected, has sufficient interest in the subject matter.”
In “Rabia Bhuiya, MP v Ministry of LGRD and others,” the court recognized “the severity of the situation and the risks to the public's health from drinking arsenic-contaminated water, and linked environmental pollution to a breach of the constitution's right to life, as well as the responsibility to preserve the environment to protect this right.” Similarly, in “Sharif Nurul Ambia v Dhaka City Corporation,” the Supreme Court ordered to stop construction of a ten storied shopping complex and it was asserted that “construction began without the building plan's authorization, and that it would be harmful to the public's health by producing traffic congestion and obstructing the free flow of air and light in the region.”
In a remarkable 19-year legal battle, the Italian Supreme Court recently cited rulings by the European Court of Human Rights and the Appellate court that “the loud noise of toilet flushing at night affects the quality of life, therefore, [it is a] violation of fundamental human rights.” It is essential to note that even though foreign judgments are not binding on us, the notion of the “right to a healthy and safe life” has always been acknowledged under the umbrella of the fundamental human right to life.
The former vice-president of the International Court of Justice, Judge CG Weeramantry, stated: “The protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is now high time to prioritize the contemporary environmental principle and reaffirm the implementation of applicable law and order to curb noise pollution, since this has posed a threat to our fundamental rights -- which are ultimately protected by our constitution.
Sakib Mahbub is a freelance contributor.
