In this article, Mitakshara Goyal gives the jurisprudential answer on the status of Indian Rivers as juristic persons.
Recently, the Supreme Court has stayed the decision of the Uttarakhand High Court in the petition, Mohd. Salim v. State of Uttarakhand. The Court distinctly took the initiative to hold rivers Yamuna and Ganga as juristic persons (legal entities) capable of enjoying all legal duties, obligations, and rights as a living being. Subsequently, this legal personality along with the corresponding rights was extended to the Ganga Yamuna glaciers in a follow-up order, that fed into these holy waters.
It is the first time that Indian courts have ever recognized any part of natural environment as a legal person. This decision wasn’t restricted to these two holy waters, but all their tributaries, streams, every natural water body flowing simultaneously flowing into these rivers. But the question arises what extraordinary condition as to what triggered such an extraordinary decision? Moreover, the extent to which this radical judicial decision will amend the depleting health of the water bodiess is to be analyzed.
FACTS
It has been widely identified that the ecological state of the rivers with respect to excessive water pollution and illegal constructions has led to their destruction. The above-mentioned judgment was triggered was the ineffective application of the judicial decision on a petition of protection of Ganga and Yamuna banks from illegal constructions in 2005. A local resident, Salim had filed a petition due to encroachment at the banks of Shakti canal in the Dehradun district of Uttarakhand and asked the Court to initiate the Central government to manage the water resources accordingly.
The Court in this petition dealt with issues of federalism regarding the extent to which State could order the Central government through its judiciary. However, Justice Rajiv Sharma and Alok Singh upheld it to be well within the scope of the judiciary to pass such a guiding order considering the state individual supremacy as a character of federalism.
In December 2016, it was held that the people eviction of individuals involved in the encroachment of banks of Yamuna, and the Central government is required to clarify the division of jurisdiction of the state governments of Uttarakhand and U.P. It further directed a constitution of Ganga Management board, under Section 80 of the Act, effective within three months. Moreover, it prohibited any mining activity on the riverbed and flood plain of Ganga. However, as the Court analyzed the progress regarding the situation of the river in the disputed land, it was alarming. The encroachments and constructions were untouched and the State settlements were stalled. Additionally, there seemed a lack of sense of the alarming destruction of the waterbodies by the State actors who did not bother to constitute a management board as previously directed by the Court.
This regrettable insouciance and inability of the State to make necessary actions for the protection of the natural waterbodies was recognized as an ‘extraordinary situation’ for the Court to make a radical intervention for the well-being of these depleting natural resources. It was observed that most of the agrarian society of India has been dependent on these enormous water bodies for physical sustenance and wellbeing of the community. India’s majority population rely on the lands irrigated by the Ganges and Yamuna for daily livelihood as these holy waters intersect more than fifty cities. The alarming gallons of garbage and sewage dumped in these waters have made these two holy
The alarming gallons of garbage and sewage dumped in these waters have made these two holy waters, the two most polluted water bodies in the world. The several failed attempts to clean these rivers due to the enormity of the task has been a constant concern of environmentalists and ecologists all over the world. The Court recognized the callous human activity that was not only depleting the sacred waters of Yamuna and Ganga, but also risking the potential future of the Nation. To expedite the protection of the depleting water resources, it declared the waterbodies as juristic person in the Indian legal framework, with all corresponding rights, duties and liabilities of a living person. The following sections would elucidate the different parameters adjudicated upon by the Court to come to this conclusive decision to impose a ‘juristic’ personality to the two waterbodies, Ganga and its tributary Yamuna.
NEW ZEALAND’S INSPIRATION
This adventitious unprecedented decision was inspired by the prior decision by the government of New Zealand in 2012 (came into effect in 2017). A recent Bill named Te Awa Tupua (Whanganui River Claims Settlement), passed on March 15, 2017, settled the 140 years long dispute and negotiation based on historical claims by the Maori tribes relating to the Whanganui river and declared it to be a living person with legal rights. The legislation provided two officials, one from the one from the Whanganui iwi and one government representative, to represent the interests of the river as a legal entity. It was observed that the wellbeing of the river was linked to the sustenance of the people, that makes river’s identity equivalent to that of a person. This recognition was made to enhance the ability to enforce legal environmental protections that it is entitled to, along with claiming compensations for the abuses it suffers by mankind.
SIGNIFICANCE OF ‘MAA GANGA’
Further, the Court highlighted the significance of the Ganges along with its largest tributary Yamuna, to derive its juristic personality in the Indian legal system. Ganges (referred to as Maa Ganga) originates from Gangotri in Uttarakhand and travels 2500 kilometres stretch through several states including 52 cities and 48 towns and the nation of Bangladesh before discharging into the Bay of Bengal. The Yamuna is its largest tributary and emanates from Yamunotri in Uttarakhand. The Court reinstated the existence of these water bodies as vital to the physical and spiritual sustenance to maximum communities cohabiting from mountains to the sea. The Court stated “ All the Hindus have deep ‘
The Yamuna is its largest tributary and emanates from Yamunotri in Uttarakhand. The Court reinstated the existence of these water bodies as vital to the physical and spiritual sustenance to maximum communities cohabiting from mountains to the sea. The Court stated “ All the Hindus have deep ‘astha’ in rivers Ganga and Yamuna and they collectively connect with these rivers. The rivers are central to the existence of half of Indian population and their health and wellbeing.”
Furthermore, The Court recognised the ‘startling revelation’ made by the senior joint commissioner, Ministry of water resource & Ganga rejuvenation, that “despite long correspondence, neither the state of UP nor the state of Uttarakhand is cooperating with the central government for the constitution of Ganga Management Board”. Along with the discussion on the inaction of the State government, the laxity of the Central Government to implement a cleansing program worth 20000 crores for the water bodies in 2014 has been stressed upon. The Court gave the Centre eight weeks to set up Boards for cleaning the rivers. Thirteen out of 20 existing or proposed treatment plants were in Uttarakhand. These were to be either set up or upgraded. The central government had planned to start implementation with 40 villages that it had marked for development. The Court gave a three-month period to the Uttarakhand state government to form a state Ganga Management Board. Moreover, The Court authorized the suspension of the District Magistrate if he failed to clear the government land within seven days from the date of the order.
Highlighting the severity of the extraordinary situation of loss of existence of the Ganges and Yamuna, the Court additionally stated that “there is utmost expediency to give legal status as a living person/legal entity to Rivers Ganga and Yamuna (citing) Articles 48-A and 51A(g) of the Constitution of India”
“PARENS PATRIA”!
Using the above-mentioned fact situation, the first order majorly held a valid jurisdiction of the state of Uttarkhand to do direct the Central Government for essential actions to protect the endangered nature, recognizing the rivers as juristic person within the Indian legal system. However, the recent most comprehensive order declaring glaciers too have a legal personality, focused on the concept of ‘parens patriae’ as a juridical concept for the states within a federal structure as an aid to protect their natural environment. ‘Parens Patria’ is recognized as the guardianship of the state of the rights of entities which are unable to fight for their own rights. This empowers the states within a federal structure, to assert the rights of rivers on their behalf, against being polluted, or diverted, or their environment being violated within several human activities. It highlights the inherent role of the sovereign as parents of the country, to claim protection for the entities that are impaired to claim their rights themselves. Though on the face of the decision, it seems to be an ideal solution to the emerging environmental issues regarding the natural living entities, however, it is imperative to dwell into the implementation of the order and the impact of the same.
IMPLEMENTATION OF THE ‘LEGAL STATUS’ OF THE RIVERS:
The Courts designated the authority of representation of the rivers to file all complaints about any violations of the rights of the rivers. After the two orders, the Chief Secretary, State of Uttarakhand, Director NAMAMI Gange Project, Mr. Praveen Kumar, Director (NMCG), Mr. Ishwar Singh, Legal Advisor, NAMAMI Gange Project, Advocate General, State of Uttarakhand, Dr. Balram K. Gupta, Director (Academics), Chandigarh Judicial Academy and Mr. M.C. Mehta, Senior Advocate, Hon. Supreme Court, have been provided with the status of loco parentis as the human face to protect, conserve and preserve all the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls in the State of Uttarakhand. Moreover, they are meant to ensure the preservation and maintenance of the juristic persons against the individuals exploiting it for personal errands. Along with these negative rights, they must carry on schematic programs for the cleansing and rejuvenation of the water bodies and get the required funds sanctioned for the same. This includes the protection of the universal character of the river of free flow which can be maintained by regulating the obstructions and commercial constructions such as dams and hydropower projects. However, the extent to which these custodians will be successful their exercise of power to mitigate the depletion of natural resources seems questionable.
EFFECT OF THE LEGAL STATUS
The effect of the legal status can be derived from the New Zealand decision that upheld the legal status of the river which wasn’t supposed to be used interchangeably with ‘legal rights’. This status of the river highlighted that the law would make no differentiation between harming the tribe and the river in case of exploitation of the river, because they are one and the same.
Similarly, in the Indian context, it implies that earlier, to bring a claim against an industry for pollution of a water body, the complainant had to prove violation of its legal and vested interest in the river. The damage cause by the challenged activities should have a direct nexus to the hampering of the livelihood and the cohabiting communities around the river. Once proven, a certain amount of damages and compensation was to be paid to the affected parties. However, after the High Court’s order, rivers are treated as living individuals accorded with same fundamental rights. Thus, any lawsuit against the exploitation or damage to the river, would include the river as a party through the Court designated representatives. The burden of proof would be on the accused party to prove either that it lacked participation in any prohibited activities against the river or the challenged activities were legally justifiable.
INCONCLUSIVENESS IN THE CONCLUSION OF THE DECISION
Though the New Zealand case has several similarities with the present case on protection of the natural resources, there is a distinct difference in the personhood between the holy waters Ganga and Yamuna as opposed to Whanganui river in New Zealand. The decision majorly recognized the river as a juristic person with the aim to determine power distribution agreement about the management of a protected restricted area with its limits and boundaries being distinctly clear. However, in India, Ganga and Yamuna have no limited scope of boundaries as they seem to diverge into to everlasting tributaries. Being trans boundary rivers, there are several tributaries merging in the holy waters, not only from Indian states but also from Bangladesh and Nepal. In such a case, it is difficult to visualize the official of Uttarakhand representing all the states where the holy waters pass and have tributaries merging into them.
Secondly, though the Uttarakhand High Court decision depicts judicial activism and the uniqueness of such an unprecedented decision, its effectuality can be disputed on its limited scope of enforceability that extends only to Uttarakhand. The issue of territorial jurisdiction crops up, due to the recognition of the entire river basic as a living person. There seems to be excessive exercise of powers beyond the jurisdiction of the Court., Though matters regarding water come under the State list, however, through Entry 56 of the Union List, the Union government can legislate on inter-state rivers like the Ganges and its tributaries. This decision might amount to inter-state conflicts, as each state will have its own territorial claims over the living person that is the Ganges.
Additionally, the Court has not thrown light on as to who exactly will be prosecuted in case of compromise of the rights of the entity? This seems to provide unfettered discretion in the hands of the government analyzing the causes of the violation of the rights that tends to move against the poor and marginalized. Since there have been no guidelines formulated by the Court to recognize the offenders in such cases, it is most likely to target the unaided underprivileged community that have the least to add to the violations of the rivers and other natural resources. It seems very unlikely that the officers will hold the great industries contributing carbon dioxide or other greenhouse gasses to the atmosphere, as liable. One of the instances based on which this prediction is based is the Courts statement about the protection if holy waters in Haridwar. It directed the District Magistrate in Haridwar to ensure the restriction on accessibility of beggars near the Ghats, myopically viewing beggars and the underprivileged communities responsible for depletion of the holy rivers.
Furthermore, the concept of parens patria was also deployed by the Indian government, in the Bhopal Gas tragedy case to represent the claims for compensation for the victims. However, the district court denied India the right to exclusively represent the plaintiffs and never provided whether India had proper standing to sue under parens patriae. This was viewed as a “disaster” for the case causing continued failure.
Moreover, there is an evident logical inadequacy in the present decision. There seems to be no reason to distinguish one inanimate object from other. Recognizing only the objects related to the Ganga and Yamuna, denying the same juristic personality of the other distinct rivers seems problematic. It’s a slippery slope to literally anything being granted personhood status, so long as someone believes it has value. There seems to be decisive factor to determine the extent the imposition of such artificial legal personality can restricted in the case of inanimate subjects. Will soon trees, forests, rocks, hill be recognized as juristic persons and how viable will such a situation be?
These questions triggered from the indeterminate and superficial decision of the Court that though seems to be a rich legal decision, but lacks efficacy in actual applicability of the same. There seems to be a need to identify the to ascertain standards and measures for the protection of the natural resources and whose violation would have harsh implications that must be well implemented. Environmentalists and lawmakers should collectively provide legislations of regulating and harmonizing the human activities and the ecological development of natural resources simultaneously.
