Let's Do Something BIG.
A COMMUNITY DEDICATED TO TELLING THE STORIES OF ENVIRONMENTAL ADVOCATES WORKING TOWARDS MAKING THIS WORLD A BETTER PLACE.
In a recent order by the High Court of the North-Indian state of Uttarakhand, rivers Ganga and Yamuna  and all their tributaries were recognised as legal entities. They are now entitled to the same human rights as guaranteed under Articles 48-A and 51 A(g) of the Constitution of India.  The order came under an ongoing case on the inaction of the responsible government agencies regarding the cleaning of river Ganga, one of the largest rivers in the country and also one of the most polluted in the world. 
The Court emphasised the religious and ecological significance of these rivers to reach its conclusion. It was observed that just as a company, or Hindu idols have been recognised as legal entities and are capable of having property and paying tax returns.  Similarly, these rivers can and must be recognised as legal entities capable of holding rights.  The Court stated that both rivers are worshipped by Hindus and carry deep spiritual and religious significance for Hindus, they support many communities and hold vast natural resources.  Their protection, the Court said, is of utmost importance. As a result, it accorded two government officials and the Advocate General of the State as persons in loco parentis or the human face to protect, conserve and preserve the rivers. The Advocate General shall represent the rivers at all legal proceedings to protect their interests. 
Not only these two rivers, but ‘glaciers, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’ were also declared as legal entities with fundamental rights.  The Court decided thus in a case which followed the first order in the case above. The Court reiterated the religious and mythological relevance of some of these natural entities, and quoted principles of international environmental law, like those identified in the Rio Declaration.  As in the first order, government officials and the Advocate General of the State were declared persons in loco parentis, in addition to noted advocates and academics.
With these orders India is now in company with New Zealand and Ecuador to have declared a natural entity a legal person with equivalent rights to a human being.  While noting his reservations with the order of the Court, Professor Visvanathan has observed that the decision marks an important “shift in Indian legal philosophy.”  “It’s the inauguration of a new way of seeing.” 
However, the larger legal implications of the orders are still not clear. The legal reasoning of the Court is limited, accompanied with religious and Hindu mythological narratives that give little direction as to the general legal implications and the impact on participation by the public in the protection of these natural entities.
Additionally, there are jurisdictional concerns. Ganga and Yamuna are not contained within the state of Uttarakhand and cover vast territory in more than one state, where the High Court of Uttarakhand does not have jurisdiction, causing complications to this ruling.  In the second order, which recognised the wide list of natural entities as legal entities, the same jurisdictional concerns remain.
Furthermore, the Court in either case does not explain the rights that have been extended to these entities. The first order observes that the rivers concerned have rights under Articles 41-A and 51 A(g).  Article 48-A is under ‘Directive Principles of State of Policy’(DPSPs) under the Constitution of India which identify principles to be adhered to in the policies of the state with respect to conservation of the environment.  DPSPs are not enforceable by a court of law and are merely guiding principles.  It is unclear therefore, what the Court means by rights. Article 51 A(g) falls under the Fundamental Duties of citizens of India, which are not meant to be enforceable. 51A(g) in particular concerns the general duty of citizens to protect the environment.  It may be inferred that, since the state and citizens have a duty to protect the environment, the environment has a corresponding right to be protected. However, this does not assist in understanding the content or scope of these rights.
The second order, by a marginal contrast, observes that the concerned entities are entitled to all Fundamental Rights. Fundamental Rights under the Indian Constitution include human rights like the right to equality, freedom, religion, freedom from exploitation, and freedom for cultural and educational rights,  a violation of these is subject to judicial redress under Articles 32 and Article 226 of the Indian Constitution.  But, which articles out of these are applicable to natural entities is not identified by the Court, nor the implications thereof. For instance, River Ganga, whose religious importance the orders remind us of, remains exploited by inconsiderate human use. It is continuously polluted as a cremation site, or for other religious rituals.  Protection of the river would necessitate the restriction on the use of the river for religious practices. However, protection of the rights of the river in this way will conflict with fundamental rights of freedom of culture and religion to practice these rituals. Which rights take precedence? How does one know when the rights of a river are violated? Where is the line drawn between acceptable human use of the river and a violation of its right of equality, freedom and its exploitation? Will the construction of dams be affected by the judgement or are such development projects excluded from the scope of this right? 
Many such questions remain unanswered.
Continue reading about this issue in a post to be released next week!
Sugandha is a resident of the Indian capital of New Delhi and a student of law at Durham University. Her love for the environment began when she came to this small northern English city, and was exposed to air she could finally breathe.
References found below.