silent voice of rivers: given legal rights€¦ · karan singh and rashi bhatia1 abstract...
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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, [email protected]. B.A.LL.B., 4th year, Mody University of Science and Technology, Rajasthan, [email protected].
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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