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SILENT VOICE OF RIVERS: GIVEN LEGAL RIGHTS

Karan Singh and Rashi Bhatia1

ABSTRACT

Paradoxically though it may seem . . ., it is none the less true that humans need nature far

more than nature needs us.

“Throughout legal history, each successive extension of rights to some new entity has been,

theretofore, a bit unthinkable.” It has always been the same pattern as only few number of

voices start thinking about something and believe in the mere possibility of considering

giving legal personality to mother nature, this thought of few now became the part of the

mainstream legal thoughts and has led to the jump for providing legal status to rivers. These

developments as aforesaid shows, how in this short span of time we have started doing the

unthinkable. By providing the solutions for the challenges that the earth (i.e. nature) of this

modern world faces, the development of environmental jurisprudence will be the next big

rights-based moment of modern world. The thought that the nature including the ora and

fauna, various end endangered species and ecosystems that comprise our world has inherent

rights and legal personality. We have in this paper critically analyzed the new approach that

has taken place in recent cases where the rights have been granted to various rivers and

nature by courts globally and locally too, for that purpose we have used different case studies

from Australia, New Zealand, and India and other globally trending cases. We have analyzed

how legal their status was recognized and how the rights were given to nature and what

complexity was raised while enforcing these legal rights to protect the rivers. We concluded

that legal personality given to the nature by various courts can be seen as a much

progressive approach as by safe guarding the Mother Nature we can secure a better life for

our own future generations. Provided that these rights should be enforced in much thoughtful

manner.

Keywords- Environmental jurisprudence, legal personality, legal rights, Rivers.

1 B.A. LL.B. 4th year, University Five year Law College, University of Rajasthan, kss.180599@gmail.com. B.A.LL.B., 4th year, Mody University of Science and Technology, Rajasthan, rashi171998@gmail.com.

INTRODUCTION

As pressures on water resources increase, demand for creative institutional arrangements to

tackle misuse of water and under-provision of ecosystem health is rising. A growing amount

of court rulings and laws around the world are acknowledging the rights of nature to be

protected and maintained. The concept of granting legal rights to non- human entities is not

new, but it has only recently begun to be implemented for nature. Of the many paradoxes of

human life, this must be one of the strongest: even as we rely on the rivers for our life, even

as we venerate them in every culture, we also pollute them, block their ow, force them into

lifeless channels, and desecrate them in every conceivable manner. For decades, the

movements of peoples have pointed to the urgent need for action to revive and promote

freshwater systems. Now, a series of the court or public judgments in three far-ung areas of

the globe can just provide these motions with a new lease of life.

JURISPRUDENTIAL CONCEPT OF LEGAL PERSONALITY OF

RIVERS

In modern society where every one is trying hard to protect the Mother Nature the legal

system of our nation can be seen as an active participant of the same, in the recent

development of environmental jurisprudence it can be seen that various rights are granted to

the Mother Nature for its protection.2 If we look at the classic principals of jurisprudence it

can be seen that all human beings are recognized as ‘natural persons’ with certain

fundamental rights. Which was not always the case: for example, women, children, and

slaves have not been legally recognized as person holding natural rights at various points in

history. The legal system of our nation also recognizes some non-human entities as legal

persons.3 Corporations and idol in Hindu temple can be the best-known type of legal person.4

The recent development in the concept of legal personality has been very accessible for the

development of new legal entities that grants them the legal rights, and requires them to full

ll the equivalent legal responsibilities to others. Further its pertinent to not that enjoying

rights and performing duties can be seen as a prerequisite for legal personality. Similarly, A

2Christopher D Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (1972) 45 S Cal L Rev 450.

3 Shiromani Gurudwara Prabandhak Committee, Amritsar v Shri Som Nath Dass & others, AIR 2000 SC 1421 (India) at paras 11, 13 [“Shiromani”].

4 Vidya Varuthi Thirtha vs Balusami Ayyar on 5 July, 1921 (1922) 24 BOMLR 629

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non-human legal person may also have other rights that are similar or different to the ones

that humans characteristically has this is important as if the legal personality is granted to the

entity then it has standing – a right to appear in court and take legal action against others who

have harmed it. As rights carry corresponding responsibilities, legal persons can be held

liable for harming others. Mother nature has been the surviving source of humans and it can

never be denied that we have taken the natural sources for granted as we have degraded the

quality of those resources by dumping the man made toxic waste in the natural resource we

have created imbalance by changing the course of nature.5 If a person cannot speak or act for

itself to protect its rights and interests, one or more humans may be allowed to represent its

legal interests and speak or act on its behalf. The constitution of India has provided the it is

the duty of the government and people that they should be working towards protection of

environment.6

It can be seen from the recent development in jurisprudence of personality that “anything

which the community regards as a unit having socially important interests needing and

deserving juristic protection” can become a legal person, even if it “exists only in the

imagination of those who believe in it.”7 Our legal system has also recognized Hindu idols

and the ruins of a 12th -century temple as legal persons.8

JUDICIAL PRONOUNCEMENTS IN GIVING LEGAL PERSONALITY

TO RIVERS INTERNATIONALLY

Worldwide the nature has been granted with certain basic fundamental rights for its

protection and sustainable ow. Various legal systems of different nations have gradually

recognised the possibility of granting legal rights to nature to have a locus standi in court for

its own protection. The rulings applying the environmental jurisprudence and recognizing

rights of nature have started to emerge in last decade only. These rulings have recognised that

the nature too or in particularly the rivers have the locus standi to stand in court of law across

the world in different terms.

5 MoEF, Water Quality Data for River Yamuna (Summer Averages : March -June); <moef.nic.in/modules/recent-initiatives/NGRBA/aa.pdf>, Accessed on 8th July 2019 6 To protect environment, wild life and forests by taking appropriate safeguards (Article 48A) constitution of India. 7 Alexander Nékam, The Personality Conception of the Legal Entity (Cambridge: Harvard University Press, 1938) at 33 8 Shiromani Gurudwara Prabandhak Committee, Amritsar v Shri Som Nath Dass & others, AIR 2000 SC 1421 (India) at paras 11, 13 [“Shiromani”]

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The rst ruling recognizing the rights of nature was regarding a river, the rst ruling was

delivered in Vilcabamba, Ecuador:

1. Facts of the case- A public contractor started the construction of road next to the

Vilcabamba River using various explosives and heavy machinery and which led to the

depositing of rocks and other construction materials in the river. The accumulation of

these materials caused oods along the river and polluted the waters extensively.

Aggrieved by this act of the builder’s inhabitant of that region brought this case

before the court of common law,

Held- The judge determined that the rights of nature had been violated. Further the

court provided that nature’s right “to exist, to be maintained and to the regeneration

of its vital cycles, structures and functions”. Further the court also recognized the

plaintiff’s right to sue on the basis of Article 71 of the constitution, which establishes

every citizen or nation’s right to demand the authorities the compliance with the rights

of nature. The ruling recognizes the rights of nature as a constitutional right to be

observed and emphasizes that every citizen can defend such rights in court when

violated.9

2. In New Zealand, members of the indigenous Maori tribes have disputed with the

Crown the status of the Whanganui River.

Facts of the case - For the past 140 years in understanding of the implications of the

interpretation of the Treaty of Waitangi (i.e. A treaty declaring British Sovereignty in

1840 and dening Maori’s land ownership ) which is seen as the founding document of

New Zealand as a nation. Despite this also there are instances where the Maori feel that

the Crown did not fulll its obligations under the Treaty and have presented their

contentions along with evidences to show the same before the Waitangi Tribunal.

Held - In 2014, a settlement was nally reached that would grant the river its own legal

identity, with the rights, duties, and liabilities of a legal person. By this settlement, “the

river becomes an entity in its own right, Te Awa Tupua” This settlement then led to the

construction of the Te Awa Tupua Act in 2017 by which the Whanganui becomes a legal

person and granted rights and duties respectively.10

9 Ruling by the Ecuadorian Sala Penal de la Corte Provincial. Protection Action. Ruling Number No. 11121-2011-0010. Casillero N0. 826. 30 March 2011. Available online: http://consultas.funcionjudicial.gob. ec/informacionjudicial/public/informacion.jsf (accessed on 10 July 2019). 10 Williams, J. Te Awa Tupua. Kokiri: Raumati, 2016; pp. 28–31. Available online: https://www.tpk.govt.nz/

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3. The rights granted to Atrato River by ruling in Colombia.

Facts of the case- Illegal mining activities were prevailing near the Atrato River and its

tributaries which were leading cause of pollution in the river and damage caused to the

livelihoods and health of those residing in those nearby areas. This situation caused the

Centre of Studies for Social Justice “Tierra Digna” to approach the tribunal.

Held - The Judges noted the existence of a “serious violation of the fundamental rights to

life, health, water, food security, the healthy environment, the culture and the territory of

the ethnic communities that inhabit the Atrato River basin and its tributaries, attributable

to the Colombian State entities.” As a result of which the court passed the order that the

river Atrato, its tributaries, and its basin have the right to be protected, preserved, and

restored by the State and the communities responsible for same. The court further

mandates the government to appoint two representatives of the river; one would be a

member of the community and the other a member of the government. Similarly, in this

case, the river is provided with legal personhood and with representatives.11

STATUS OF LEGAL PERSON ALITY OF GANGA & YAMUNA

RIVERS IN INDIA

The river Ganga has a unique status in the cultural ethos of Indian society.it is said that

the river has descended from Heaven on earth. From times immemorial, the Ganga has

been India's river of faith, devotion and worship. Millions of Hindus accept its water as

sacred. However, the river is not just a legend; it is also a life-support system for the

people of India. It is important because:

• The densely populated Ganga basin is inhabited by 37 per cent of India's population.

• The entire Ganga basin system effectively drains eight states of India. • About 47 per

cent of the total irrigated area in India is located in the Ganga basin alone. • It has been a

major source of navigation and communication since ancient times.

• The Indo-Gangetic plain has witnessed the blossoming of India's great creative talent.12

en/mo-te-puni-kokiri/kokiri-magazine/kokiri-33-2016/te-awa-tupua (accessed on 29 June 2019). 11 Colombia Constitutional Court Ruling T-622 of 2016, Expediente T-5.016.242. Available online: https: //justiciaambientalcolombia.org/2017/05/07/sentencia-rio-atrato/ (accessed on 29 June 2019). 12 “The ganga” by Y. Sharma https://www.who.int/water_sanitation_health/resourcesquality/wpccasestudy1.pdf (accessed on 12July 2019).

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The High Court of Uttarakhand recognized the legal personality of the Ganga and

Yamuna rivers. Ten days later, the same court extended legal personality to the glaciers

that feed these two rivers, as well as associated “rivers, streams, rivulets, lakes, air,

meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls.”13

Background Context

A number of legal precedents created the conditions that enabled the High Court’s

recognition of nature’s legal personality. As afore mentioned, India’s judiciary has

recognised the various non-human entity as a person such as corporations, Hindu idols

and the ruins of a 12th -century temple as legal persons.14 The juridical personhood of an

idol was conrmed by Supreme Court where the court held that “property which is

dedicated to the deity [idol] vests in an ideal sense in the deity itself as a juristic person,”

while a manager “is entrusted with the custody of the idol” and “preservation of the

property.”15 The selection of Ganga and its main tributary as India’s rst natural features

with legal status is predictable, because Ganga has been victim of various development

programmes causing the degradation of its water as implemented in low standard to

protect the environment it can be said that ganga has been “treated more like an open

sewer than a cultural and ecological treasure,” with approximately 3 billion litres of

wastewater dumped into it every day.16

Method of Legal Recognition of Indian Rivers

The legal method to grant legal status to rivers in India has been given by the Court

relaying on the doctrine of parens patrie jurisdiction. to declare “the Rivers Ganga and

Yamuna, all their tributaries, streams, every natural water owing with ow continuously

or intermittently of these rivers” to be “juristic/legal persons/living entities having the

status of a legal person with all corresponding rights, duties and liabilities of a living

person.”17 The Court further provided that “the rivers have provided both physical and

spiritual sustenance to all of us from time immemorial... They support and assist both the

13 Lalit Miglani v State of Uttarakhand & others (30 March 2017), WP (PIL) 140 of 2015 (Uttarakhand High Court, India). 14 Vidya Varuthi Thirtha vs Balusami Ayyar on 5 July, 1921 (1922) 24 BOMLR 629 . 15 Ram Jankijee Deities v. State of Bihar, 1999 (5) SCC 50 (India). 16 “The ganga” by Y. Sharma https://www.who.int/water_sanitation_health/resourcesquality/wpccasestudy1.pdf (accessed on 12July 2019). 17 Parens patriae can be understood as a “prerogative... inherent in the the supreme power of every state... for the prevention of injury to those who cannot protect themselves.” See Fontain v Ravenel (1854), 58 US (17 How) 384, quoted in Miglani.

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life and natural resources and health and well-being of the entire community. Rivers

Ganga and Yamuna are breathing, living and sustaining the communities from mountains

to sea.18

Further using the same parens patriae jurisdiction used to recognize the rivers’ legal

personality, the Court declared “the Glaciers including Gangotri & Yamnotri, rivers,

streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs

and waterfalls” to be “legal entity/ legal person/juristic person/juridical person/ moral

person/articial person having the status of a legal person, with all corresponding rights,

duties and liabilities of a living person, in order to preserve and conserve them.”19

CONCLUSION

Here, we are talking about the recognition of the rights of nature especially about rivers

will remain a very incipient movement within ofcial legal systems. It is a movement that

creates many uncertainties, but also the ability to evolve completely and become the rule

rather than the exception. When reconsidering our present legal system and trying to

implement an Earth-centred paradigm and its implementation in court, these problems

should be borne in mind. History has shown that law is often behind social change. As the

planet strives to attain a more viable manner of living, the rights of nature will provide a

legal instrument to control our connection with nature from a distinct and more

harmonious view. As Leimbacher said, “legal standing for nature is nothing but a

consequential continuation of a century-long process of expansion of the group of legal

subjects.”20 The court rulings, laws, and political statements mentioned in this article,

although still lled with uncertainties, play a signicant part in verifying and

materializing the current values of deep nature that are slowly increasing within society.

So, we can give legal rights to rivers merely for the sake of allowing rivers to go to court

may end up being self-defeating. But it may be possible to accomplish the broader

objective of transforming our connection with nature into one of mutual regard rather

18(Note. This court decision is appealed and order stayed is still pending).Mohd. Salim v State of Uttarakhand & others (7 July 2017), WP (PIL) 126 of 2014 (Supreme Court of India). 19 Lalit Miglani v State of Uttarakhand & others (30 March 2017), WP (PIL) 140 of 2015 (Uttarakhand High Court, India). 20 Leimbacher, H. Gender and Nature in Comparative Legal Cultures. In Comparing Legal Cultures; Nelken, D., Ed.; Routledge: New York, NY, USA, 2016; Chapter 8; p. 146. ISBN 9781855218987 .

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than exploitation by focusing those new legal rights on the relationship between

individuals and the river.

SUGGESTIONS

· It may be possible to mitigate this paradox by constructing stronger connections

between the individuals and rivers.

· The two most effective instances of rivers ' legal rights in New Zealand and

Colombia demonstrate the authority to use rivers ' legal rights to safeguard not

only the river's ecology, but also the connection between individuals and the river.

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