Sue In the name Of Holy River

Story begins with natures ignorance by men and ends with the victims of natural disaster. Story rebegins with a legal identity being given to nature and poses an unending series of questions predicting the consequences thereto…

Legal world of environmental jurisprudence witnessed an interesting leap when nature got a legal personality. In a Public Interest Litigation, Uttrakhand High Court passed an order on 20th March 2017 granting legal personhood to the rivers Yamuna and Ganga along with their tributaries. This followed an another decision passed on 30th march 2017 in another unconnected PIL declaring glaciers, streams, grasslands, springs and waterfalls as legal person.Constant exploitation of rivers and negligent attitude of the government made it inevitable and thus court came out with the widest remedy possible. Though, India is not the first country which showed a legal sensitive attitude towards nature. Ecuador became the first country to recognise ‘rights of nature’ in its constitution. Recently Whanganui River in New Zealand also got legal personhood.

Indian position is very much differentiated from Ecuador and New Zealand. In Eucador, the issue covers nature as a whole and the equation of river with living entities arises nowhere. In New Zealand, the law came in the form of comprehensive legislation, i.e., Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 whereas Indian law is a result of court order. New Zealand enactment is a result of long fought battlebetween Maori (indigenous community) and the Crown, pressing historical claims over river. Maori culture and its beliefs dominate this legislation and provides extensively for the stewardship. Coming back to the Indian context, Uttrakhand High court in its bold and innovative decision exercised  Parens Patrie jurisdiction. It declared Director NAMAMI Gange, the chief secretary of the state of Uttrakhand and the Advocate General of the state of Uttrakhand as loco parentis, i.e., human face to preserve, conserve and protect Rivers Ganga and Yamuna.

This legal dimension is enveloped with various complications. Ganga being a transboundary river flows through various Indian states and has tributaries coming in via Bangladesh and Nepal. Thus questions pertaining to jurisdiction of a state officer rightly crops up in the mind. Justices Alok Singh and Rajiv Sharma granted legal status to Ganga and Yamuna with all corresponding rights, duties and liabilities of a living person. Now an interesting observation arises in reference to river liability in case of flood or other incidental calamity. Unlike temples and trust where Deity as legal person also has liability that can be discharged by respective trusts, present case is totally devoid of any such scheme. Present High Court ruling will certainly throw the ‘massive river linking project’ in the backyard that proposed the large scale diversion of water from eastern India to water scarce regions of western and central India. In case of its execution govt may be welcomed with multiple suits in the name of Holy River.

This revolutionary judgement backed by Articles 48A and 51A(g) of Indian constitution adds one more evidence supporting Indian judiciary commitment towards Directive Principles of State Policy. Hence, 68 years old republic must prepare itself to direct its policy in efficient and proper way to evade frustration of  judiciary as well as of common masses.


ABOUT THE AUTHOR

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DEEPIKA SANGWAN

Deepika Sangwan is a second-year student at Army Institute of Law, Mohali. She is an Editor at college magazine ‘AILITE 2016-2017’. She believes that writing gives clarity & depth to one’s thoughts. Apart from decorating facts with reasoning, cycling is her favourite pass time.

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