Lending a Voice to the Rivers: Elevating Environment Law Jurisprudence in India

Lending a Voice to the Rivers: Elevating Environment Law Jurisprudence in India

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INTRODUCTION:

The Te Awa Tupua (Whanganui River Claims Settlement) Bill was introduced for the first time in the Parliament of New Zealand on 02.05.2016, and after the ‘Third Reading’ on 14.03.2017, it received the ‘Royal Assent’ on 20.03.2017. The purpose of the Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 (2017/7) was to give legislative sanctity to the provisions contained in the deed of settlement which settles the historical claims of Whanganui Iwi so far as those claims relate to the Whanganui River. By virtue of the Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017, Whanganui River has become the foremost river in the world to have been conferred the status of a legal person. Development in the same direction and at an equal pace was witnessed in India, as River Ganga and River Yamuna recently on 20.03.2017 were conferred the status of legal persons, not by the Parliament of Indian Republic but by the Apex Court of the State of Uttarakhand by invoking the parens patrie jurisdiction and pitching light upon the provisions contained in Article 48-A and Article 51-A (g) of the Constitution of India, 1950.

Vide their order dated 20.03.2017 in the case of, Mohd. Salim v. State of Uttarakhand & Ors., Writ Petition (Public Interest Litigation) No. 126 of 2016, exercising the parens patrie jurisdiction, a Bench comprising of Rajiv Sharma & Alok Singh, JJ., High Court of Uttarakhad, conferred the status of living/legal persons to River Ganga and River Yamuna. The Nainital Bench of the Uttarakhand High Court categorically held that, River Ganga and River Yamuna, together with all their tributaries and streams are living persons having rights, duties and liabilities; moreover, the Director of NAMAMI Gange, Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand were declared as “persons in loco parentis”, that is, human representatives or guardians entitled to protect, conserve and preserve, these rivers and all their tributaries.

DIRECTIONS RENDERRED IN ORDER DATED 05.12.2016:

Vide its order dated 05.12.2016 in Writ Petition (Public Interest Litigation) No. 126 of 2014, the Uttarakhand High Court gave directions to the Central Government to constitute a ‘Ganga Management Board’ (hereinafter referred to as the “GMB”) under Section 80 of the Uttar Pradesh Reorganisation Act, 2000 (hereinafter referred to as the “Act”) and to make it functional within a period of 3 (three) months from the date of the order. The Central Government was further directed to induct the State of Uttarakhand as member of the Upper Yamuna Board within a period of 3 (three) months from the date of the order; last but not least, mining activities in the river bed of Ganga and its highest flood plain area were banned forthwith.

OBSERVATIONS MADE IN ORDER DATED 20.03.2017:

The Hon’ble High Court of Uttarakhand vide its order dated 20.03.2017 observed that, according to the purport of Section 80 (2) (b) of the Act, two full time members, one from each of the States of Uttarakhand and Uttar Pradesh were to be nominated by the respective State Governments as Members of the GMB; further, according to Section 80 (4) (c) of the Act, four part-time members, that is, two members from each State of Uttarakhand and Uttar Pradesh, were to be nominated by the respective State Governments. The Chairman of the GMB was to be appointed by the Central Government after consultation with the respective State Governments along with two representatives. Despite the order dated 05.12.2016 vide which the Central Government was directed to take a final decision apropos the constitution of the GMB based on the Memorandum of Understanding (MOU) dated 02.02.2016 arrived at between the States of Uttarakhand and Uttar Pradesh, nothing was forthcoming, much because of the lackadaisical attitude of the respective State Governments and due to non supply of the MOU to the Central Government. The Nainital Bench of the Uttarakhand High Court expressed strong displeasure about the manner in which the State Governments kept on sleeping over the issue of the constitution of the GMB, and further termed it as a sure sign of “non-governance”; further the learned court observed that, non-compliance of the orders of the Central Government by the respective State Governments can result in consequences flowing out of Article 365 of the Constitution of India, 1950.

ATTRIBUTES OF A LEGAL PERSON:

According to Salmond, following 5 (five) are the attributes of a legal person: (a) It is an entity or person, whom the law regards as capable of having rights and duties; (b) A legal person need not be a human being; (c) Any person who is incapable of having rights falls outside the definition of ‘legal person’, even if, he is a human being; (d) Persons are the substances of which the rights and duties are the attributes; and, (e) Only if the above characteristics are present, the persons possess the juridical significance and the personality receives the legal recognition.[1]

REASONS FOR CONFERRING THE STATUS OF LEGAL PERSONS TO RIVER GANGA AND RIVER YAMUNA:

The reasons which weighed with the High Court of Uttarakhand for conferring the status of ‘juristic person’ to River Ganga and River Yamuna can be summed up as follows:

  1. It is settled by authorities on jurisprudence that for a bigger thrust of socio-political-scientific development evolution of a fictional personality to be a juristic person became inevitable. This may be any entity, living inanimate objects or things. It may be a religious institution or any such useful unit which may impel the Courts to recognise it. This recognition is for sub-serving the needs and faith of the society. A juristic person, like any other natural person is in law also conferred with rights and obligations and is dealt with in accordance with law.[2] Therefore, to protect the recognition and faith of society, River Ganga and River Yamuna are required to be declared as living/legal persons.
  2. Hindus have a deep spiritual connection with River Ganga and River Yamuna; these rivers are not only considered as holy and sacred, but are conferred the status of ‘Maa’ by the practicing Hindus. Ancient Hindu texts and scriptures such as the Rig Veda depict the godliness of these rivers, and Hindus believe that a dip in these rivers can wash away all their sins. As like the River Ganga originates from the Gaumukh Glacier, River Yamuna originates from the Yamnotri Glacier. These rivers have both spiritual and physical sustenance; they support, sustain and shore up not only life, health and well being but also provide for natural resources to the society at large; these rivers are living and breathing, supporting communities from mountains to sea.
  3. These rivers can be conferred the status of juristic person for a simple reason that development of society necessitates it. Just like a Hindu idol is a juristic unit capable of holding property and being taxed through its Shebaits, who are entrusted with the possession and management of its property[3], no impediment exists if the same status of legal personality/entity is conferred to these rivers which are not only revered and worshipped by the Hindus but, also, Hindus have a deep spiritual and emotional connect with these rivers from time immemorial, with Hindu scriptures writing extraordinarily about the divinity of these rivers.
  4. The court of law in exercise of its ‘parens patrie’ jurisdiction is competent enough to appoint legal guardians for juristic persons (like for the Church, Hindu idol, Image (Sayambhu/Self-Revealed, or, Pratisthita/Established) and/or Corporation) to safeguard their rights, privileges and interests, and more so because in contemplation of law a juristic person is to be treated as an infant which in fact is always ‘underage’ or ‘minor’. A piece of wood or stone may become an image or idol of the divine for the simple reason that, the people start attributing divinity to it, that is to say, it is the human concept or human vision of Lord of Lords i.e. how one sees the deity; how one feels the deity; and, how one recognises the deity and then establishes the same in the temple upon the performance of the consecration ceremony.[4] All Hindus have deep astha in River Ganga and River Yamuna, and they collectively connect with these rivers on an emotional and spiritual level; there are temples dedicated to these rivers; these rivers are central to the health and well being of half of the Indian population, thus, their conservation is a must, and, to address them as juristic persons will only advance and not taper the frontiers of human development in India.
  5. Constitution of GMB is essential not only for regulating rural & urban water supply, hydro-power generation and navigation needs of the people of the country but also for regulating irrigation needs of half of the population of the country, thus, expediency and necessity demands that River Ganga and River Yamuna be conferred the status of living persons so that, less depends upon the indulgence and coordination between the State of Uttarakhand, State of Uttar Pradesh and the Central Government, and rather much depends upon the policy, planning and feat of the Director of NAMAMI Gange, Chief Secretary of the State of Uttarakhand and Advocate General of the State of Uttarakhand, who shall act as the legal custodians of these rivers and their respective tributaries.

EXCURSUS:

The Hon’ble Supreme Court of India in the case of, Som Prakash Rekhi v. Union of India[5] held that, a legal person is any entity other than a human being to which the law attributes legal personality. Conferment of legal personality to River Ganga and River Yamuna vide order dated 20.03.2017 will soon become an oft quoted precedent which will not only result in socio-economic and human development in the country but will also help the courts in shifting the balance of power from the States concerned to certain human individuals appointed by the courts in exercise of its parens patrie jurisdiction, where by the court will appoint legal guardians to the legal persons, who shall be answerable to the courts concerned in all cases and whose focus will be to comply with and not to circumvent the orders passed by the court. No doubt, legal innovations in the nature of polluter pays principle, precautionary principle, principle of sustainable development, doctrine of public trust, absolute liability theory and deep pocket theory have elevated the environment law jurisprudence in India, but this idea of conferring legal status to natural resources such as the rivers to protect them is exceptional.

[1] See: Garima Tiwari, Jurisprudence II, Chapter 8: Legal Personality, Lexis Nexis,  p.156-157

[2] See: Shiromani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath Dass & Ors, AIR 2000 SC 1421

[3] See: Yogendra Nath Naskar v. Commissioner of Income Tax, Calcutta, 1969 (1) SCC 555

[4] See: Ram Jankijee Deities & Ors v. State of Bihar & Ors, 1999 (5) SCC 50

[5] AIR 1981 SC 212

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Shivam Goel
Shivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com