Guest Blog by: Chicu Lokgariwar
It’s a girl! And another girl!
On March 20 2017, the High Court of Uttarakhand in an unforeseen move, bestowed ‘legal personhood’ on the Ganga and the Yamuna. Ten days later, as people were still trying to understand the implications of this order, the Court declared the glaciers, lakes, and wetlands of these basins as legal persons. What does this mean exactly?
The decree: As per an order passed on 20th March 2017, while ruling on a public interest litigation filed by Mohammed Salim against the State of Uttarakhand, the High Court has declared the entire length of the Ganga and the Yamuna, including their tributaries to be juristic persons.
The order states, ‘..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.’
Thus, the High Court order encompasses the entire river basins of the Yamuna and the Ganga, which cover eleven states in India (excluding parts in Tibet, Nepal and Bangladesh).
The inspiration: In its statement, the High Court drew upon three precedents.
The Court has made a strong argument that the concept of legal personhood has always been a negotiated one depending on the situation at the time. They point out that not all humans were always considered ‘persons’ pointing out the case of slaves in ancient Rome. As the need arose, this definition of ‘person’ has expanded.
They pointed out that India has a precedent of several Hindu idols who are considered juristic ‘persons’ and have the right to own property. Corporations and institutions are also considered to possess legal ‘personhood’. The court therefore makes it clear that the conferring of ‘personhood’ rights to non-human entities is not a new one in the Indian context.
The immediate inspiration for this order however appears to come from New Zealand. On 15th March, less than a week before the Uttarakhand judgement, three tribes won a long standing case for their river, Whanganui, to be declared as a person.
The river down under: The Whanganui, New Zealand’s longest navigable river, arises in a national park, flows through scrub and past two small settlements before ultimately reaching the coast. Three tribes view themselves as ‘belonging’ to the river, and have been engaged in a century-long process to regain rights over the river. This struggle has ended now in a recognition of the Maori way of looking at the river (and other natural features) as living entities, and a historic declaration of the river as being a ‘legal person’. A group of two people, one representing the tribes and the other the government, are to act ‘as one’ on behalf of the river.
The intent: When the Honourable Justices Rajiv Sharma and Alok Singh took a leaf from the Whanganui judgement and declared the rivers Ganga and Yamuna as living entities, we can assume they wanted to bring the lessons of Whanganui to Ganga-Yamuna. The judgement states that an extraordinary situation (the decline of the rivers) needs an extraordinary solution (declaring personhood).
The persons in loco parentis are now “bound to uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers”. This is important since it now gives concerned citizens a definite point of contact with whom to raise their concerns. Kanchi Kohli, legal research director at the Centre for Policy research, says, “It is important to locate not only the responsible institution, but also the official in whom this responsibility is entrusted if problems have to be resolved. The present judgement does neither, except in the case of the Director of NAMAMI Gange. This Director and officials from Uttarakhand designated as loco parentis will have to coordinate with all responsible departments and personnel across states where the river flows, to comply with this order. Many of these officials have always had the authority to act, but have not done so. Else the problem would not have reached this proportion in the first place.”
The persons the court has nominated as the guardians of the Ganga and the Yamuna are themselves responsible for the sad state of these rivers today, and they have failed to really achieve any improvement in the condition of these rivers. What hope is there for these rivers if these same persons are now declared as parents of these rivers now? Moreover, the Uttarakhand officials will have no powers beyond the borders of Uttarakhand.
Are Whanganui and Ganga-Yamuna comparable? The Whanganui and the Ganga are revered by those who live alongside it. Here, the similarities end.
A matter of scale: The Whanganui may well be the third longest river in New Zealand, but it is still only 290 kilometers long. The Ganga’s main stem alone is nearly nine times longer. Add in the numerous tributaries (including the Yamuna which is 1,376 kilometers long) and we realise that the Ganga exists on an entirely different scale than the Whanganui. This is also true of the people who inhabit these basins.
The Whanganui basin covers an area of 7,380 sq.km with a population density of 10.3 people per square kilometer[i]. This gives it a total population of 76,000 people. The Gangetic basin on the other hand boasts of a human population of 448.3 million people in India alone[ii].
A question of borders: The Whanganui river flows entirely within the Manawatu-Wanganu region, a single political unit. The Ganga basin, on the other hand, encompasses four countries. Even if we were to assume that the High Court judgement only refers to that part of the basin that is within India (though it does not say so explicitly, constitutionally, the jurisdiction of Indian Courts cannot go beyond India’s borders), we still are looking at eleven states in these basins.
A matter of diversity: The Whanganui basin is inhabited by three tribes who see themselves as the three elements of a braid- the ‘the plaited rope of Hinengākau’ who is the deity of the upper reaches of the river[iii]. They have a proven history of working together on the Whanganui River Māori Trust Board[iv]. This also forms part of a long and ongoing process of reparation between the Crown and the tribes. Despite this, the Whanganui settlement has already come in for some criticism for only reflecting the viewpoint of one religion and not reflecting the secular and plural viewpoint of the country’s other policies[v].
Things become much more complex when we look at the Indian context. The High Court Judges in their statement explicitly referred to the ‘deep spiritual connection that Hindus have for the Ganga and the Yamuna’, and used this as the chief argument for this ‘extraordinary step’. This is deeply problematic because it excludes the many diverse peoples who live along the Ganga and are dependent on its healthy flows for their lives and livelihoods. Given the current political climate in the Gangetic Basin, it is regrettable that a ruling to protect a natural resource should be made entirely on religious grounds. Not only does this statement does not reflect the secular nature of our country, or the diversity of its population but by reducing it to a case of ‘aastha’, the ruling misses the fact that the conservation of all of India’s rivers is a matter calling for ‘extraordinary measures’.
Present and planned use: In case of the Whanganui , most of the use is in the form of a water diversion by means of a short tunnel at the headwaters of the river[vi]. It is a very different matter in the case of the Ganga and the Yamuna. The rivers and their tributaries been dammed extensively, and further dams are being planned. The ambitious National Waterways plan aims to revive inland shipping along the Ganga. This means continual dredging, lining of banks, and the construction of additional barrages. The adverse ecological impacts of this plan have been documented earlier on this blog[vii]. Similarly, the National River Interlinking project will entail massive interference with the Ganga and the Yamuna, as well as their tributaries. How will these two plans, ardently backed by the present government, play out in the face of the ‘personhood’ ruling?
On a wholly different scale, declaring the wetlands and lakes of the basin as ‘living entities also raises these questions of how present uses will continue to exist with the ruling. While lakes and wetlands are indisputably important ecosystems, they are also important sources of livelihood for some of the Gangetic Basin’s most vulnerable people. Both Muslims and Hindus of the ‘lower’ castes as well as tribals depend on these water bodies for fish to sell, grasses to build with, and molluscs to supplement their diet. Is there a possibility that this judgement may be used as a weapon to further marginalise these groups?
Will it work? Here we have a startling new judgement inspired by an example of a very different river half a world away. As lawyer Ritwick Dutta says, no single ruling is expected to be perfect, the ruling may be flawed in parts, but it now exists and was born of the best of intentions. Will it have any impact on the ecosystems it seeks to protect?
Dr Ravi Chopra, former director of the Peoples’ Science Institute and a man who understands our water governance very well indeed says, “It is a fact that the Indian Judiciary has often tried many innovative measures to give a voice for those who don’t have one- especially for the environment. Unfortunately, this is not followed up by action which is the domain of the Executive. Unless the Judiciary monitors the implementation, the court rulings are usually followed in absentia- the executive simply ignores it. Here is an innovation made with good intentions. It is unlikely it will be followed up with the same spirit by the State, because the State is the biggest offender. It is upto the people – to make the most of it. How good is this law- can only be tested if a case is brought to court.”
Brij Khandelwal, an environmentalist in Agra, has already asked the Agra police to register a case of attempt to murder the Yamuna by poisoning. The law is being put to test, will it succeed in its goal?
Chicu Lokgariwar (email@example.com)
[i] A regional profile: Manawatu/Wanganui. Statistics New Zealand. November 1999.