Guest Post by Goutham Shivshankar
A recent development in Indian environmental jurisprudence, has been the grant of legal personhood to nature, or more accurately, several natural geographical features. This was done, initially through two orders dated 30.12.2016 and 20.03.2017 passed by the Uttarakhand High Court, in a public interest ligation W.P.PIL No. 126 of 2014, Mohd. Salim v. State of Uttrakhand and Ors. The Mohd Salim orders, available here and here, granted legal personhood to the rivers Ganga and Yamuna together with their tributaries. This was then followed by a much wider order dt. 30.03.2017 passed in another unconnected public interest litigation, W.P.PIL No. 140 of 2015, Lalit Miglani v. State of Uttarakhand, which declared glaciers, including Gangotri and Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls as legal persons. The Lalit Miglani order dt. 30.03.2017 is available here. The exact implications of these orders are unclear. These are some preliminary thoughts on the developments.
The Background – 1st Lalit Miglani Order
An analysis of the recent orders would be incomplete without a little by way of background, on the Uttarakhand High Court’s previous holding with respect to the Ganga pollution issue. The Lalit Miglani PIL is an overarching one, dealing with pollution of the river Ganga. The Petitioner is an advocate practising before the Uttarakhand High Court and his petition essentially contended a gross failure by all the governmental authorities (both central and state) in discharging their statutory duties to prevent pollution of the Ganga. In this PIL, the High Court had passed an extremely detailed Order dt. 02.12.2016 (available here) highlighting the desperate situation that had been reached in terms of the pollution of the river Ganga. In its Order dt. 02.12.2016, the Court held that every citizen has a right to clean water under Article 21 of the Constitution, highlighted the importance of the river Ganga to the Hindus and noted the rapid deterioration of the quality of the river. The Court then proceeded to issue a whole host of mandatory directions which included the following: (i) a direction to the Union of India to establish an inter-State Council under Article 263 of the Constitution for all the riparian states of the Ganga within three months for making recommendations for the rejuvenation of the river; (ii) various directions towards the establishment of Sewage Treatment Plants; (iii) directions for taking action against / closure of polluting industries; (iv) directions to take actions against Ashrams and other establishments that let out untreated sewage into the river, etc. The Court also recommended that the Union of India frame a law exclusively for the Ganga to save it from extinction.
Despite such an elaborate order being passed, the Court was faced with a situation of gross non-compliance of its directions. This backdrop is necessary to keep in mind, since a reading of the recent orders that raise the issue of personhood of rivers and other natural geographical features indicate that the Court was constrained to evolve this doctrine in the extraordinary scenario of persistent government apathy towards environmental protection.
Two other points are worth mentioning here. Firstly, the Court, in its order dt. 02.12.2016, recognized that the issue of pollution of the river Ganga involved many States, and suggested that an inter-State mechanism be evolved to solve the problem. Secondly, the Court stayed within the bounds of well-established principles of environmental law to justify the directions that it made. No inkling was given of the evolution any new personhood principle at this stage.
The Mohd. Salim orders
The principle of personhood was first evolved in the Mohd Salim PIL. From the Mohd. Salim orders, one is unable to discern the precise scope of the case that was before the Court. Only this much is clear. The prayer in the petition sought removal of encroachments by way of illegal constructions on government land by private respondents. The nature of these constructions is not specified, although an early analysis of the court’s order by environmental lawyer Shibani Ghosh, states that the illegal constructions were on the banks of a canal in Dehradun.[i] Certain passages in the Mohd Salim orders indicate that submissions were made regarding mining activities in the riverbed and in the highest flood plain area of the river Ganga. The orders also deal with the failure of the Governments of Uttar Pradesh and Uttarakhand in constituting the Ganga Management Board under Section 80 of the Uttar Pradesh Reorganisation Act, 2000. In its order dt. 30.12.2016, the High Court made the following directions:
“1. Respondent nos. 3 to 7 are directed to evict the respondent nos. 8 & 9 from the Government land within a period of twelve weeks from today.
- The respondent no.11 i.e. Central Government is directed to take final decision on the basis of the settlement arrived at between the State of Uttar Pradesh and the State of Uttarakhand, regarding the division of assets/properties on 02.02.2016, within a period of three months from today.
- The Central Government is also directed to constitute a Ganga Management Board, under Section 80 of the Act, and make it functional within a period of three months. The Central Government shall also induct State of Uttarakhand as member of the Upper Yamuna Board within three months.
- The mining in river bed of Ganga and its highest flood plain area is banned forthwith. The District Magistrate and Sub-Divisional Magistrate shall be personally responsible to implement this direction.”
On the failure of the State Governments to comply with the above directions, the Court passed the order dt. 20.03.2017, which contained the passages granting legal personhood to the rivers Ganga and Yamuna and stating that the rivers will have “all corresponding rights, duties and liabilities of a living person.” The court also held the Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand to be persons “in loco parentis”, i.e., as persons having the responsibility to protect, conserve and preserve the rivers.
Early Responses to the Mohd. Salim Orders
The Mohd. Salim orders attracted widespread attention for their novel approach, but some early commentators reacted, rightly, with caution. Ghosh, in her article referenced above, highlights how the Mohd. Salim case transformed, in a succession of “logical leaps”, from one pertaining to illegal encroachments to one concerning the protection of the health and well-being of two rivers. She points to the Court’s failure to articulate how the grant of legal personhood to the rivers would be a sequitur that follows from the premise that rivers provide “physical and spiritual sustenance” to half of India’s population. Finally, she raises several questions which leaves us uncertain as to what it means to say that the rivers have personhood, and concludes that the Mohd. Salim orders can hardly be considered a game-changing development.
It is worth noting here that some of Ghosh’s concerns about the Mohd. Salim orders, echo larger concerns that Anuj Bhuwania has raised about PIL in general.[ii] Bhuwania highlights the trend of “omnibus PILs”, where a case begins in court as one thing and ends up as quite another. He also speaks of the relaxed rigour in reasoning that typically characterizes orders passed by Courts in PIL cases.
Another noteworthy response to the Mohd. Salim orders, is an article co-authored by Ashish Kothari and Shristee Bajpai. Kothari and Bajpai also allude to the lack of clarity of the exact implications that follow from the grant of personhood to a river. They further identify four important shortcomings in the Mohd. Salim orders. Firstly, they note the limited scope of the orders – the Court’s protection did not extend to associated lakes or wetlands, catchment areas or other parts of the river basins. Secondly, they point to how the orders did not envisage any role for the community in the protection of the Ganga and the Yamuna, but vested stewardship solely with the government authorities. Thirdly, they point to the “human-centric” approach of the High Court which appeared to have recognized rivers’ rights based on the value of rivers for “socio-political-scientific development” and the spiritual significance of the Ganga and Yamuna for Hindus, instead of the intrinsic identity or status of the river. Finally, they ask, why just these two rivers?
The New Zealand Parallel
As has been widely noted, the Mohd. Salim orders came close on the heels of a similar development in New Zealand, where a law has recently been passed granting legal personhood to the “Te Awa Tupua”, which is “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”. The Whanganui river is New Zealand’s longest navigable river, that extends from its central volcanic plateau to the Tasman Sea.[iii] The New Zealand legislation is available here.
Though the Uttarakhand High Court’s orders in Mohd. Salim do not reference the development of the law in New Zealand, there are two significant similarities in both legal regimes. The Mohd. Salim orders state that the Ganga and the Yamuna will have “all corresponding rights, duties and liabilities of a living person” and declares the Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand to be persons in loco parentis as the “human face” to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries. The New Zealand law also provides that the Te Awa Tupua “has all the rights, powers duties and liabilities of a legal person”, and establishes an office by the name “Te Pou Tupua” whose stated purpose is to be the “human face” of the Te Awa Tupua and to act in the name of the Te Awa Tupua.
Unfortunately, that is where the similarities end. There are some marked differences in the parallel developments in the law in New Zealand and India. These differences are worth noting, as they reveal that the Indian development is on shaky footing.
Firstly, the development of the law in New Zealand has been through the enactment of a legislation, i.e.,the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, whereas the Indian law has evolved through court order. At least two consequences issue directly from this difference: (i) the New Zealand law was preceded by public and legislative debate whereas the Indian development was a bolt from the blue, certainly very few people in India knew what was coming or participated in the development; and (ii) and the New Zealand law is comprehensive (spanning 126 sections and 5 schedules), providing in minute detail the various consequences that flow from the grant of legal personhood to the Te Awa Tupua as well as an elaborate institutional structure for stewardship of the Whangui river. In contrast, the Indian law is almost completely devoid of any clarity or detail.
Secondly, the enactment New Zealand law was the culmination of an almost two-centuries-long and hard-fought battle between the indigenous community, the Māori, and the Crown, over the Whangui river. The 2017 enactment, in what provides for absolutely fascinating reading, explicitly recognizes the historical claims of the Māori to the Te Awa Tupua, and contains an elaborate apology from the Crown for its failure to respect such historical claims. Consequently, the New Zealand law provides extensively for the stewardship of the natural resource by the indigenous Māori community and requires the Crown to abide by intrinsic values of the community (called the “Tupua te Kawa”) in its handling of the natural resource. In contrast, the approach of the Uttarakhand High Court in the Mohd. Salim orders envisage no community stewardship whatsoever in the protection of the Ganga and the Yamuna rivers, and places control firmly with government authorities. This approach is, quite frankly, extremely puzzling, since the initial portion of the High Court’s order dated 20.03.2017 is almost entirely dedicated to lamenting the failure of the Uttarakhand and Uttar Pradesh State Governments to act promptly in constituting the Ganga Management Board and in complying with the Court’s previous order. Sample these observations, in paragraphs 9 and 10 of the Court’s order dt. 20.03.2017:
“9. The Court shows its serious displeasure about the manner in which the State of U.P. and State of Uttarakhand have acted in this matter. It is a sign of non-governance. We need not remind the State Governments that they are bound to obey the orders passed by the Central Government failing which the consequences may ensue under Article 365 of the Constitution of India. Consequently, the Chief Secretaries of the State of U.P. and State of Uttarakhand are directed to cooperate with the Central Government in a right earnest manner for the constitution of Ganga Management Board by appointing the Members, failing which it shall be open to the Central Government to constitute the Ganga Management Board without the Members of the successor States, as directed hereinabove.
- 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.”
Bizzarely, despite these scathing observations about government inaction in protecting the rivers, the High Court vests complete stewardship in the hands of the government functionaries, specifically the Director Namami Gange (Central Government), Chief Secretary of State of Uttarakhand and the Advocate General of the State of Uttarakhand.
Points of Concern with the Mohd. Salim Orders
Two other concerns are worth highlighting in relation to the Mohd. Salim orders. The first is more of a semantic objection – the situating of state officials as “persons in loco parentis” for the rivers Ganga and Yamuna, and any natural resource in general, is troubling. The High Court notes how the river is itself often referred to as “Ganga Maa” and regarded a “mother” by the Hindus. The river then, is itself regarded a parent figure – a powerful entity, that demands respect even more than it demands protection. Metaphorically speaking, it helps to acknowledge that “Mother Nature” is a powerful force, and we disturb it at our own peril. We (either the community or the state) aren’t nature’s parent figures. If anything, it is the converse. Ghosh, in her article, also highlights the troubled history that parens patriae has had with environmental litigation in India, most notoriously in the Bhopal Gas Leak cases.
The other concern with the Mohd. Salim Orders, is that there seems to be a privileging of the Uttarakhand Government’s interest (presumably because the case was being heard by the Uttarakhand High Court), despite the fact that the rivers Ganga and Yamuna flow through several other riparian states, who are all equally invested and interested in the protection of these rivers. This was a clear deviation from the approach taken in the order dt. 02.12.2016 passed in the Lalit Miglani PIL, where the Court directed the formation of an inter-state council under Article 263 of the Constitution comprising all the riparian states of the river Ganga.
The 2nd Lalit Miglani Order – Expansion of the Personhood Principle
As already noted, the Lalit Miglani PIL was an overarching, and concerned one with pollution of the river Ganga. A detailed order dt. 02.12.2016 had been passed making a whole host of mandatory directions. The Court was faced with non-compliance with most of its directions. In the meanwhile, the Court had passed the Mohd. Salim orders dt. 30.12.2016 and 20.03.2017 and introduced the concept of personhood of rivers into Indian law. The stage was set for something much larger. The Court had made its signal. The Petitioner in the Lalit Miglani PIL took his cue, and moved what is quite frankly, an astonishing miscellaneous application. The application sought for an order declaring “the Himalayas, Glaciers, Streams, Water Bodies, etc. as legal entities as juristic persons at par with pious rivers Ganga and Yamuna.” Suddenly, a case about the river Ganga in particular, had become a case about all sorts of natural geographical features all over the country. The Court notes that it is unusual for such an application to be entertained after disposal of the main application, but it goes on to decide the application anyway, in accordance with the principle of ‘continuous mandamus’ for securing the compliance of its judgment passed in a PIL case.
After quoting from a multitude of environmental studies and legal texts, the court finds that “Rivers, Forests, Lakes, Water Bodies, Air, Glaciers and Springs have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system… … Rivers are grasping for breath. We must recognize and bestow the Constitutional legal rights to the ‘Mother Earth’” As if responding to criticism that it had previously failed to take into consideration community participation in environmental protection, the Court “hasten(s) to observe that the local inhabitants living on the banks of rivers, lakes and whose lives are linked with rivers and lakes must have their voice too.” The Court then goes on to state that:
“We, by invoking our parens patriae jurisdiction, declare the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, legal entity/ legal person/juristic person/juridicial person/ moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights.”
The Court appoints some government officials to act as “persons in loco parentis” to be the human face of these natural geographic features “in the State of Uttarakhand”. The Chief Secretary of Uttarakhand is permitted to co-opt “as many as seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of the rivers near lakes and glaciers”.
The 2nd Lalit Miglani Order is heartening as regards three aspects. Firstly, unlike the Mohd Salim Orders, it acknowledges that other riparian states have stakes in the protection of rivers. Thus, the appointment of “persons in loco parentis” is restricted to the State of Uttarakhand. The implication seems to be that other states can appoint their own “persons in loco parentis” for the protection of resources within their territory. Secondly, the Order acknowledges the importance of community participation. Thirdly, it expands the personhood principle to a whole host of other natural geographical features other than the Rivers Ganga and Yamuna.
However, the Order still leaves some old concerns and raises fresh ones. Firstly, there is still not much clarity on what exactly the personhood principle means in practice. For instance, the Court holds that “The rights of these legal entities shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury caused to the human beings.” How does this materially alter, if at all, the existing compensation and liability regime for environmental damage? What does it mean to say that these natural features will have “duties” and “liabilities”? A bizarre interpretation of that principle could imply that a river could in some way be imposed with a “duty not to flood” and a “liability for flooding”. Secondly, though the Court provides for community participation, the mode of selecting the community members and their exact role are not clearly defined. Thirdly, to the PIL-skeptic (an increasing tribe in recent times), this appears to be a classic case of a Court throwing judicial restraint to the winds. The 2nd Lalit Miglani Order was ostensibly passed to secure compliance with the 1st Lalit Miglani Order. If that was the objective, why did the Court need to declare all kinds of natural geographical features as “legal persons” when the Lalit Miglani PIL dealt with the focused issue of pollution of the river Ganga.
To conclude, the Uttarkhand High Court’s orders need to be viewed with some caution. It is perhaps a good starting point to debate the conferral of personhood of important natural resources as a strategy for their conservation, but as ever, the devil lies in the details. The mere grant of legal personhood may not achieve much, without developing effective community based stewardship frameworks for the protection and conservation of such resources, especially in the face of known government inaction and failure. Though the Court, in its latest order, has moved towards recognizing community participation, it is clear that a lot more calibration is needed in choosing the correct community representatives and ensuring that their participation is taken seriously.
(The author is a lawyer practising at the Supreme Court of India)
[i] Shibani Ghosh, The River as Being, The Hindu, 27th March 2017, available online at http://www.thehindu.com/opinion/op-ed/the-river-as-being/article17668210.ece, last visited on 03.04.2017
[ii] Bhuwania, A.2017. Courting the People – Public Interest Litigation in Post-Emergency India. Delhi: Cambridge University Press.
[iii] See http://www.whanganuilibrary.com/site/pages/te-taurawhiri/te-awa-tupua.php, last visited on 02.04.2017