If you are an environment enthusiast you must know of how the Uttarakhand High Court declared, Ganga and Yamuna a ‘legal person’ in 2017.
Most people though aware of the news, lack clarity on what it meant?
What happened (and how)?
Why was the decision reversed? (And why is it such a big deal?)
We are going to attempt to answer all that.
Hop in for a ride of legal jargon and hopefully, you’ll have a better understanding of the issue once you’ve reached the end of the page!
So, the concept of ‘legal person’ isn’t really unique or new to our social understanding. As per law various kinds of entities are recognized as ‘legal persons’; any big co-corporation is a legal person, various government and non-government institutions are legal persons. In essence, any such entity that can be sued and can sue is a legal person. For example, when you are filling a case against your cab ride company, that company is a legal person as you write its name just as you would a human being’s if you were to sue them.
So, calling a natural resource a ‘legal person’ means that it can sue and be sued. In our situation, declaring river ganga and Yamuna so, means that anyone who violates it in a manner that is unlawful can be sued. For example, a person dumping litter into the river can be sued by the river.
And of course, the rivers cannot actually show up in court and make a case for themselves. Hence, the court appointed guardians who would do that on behalf of the rivers. Just like guardians of children sue on behalf of the children as they are entrusted to have the best interests of the children at heart. This declaration was made in a case titled, ‘Lalit Miglani vs State of Uttarakhand and others’ (Writ Petition (PIL) No.140 of 2015).
In the legal parlance, the HC appointed (then) attorney general, the director of the Namami Gange project & the chief secretary of Uttarakhand as ‘in loco parentis’ which literally translates to ‘in place of parents’; implying that these people would act as guardians who can sue on behalf of the rivers. However, to arrive at this conclusion, it was a long journey of deliberation and dire circumstances. Usually in considering matters of environment the courts reach for Article 51 (g) which states the responsibility of citizens towards the environment.
The path to this declaration was not just from this case, prior to the Lalit Miglani judgement, similar themes were explored in Salim Wusabi and the case of Mohd. Salim v. State of Uttrakhand and Ors., that pushed for harsher regulations on the matter.
And yes, while the much-needed victory was being celebrated, the situation warranted a second look. It is pertinent to understand that all the laws and regulations that were in place prior to this decision would still be in place. In 2011, it was reported that there are 43 projects worth INR 2400 crore spanning across 4 states for cleaning the river Ganga Environmental lawyer Shibani Ghosh stated that the judgement does not do much than pin-pointing the people who would litigate on behalf of the river. The judgement is also said to be ambiguous and leaves a lot to be discussed.
Just consider that both Yamuna and Ganga flow through various states and the ‘in loco parentis’ of the rivers were of the state of Uttarakhand, it is unfeasible for them to perform their duties across multiple states. This is a practical issue in implementing the ruling.
Moreover, soon after, the supreme Court reversed the decision as it was ‘unsustainable in law’. To understand that, consider that if the river can sue like a legal person, it could also be sued like a legal person! Imagine if people started going to court for the river flooding or getting dry. It would be unnecessary litigation burden on already burdened courts. So being a legal person does not just bring rights, it also incurred liabilities.
Just how a corporate entity can sue and be sued! Moreover, could the loco in parentis go after every person who litters in the rivers? Anyone who washes clothes in the rivers? That would certainly be impractical. Hence, the decision was reversed.
However, this does not mean that natural entities cannot successfully be declared as legal entities. There are fine examples like the Consider the example of New Zealand’s Whangunai river. In 2017, they passed a law that allows the river to have all the “rights, power, duties and liabilities of a legal person”.
This was a law that came after long and hard deliberation of nearly ten years by the central government who considered all the aspects and implication of such a decision. Similarly, countries like Ecuador and Bolivia have made legislative changes to incorporate personhood of mother nature at large in their legal systems. Additionally, shortly after our judgement, the Bangladesh supreme court gave all rivers in Bangladesh, the status of a living person.
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In India, apart from the plights of Yamuna and Ganga, there are many instances of legal personhood being recognized for nature. The Punjab and Haryana High court in the case of Karnail Singh vs State of Haryana, gave personhood to the ‘animals’ of Haryana. Similar petitions have been filed for the Sukhna Lake, Chandigarh. And if we really notice, our country has many such natural entities that could do well with stronger legal protection: the Sundarbans, the Himalayas, the lakes, forests and many more. The whole issue is intriguing but are we ready as the public to have our rigorous demands be delivered?
While it is easy to point fingers, can we as a unit look in the mirror and take such a responsibility?
Can we live if pushed to live in a place where people would be heavily penalized for pollution?
Is everyone aware enough?