Recognizing the legal rights of rivers, nature, mountains are emerging as a trend that is considered to be a legal necessity. But there exists a legal necessity to give legal rights to rivers, non-living nature, mountains, etc.
Before that, we have to look into what legal rights mean. Giving legal rights means to be declared as juristic or legal persons or living entities having the status of a legal person with all corresponding rights, duties, and liabilities of a living person in order to preserve and conserve these rivers mountains, and nature so that they will be recognized as a legal person with the same set of rights as citizens of the country.
This put forth the new possibilities of considering these non-living entities as legal entities that require protection and thereby placing a limit on the action of humans and also open a great possibility to actively participate in litigation (through legal guardians) for protecting themselves. These rights are often composed of three 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.
Giving legal rights to reverse will pave the path for redefining the environmental law that can make sure a constructive and healthy relationship with rivers and help to maintain its floor its Floral and faunal diversity its catchment and various other elements of the riverine landscape in a manner which is in harmony with broad human interest.
The History
Giving legal rights to rivers is not something new, we have had incidents in the past too where rivers have been granted the status of a legal person. In the year 2008, the Ecuador Constitution was the first in the world to provide legal rights to nature. Followed by Bolivia in the year 2011 to be included in its constitution to provide legal rights to nature. In 2017 New Zealand Parliament passed a law granting legal personhood status to the Whanganui river ecosystem.
Subsequently, in 2018 the same High Court ruled that the entire animal kingdom has rights equivalent to that of a living person. Also, in 2018 Bangladesh became the first country to grant all its rivers the same legal status as humans. Then, as recently as March 2020 the Punjab and Haryana High Court passed an order declaring the Sukhna lake in Chandigarh city as a living entity also with the rights equivalent to that of a person.
Whanganui River
Whanganui River is the river that for more than 700 years the tribes controlled cared for and depended on. It is their awa tupua– their river of sacred power. But when European settlers arrived in the mid-1800s, the Whanganui Maori tribe’s traditional authority was undermined and finally extinguished by government decree. It was destroyed in many ways. Its mouth became a drain for a city’s affluent. The Act of Aquatic decapitation was a deep cultural affront.
In Maori understanding, the head is the most sacred part of any person, and to them, this river is indeed a person – a tupuna, or ancestor. But on March 20, 2017, something remarkable happened. New Zealand recognized in law what Maori had been insisting all along – the river is a living being. Parliament passed legislation declaring that the river and all its physical and metaphysical elements is an indivisible living whole and henceforth processes all the rights, powers, duties, and liabilities of a legal person.
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 ancestor and had faith that they cannot be separated from the river. It is this belief that gave birth to the Whanganui proverb – I am the river and the river is me.
Giving Legal Rights to Rivers of Ganga-Yamuna
India’s Ganga and the Yamuna and its tributaries were declared as legal entities by the Uttarakhand High Court in 2017. By this, the High Court made its stand clear that every natural water flowing with flow continuously or intermittently of these rivers would be legal and living and Titus having the status of a legal person with all corresponding rights and duties. The core reason behind this is pollution. As in the case of India, it is a landmark achievement as Ganga is a life-giving river approximately 400 million people live along with it and also used for various other purposes like for drinking water for navigation bathing, and cleaning harbors fish stocks that play a large part in the local diet and is also used for electricity generation and irrigation. And also, Ganga has spiritual importance in Hindu Scriptures.
Many steps were taken by the government for the preservation and restoration of the river but unfortunately, none of them proved to be effective. The project of the Ganga action plan and the environmental initiative was “the largest single attempt to clean up a polluted river anywhere in the world“. However, it failed to achieve its objectives. And like this several other small movements were also initiated by various small groups and activists to preserve the river Ganga like Save Ganga Movement (1998), Save Ganga Rally at Delhi in 2000, and Save Ganga Yatra from Gangotri to Ganga Sagar, etc. In 2014, another major attempt by the government of India to restore Ganga under which integrated Ganges development project titled Namami Gange was introduced but unfortunately, this too never showed any result.
By time in 2014, a writ was filed in the Uttarakhand High Court by the officials contending lawmakers of Uttarakhand and Uttar Pradesh did not comply with the Federal government in setting up a committee to protect and safeguard the Ganges under the Namami Ganga Action Plan therefore, it was played at before the court to issue requisite instructions. However the court, in this case, adopted a wider approach and granted legal rights to the Ganga and Yamuna. The court directed the advocate general of the state of Uttarakhand chief secretary of state of Uttarakhand and director of the Namami Gange program where the human face has given authority to preserve protect and conserve the Ganga and Yamuna. 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.
The court given the reasons on the ground of faith and belief of the society river Ganga has a spiritual relation with the Indian population. As per the apex court jurisprudence, Hindu deities are to be considered legal persons. also, the court relied on Articles 48A and 51A of the Indian Constitution as Article 48A says that “the state shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country“. And also, 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“. Thus, Court held that legal status is requisite to give effect to these articles of the constitution.
Opportunities and Challenges
As it was stated earlier, this new paradigm opens up new possibilities for rivers to be a participant in litigation. In the case of the Uttarakhand High Court order, several government functionaries and a couple of independent lawyers were named as the parents (i.e the custodians who would ensure that the rights are protected since the reversed like a human baby cannot be expected to do so themselves). By this, punishments can be given to the violators of rules who attempt to pollute the river by filing a suit against the person.
Along with all these opportunities, the Indian law system faces many challenges by giving legal rights to the rivers. The major challenge is that if a river can be a party to a suit by filing a case against a person who attempts to pollute the river, the vice versa can also be considered that is, in case if a flood happens, the victims can also file a case against the river. So, the question here is that who will be responsible for giving the compensation to the victims?
State or other local bodies become the custodians of the river; they will be responsible for paying out the compensations to the victims. There also exists a big question across the world which is how a law on the rights of rivers can be implemented and what would be the best ways to ensure custodianship, restitution, compensation?
One of the longest rivers that run through China and Pakistan to India does not flow as per political boundaries. Its contiguity demands a cross-boundary approach. The rights of rivers discourse open up an opportunity of understanding the issues of transboundary rivers and possible collaborations between neighboring countries on ecological grounds.
Thames Conservation Model
Ask not what nature can do for you -ask what you can do for nature.
John F. Kennedy
What matters is a new orientation of humans to the natural world; one based not on rights but responsibilities. Here comes the importance of the Thames conservation model.
Cleaning up the Holy river Ganga is a tough task. But a noted water expert has set the model adopted to rejuvenate the Thames in London which could be ideal for freeing the Ganga from pollution.
In the mid 19th century, the Thames River, or the great thing, as it was then called was so bad that even sitting in the house of commons had to be put off. But in subsequent years, a part of an ongoing restoration plan with the systematic application of scientific methods of wastewater treatment helped to turn around the once dead Thames. And today, the river Thames is listed among the world’s cleanest rivers. The story of its rebirth dates to late 1960, not earlier. India can surely learn from the model. And thus, the holy river Ganga can be made permanently holy and clean.
Conclusion
It is an emerging trend giving legal rights to non-living entities such as rivers, nature, Mountains, etc. The option for giving legal rights opens up the door to new possibilities for these non-living entities, to protect themselves by being actively participative in litigation and having many other rights. Along with all these opportunities, there also arise many challenges. The challenges include the question about the guardianship of these legal entities and many others. Here comes the real question that ‘do these rivers need really the legal rights?‘ As conservation is a preference, we can also consider the opportunities such as the one provided by the Thames conservation model and many others.
Editor’s Note
Pollution is ruining the lives of not just humans but also the other living things in the world. This article explains that rivers, mountains, etc. deserve rights of their own. The author takes into account various rivers that have been given rights and an identity of their own. The author talks about how the Thames River has been turned into one of the cleanest waters and that the same Conversation Model, as adopted for the Thames, can be used for our own river, the Ganga.