In a recent judgment, the Uttarakhand High Court declared the rivers Yamuna and Ganga as legal or juridical persons , enjoying all the rights, duties and liabilities of a living person. Indian courts have granted this status to temple deities, religious books, corporations, etc., but it is for the first time that an element of the natural environment has been declared a legal person. And it is not just the two rivers — all their tributaries, streams, every natural water body flowing continuously or intermittently of[f] these rivers will enjoy this status.
The dismal ecological state of these rivers, as well as the variety of factors responsible, is well documented. And so are the crores of rupees spent by government agencies to (unsuccessfully) attempt a clean-up. Could this judgment be a game-changer?
Before answering that question, let us take a step back. What was this case about? The two issues before the High Court were: removal of illegal constructions on the banks of a canal in Dehradun, and the division of water resources between Uttar Pradesh and Uttarakhand (which had not been resolved since the formation of the new State). In December 2016, the High Court directed the removal of the constructions. It also directed the constitution of the Ganga Management Board (a statutory body under the U.P. Reorganisation Act 2000), and prohibited mining of the Ganga riverbed and its highest flood plain area. On the issue of resource division, the court directed the Central government to notify the settlement reached by the two States in a time-bound manner.
Three months later, when the matter came up before the court once again, the encroachments were still there, the settlement between the States was yet to take place, and the board had not been constituted. The court issued directions for time-bound action. But separately, it took three logical leaps.
First, for the court, an ‘extraordinary situation’ had been created which required extraordinary measures for the protection of the Ganga and the Yamuna. From what was a clear breach of statutory duties under the U.P. Reorganisation Act, and the regrettable, though scarcely unprecedented, inability of the State to remove encroachments, the case became one concerning the protection of the health and well-being of the two rivers. The issue may have been elaborated upon in court, but the judgment, unfortunately, does not tell us more.
Second, the court recorded how the rivers provide ‘physical and spiritual sustenance’ to half the Indian population. It found the constitution of the board to be necessary for various purposes including irrigation, water supply, and power generation. And then, curiously, found it expedient to give legal status to the rivers as living persons.
Third, the court decides to exercise the parens patriae jurisdiction to declare the rivers and all their tributaries, etc. as living persons. Parens patriae , literally ‘parent of the country’, is an inherent power of the sovereign, and not the courts, to provide protection to persons unable to take care of themselves. It was (in)famously deployed by the Indian government in the Bhopal Gas tragedy case to represent the claims of the victims. The Director, Namami Gange, the Chief Secretary of Uttarakhand and the Advocate General of Uttarakhand have been appointed as the persons in loco parentis — persons who will act ‘in the place of parents’ for the two rivers. These officers are now expected to act on behalf of the rivers for their protection and conservation. They are ‘bound to uphold the status’ of the rivers and also to promote their health and well-being.
The right to sue
The judgment comes close on the heels of New Zealand granting legal status to the Whanganui river. But unlike the comprehensive Bill passed by the New Zealand Parliament recognising rights and settling claims, the High Court’s declaration is terse, and raises several questions. In the eyes of the law, living persons such as companies, associations, deities etc., have rights and duties — primary among these being the right to sue and the capacity to be sued. Which implies that from now on, the rivers can sue persons acting against their interests. But what for? Do they have a right not to be a receptacle for tons of sewage? Can they demand minimum ecological flows? A right not to be dammed, dredged, or diverted? If yes, who will sue whom? Can the Chief Secretary of Uttarakhand now sue a Municipal Corporation in Uttar Pradesh or Bihar for the discharge of effluents downstream? Or will the Director, Namami Gange, sue the Central government for approving another hydro-power project on the river? Do other riparian State governments now have less of a role in the protection of the rivers as they are not the identified ‘custodians’? And what are rivers’ duties?
The judgment does not take away existing statutory and constitutional rights and duties of citizens and government agencies to counter the pollution and degradation of these rivers. What it does do is to identify three officers who will be the first-line defenders for the rivers. Perhaps they will not be able to pass the (institutional) buck any more. But is that game-changing? Sadly, no.
Shibani Ghosh is an environmental lawyer