GRANT OF LEGAL PERSONHOOD FOR RIVERS IN INDIA: ISSUES AND PROSPECTS

The trend of recognizing legal rights of nature and its elements has been slowly gaining momentum in the developing sustainable world. One among the elements of earth is water granting us with the gift of life. Rivers, lakes, ponds, wells etc., have been humanity’s mostly used fresh water resource and the aspect of recognizing the rights of rivers along with water bodies has become an indispensable one, in the current scenario. Rivers have been the major contributor towards worlds freshwater content but at the same time, the most polluted or exploited resource. The world in its deliberation process understood that only with the existence of a right, there arises a corresponding duty on the others. This basic jurisprudential principle, lead to concept or movement of recognition of rights of rivers and declaring them as legal persons, thereby imposing duties on the humans to protect and to preserve the same. This paper aims at bringing in an international and national perspective on the concept of granting legal personhood to rivers, with an object to make the readers understand the importance and issues involved in the same. A customary and religious perspective of the subject is also added to the paper to give the discussion a personal touch. The paper also highlights the judicial position and the various landmark decisions pronounced by the Indian judiciary in this subject. The paper also discusses the issues and prospects of granting legal rights or legal personhood to rivers, as it culminates with strong suggestions to strengthen the movement.

Keywords: Rivers, Legal Personhood, River Rights, Environment, Conservation

INTRODUCTION

The idea of personification of nature or other non-human entities is not new to the human history. There has always been the belief or practice that all natural elements are gods or living entities be it in India or other countries. Instances and depictions in the religious scriptures or legends suggest and clarify that personification of nature is not a novel concept, but a forgotten one. The humans are claimed to be civilized because of their adherence to law and morals. When we look at the earth, ocean, rain, rivers and mountains, they are always beyond control and outside the law, complicating the process of granting legal personhood. But the most widely accepted, Salmond’s definition of a ‘person’ states, “a person is any being, regarded by the law as capable of rights and duties, irrespective of the fact they are human or not.”[2] When interpreted, this definition clearly allows the inclusion of rivers and other non-human entities into the class of persons, though not natural, yet as legal persons. In a rapidly changing climate and environment, protection of all natural resources is quite indispensable and conferring legal rights to them is a welcoming solution as it imposes duty on the State and fellow human beings to protect and preserve the natural resources. The Courts who are the protector of rights, have accepted this ideology and thus have started granting legal personhood to rivers, recently.

RIGHTS CONFERRED TO THE RIVERS

The Indian Constitutional provision of Article 48-A in the Directive Principles of State Policy stating “the State shall protect and improve the environment and safeguard the forests and wildlife of the country” and Article 51-A (g) of “Fundamental Duties” stating, “it is the duty of every Indian citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and have compassion for living creatures”, deals directly with environmental protection. Art 21 and few other fundamental rights are now interpreted and extended to accommodate, right to clean environment as a fundamental right of humans.

Though we have constitutional and other statutes that protect rivers, the quality and nature of rivers are deteriorating.  As these provisions are merely duties on the State and citizens, the protection of rivers have lost its relevance. An ideal solution, as stated previously, is granting and effecting legal rights for rivers which may include:

  • Right to equality on par with humans and equal protection in the eyes of law. This promotes the concept of eco-centrism and thereby protecting the ecosystem. This right to equality in itself, includes every other granted for other juristic person or natural person, which ultimately allows the rivers to enjoy those fundamental rights that are promptly applicable to it.
  • Right against exploitation and right of self preservation, whereby it has the right to claim itself and its secondary resources as its own. This can be interpreted and broadened to include the right to life granted to humans and the right to perpetual succession granted to legal persons.
  • Right against changing the natural course of the river unless there is a public need. This was also observed in the case M C Mehta v. Kamal Nath, popularly known as Span Motel Case, were the river course was changed to build a motel and when challenged in Court, the Supreme Court of India ordered for cessation of construction and asked the defendant to pay for the restitution of the river course.[3]
  • The right to sue (and be sued) in court is called legal standing and it granted for legal person also. Legal standing in this context means the right of the river, to take legal action against the infringement of its rights and to protect itself.
  • The right to flow can be granted with permissible exceptions such as public welfare and state activities.

One among these rights is the right of legal standing, by which the legal person can sue but represented by another natural person, as they themselves cannot represent their case. Now the question that lies here is, who will represent the rivers in filing a suit or petition for its preservation. In  M C Mehta  v.  Union of India, the Supreme Court directed the tanneries at Jajman near Kanpur, polluting the river Ganga, to be permanently closed.[4] This issue was brought to the notice of the Court through the public interest litigation filed by the petitioner, a social worker. In the Span Motel Case,[5] the Court founded its reasons in the Doctrine of Public Trust, whereby the State is the trustee of all natural resources for the public use and enjoyment.[6] It further stated that as the trustee, the State is duty bound to protect these natural resources. In the Public Interest Litigation of Lalit Miglani v. State of Uttarakhand and others, the independent lawyers, several governments agencies where deemed as parents i.e. custodian for protecting the rights of the river, as they cannot do it by themselves.[7]

All of these instances make it evident that the principles od guardianship and custody, agency and other legal principles that allow representation of an incapable human i.e. minor or insane persons, through another person. The State will the principle parent or custodian as set out of by the Doctrine of Public Trust and by the principle of Eminent Domain, whereby all properties or resource without claimants fall under the protection of the State. But there still arises a question, what will happen when the violator of the river rights is the State itself. In such instances, Public Interest Litigation by the general public or any non governmental agency or any activist can be a solution. Where this is not available, suo motto cases through judicial activism can ensure the check and balance of the State Powers.

INTERNATIONAL PERSPECTIVE ON LEGAL PERSONHOOD OF RIVERS

In the international arena, the concept of granting legal personhood to rivers is not novel but also not common, yet. In 2008, the Ecuador Constitution became the world’s first country to grant rivers and other natural resources such recognition.[8] It stated that Nature or Pachamama has its right to exist, persist, maintain and structure its own evolution. Similarly, there are many towns of the United States of America, that have rules and regulations that recognize the nature’s right.

Following the Ecuadorian revolution, the Bolivian Government brought a law in 2010 called ‘ Law of Rights of the Mother Earth’, which declares that Mother Earth and her natural resources are to be used only in lieu of public interest and it also grants legal personhood for all natural environment. The Constitutional Court of Colombia in 2016 declared that the basin of River Atrato has its own right of protection, conservation and restoration.[9]

Another landmark movement in this matter was recognition of the Te Urewera National Park of New Zealand as a legal person with rights, powers and liabilities in the year 2014. Owing to such incredible activity, the passage of a law granting the legal personhood of the Whanganui River Ecosystem in 2017, brought it a worldwide reputation and spotlight.[10] The United Nations General Assembly in the year of 2009, adopted a resolution declaring April 22 as the ‘International Mother Earth Day’ and in the same year, they adopted a resolution on Harmony with Nature. Recently, in the year 2019, the Dhaka High Court of Bangladesh declared the River Turag as a living person with legal rights and also declared that the same protection and recognition would be granted to all rivers of Bangladesh.[11] It is thus clearly evident, that protection and preservation of the rights of nature and rivers especially is not an emerging trend in the global arena, for they have keenly observed recognition of rights of such natural entities is one of the most important ways of their conservation.

INDIAN PERSPECTIVE ON LEGAL PERSONHOOD OF RIVERS

India is well known for its religious and customary practices which majorly include the personification of natural elements, resources, environment and wildlife. The Hindu Gods and Goddesses were mostly personified natural entities and their true form were protected with sanctity and faith. For instance, the Goddess Komadhevi is a personification of the cows, thus all cows were revered and protected from any kind of harm. Another famous example is River Ganga, who is personified as a Goddess and holds high religious sanctity as the river is believed to originate from heavens and flow from the head of Lord Shiva, the Hindu God of Destruction.[12]

With the aegis of the mythologies, epics and legends, the Indian society created a custom of protecting and revering the environment. With the colonization, these environmental resources were exploited and the Indian people were also enslaved to the chains of industrial revolution slowly, forgetting the traditional practices of environmental preservation. After independence and while coding the Indian Constitution, discussion regarding the protection of environment lost its relevance. It was the 42nd Constitutional Amendment that made the Indian Constitution green by adding Art 48-A under the Directive Principles of State Policy and Art 51-A(g) under the Fundamental Duties.[13]

Following such revolution, more attention was given towards environmental protection and any deteriorating activity was condemned by the public as well as the State. Many environmental activists started working towards the betterment of the current environmental position of India and constantly fought against its exploitation. Suits and petitions in the form of Writs and Public Interest Litigation were filed in various High Courts and many cases of environmental degradation were taken up by the High Courts and Supreme Court of India, suo motto.

In CDR Sureshwar D Sinha v. Union of India, the Supreme Court of India issued a continuing mandamus order for the preservation of River Ganga and Yamuna and declared that the State is duty bound to adopt and execute policies to protect the two rivers from pollution and exploitation.[14] In the Public Interest Litigation of M C Mehta v. Union of India, the Supreme Court of India issued direction to the competent authorities to clean River Ganga and also it touched the peripheral discussion of granting rivers a legal status, as one of the ways to protect and preserve them.[15]

In the matter of Mohammed Salim v. State of Uttarakhand, it was declared that River Ganga and River Yamuna along with their tributaries as legal persons. The Petition was filed by the famous Environmental Lawyer Shibani Gosh, initially for the purpose of removing the illegal encroachment and construction of buildings in the government land near the River Ganga and Yamuna water bed by the private respondents. In its pleadings, the issue of mining the river bed for sand was also discussed and the Uttarakhand High Court clearly found the violation of rights of the river and by declaration of their legal personhood, the Court found its reasons for the order of cessation of such construction and exploitation.[16]

In the matter of Lalit Miglani v. State of Uttarakhand and others, the independent lawyers, several governments agencies where deemed as parents of the rivers and a Public Interest Litigation was filed for the protection of River Ganga and Yamuna from pollution.[17] The petition condemned the attitude of the State and Central Government regarding the control of pollution of these rivers and the Court held that every citizen has the right to clean water under Art 21 of the Indian Constitution while correlating the fact that the quality of River Ganga is deteriorating. The Court also discussed about the religious importance of River Ganga to the Hindus and in consideration of all these points, it directed the State and Central to establish a Inter-State Council for the purpose of rejuvenation of the river, within three months and take relevant actions against all the polluters. It also suggested to make laws for the protection of the rivers, which indirectly meant that the rivers must have its rights protected through a legislation.

All of this brought legislative changes in the Indian legal framework and ministry with a vision to protect and recognise the rights of the rivers. The previously constituted Ministry of Water Resources of 1985 was reinstituted as Ministry of Water Resources, River Development and Ganga Rejuvenation in the year, 2014. This Ministry was responsible for the protection, preservation and prevention of pollution of the Ganga Basin, which was later merged with the Ministry of Drinking Water and Sanitation to form the Ministry of Jal Shakti in 2019.[18]

ISSUES AND PROSPECTS

As highlighted earlier, the concept of granting of personhood to a non human entity is not new in the course of history, rather an uncommon practice, which is slowly picking its pace to become a worldwide phenomenon. The recognition of rights and protecting these rights will open new doors and opportunities to preserve the rivers and their conditions, thereby allowing a complete ecosystem to flourish. The river ecosystem is one of the crucial ones for balance of freshwater content in world as they contribute towards it directly and indirectly by aiding in the process of precipitation. This freshwater content is used for human consumption, irrigation and forest thriving. All of these activities are directly linked with ensuring the existence of human beings in this planet and reducing global warming or climate change. In short, it is valid to state that recognition of legal rights and legal personhood of rivers, is a life saving act.

But like every other process, this activity also has its own set of challenges. The most imminent challenge would adaptation of human developmental activities according to these protected rights of rivers. The extent of exploitation of natural resources is directly proportional to the level of development achieved, as per the current trend. Preservation of these resources and granting them rights does not balance the equation and hinders development.[19]

The next critical challenge is that the rivers do not run according to the man made political boundaries and borders. For instance, the River Indus runs through China, Pakistan and India, without following the country’s borders. If Indus is dammed in China, it will not flow through India and Pakistan similar to the situation that arose due to the Farakka Barrage in India, which affected Ganga’s flow in Bangladesh.[20] The absence of universal supply of resources and universal application of a law, becomes a major problem in determining what is sustainable use and what is not.  Thus such cross border disputes need to be conciliated to before granting the legal personhood.

Another issue related to the discussion is that, the world does not have a complete understanding of how the laws of river rights work, yet. The methods of implementation and enforcement is still a topic of debate as to whether the best option of enforcement is through custodianship laws or compensatory jurisprudence or create and innovate a new form of enforcement mechanism. The current trend allows public to directly the matters in their hands and the State is also duty bound to protect these rights but the mechanism is not strong yet. The absence or scarcely present environmental activists, advocates, judges and jurists also pose a challenge to the concept.

CONCLUSION

The current legal position where the rivers are treated merely as natural resource or an object, has utterly failed to protect the standard and quality of these rivers. But a paradigm in such perspective and granting them personhood, rights, empowerment, legal representation, allows the rivers to thrive with beauty and thereby allowing us to subsist together with it. The onset of this practice will make revolutionary changes in the environmental protection laws and the other mechanisms that are constituted for this purpose. The observers have commented that this process, would be beneficial to the humans as it would support to their coexistence by relying on the abundantly available resources of the river, but used to the extent that it does not negatively impact the river. A few practical solutions to the issues listed above are as follows:

  • Reliance on the concept of Sustainable Development and Growth is a feasible solution for ensuring development without exhaustion of the natural resources. The principle of sustainable development states that the developmental activities must be up to an extent where it does not exhaust the natural resources for the future generations. It focuses on the balance between development and ecology.
  • To settle the cross-border issues, more effect and implementation must be given to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses of 1997, which deals with the issues regarding trans-boundary freshwater resources. This is the only universal convention that currently discusses about the issue, created in accordance with the Helsinki Rules on the uses of Waters of International Rivers.
  • More study and research on the Doctrine of Public Trust can define the solution for the issue of representation of rivers in legal proceedings.
  • All of these can be achieved only by creating more awareness and by imparting education about the environment, climate change and the importance of such natural resources.

[1] 4th Year, B.BA, LL.B (Hons), Crescent School of Law, B S Abdur Rahman Crescent Institute of Science and Technology, Chennai-48.

[2] Manishranjan, “Meaning and Kinds of Person“, Legal Services India, available at http://www.legalservicesindia.com/article/2316/Meaning-and-Kind-of-Person, accessed on 17.04.2021

[3] (1997) 1 SCC 388

[4] (1987) 4 SCC 463

[5] Supra, note. 3

[6] Public Trust Doctrine, Water Education Foundation, available at https://www.watereducation.org/aquapedia/public-trust-doctrine, accessed on 17.04.2021

[7] Writ Petition (PIL) No. 140 of 2015

[8] Andrew C Revkin, Ecuador Constitution Grants Rights to Nature, New York Times, (September 29, 2008), available at http://dotearth.blogs.nytimes.com/2008/09/29/ecuador-constitution-grants-nature-rights/, accessed on 17.04.2021

[9] Press Release: Colombia Constitutional Court finds Atrato River possess rights, CELDF, available at https://celdf.org/2017/05/press-release-colombia-constitutional-court-finds-atrato-river-possesses-rights/, accessed on 17.04.2021

[10] Te Awa Tupua (Whanguanui Rivers Claim Settlement) Act, 2017, s. 14

[11] Sigal Samuel, This Country gave all its river their own legal rights, Vox, available at https://www.vox.com/future-perfect/2019/8/18/20803956/bangladesh-rivers-legal-personhood-rights-nature, accessed on 17.04.2021

[12] Ganges, World History Encyclopedia, available at https://www.worldhistory.org/Ganges/, accessed on 17.04.2021

[13] Constitution (Forty Second Amendment) Act, 1976

[14] (2000) 8 SCC 368

[15] Supra note. 4, page no. 3

[16] Writ Petition (PIL) No. 126 of 2014

[17] Supra, note. 7, page no. 3

[18] Ministry of Jal Shakti, available at www.mowr.gov.in, accessed on 17.04.2021

[19] Shrishtee Bajpai, Righting the wrongs: Rights of rivers in India, Monobay, available at https://india.mongabay.com/2020/06/commentary-righting-the-wrong-rights-of-rivers-in-india/, accessed on 17.04.2021

[20] Nilanjan Ghosh, Should the Farakka Barrage be removed? Businessline, The Hindu (March 09, 2018), available at https://www.thehindubusinessline.com/opinion/should-the-farakka-barrage-be-removed/article21684321.ece1, accessed on 17.04.2021

Author: SUJAN GANESH

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