Insights into Editorial: The river as being
In a recent judgment, the Uttarakhand High Court declared the rivers Yamuna and Ganga as legal or juridical persons, enjoying all the rights, duties and liabilities of a living person. Indian courts have granted this status to temple deities, religious books, corporations, etc., but it is for the first time that an element of the natural environment has been declared a legal person. And it is not just the two rivers — all their tributaries, streams, every natural water body flowing continuously or intermittently of these rivers will enjoy this status.
The court ordered that the Director of the Namami Gange programme, the Uttarakhand Chief Secretary, and the Advocate-General of Uttarakhand would serve as “parents” for the rivers and would be the human faces to “protect, conserve and preserve” the rivers and their tributaries.
What was this case about?
The two issues before the High Court were: removal of illegal constructions on the banks of a canal in Dehradun, and the division of water resources between Uttar Pradesh and Uttarakhand (which had not been resolved since the formation of the new State). In December 2016, the High Court directed the removal of the constructions. It also directed the 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, when the matter came up before the court once again, the encroachments were still there, the settlement between the States was yet to take place, and the board had not been constituted.
Implications of this move:
- The Ganga and Yamuna, all their tributaries, streams are declared as juristic or legal persons or 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 two rivers thus have the right to be legally protected and not be harmed/destroyed. They can also be parties to disputes. The rights, experts say, can be used to protect the interests of the rivers.
While the idea of a river being recognised as a ‘living entity’ might be new to India, nature having legal rights is a concept already codified in countries like Ecuador and New Zealand.
Ecuador actually became the first country to recognise the ‘Rights of Nature’ in its Constitution. Rather than treating it as a property, and hence right-less, the constitution treats nature as having the “right to exist, persist, maintain and regenerate its vital cycles.”
It was only a few days ago that New Zealand’s Whanganui River won personhood rights.
What necessitated this move?
The judges said that such a situation had arisen as the rivers were losing “their very existence”.
- In 2012, the National Cancer Registry Programme, under the Indian Council of Medical Research and in a detailed study, called the Ganga a “cancer-causing river”. They said the amount of pollutants and toxins and heavy metals had made the river a health hazard to people living on her banks. The NCPR Head said, “We know that the incidence of cancer was highest in the country in areas drained by the Ganga”. Over 1,500 million litres of raw sewage is discharged into the Ganga every day; 700 highly polluting industries on its banks dump close to 500 million litres of industrial waste; we know that close to 60% of solid waste not collected by the waste management boards ends up in rivers.
- The Yamuna, on the other hand, has been declared a dead river. The dissolved oxygen level, which are crucial to life in the water, is negligible. The river usually flows with heavy toxic foam on its surface and often parts of the river actually catch fire. Ostensibly, in the last 22 years, over Rs. 2,000 crore has been spent on the clean-up of the Yamuna.
- Successive governments have allocated money and failed to help the rivers. In 2014-2015, an RTI shows that 2,100 crores was allocated for the Ganga Clean-up under the Prime Minister’s Namami Ganga project, of which only about 300 crores have been used while 1,700 crores lies unspent. In total, over the years under various governments, 20,000 crores have been spent on “cleaning the Ganga”. Things are worse than ever for both rivers.
This new order by the Uttarakhand High Court makes it illegal now for anyone to “harm” these living entities. If a river’s life is dependent on her flow and her healthy ecosystem, then the questions are: will all activities that impinge on the flowing of a river – dams, sand mining, appropriation of flood banks for commercial activities, throwing plastic bags with prasad from temples, industrial waste, sewage, garbage dumping, encroachments for canals and indeed, the diversion of water for agriculture, illegal fishing and other uses – now come under heavy scrutiny? Can the river file a case against any person or persons performing actions she considers a violation of her rights? Yes, the rivers will have human guardians to interpret the rights, but does this mean a new era on environment protection has dawned?
A river is not just a body of water. Scientifically and biologically, she is a living ecosystem. Which means the river and her denizens are one bound, living organism. Both need the other to function symbiotically. One cannot call the river a living entity legally without recognising that the flora and fauna of the river are that living entity’s blood and bone. It is for the Centre and the states and peoples to study the legal and political implications of the Uttarakhand court order and take remedial action if their interests are adversely affected.