Rights of Rivers: A Comparative and Critical Analysis

Introduction

Recently the Uttarakhand High Court expanded the environment justice jurisprudence by metes and bounds after its adjudication on the Rights of Rivers in Lalit Miglani V State of Uttarakhand[1].  It posited juristic rights on Rivers, glaciers, oceans and other natural bodies, wherein nature’s fundamental rights were recognized at par with fundamental rights accorded to humans and citizens under the Indian Constitution. Owing to this, the rivers had a fundamental right to persist, exist, maintain, sustain and regenerate their own vital ecological system. They also attained an intrinsic right to not be polluted.  This recognition also establishes a right to claim injury, making any kind of pollution and damage to rivers, lakes, water bodies etc as legally equivalent to harming and causing injury to a person. In case of any injury, intentional or not, the polluter was also made liable to be proceeded against under common laws, penal laws, environment laws and other statutory tools governing the subject.  It recognized the fundamental duty of all citizens to preserve and conserve nature, establishing a duty of care towards it. This right also extended to the unified and indivisible whole of nature, i.e from the Glacier to River to Ocean, the integrity of rivers has to now be maintained. It also expanded the understanding of river in cubic meters to the entire ecology residing within in it, including aquatic life, and extended legal protection to it in total.

It also established an onus on the judiciary and recognized its duty to protect environment ecology under the New Environment Justice Jurisprudence and also under the principles of parens patriae. The urgency of protection being according to the environment is also blamed upon the imminent results of global warming, climate change and pollution, by way of which the very existence of rivers is at stake, is also recognized by this court.

There are many benefits to this. The rivers are able to defend their rights and ecosystems in court through representations. It puts the river’s interest in the forefront of all policy considerations. And lastly, the burden of proof also shifts to the proposed activities to show the nature of harm being done to the rivers, rather than the other way around.

Critical analysis

Although there are many upsides to this judgement, leading towards an optimistic change in attitude of legislative process in preserving the environment, there are also umpteen consequences of this judgement with loopholes that can be easily exploited.

Firstly, to enforce legal personhood of a river and other natural entity, a person must be appointed on its behalf. The court in this case, has appointed the General Attorney, Chief Secretary of State, advocates like M.C Mehta and some other State functionaries as persons in loco parentis. However, to trust the State functionaries to act in the interests of the river, especially when the government is itself the violator, is a far-fetched ideal. With the Centre’s leader and Prime Minister Narendra Modi also negating the existence of climate change[2], a dedicated commitment towards protecting the environment is an unreasonable expectation. Legislative independence from State and National governments is imperative for seeking enforcement of such rights, especially if it is a political matter, which all cases seem to be. Secondly, for the rights to be enforceable, it must be observed as a right by its guardians and users of the resource by recognizing their joint rights, duties and responsibilities. However, the stark contradiction between the current mode of extractive development and the imagination of the rights of nature within law, fundamentally leads us to question the viability of it all, especially given the other forms of injustices of capitalism, anthropocentrism, patriarchy and casteism. Thirdly, to be able to fight as a custodian for the rights of rivers, requires money, time and expertise to successfully establish a claim. If the State is not willing to set aside funds to be able to protect the interest of nature, fighting legal battles on behalf of rivers will be an insurmountable task with limited access to resources.

Many States have been following suit and are moving towards declaring rivers and lakes in their area as a living entity with rights equivalent to that of a person. As recent as March 2020, Punjab and Haryana High Court[3] took this decision owing to the depleting water levels of Sukhna lake. The court also pulled up the state agencies for their willful ignorance towards the damage being done to catchment areas by stating that “The acts of States of Punjab, Haryana have caused permanent damage to the catchment area of Sukhna Lake. It was expected from the State agencies to foresee that the permanent structures in a catchment area would impede the flow of water in Sukhna Lake,”[4] The courts also pointed out the fallacies in the upcoming Master Plan 2021 by the Haryana government and the Mansa Devi Complex being upon  areas covered by Survey of India, as being against public interest. While the judiciary is being more cognisant of the environment damage, the glaring abuse of process by State functionaries is undeniable.

The fallacy with appointing State actors as guardians becomes obvious with the New River Basin Management Bill[5], which the Centre plans to bring forth in the winter session of the Parliament, despite heavy opposition. Under this new law, the central government will take over the management of inter-state river basins, starting with 13 of the largest river basins of India, which initially fell under the State government’s jurisdictions. This flagrant violation of the federal nature of the Indian constitution, is coupled with the appointments made to authority to decide statutory water allocation to each inter-state basin, to be done on the recommendation of the Centre. This effectively also destroys any hope of any official being critical of the Centre’s policies and actions. According to Clause 22, official appointment will be done by the federal government and any decisions undertaken will be binding on the state governments.

States like Telangana and West Bengal are already protesting this bill[6]. Telangana government, who in the last few years has spent billions in water supply projects is concerned about its ability to  guarantee water supply, rendering entirety of the financial investment futile. West Bengal, being the lower most State and last in receiving Ganga river into its boundaries will have little say in the matter as States like Uttarakhand, Haryana, Uttar Pradesh, Delhi, Rajasthan, Madhya Pradesh, Bihar and Jharkhand will get to chair the proposed river basin authority and West Bengal will get its turn once in nine years. With the State already suffering due to large number of dams, barrages and irrigation canals in the upstream ganga basin, this is an added blow to the West Bengal government and its water supply plans.

With all of this in the works, while the Judiciary’s idea of attesting rivers with rights, is a noble and an imperative cause, appointing the State as its guardian is  against all consciousness, rendering the cause of environment justice unattainable. Unless there is a democratic setup, allowing the key interest holders to have a say in the matter, this cause cannot bear fruition. Even in the Uttarakhand judgement, it identified the human settlement in and around the river basin to have a say in the matter, as it affected their way of lives and livelihood. Unless there is a democratic setup to protect the rights of the rivers, which can  efficiently and effectively seek remedy in court, this is merely an idea on paper, rendered impractical in all other senses.

Comparative analysis

The move on part on the Indian governments is not an isolated incident, but rather a part of a nascent global movement. Countries around the world have been pushing for eco-activism and extending the ambit of the law for the protection of the rivers.

In 2008, Eucador was the first ever to provide such recognition within its constitution. It granted “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”[7]. Several towns in the United States also made by-laws protecting and recognising the rights of nature.

In a landmark move, New Zealand recognised Te Urewera National Park as a legal entity with rights, powers, duties and liabilities as a “legal person”, with legal personhood status to this Whanganui river ecosystem in 2017[8]. It gave up State control of the river and appointed the indigenous groups living around it as its custodians.

In 2019, the Dhaka High Court in Bangladesh recognised[9] the river Turang as living entity with legal rights and held to be applicable to all rivers in Bangladesh. Colombia has also taken monumental steps in safeguarding its rivers. The Atrato river and the Colombian Amazon were deemed as a legal entity, subject to “rights that implicate its protection, conservation, maintenance and in this specific case, restoration.” [10]The United Nations has also taken umpteen steps in drawing attention and call to action to conserve and protect nature like Harmony with Nature[11], which established a non-anthropocentric relationship with nature and tracks global changes.

While many countries are struggling with the procedural aspects of executing the designation of treating nature as a living entity, the model followed by New Zealand is a commendable one. In it, the guardian will consist of two people, one appointed by the Whanganui (local Maori people), and the other by the New Zealand government. They have also ensured that a substantial amount of funds will be set aside to maintain the health of the Whanganui river. The legal framework that is to be administered by the guardians will be also be aided by independent advisory groups. In this model, apart from it being committed and practical, it is also sustainable, in the sense that its rights of rivers are not influenced by political gains, because of the democratic setup and the involvement of larger interest group. In contrast to this, the overnight development of eco-jurisprudence by the Indian High Court, assigning Ganga and Yamuna rivers and glaciers the title of minority under the law, represented by director general of Namami Gange project, the Uttarakhand Chief Secretary, and the Advocate General. It also requested new boards to be established for the governance of cleaning and maintaining the river within eight weeks, which is a very short amount of time for a conscientious procedure to be established . The judgement also directed the government to release funds for the cleaning of the river, but seeing how this is an executive decision, the judiciary cannot encroach on this. It also assigned guardians only within the legal fraternity, who might not have the motivations or the intellect to protect the rivers against the extractive mindset of government, corporations and individuals.

Conclusion

The solution to the problems faced in developing a rights-based approach towards saving rivers of India, is to; firstly, establish custodianship or guardianship that actually have an interest in the matter. In a manner of suggestion, the ideal custodianship should rest with a group of local communities related to the river, relevant government agencies and the larger civil society along with a nested institutional framework to ensure participation across the entire stretch of the river. This also means that the Law should facilitate negotiations between the different State governments that share the river body, to work in tandem with each other in furthering environment justice. Secondly, rivers do not follow human-made political boundaries, like Indus for example, which flows through China, Pakistan and India. The protection of inter-country river requires a cross-boundary approach. This opens up the need for a complex understanding and discourse around transboundary rivers and the possible ways of collaboration between the connected countries, solely on ecological grounds. Especially given the tension between these countries, an ecological diplomacy, albeit hard, is a necessary need of the hour. Thirdly, given that this step is still developing, there is very limited understanding across the world on how the law on the rights of rivers can be imagined. By way of custodianship, restitution and compensation. Will rivers be able to claim to be restored to its original self, can projects of Dams and other exploitative industries be stopped, if it is harming the river? the answer to these complicated answers lies not only within creative imagination of lawyers, academics and activists, but also in an attitudinal change from anthropocentric and capitalist ways of having a relationship with nature. Indigenous groups from around the world have maintained a philosophy, different from those in the “civilised” parts of the world, wherein they do not claim any ownership over the natural resources and tend to nature with care, living in harmony with it. Eco-feminism also explores the ways in which exploitation of nature is connected to the exploitation of women and advocate for a nurture-based approach. While there is much left to do, the court judgements are only the first step in helping in reducing the current domination of development over nature.

[1] 2014 SCC OnLine Utt 224

[2] Rohini Chatterjee, “Modi’s UN Climate Meet Rhetoric Can’t Mask His Govt’s Sketchy Track Record” <https://www.huffingtonpost.in/entry/modi-climate-change-bjp-un_in_5d899999e4b0938b59333fc3> accessed 12.10.2020

[3] “Sukhna Lake is a living entity with rights: HC” <https://www.hindustantimes.com/chandigarh/sukhna-lake-is-a-living-entity-with-rights-hc/story-Jrt8vKUy8kqIUwWaLpcYtM.html> accessed 12.10.2020

[4] “Sukhna Lake is a living entity with rights: HC” <https://www.hindustantimes.com/chandigarh/sukhna-lake-is-a-living-entity-with-rights-hc/story-Jrt8vKUy8kqIUwWaLpcYtM.html> accessed 12.10.2020

[5] Vishwa Mohan, “Modi 2.0: Third Bill on water issues to be taken up in next session of Parliament”

https://timesofindia.indiatimes.com/india/modi-2-0-third-bill-on-water-issues-to-be-taken-up-in-next-session-of-parliament/articleshow/70519764.cms accessed on 12.10.2020

[6] Joydeep Dutta, “One law to rule India’s rivers”<https://www.thethirdpole.net/2019/09/20/one-law-to-rule-indias-rivers/> accessed on 12.10.2020

[7] Clare Kendall, “A new law of nature” https://www.theguardian.com/environment/2008/sep/24/equador.conservation accessed on 12.10.2020

[8]<  https://www.earthlawcenter.org/international-law/2016/8/new-zealand > accessed on 12.10.2020

[9] Sigal Samuel, “This country gave all its rivers their own legal rights”< https://www.vox.com/future-perfect/2019/8/18/20803956/bangladesh-rivers-legal-personhood-rights-nature> accessed on 12.10.2020

[10] Grant Wilson, Darlene May lee, “Rights of rivers enter the mainstream”  https://www.ecologicalcitizen.net/pdfs/v02n2-13.pdf accessed on 12.10.2020

[11] United Nations, “Harmony with Nature” www.harmonywithnatureun.org accessed on 12.10.2020


ABOUT THE AUTHOR

Prerna Dadu

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Prerna is a fifth-year BBALLB student from O.P Jindal Global University. She is from Bangalore and a proud lover of its coffee. She is interested in human rights, environmental justice law, critical theory and International trade law. As an avid traveller, she is always making plans to see places and travel as much as she can, whenever she can. She also has a keen interest in politics and philosophy and writes on these subjects from time to time. She can officially be reached at prerna.dadu@gmail.com.

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