This article is written by Aayush Akar and Shubhank Suman. 

Introduction

Recognizing the legal rights of nature is emerging worldwide. It is particularly evident concerning rivers through rivers comprise only a small amount of total freshwater worldwide it fulfils the water need of a much larger percentage of people. Rivers are thus conspicuous, particularly when they are degraded in quality or quantity but since the usage of water resources is rising continuously, the requirement for institutional arrangements that specifically dealt with the wastage, overuse of waters, is also rising. 

To tackle this problem one new and emerging approach that has sparked the interest of worldwide is giving legal status which involves giving legal protections to the rivers by making the river a person in law. Such fundamental protections include civil and political rights, that are not the same as civilian rights. “These rights are often composed of 3 elements: civil privilege (the right to sue and be sued in Court), the right to enter into and execute lawful contracts and the right to own land.”[1]

The idea of giving legal protections to non-human entities is not the new concept but in the field of nature, it has recently begun to be applied, especially concerning rivers. Till now legal rights have been given to four Rivers worldwide namely Vilcabamba River in Ecuador, Whanganui River in New Zealand, Atrato River in Colombia, and the Ganga and Yamuna in India.[2] 

Though all these rivers are given legal status these rights are not the same but slightly different from each other. Two of these examples focusses on the rights of the rivers while the other two focusses on duties and responsibilities, while three among them create a separate legal status for the river.

Ecuador: Rights of the Vilcabamba River

Ecuador was the first country to give legal status to its River. In 2008, the Loja Provincial Government started constructing buildings, dams beside the Vilcabamba River and dumped all the excavation materials and rocks into the river, this resulted in a change in the flow of the river causing significant flooding in 2009 and 2010. Consequently, some affected citizens filed a “protective action” against the provincial government.[3]

The Court mentioned in this case that the “rights of nature had been violated—more specifically nature’s right to exist, to be maintained and to the regeneration of its vital cycles, structures, and functions”.[4] The Court based on this reasoning asked the Provincial Government to prevent any future dumping and grant legal status to Vilcabamba River under Article 71 of Ecuador constitution “which establishes every citizen or nation’s right to demand the authorities to comply with the rights of nature”.[5]

Hence, in this case, the Court observed that “legal rights of rivers come under the rights of nature thus every citizen can defend such rights in court when violated. However, it does not further elaborate on when nature should hold locus standi per se”[6].

Hence from this case, we can conclude that the Court was mainly focussed to balance the rights of nature with growing human needs but it was solely regarding rivers and no explicit mention was made of the rights of other aspects of nature that might be affected. From this case, the jurisprudence of giving legal rights to the river was begun.

Aotearoa New Zealand: The Whanganui River as an Ancestor

New Zealand became the second nation to give legal status to rivers. Country’s legislature in March 2017 declared the River Whanganui a juristic entity and named it, Te Awa Tupua: “Te Awa Tupua” is a legal person and has privileges, duties, and obligations that a legal being has. Though it became the second river to have legal rights granted to it are significantly different from the legal rights of the Vilcabamba River. 

Some notable differences are Te Awa Tupua itself has the ownership of Riverbed, has the power of creation of statutory guardians to uphold the interest of the river and recognition of the river’s intrinsic value.[7] This right is granted to the river because the Whanganui River, with a length of 290 kilometres, is New Zealand’s longest river and crosses the traditional territories of several “Whanganui Maori or Iwi tribes”. 

The river is considered to be fundamental to the life of the tribes, fulfilling both physical and spiritual needs from time immemorial. Because of which these people considered the river as their Tupua (ancestor) and had faith that they cannot be separated from the River. It is this belief that gave birth to Whanganui Proverb “Ko au te Awa, ko te Awa ko au” (“I am the River and the River is me”).[8]

The dispute regarding the River arose as in February 1840, “when 14 indigenous Maori chiefs from various Whanganui Iwi signed the Treaty of Waitangi”, which gave governing power to the crown in exchange of control over their lands, estates, and fisheries however after some years crown assert complete control over Whanganui River and started exploiting its resources. 

These activities faced severe opposition from Whanganui Iwi, but those oppositions were completely ignored. This created resentment among the tribes consequently various petitions were filed in the Court challenging government act by contending that they were still the rightful “kaitiaki (guardians) of the River and its Maori (life force)”, hence, they should be granted the right to monitor its management. 

They also argued that the Crown’s actions breached their rights as the Waitangi Treaty was regarding the governance of people and not the Whanganui River. Because of this reason finally, in 2017 the “Te Awa Tupua Act” came into existence which gives legal rights to the Whanganui River.[9] This Act empowered the River to have representation in the proceedings of the court and also explicitly mentioned the two guardians, one was from the Crown and the other one was from the Whanganui Iwi.

Hitherto this has been the boldest legal reference to how the rights of nature should be demarcated and practised. In this case, the Act, clearly states the rights and duties of the Whanganui River and in this case, the Court also goes even further and it was for the first time Court named those who should be the legal representative of the River in Court, unlike the other countries.[10]

India: Legal Rights to the Ganga River and Yamuna River

After the legal rights of Whanganui River, in the march of 2017, the Ganga River and the linked Yamuna River were also given Legal rights by Uttarakhand High Court “which made all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these Rivers” would be “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities”.[11]

Legal status was granted to the Rivers Ganga as The River has both physical and religious importance in India. It is the longest river in India and, in terms of water volume, the third-largest in the world which supports the livelihoods of approx. 400 million people who live along with it, and also used for various other purposes like for drinking water, for navigation, bathing, and cleaning, harbours fish stocks that play a large part in the local diet and is also used for electricity generation and irrigation. In addition to it, the Ganges is also considered as the embodiment of all sacred waters in Hindu Mythology and invoked whenever water is used in Hindu Mythology.

Despite the Ganges physical and religious importance, unfortunately, it is considered as the fifth most contaminated source of water as it follows through 5 major states and Because of the River’s seasonal existence, the banks of the river have now become focal points for many towns, factories, agriculture, leather processing plants, etc. 

The enormous water that runs along the river also makes it ideal for hydropower projects, reservoirs, and irrigation dams because of which currently there are 24 completed dams throughout the river. In addition to it, the river has also great importance in Hindu mythology, it is believed that a dip in the stream of the river can take away all the sin of an individual. Hence thousands of saints regularly visit the banks of the River for custom practices.

This large scale dependence over the river creates a huge threat to the existence of the river. As per data more than 140 fish species, 90 amphibious species of the river became endangered already.[12]

Many steps were taken by the Government for the preservation and restoration of the river but unfortunately, none of them was proved to be effective. Between 1985 to 2000, approximately US$226 million was spent on the River Ganga under the project of Ganga Action Plan, an environmental initiative that was “the largest single attempt to clean up a polluted river anywhere in the world”, however, it was failed to achieve its objective and like this several other small movements were also initiated by the various small groups and activists to preserve the River Ganga like “Ganga Save Ganga Movement, 1998 – Save Ganga Rally at Delhi (12th Nov 2000) – Save Ganga Yatra from Gangotri to Ganga Sagar (May 2002-Nov 2003), etc”.

The Government of India in the July of 2014 made another major attempt to restore Ganga under which integrated Ganges-development project titled Namami Ganga was introduced which involve the formation of a “National Ganga River Basin Authority” that would have more jurisdiction and powers than earlier projects to plan and monitor steps for cleaning up the river.[13]

However, in 2014, a writ was filed in the Uttarakhand High Court by the officials contending lawmakers of Uttarakhand and Uttar Pradesh didn’t comply with the Federal Government in setting up a committee to protect and safeguard the Ganges under the Namami Gange action plan, therefore, it was pleaded before the Court to issue requisite instructions.[14] However, the Court, in this case, adopted a wider approach and granted legal rights to the Ganga and Yamuna. 

The Court directed “advocate general of the state of Uttarakhand, chief secretary of state of Uttarakhand and Director of Namami Gange program were the human face which has given authority to preserve, protect and conserve the Ganga and the Yamuna and their tributaries”.[15] These officers who are declared as a person in “loco parentis” of the Rivers were supposed to uphold and promote its health and well-being.

Court gave the twofold reason to grant legal status to the Ganga and the Yamuna.

The first reasoning was based on Apex Court’s jurisprudence regarding personhood for Hindu deities which says that “those who entrusted with the possession of Hindu deities were to be responsible for the maintenance of such deities as Hindu deities are a juridical person.”  The court in this reasoning relied on the precedent of the Whanganui River of New Zealand and stated that just like a tribe of Whanganui Ire, Hindus also have deep Aastha (spiritual connection) with these Rivers and also these Rivers fulfil the needs of half of the Indian population.[16] Thus Court uses this reasoning on the ground of faith and belief of the society.

The second reasoning Court relied on Article 48 And Article 51A of the Indian Constitution. Article 48 says that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”[17] While Article 51A says “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.”[18] Thus Court held that legal status is requisite to give effect to these articles of the constitution. Later the same Court in the same year gave legal rights to the Himalayan glaciers Gangotri and Yamunotri.

The Apex Court has been eager to preserve River Ganga and Yamuna for a long time because of which in the case of CDR Sureshwar D Sinha v. Union of India [19] the court used the term “continuing mandamus” that implies the Government is duty-bound to implement directions,  provide continuous directions to the lawmakers on a periodical basis so that coordination between state and centre will be maintained as most of the schemes were unsuccessful because there was no coordination between state and centre.

The notion of these legal terminologies was not new as it was again used in the case of M C Mehta v. Union of India [20] which issued directives to the competent authorities to clean the Ganga River. This directive of 1985 paved the way for a legal status of river  as it was used by the Apex Court in 2014 in the same matter which was as follows:

“We regret to say that the intervention and sustained effort made by us over the past 30 years notwithstanding no fruitful result has been achieved so far, except shutting down of some of the polluting units. This is majorly because while orders have been passed by us, the implementation remains in the hands of statutory authorities including the CPCB and the State PCBs which have done practically nothing to effectuate those orders or to take independent steps that would prevent pollution of the river. A total lack of monitoring by the statutory bodies has contributed to the current state of affairs”.[21]

These two cases played an important role in granting the legal status of river and made it the first case in which rights of the environment are recognized by the Indian court but it was only limited to the Rivers and the court did not discuss the other components of nature because of which this revolutionary judgement was subjected to lots of questions and concerns.[22]

One concern was that the judgement of the High Court could not be taken into account of other states where the River flows like the River passes through other states like Uttar Pradesh, Bihar, etc hence it was outside the judicial limit of the High Court and also the question raised how could a Chief Secretary and Advocate General of a particular state tackle the issues of another state.

The second concern was regarding unclear implications of legal personality and guardianship i.e. whether the custodians of the rivers of the State Government were liable to pay compensation to those who drown during floods, in case they file damage suits. [23]

The third question was raised that the main central point of the ruling was concerned with the nature of Indian federalism and water conservation duties of State and it was not concerned with the rights of the nature per se.[24]

Hence on these grounds, this judgement was challenged in the Apex Court. Consequently, The Supreme Court of India put a stay on the Uttarakhand High Court decision, apparently agreeing with all the concerns raised.

Today, the rivers are not only an economic issue but a regulatory one. In the last two decades, the Judicial system in India has been seeking the ongoing problem of how to save and revitalize the rivers Ganga and Yamuna more explicitly in the face of the continuous assault resulting from emissions, intrusion and dwindling flow. Judicial activism saw many highs and lows, with the Judges coming down strongly on the violators and only indicating their dissatisfaction and sorrow at the miserable condition of the river. The grief of the judges and their eagerness in attempting to improve the condition can be seen in various orders.[25]

The Courts have sought to come up with a variety of approaches to address the problem of river contamination. It included specifying a minimal flow in the river; segregating waste; installation of wastewater treatment plants; ordering that no disposal of waste would take place; controlling slaughterhouses and eliminating slums and intrusions from the riverbank, including a recent proposal to grant legal rights and to recognize them as legal bodies. All such steps have not always been taken with the same urgency or within a timeline laid down by the Judges.

Although in some cases the governmental machinery was sluggish to adapt to the directives of the Judiciary, very often the instructions would have their collection of consequences. For example, the construction of Sewer systems required the acquiring of a lot of land against the interests of the inhabitants. 

The removal of slum dwellers from the river bottom, enabling approved apartment blocks for brief-term mega-events poses fundamental concerns about environmental justice because of which the poor today are the main victims of riverbed pollution.

For other environmental problems in the world, this appears to be sadly so and the rivers are no exception. The variety of court orders on the Ganga and Yamuna represents the courts’ severe commitment to rehabilitating the rivers. And the outcome is that the courts, whether it is the Top Court or the High Court, agree that the situation of the river, which appears to be worse every day, has not changed.[26] 

A perusal of the numerous applicable orders of the Courts shows that either the Courts have accepted structural approaches focused on technologies for coping with river contamination or have regularly repeated the loathsome state of the river.

Surprisingly, the Courts have still not deemed themselves adequately prepared to cope with challenging ecological problems. Even the Apex Court of judicature observed in the case of A.P Pollution Control Board v. Prof M.V Nayadu[27] that “In matters relating to industrial pollution ….serious issues involving pollution and related technology have been arising …in this Court and the High Court. 

The cases involve the correctness of the technological and scientific opinions presented to the Courts In such a situation considerable difficulty is experienced by this court or the High Court in adjudicating upon the correctness of the technological and scientific opinion presented to the Court concerning the efficiency of the technology proposed to be adopted by the industry or concerning the alternative technology or modification as suggested by the Pollution Control Board”.[28]

Such a scenario has not enabled the development of life-long solutions to the issue, as most decisions appear to be proactive rather than constructive, such as the latest decision by the Uttarakhand High Court awarding the Ganga and Yamuna rivers legal recognition.

Conclusion

This article has emphasized on the rising trend of providing legal status to rivers to recognize their rights across the world which introduced an earth-centred paradigm in the legal system however though rivers across the world have granted legal rights it was proved to be not sufficient. There are various unresolved questions in its path.

Firstly, it is not clear what are the legal consequences and the sense of giving legal personality can be. The concept of legal personality is also different and differs through the legal framework, as we have seen that the legal status of Ganga and Yamuna is different from the legal rights which are granted to the Viblicamba River. Supporters of nature’s rights have also been in a dispute that legal rights granted to Rivers are not feasible and lead to uncertainty. 

This ambiguity is even more severe when it comes to determining when and on what basis existence keeps the locus standi. It also incited the debate whether the time has come to make the conventional theories more flexible so that it defines both locus standi and legal personhood, to adopt the shift in new paradigms and the way society, perceives the environment now because there are lots of confusion regarding this even legal spheres are not clear.

For reference, we can take the example of India, where we saw the Supreme Court overturned the order of lower Courts which granted the legal rights to Rivers such as Ganges and Yamuna “arguing that Rivers cannot be considered living entities”. However, if we consider the other two cases of legal rights, we find that reasoning given by these courts is opposite of the reasoning given by Indian Supreme Court, where the Courts explicitly said that “the debate of granting the legal status of rivers should not be limited only to the living entity”. 

This clearly shows the confusion and difference in approaches of different Courts.  This is the time where our business entities and Governments go to Court daily even though they are not living entities hence at such time. We cannot simply deny granting legal status to the river based on its non-living characteristics, therefore, we can say that it is the right time to redefine the concept of legal entity which defines both legal entity and locus standi of nature.

The second problem in the path of giving legal status to rivers is the implementation of rulings given by the Courts. People generally don’t comply with the rulings. As we see in the case of Vilcabamba (Ecuador), where though the Court recognized the river’s rights and criticized the local authorities to use a set of mechanisms to conserve the river but later it was found to be very difficult for the Government to implement the ruling of the Court.

The third challenge before the legal system while granting legal rights is to make a balance between the rights of rivers and the rights of humans so that they don’t clash and exist in harmony. Because of these reasons, the objective of granting legal rights to rivers was not that effective and in some countries like India, it was struck down later by the Supreme Court.

Overall, we suggest that it is high time to safeguard and protect the interest of our rivers and if granting legal status could be an effective tool of the river’s protection then it should be implemented. We should not simply ignore an option just because it will create lots of chaos and confusions. 

The Government has to make a balance between nature’s right and the rights of people in a way that could usefully be expanded throughout our legal and political system as any country only chooses the method when it thinks fit best in the country’s domestic, legal and political system.

Reference

[1] Erin O’Donnell and Julia Talbot-Jones, ‘Creating Legal Rights for Rivers: Lessons from Australia, New Zealand, and India’ (2018) 23 Ecology and Society              <https://www.ecologyandsociety.org/vol23/iss1/art7/> accessed 24 March 2020.

[2] ‘Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement – Vermont Journal of Environmental Law’ <http://vjel.vermontlaw.edu/constitutions-environment-comparative-approaches-environmental-protection-struggle-translate-rights-enforcement/> accessed 24 March 2020.

[3] Lidia Cano Pecharroman, ‘Rights of Nature: Rivers That Can Stand in Court’ (2018) 7 Resources 13.

[4] ‘Defending Rivers on JSTOR’ <https://www.jstor.org/stable/26268374> accessed 24 March 2020.

[5] ‘Improving the Global Environmental Rule of Law by Upholding Indigenous Rights: Examples from Aotearoa New Zealand in Global Journal of Comparative Law Volume 7 Issue 1 (2018)’ <https://brill.com/view/journals/gjcl/7/1/article-p61_61.xml> accessed 24 March 2020.

[6] Mara Tignino is a Reader of International Law at the Faculty of Law and others, ‘Granting Legal Rights to Rivers: Is International Law Ready? • The Revelator’ (The Revelator, 6 August 2018) <https://therevelator.org/rivers-legal-rights/> accessed 23 March 2020.

[7]  O’Donnell and Talbot-Jones (n 1).

[8] ‘Defending Rivers on JSTOR’ (n 4).

[9] ‘Improving the Global Environmental Rule of Law by Upholding Indigenous Rights: Examples from Aotearoa New Zealand in Global Journal of Comparative Law Volume 7 Issue 1 ( 2018)’ (n 5).

[10] Iorns Magallanes and Catherine J, ‘From Rights to Responsibilities Using Legal Personhood and Guardianship for Rivers’ (Social Science Research Network 2018) SSRN Scholarly Paper ID 3270391 <https://papers.ssrn.com/abstract=3270391> accessed 23 March 2020.

[11] Salim v. the State of Uttarakhand, Writ Petition (PIL) No.126 of 2014.

[12] EJOLT, ‘Granting Legal Right to the River Ganga as a “Living Entity”, India | EJAtlas’ (Environmental Justice Atlas) <https://ejatlas.org/conflict/river-ganga-natures-rights> accessed 23 March 2020.

[13] ‘Ganga: Will Granting Legal Rights to Rivers like the Ganga, Change the on-Ground Situation? – The Economic Times’ <https://economictimes.indiatimes.com/news/politics-and-nation/will-granting-legal-rights-to-rivers-like-the-ganga-change-on-ground-situation/articleshow/57818653.cms> accessed 27 March 2020.

[14] Salim v. the State of Uttarakhand, Writ Petition (PIL) No.126 of 2014.

[15] Lalit Miglani vs State Of Uttarakhand W.P. (PIL) 140 of 2015.

[16] O’Donnell and Talbot-Jones (n 1).

[17] Article 48A, Constitution Of India.

[18] Article 51A, Constitution Of India

[19] CDR Sureshwar D Sinha v. Union of India W.P. (C) 537 of 1992.

[20] M C Mehta v. Union of India W.P. (C) 3727 of 1985.

[21] M C Mehta v. Union of India W.P. (C) 3727 of 1985.

[22] O’Donnell and Talbot-Jones (n 1).

[23] Magallanes and J (n 10).

[24] Law and others (n 6).

[25] ‘Judicial Activism and Judicial Restraint’ <http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.htm> accessed 27 March 2020.

[26] Michael Safi and agencies, ‘Ganges and Yamuna Rivers Granted Same Legal Rights as Human Beings’ The Guardian (21 March 2017) <https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings> accessed 27 March 2020.

[27] A.P Pollution Control Board v. Prof M.V Nayadu 2000(3) SCALE 354.

[28] A.P Pollution Control Board v. Prof M.V Nayadu 2000(3) SCALE 354.