Misreporting on rivers juristic, legal persons and living entities
The paper below is an analysis of misreporting by media in general and EPW in particular
on the subject of July 7, 2017 order of Supreme Court of India on Ganga and
Yamuna.
Aren’t rivers juristic, legal persons and living entities?
On 7 July, 2017 Supreme
Court stayed the final judgment passed by the Nainital Bench of Uttarakhand High
Court in Mohd. Salim v State of Uttarakhand dated 20 March, 2017 that gave
recognition to the “legal status as a living person/legal entity to Rivers
Ganga and Yamuna r/w Articles 48-A[1] and 51A (g)[2] of the Constitution of
India".[3]
The order came upon hearing the Special Leave Petition of State of Uttarakhand
against the verdict. The one sentence order reads: “In the meantime, the
operation of the impugned order shall remain stayed.”[4] The Bench of 44th
Chief Justice of India Jagdish Singh Khehar and
Justice D Y Chandrachud heard the petitioner’s counsel in the absence of the counsel
for the respondents mentioned as ‘caveator-in-person’.
The misreporting of the
order by media provided an incorrect impression that Supreme Court has
pronounced that Ganga and Yamuna rivers are not living entities. In a legal
context wherein Paris Agreement[5]
has been adopted by United Nations Framework Convention on Climate Change
(UNFCCC) which is aimed at the protection of Mother Earth, a living person and a legal entity, it is eminently clear
that any interpretation declaring rivers as non-living and non-legal entities
cannot be defended and judicially sustained. This treaty has been ratified
by India, Nepal and Bangladesh as well. The treaty
notes the importance of ensuring the integrity of all ecosystems recognized as
Mother Earth.[6]
In law, only legal wrongs against a legal entity can be protected.
The reference to Mother
Earth in the treaty draws on Law of the Rights of Mother Earth of South
American country Bolivia that establishes new rights for nature including: the
right to life and to exist; the right to continue vital cycles and processes
free from human alteration; the right to pure water and clean air; the right to
balance; the right not to be polluted; and the right to not have cellular
structure modified or genetically altered. It also includes the right of nature
"to not be affected by mega-infrastructure and development projects that
affect the balance of ecosystems and the local inhabitant communities".
The original law was adopted in December 2010[7] and its successor Framework
Law of Mother Earth and Integral Development for Living Well was passed in
October 2012.[8]
In Bolivia, Mother Earth is called 'Pachamama'.
Drawing on previous
judgments in Yogendra Nath Naskar v. Commission of Income-Tax, Calcutta (1969),
Moorti Shree Behari ji v. Prem Dass (1972), Ram Jankijee Deities v. State of
Bihar (1999), Shiromani Gurudwara Prabandhak Committee, Amritsar v. Shri Som
Nath Dass (2000), and Corpus Juris Secundum, Vol. VI & Vol. LXV, Salmond on
Jurisprudence, Jurisprudence by Paton and Analytical and Historical
Jurisprudence, the Uttarakhand High Court Bench of Justices Rajiv Sharma and
Alok Singh concluded that "We may, therefore, define a person for the
purpose of jurisprudence as any entity (not necessarily a human being) to which
rights or duties may be attributed." Following this inference the
Division Bench gave a land mark verdict wherein it observed that in para 16
that "to protect the recognition and the faith of society, Rivers Ganga
and Yamuna are required to be declared as the legal persons/living
persons."
The verdict noted that "The extraordinary situation
has arisen since Rivers Ganga and Yamuna are loosing their very existence. This
situation requires extraordinary measures to be taken to preserve and conserve
Rivers Ganga and Yamuna."
The 12 page long verdict observes, "The rivers have
provided both physical and spiritual sustenance to all of us from time
immemorial. Rivers Ganga and Yamuna have spiritual and physical sustenance.
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 the communities from mountains to sea" at para
17.
Para 20 of the judgment reads, "The Advocate General
shall represent at all legal proceedings to protect the interest of Rivers
Ganges and Yamuna."
Para 19 of the verdict reads: "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 Director Namami Gange, 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. These Officers are bound to uphold the status of Rivers Ganges and
Yamuna and also to promote the health and well being of these rivers."
While order has done something which should have been long
back, its observation on the petition of Mohammad Salim saying: “Rivers Ganges
and Yamuna are worshipped by Hindus. These rivers are very sacred and revered”
seems to be a hurried inference. The order states: “The Hindus have a deep
spiritual connection with Rivers Ganges & Yamuna. According to Hindu
beliefs, a dip in River Ganga can wash away all the sins. The Ganga is also
called ‘Ganga Maa’. It finds mentioned in ancient Hindu scriptures including
‘Rigveda’.” The fact is that since time immemorial Indians have worshipped
rivers like Ganga before the word “Hindu” was coined. The petition of Mohammad
Salim demonstrates that Ganga is revered by all the inhabitants of historical
India irrespective of their faith.
The verdict
observes, “All the Hindus have deep Astha in rivers Ganga and Yamuna and they
collectively connect with these rivers. Rivers Ganga and Yamuna are central to
the existence of half of Indian population and their health and well being. The
rivers have provided both physical and spiritual sustenance to all of us from
time immemorial. Rivers Ganga and Yamuna have spiritual and physical
sustenance. 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 the communities from mountains to sea.”
The fact is that
Himalayan rivers like Ganga and Yamuna are central to the existence of the
entire population of the Indian subcontinent “from mountains to sea” for their
health and well being.
The issue of
jurisdiction of High Court with regard to Ganga raised by Uttarkhand government
appears quite myopic and devoid of understanding of Ganga as a transboundary
river basin. If the issue of jurisdiction is raised in such parochial manner
then Union of India did not have the right to declare Ganga as a national river
because it is an universal truth that it is an international river as it is
shared by Nepal and Bangladesh as well. If this kind of approach is allowed to
have a field day then even India, Nepal and Bangladesh together cannot claim
total jurisdiction over Ganga because it is part of the Himalayan watershed
which is shared by countries of South East Asia and China. Such anti-river
protection stances can be deemed valid only in an environment of deeply flawed
and sterile legal imagination which impedes environmental conservation. Given
the fact that Supreme Court remains seized with the Ganga related cases it can
easily remove administrative conflicts. In any case jurisdictional conflicts don
not make “legal persons/living persons” into
non-legal/non-living persons. The current situation seems to underline the need
for reporters covering environmental matters in the Courts to undergo a course
on ecosystem to appreciate that rivers do no respect national and
jurisdictional boundaries.
In a related development, on the very day of the Uttarakhand
High Court verdict, New Zealand enacted Whanganui River Claims Settlement Act
recognizing the Whanganui river as a rights-bearing entity and a legal person.[9]
It is quite apparent that the High Court verdict like the
laws enacted by Bolivia, New Zealand and UNFCCC makes river a party to every
treaty, negotiation and dispute and can imply that all rivers are juristic,
legal persons and living entities and can extend to all the water bodies and
other creatures of nature.
While the matter is
pending in the Supreme Court, it will be appropriate for the proposed amendment
in the Interstate River Water Disputes Act, 1956 to incorporate the essence of
the verdict of the High Court in the definition of "Water dispute"[10] and “river basin” [11]. At present it remains
confined to dispute or difference between two or more State Governments. The 14
page long Inter- State River Water Disputes (Amendment) Bill, 2017 faces a
logical compulsion to widen the scope of parties to the dispute. The Bill
refers to “river basin” but continues to treat river as a pipeline of water
despite envisaging “an agency which
shall maintain data
relating to water
resources, land, agriculture and
such other matter” with the aim of “maintaining
a data bank and information
system at the
national level for
each river basin”.[12] In the light legal
developments across the globe, the Bill has the option of incorporating lessons
from New Zealand, Bolivia and the UN law besides the wisdom of the High Court.
Dr
Gopal Krishna
This paper has been published by livelaw.in
Its initial version was published by rediff.com
[1] Article 48A of
the Constitution of India states that the State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the
country.
[2] Article 51 A
(g) states that it shall be the fundamental duty of every citizen to protect
and improve the natural environment including forests and Wildlife.
[3] (2017), Order
of Nainital Bench, High Court of Uttarakhand, Mohd. Salim v State of
Uttarakhand, 20 March
[4] (2017), Order
of Supreme Court, Special Leave Petition No. 16879/2017, 7 July
[5] Paris Agreement
entered into force on 4 November 2016. So far 153 Parties out of 197 Parties to
the Convention have ratified it.
[6] (2015), Paris
Agreement of United Nations Framework Convention on Climate Change
[7] (2010), Law of
the Rights of Mother Earth,
http://www.worldfuturefund.org/Projects/Indicators/motherearthbolivia.html
[8] (2012),
Framework Law of Mother Earth and Integral Development for Living Well,
http://www.la-razon.com/index.php%3F_url%3D/sociedad/MARCO-TIERRA-DESARROLLO-INTEGRAL-VIVIR_0_1706229409.html
[9] (2017), Te Awa
Tupua (Whanganui River Claims Settlement) Act,
https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/00DBHOH_BILL68939_1/te-awa-tupua-whanganui-river-claims-settlement-bill
[10] (1956), Section
2 (c), Interstate River Water Disputes Act
[11] (2017), Section
7, Inter- State River Water Disputes (Amendment) Bill
[12] Ibid
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