Ganga Yamuna rivers now Living being
In its latest judgement,the Uttarakhand high court has recognized the Ganga and the Yamuna as living entities. This gives the rivers, that have seen years of damage at the hands of humans, a legal voice.
India seems to be following precedents in other countries where a flowing river has been granted a legal status (New Zealand for river Whanganuith). It is an extension of the philosophy of allowing a river to flow freely—as was intended in its nature.
Any interference with the river as a whole, including construction of dams, takes away from its essential and basic character. Such a move by court would involve a re-look into construction activities across the river such as sand mining and construction of dams.
Non humans as living entities
- The HC order may be seen as a precedent and come across as strange but it is not any different from the status of being a legal entity as in the case of temple deities, religious books, corporations, family trusts or a company.
- Still, it is the first time a court has recognized anon-human as a living entity in India.
- The court also directed the central government to constitute the Ganga Management Board within eight weeks to look into the issue of cleaning and maintaining the river.
- The bench also held that if the state government failed to fulfil its responsibility regarding the rivers, then the central government should step in.
- Recognizing the rivers as a living entitygrants them new found legal identity and all rights laid out in the Constitution of India.
- The two rivers thus have theright to be legally protected and not be harmed/destroyed. They can also be parties to disputes. As per experts, the rights can be used to protect the interests of the rivers.
- Additionally, all their tributaries, streams, every natural water body flowing continuously or intermittently off these rivers will enjoy this status.
- Ganga, often called India’s lifeline, has significant economic, environmental and cultural value attached to it.
- Originating in the Himalayas and flowing into the Bay of Bengal in the east, it travels for more than 2,500km through the plains of northern and eastern India
- The river flows through Uttarakhand, Uttar Pradesh, Bihar, Jharkhand and West Bengal
- Over 1500 million litres of raw sewage is discharged into the Ganga every day. This joins 500 million litres of industrial waste dumped by more than 700 highly polluting industries located along it.
Background of judgement:
- There were two issues before the High Court:
- removal of illegal constructions on the banks of a canal in Dehradun
- the division of water resources between Uttar Pradesh and Uttarakhand.
- In December 2016, the High Court directed the removal of the constructions, 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, the encroachments were still there, the settlement between the States was yet to take place, and the board had not been constituted.
- The court issues directions for time-bound action and took three logical leaps:
- For what was a clear breach of statutory duties under the U.P. Reorganisation Act and also inability of the State to remove encroachments, the case became concerned about the protection of the health and well-being of the two rivers.
- The court recorded how the rivers provide ‘physical and spiritual sustenance’ to half the Indian population. Thus, the constitution of a board was necessary for various purposes including irrigation, water supply, and power generation.
- The court decided to exercise theparens 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.
- The Director, Namami Gange, the Chief Secretary of Uttarakhand and the Advocate General of Uttarakhand have been appointed as the personsin loco parentis — persons who will act ‘in the place of parents’ for the two rivers. They are ‘bound to uphold the status’ of the rivers and also to promote their health and well-being.
Are we opening a Pandora box,
- rivers aren’t actually persons, not in literal sense. It is a reminiscent of “legal fiction” involved in corporate personhood that’s meant to uphold the rights of groups and to smooth business processes.
- If one river is a person, then all rivers are also living entities. It means that all shall be given rights of a person protected and guaranteed under constitution. How to identify roles, rights and duties of a river?
- True legal persons deserve specific sets of freedoms and protections. The needs of rivers and trees are objectively different from the needs of actual people. Issues of bodily autonomy, or the right to vote, are completely irrelevant to a body of water.
- Animals are yet to be identified as living beings under law. Giving such a status to comparatively different body seems to be unfair and illogical.
Difficulties in implementation:
- The law gives the legal persons such as companies, associations, deities etc. rights and duties like right to sue and be sued. This order implies that the rivers can also sue persons acting against their interests.
- However, the reasons for the same are difficult to be categorised logically-
- If the rivers lose the right to be a holder for tons of sewage?
- If they can demand minimum ecological flows?
- If it will be 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?
- Do other riparian State governments now have less of a role in the protection of the rivers as they are not the identified ‘custodians’?
- What will be rivers’ duties?
The judgement keeps the existing statutory and constitutional rights and duties of citizens and government agencies to counter the pollution and degradation of these rivers. Only it has identified three officers who will be the first-line defenders for the rivers. Now it remains to be a ‘wait and watch’ situation as to how the state governments and central government perform follow up actions.
Another way is to develop standards that are specific to the resources being protected. innovative, effective, enforceable, and specific to the object legislation are more effective and comprehensible than to merge them with the idea of being a person.