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Tuesday, July 05, 2022

When 2 rivers are legally living persons: some rights, some questions

For judicial purposes, living persons are “juristic persons” to which the law attributes personality for good and sufficient reasons.

Written by Sowmiya Ashok |
June 1, 2017 1:13:03 am
Ganga, Yamuna The Ganga, one of two rivers accorded legal status as living persons. (File/Neeraj Priyadarshi; Wikimedia)

On March 20 this year, Uttarakhand High Court declared that the rivers Ganga and Yamuna would be legally treated as “living people,” and as such, would enjoy “all corresponding rights, duties and liabilities of a living person.”

Five days earlier, for the first time in the world, a river in New Zealand, the Whanganui, was granted legal rights as a human being. It was a culmination of over a decade-long effort by the local Maori tribe. “The reason we have taken this approach is because we consider the river as an ancestor and always have,” the lead negotiator for the Whanganui iwi (tribe) told The Guardian.

In India, a division bench comprising Justice Alok Singh and Justice Rajiv Sharma, while adjudicating on a land acquisition case, observed that apart from a spiritual connect that Hindus share with the two rivers, the Ganga and Yamuna are central to the existence of half of the Indian population.

“The rivers have provided both physical and spiritual sustenance to all of us from time immemorial… They support and assist both the life and natural resources and health and well-being of the entire community. Rivers Ganga and Yamuna are breathing, living and sustaining communities from mountains to sea,” the bench opined.

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For judicial purposes, living persons are “juristic persons” — any subject matter other than a human being — to which the law attributes personality for good and sufficient reasons. In other words, “for a bigger thrust of socio-political-scientific development, evolution of a fictional personality to be a juristic person becomes inevitable.”

Citing precedents [1969 (1) SCC 555 of Yogendra Nath Naskar v Commission of Income Tax, Calcutta] in which Hindu idols have been considered as a “juristic entity capable of holding property and of being taxed,” the division bench of Uttarakhand High Court, noted that with the development of society where the “interactions of individuals fell short to upsurge the social development, the concept of juristic person was devised and created by human laws for the purposes of the society.”

Ganga, Yamuna The Whanganui river is sacred to the Maori tribe. (File/Neeraj Priyadarshi; Wikimedia)

The bench cited Articles 48 (A) — the state’s responsibility with respect to environment protection — and Article 51 A (g) – the fundamental duties of every citizen to protect and improve the natural environment — as grounds to pass such a judgment.

There is though a fundamental difference between New Zealand’s recognition of their third largest river as a living entity and that of Uttarakhand High Court according the status to two of India’s prominent rivers. It has led to questions being raised by various stakeholders here.

It pertains to the custodians appointed to act on behalf of the rivers. New Zealand has appointed two guardians — one from the crown and one from the Whanganui iwi tribe itself. In India, the three custodians are solely government authorities: the chief secretary of the state of Uttarakhand, the advocate general of the state of Uttarakhand and the director of the National Mission for Clean Ganga (NMCG).

These three, the bench noted, will serve as “the human face to protect, conserve and preserve the rivers and their tributaries” and the advocate general will represent all legal proceedings to protect the interest of the rivers.

Simply put, the conceptual and practical implication of the judgment is that it makes it easier for the three chosen authorities to take action against those who pollute the river.

Activists point to the the lack of local representatives as custodians of the rivers and say that the judgment instead allows the polluter – which in several instances is the government itself – to act as custodians. “We think the judgment is actually directed just at policymakers and not the larger public,” Mallika Bhanot from Ganga Avahan, an NGO working for the conservation of Ganga, said. “The state of Uttarakhand should not be made custodians, they should be held responsible.”

The Uttarakhand government too is seeking clarity on the March 20 order. It recently said that it plans to approach the Supreme Court in this regard. The state government contends that since the river flows through five states, it could lead to “technical, geographical and administrative issues” in the implementation of the order. How can the chief secretary of Uttarakhand be held accountable if the river is polluted in West Bengal, Bihar, Jharkhand or Uttar Pradesh, the state wants to know.

And two months after the order, the office of another of the custodians, the National Mission for Clean Ganga, has sought legal advice from the law ministry. “We want to know what implications it has for us?” an NMCG official said, adding the file has been stalled since the matter is sub-judice. The Ministry of Water Resources might extend this order to examine all other rivers in India too, he added.

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