On 20 March 2016 the High Court of the Indian state of Uttarakhand issued a remarkable series of directions following on from a case on which they had ruled on 5 December 2016.
In the original case, local resident Mohammed Salim had filed a petition asking the High Court to direct the government of the state of Uttarakhand to remove illegal construction along the banks of the Yamuna, as well as to order the central government to properly manage land and water resources.
The judgement in Mohd Salim versus State of Uttarakhand and others, delivered by justices Rajiv Sharma and Alok Singh, was basically concerned with the issues of federalism, and whether a state – through its judiciary – could order the central government to take steps protect the river.
The justices decided that it was well within the rights of a state to pass such an order, because on certain subjects within the federal structure of the Indian Constitution the states are supreme in their field – water being one of the most important such areas.
Accordingly the High Court directed that not only should the people who had encroached on the land be evicted, but that the central government clarify the division of authority between Uttarakhand and Uttar Pradesh (from which Uttarakhand was carved out in 2000).
The order also mandated that:
“The Central Government is also directed to constitute a Ganga Management Board, under Section 80 of the Act, and make it functional within a period of three months. The Central Government shall also induct State of Uttarakhand as member of the Upper Yamuna Board within three months.”
Lastly it said, “mining in the riverbed of Ganga and its highest flood plain area is banned forthwith”.
While the strong instructions in the order made it clear that the justices were very concerned with the destruction and neglect of the rivers, the follow on directions went far beyond that, by arguing that the Ganga and Yamuna rivers should be considered legal entities in their own right.
The reason for this, the justices explained, was that, “The extraordinary situation has arisen since Rivers Ganga and Yamuna are loosing (sic) their very existence. This situation requires extraordinary measures to be taken to preserve and conserve Rivers Ganga and Yamuna.”
The extraordinary measure that the justices had in mind was to declare,
“Accordingly, while exercising the parens patrie jurisdiction, the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/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 river Ganga and Yamuna.”
The justices buttressed their argument by referring to Articles 48A and 51A (g) of the Indian Constitution. The first refers to the duty of the state to protect and improve the environment and take care of wildlife, while the second is part of the fundamental duties of an Indian citizen to do the same in their capacity. Article 48A has often been cited by Indian courts in passing judgments in favour of environmental protection.
Sacred rights for holy rivers
In this case, though, the argument of justices rested on the sacred nature of the two rivers, which are holy to Hindus. In India jurisprudence a deity may be a legal entity and is represented by the management staff of the temple, or caretakers of the deity. This is because such religious entities also have secular aspects – money given to religious trusts, for example – that means that their rights and responsibilities also exist.
In the case of the rivers, the justices have granted the parens patrie (the power of the state to act as parents when the parents are not able to fulfil those functions) powers to state representatives, with the “Director NAMAMI Gange [the National Mission to Clean the Ganga], the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand are hereby declared persons in loco parentis as the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries.”
Although the justices cite largely Indian law, the wording of their statement is remarkably similar to legislation passed in New Zealand – coincidentally given the royal assent on 20 March 2017 – in relation to the Whanganui river, sacred to the Maori indigenous people. The New Zealand law also recognised the river as a legal entity with all the “rights, power, duties and liabilities of a legal person”, and was billed as a world first.
New ruling throws up difficult questions
Despite the striking similarities, there are key differences between the two declarations of personhood for a river. The New Zealand legislation is the outcome of one of the longest legal disputes in the nation’s history and is primarily a power distribution agreement about the management of a protected area whose parameters and status are very clear.
This is certainly not the case with the Yamuna or the Ganga – which are extensively used in irrigation and other forms of use. Unlike the Te Awa Tupua, the protected area of the Whanganui river, the Ganga is “one of the most engineered rivers in the world” – with large dams, irrigation projects, and millions of tube wells.
As a lawyer at the Indian Supreme Court asked, “If a farmer pumps water onto his land from the river, is he violating the ‘person’ of the river? What happens in the case of a flood, will the authorities in loco parentis compensate the people harmed?”
Speaking on the condition of anonymity, he explained the issue that the court had ignored in making a comparison with deities regarded as legal persons. “In the case of temples and their trusts, there are rights and responsibilities, but in this case there are only rights. A religious trust can both sue, and be sued. Who is going to sue a river, if it runs dry, if it is polluted, if it floods?”
What does this mean for India’s river diversion plans?
More significantly, with the new legal status given to rivers, India’s massive river linking scheme would become impossible. The controversial project being pushed by Narendra Modi’s government involves the large scale diversion of water from the Ganga and Brahmaputra basins in eastern India to water scarce regions of western and central India through the construction of reservoirs, dams and canals.
This leaves open the important question that if the government interferes in the river by making these interventions, will the Advocate General of Uttarakhand act?
Potential for new conflict
An additional complication with the Ganga is that it is a transboundary river. Not only does it wind through a number of Indian states, it also has tributaries coming in from Nepal, and is one of Bangladesh’s major rivers – where it is called the Padma. How could the officers of Uttarakhand represent the other Indian states, and other countries?
There is also the issue of precedent. One of the most contentious water issues in India revolves around the Cauvery river flowing between Karnataka and Tamil Nadu. It is also considered sacred, as are many other water bodies in India – giving them “personhood” is likely to exacerbate, rather than calm, already frayed relations.
Given the number of questions that the directions raise, they should be seen in the light of the Indian judiciaries continued commitment to the Directive Principles found in the Constitution to preserve the environment – Articles 48A and 51A (g) – and the judiciary’s frustration at how badly these articles have been neglected.
Omair Ahmed is managing editor, South Asia, The Third Pole. This article is republished from The Third Pole.
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