1. INTRODUCTION
In two judgments during 2017 – Mohammed Salim v. State of Uttarakhand (Ganga)Footnote 1 and Lalit Miglani v. State of Uttarakhand (Glaciers)Footnote 2 – Indian courts designated the river Ganga and its glacial source, the Gangotri, along with certain other natural features, as ‘living entities’. These decisions followed a series of legislative measures and judicial decisions in other countries relating to the rights of nature, where personhood has come to reflect the cultural identity of the people who inhabit the region.Footnote 3
The Constitution of India enjoins to all persons a right to a healthy environment under Article 21, which guarantees the right to life and liberty.Footnote 4 Further, Article 51A(g) directs every citizen of India to protect and improve the natural environment, with an emphasis on rivers, among other natural features. These legal provisions represent a predominantly anthropocentric approach, and their adequacy has been tested repeatedly over time. Their contentious nature signals a need to reform India's legal frameworks on environmental protection. With mounting pressures on ecosystems and a sturdier mandate to protect deteriorating water bodies, it has become imperative for Indian courts to innovate beyond the proscriptive mandate of human-centric environmental jurisprudence.
Though appeals have been lodged against both judgments, with the implementation of Ganga being stayed by the Supreme Court of India (SCI),Footnote 5 the cases are particularly significant for analyzing judicial responses to environmental concerns in India and highlighting the complicated interface of India's relationship with nature, as elements of the sacred.Footnote 6 Section 2 of this article outlines the facts and decisions in both cases, and discusses the expansive interpretation of the concept of legal personality to include non-human entities. Section 3 analyzes the raison d’être of the judgments and evaluates their role in protecting the environment. Section 4 explores the comparative context of the judgments by examining the development of the rights of nature in other jurisdictions. Section 5 focuses on understanding whether the new legal initiative of granting legal personality to nature improves the existing environmental legal frameworks in India. Section 6 draws conclusions.
2. THE GANGA AND GANGOTRI AS LEGAL PERSONS: FACTS AND BACKGROUND
The Ganga forms an integral part of the Indian ecosystem.Footnote 7 The river was given the status of a ‘national river’Footnote 8 with a coordinating body, the National Ganga River Basin Authority (NGRBA), being constituted to ensure its continuing protection and management.Footnote 9 Through a public interest writ petition,Footnote 10 the petitioner, Mohammed Salim, challenged the failure of the Uttarakhand government to cooperate with the central government to constitute the Ganga Management Board, as required by section 80 of the Uttar Pradesh Reorganisation Act 2000.Footnote 11 The Uttarakhand High Court (UtK HC), in delivering its judgment, directed the central government to constitute the Ganga Management Board.Footnote 12
The petitioner approached the UtK HC as a consequence of the non-implementation of an earlier direction issued by the Court.Footnote 13 The petitioner did not seek a declaration of legal personhood for the river, but directed the attention of the Court to the legislation in New Zealand, which confers legal personhood on the Whanganui river.Footnote 14 The Court then proceeded suo moto to rely on long-standing theories of legal personhood and earlier SCI decisions that defined juristic persons, to hold the river Ganga to be a legal living entity. It directed the Director of Namami Ganga (a nationwide mission to clean up the river Ganga), the Chief Secretary of Uttarakhand, and the Advocate General of Uttarakhand to be persons in loco parentis as the human face to protect, conserve and preserve the rivers and their tributaries.Footnote 15
The Glaciers case arose out of a public interest litigation (PIL) filed by advocate Lalit Miglani, highlighting the pollution of the river Ganga.Footnote 16 The case was disposed of after directions and orders to control and reverse pollution were issued. However, following the decision of the UtK HC in Ganga, the petitioner Lalit Miglani filed a miscellaneous application requesting the UtK HC to declare the Himalayas, glaciers, streams, water bodies and similar to be juristic persons on a par with the river Ganga.Footnote 17 The Court accepted this application, and declared a variety of natural features to be juristic persons under the law. In its decision the Court based its rationale on the need to develop more ambitious environmental protection measures. It declared:
[T]he Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests[,] wetlands, grasslands, springs and waterfalls, legal entity/legal person/juristic person/juridical 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.Footnote 18
Both judgments have subsequently been appealed against and the Ganga judgment was stayed by the SCI on the grounds of legal and administrative hurdles associated with its implementation.Footnote 19 The administrative hurdles, as submitted by the Uttarakhand state government, relate to the cross-border effects in the implementation of the judgment, such as the inability of specific officials from one state to enforce the judgment in other states through which the rivers flow.Footnote 20 For example, the judgment declared the state's Chief Secretary and Advocate General to be the parents of the rivers. Both of these officials exercise their functional jurisdiction over matters within the territory of the state, thereby inhibiting their ability to resolve disputes arising outside their jurisdiction.
The legal hurdle manifests through the potential of cross-boundary implications and the consequent liability that can arise from the implementation of the judgment in Ganga. The judgment observed that the loco parentis doctrine directs the declared parent to protect the dignity of the legal entity over which it enjoys guardianship.Footnote 21 This duty entails a responsibility to protect the entity from harm and a failure to discharge the duty enables others to bring an action against the parent.Footnote 22 In the appeal against the judgment, the State of Uttarakhand pointed out that liability for pollution arising out of a different state, such as West Bengal, could not be attributed to the Uttarakhand government in accordance with the Ganga judgment.
While the argument submitted by the State of Uttarakhand requires careful consideration, it is important to understand the role of the High Court in creating cross-border mechanisms for the protection of the environment. In this context, the Indian Constitution entrusts the courts with the function of ‘administer[ing] the laws of the Union as well as the laws of the States’ with the paramount consideration of the makers of the Constitution being the insulation of courts from local influence.Footnote 23 This approach to the cross-border effects of judicial power is adequately highlighted in the text of the Constitution, which provides for the exercise of writ jurisdiction by a High Court, in which the cause of action arises wholly or partly within the territorial limits of the respective High Court.Footnote 24
As the river Ganga originates in and flows through the territory of Uttarakhand, the application of constitutional provisions implies that the UtK HC would not be overreaching in exercising its judicial power to protect the river. However, such an exercise of power would not extend to the establishment of an institutional structure such as the Ganga Management Board, which comprises any number of persons, irrespective of their territorial affiliation. From an implementation perspective the SCI, however, can develop a protection framework that involves relevant stakeholders from the central or other state governments to ensure that all concerned parties are equitably represented in the management of the river.Footnote 25
It is expected that the judgment of the SCI will clarify the implementation challenges, but leave untouched the material aspects related to the conferral of legal personality.Footnote 26 The granting of legal personality to nature marks a radical judicial departure from existing approaches under Indian law. The following section explores the expansion of the concept of legal personality under the Indian legal system and attempts to understand the role and significance of natural entities as legal persons.
2.1. Legal Personality under the Indian Legal Framework
Whom the law regards as capable of holding rights and dutiesFootnote 27 is not static,Footnote 28 but has expanded from being confined to human beings to include ‘legal persons’ as capable of having a will of their own. The idea of a juristic or legal person as an entity in law, to whom rights and duties may be granted, has been developed in response to the economic, social, and developmental needs of society, with corporations being one of the earliest examples of a non-human entity to be granted the status of a juristic or legal person.Footnote 29 Francisco Carnelutti traces this development to the collective interest, noting that ‘the person is the meeting point of two elements (namely, the economic element and legal element), that is, the crux of the matter where both converge’.Footnote 30 According to Carnelutti, where the collective interest of many individuals prompts them to act as one, a unity is allowed to emerge and a legal personality would be acquired to protect the collective interest.Footnote 31
This ‘collective interest of society’ approach has been noted by the SCI, which has held that the concept of juristic person arose out of the necessity to respond to human development and stood subservient to the needs and faith of society.Footnote 32 This standard was subsequently applied to confer legal personhood on idolsFootnote 33 to allow endowments to be made to a deity in the deity's name while ensuring that its management remains with the temple priests.Footnote 34 This concept of personhood would later accommodate an expanded notion of the right to life under the ConstitutionFootnote 35 and, consequently, emerging rights-based jurisprudence in favour of non-human entities across the world.Footnote 36 The renewed understanding of personhood has provided a new impetus for contemporary Indian juridical approaches, which have identified personhood as a vessel for various rights and duties. The following section articulates the jurisprudential foundations for this development.
2.2. Personality to Personhood: Living Beings under the Law
The leap from living being to juristic person began with the transformative constitutionalism movement in India, which sought to preserve the inherent dignity of all persons, irrespective of their human-ness. The SCI in Animal Welfare Board v. A. Nagaraja Footnote 37 decided on the validity of Jallikattu, an ancient animal sporting event accompanying the harvest celebrations in Tamil Nadu, a state in southern India. The SCI observed in its judgment that animals have a right to live with dignity, and a right to food and shelter on a par with that of human beings. The equivalence between animal and man in relation to other rights, however, was not examined in that case.
More recently, the SCI has recognized the rights of elephants to roam freely in the Kaziranga National Park (a prominent sanctuary in north-east India) without any encumbrance from private oil fields, which had been introduced because of a lackadaisical governmental approach to the implementation of forestry laws.Footnote 38 Echoing similar strands of jurisprudential thought, the Delhi High Court also ruled that birds must be freed to let them enjoy their natural surroundings, as they have a ‘fundamental right to fly’.Footnote 39
These judgments articulate an expansionist interpretation of fundamental rights enshrined in the Indian Constitution. Although the judgments endeavoured to provide specific rights for animals by imposing corresponding obligations on humans and state entities, they did not elevate the status of animals by conferring on them separate legal personality.
In stark comparison, the judgments in Ganga and Glaciers emerge as radical first steps in the environmental protection movement in India in that they confer legal personhood onto natural features. The judgments in both cases are being hailed for validating respect for nature and bringing forward a new perspective on man's coexistence with nature. This perspective draws strongly from literature recognizing the Anthropocene era, which has influenced a symbolic shift away from human-centric environmental protection laws.
The term ‘Anthropocene’, as popularized by Paul Crutzen,Footnote 40 underlines the monumental impact of human activity on the earth system. The idea has since gained traction in scientific circles, and extensive efforts have succeeded in declaring it a new geological epoch.Footnote 41 The Anthropocene, with its emphasis on humanity's exploitative relationship with nature,Footnote 42 presents an opportunity to renegotiate our conventional perceptions of environmental law in favour of new legal tools and concepts founded on ecocentrism.Footnote 43 Though lacking wholesale acceptance, ‘earth-centred law’, ‘Anthropocene environmental law’, ‘planetary boundaries law’, and ‘Lex Anthropocene’ have been proposed as legal governance structures in the Anthropocene.Footnote 44
At the heart of this approach lies the recognition of the rights of nature paradigm,Footnote 45 which acts as a focal point for the convergence of these approaches while simultaneously functioning as a powerful tool to mediate successfully between the requirements of humans and the requirements of the environment in the Anthropocene.Footnote 46 We note that the development of environmental law in the Anthropocene requires this convergence to be fleshed out through court decisions, as the conferral of legal personality on natural entities can potentially foster environmental protection in a unique manner. The following section will analyze the raison d’être of the judgments and critically evaluate their role in the protection of the environment.
3. THE GANGA AND GANGOTRI AS LEGAL PERSONS: IMPACT, RATIONALE, AND RIGHTS
3.1. Impact
Although the judgments are the subject of appeal and the implementation of the Ganga judgment has been stayed, Ganga and Glaciers are significant for their illustration of a new tool of environmental protection in India. Under the Constitution, High Courts are subordinate to the SCI but exercise superintendence over all courts and tribunals within their jurisdiction.Footnote 47 The SCI has previously observed that a stay in the operation of a High Court judgment does not destroy its binding effect, as the SCI has had no opportunity to establish a proposition that is inconsistent with that declared by the relevant High Court.Footnote 48 Therefore, irrespective of the stay order, the judgments in Ganga and Glaciers are binding on lower courts and tribunals in Uttarakhand.
High Court judgments also have persuasive value in other High Courts across the territory of India.Footnote 49 The persuasive value of Ganga and Glaciers is best understood by analyzing two High Court judgments delivered subsequently. The first decision concerned the treatment of horses that were being transported across the India-Nepal border.Footnote 50 The second case, a revision petition filed before the Punjab and Haryana High Court (P&H HC), concerned the unlicensed export of cows from the state of Haryana to the state of Uttar Pradesh, in contravention of the provisions of state laws regulating the slaughter of cows (the Punjab Prohibition of Cow Slaughter Act, 1955).Footnote 51 Highlighting the plight of the animals being subjected to cruelty, the judgments respectively declared that citizens throughout the State of Uttarakhand and the State of Haryana were ‘persons in loco parentis as the human face for the welfare and protection of animals’.Footnote 52 Both judgments went one step further to confer on animals a right of way akin to a citizen's constitutional right to move freely within the country.Footnote 53
Ganga and Glaciers have also influenced legislative processes. The legislative assembly of the state of Madhya Pradesh has passed a resolution granting the Narmada river legal personality.Footnote 54 A Bill is expected to follow the resolution and provide a comprehensive legal framework that outlines the rights and responsibilities in relation to the river.Footnote 55 An official or an organization will be entrusted with the obligation of filing claims on behalf of the river.Footnote 56 The concept of legal personality for natural entities has also been recognized by the SCI, which recently issued a notice on a petition for the recognition of trees as legal persons.Footnote 57 The impact of the judgment has extended to foreign jurisdictions, with the High Court Division of the Bangladeshi Supreme Court relying extensively on the ratio in Ganga to declare the Turag river a legal person.Footnote 58
In sum, the Ganga and Glaciers judgments are pioneers in India's attempt to recognize the rights of nature, and have influenced legislative and judicial responses towards developing the rights of nature in both domestic and foreign legal systems. The judgments demonstrate a marked shift in the perception of nature's legal rights, and set forth the judicial context for debating such rights in India and elsewhere.
While recognizing the relevance of the judgments as an important step in understanding nature as a legal person, it is also important to scrutinize the judgments for their legal rationale. The judgments have traced the legal rationale of the decisions to religion, morality, and parens patriae, and have also equated the rights of nature with human rights. The next section of this article discusses the legal rationale and mechanisms employed by the courts in elevating and operationalizing the legal personality of the river Ganga and the glaciers.
3.2. Rationale
Protection of faith
Indian jurisprudence has expanded the scope of legal personality based on the economic, social, and developmental needs of society. The UtK HC in Ganga considered the declaration of personhood for the Ganga and Yamuna rivers as an extraordinary measure aimed to preserve their existence.Footnote 59 The rationale behind these judgments is found in the negligent attitude of the Uttarakhand state government towards the protection of rivers,Footnote 60 the constitutional provisions of Directive Principles of State Policy and Fundamental Duties,Footnote 61 and reference to religion. The UtK HC substantiates the importance of this link to religion as it makes several observations about the relevance of the river Ganga to Hindus. A passage from the judgment reads as follows:
Rivers Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and revered. The Hindus have a deep spiritual connection with Rivers Ganges and Yamuna. According to Hindu beliefs, a dip in River Ganga can wash away all the sins. The Ganga is also called ‘Ganga Maa’.Footnote 62
Further, the UtK HC declares that the rivers Ganga and Yamuna were ‘required to be declared as legal persons/living beings’ to ‘protect the recognition and the faith of society’.Footnote 63 The Glaciers judgment also refers to religious belief as one of the reasons to expand the scope of legal entities to include nature.Footnote 64
The use of religion as a rationale for determining the legal status of nature sits uncomfortably within the secular legal system of India. The river Ganga is a national river and underlining its religious and spiritual connection has the cataclysmic effect of strengthening the river's bond with a religion, while ignoring and eliding the broad spectrum of community-based interests associated with the river. Instead of addressing the ecological destruction faced by the river systems, emphasizing the inadequacies of the existing legal provisions and the need to declare rivers as a legal entity to preserve their existence, the UtK HC framed the need for environmental protection in terms of the religious and spiritual significance of the rivers. This approach leads to difficult questions: to what extent are religious sentiments to be reflected in interpreting and initiating legal remedies in a secular society, and how do such sentiments influence the genesis of legal doctrines to protect the environment?
The answer is premised on understanding the interaction between religion and environmental protection, an interaction which the literature has identified as both empowering and conflicting. Lynn White has highlighted the ecological crisis of the west as a product of attempts to accommodate the dominant Christian narrative of the supremacy of man over nature.Footnote 65 This narrative was used to justify not only the exploitation of nature by man but also to assign to man responsibility for and guardianship of nature.Footnote 66 However, in response to White's thesis, others have highlighted relevant religious scriptures that emphasize the importance of environmental protection.Footnote 67
In the Indian context, studies have revealed similarly conflicting positions, with some emphasizing the positive and beneficial role of religion for environmental protection.Footnote 68 Environmental movements in India, including the Chipko movement and anti-Tehri dam protests, attribute their efforts not only to ecological or economic positions but also to religious beliefs.Footnote 69 Others have underlined the absence of a link between the sacredness of a river and its ecological health.Footnote 70 Moreover, religious tenets may differ from some of the actual practices that are rooted in religious beliefs. Some religious practices have been directly responsible for environmental degradationFootnote 71 and have required judicial intervention. For example, the SCI has had to step in to regulate the use of firecrackers and the resulting pollution during the Hindu festival of Diwali, and balance environmental obligations with the cultural-spiritual value of the festival to Indians.Footnote 72 The literature on the subject thus presents a contradictory and complex picture of the role of religious practices in reducing or increasing ecological impacts.Footnote 73
A rich body of jurisprudence on law and religion has developed in India following various lines of enquiry. These enquiries are entrenched mainly in the idea that religion is a robust social force, is in part constituted by law,Footnote 74 but is simultaneously something to be kept at a distance from the law.Footnote 75 In the context of declaring idols as legal entities, for example, Indian courts have observed that ‘if the people believe in the temples’ religious efficacy, no other requirement exists’.Footnote 76 In the context of environmental protection, courts have occasionally considered religious beliefs as a fertile source of judicial thought for the preservation of the ecosystem.Footnote 77 Although Hindus consider the rivers Ganga and Yamuna to be sacred, both have been misused, exploited, polluted, and overused. This factual scenario challenges the Court's rationale of linking religious beliefs with ecological preservation.
Moderating the influence of religion in matters of law is not a new task for Indian courts. In Orissa Mining Corporation v. Union of India and Others, the SCI addressed issues related to mining in the Niyamgiri Hills, which the Dongria Kondh (the tribes who inhabit the region) consider as the abode of a spiritual deity. The Court referred to the religious freedoms guaranteed to individuals under Articles 25 and 26 of the ConstitutionFootnote 78 as intended guidelines for community life.Footnote 79 Though many people have hailed the judgment as a step in the right direction, there is scepticism and trepidation over the invocation of religious rights. It has been argued that an issue of compliance with the law on forest rights was reduced to a mere violation of religious rights, with ecological considerations not being discussed, although these too could have supported the decision.Footnote 80 The cases thus raise misgivings about relying on religious argument as an instrument of environmental protection.
Further, there is a difference between invoking the religious significance of rivers as an additional argument to stimulate environmental protection on the one hand, and crafting the conferral of legal personality reliant on the normativity of a particular religion on the other. Religion, with its strong normative character and emphasis on ‘individual duties’, can significantly influence behavioural change with regard to environmental protection. However, the Ganga and Glaciers judgments have not merely highlighted the religious significance of the rivers as a robust force in reversing the trend of ecological destruction; they have also declared the legal personality of the rivers to protect a particular religious faith, thereby making environmental protection subservient to the religious beliefs.
Whenever Indian courts have relied on a religious rationale to expand the scope of legal personality, they have been influenced by the need to recognize and maintain the functional autonomy of religious institutions. However, compared with idols, a religious rationale is problematic in the case of rivers in that rivers do not exist and operate solely in the context of religion.Footnote 81 Even non-sacred rivers should be accorded legal personality and sacredness cannot be the yardstick for preferential environmental protection.Footnote 82 Thus, the conferment of legal personhood based on a flawed rationale reflects the Court's lack of a holistic understanding about the functioning of nature. The role of law in protecting religion and, conversely, the role of religion in the formation and implementation of law become relevant here. References to religion can be justified if the approach of the court is to consider faith as a critical factor, among others. However, when the protection of faith rather than environmental protection becomes the primary object of the judgment, it may engender legal challenges and can be deeply problematic in a secular societal context. Many beliefs revolve around the river Ganga. One such belief is that the sanctity of the river makes it religiously significant for the performance of the last rites among pious Hindus. A consequence of such rituals is the immersion of mortal remains, ashes or ritualistic remains in the river, which causes high levels of pollution.Footnote 83 This practice historically is long-standing and has resulted in major ecological degradation despite the legislature outlawing it a decade ago.Footnote 84 It may thus be counterproductive to accord legal personality to rivers using a religious rationale, as this might bolster the unabated continuation of religious practices that result in the pollution of rivers. The backdoor entry of religious principles, even in good faith, may result in adverse legal consequences, ecological harm, and violation of constitutional principles.
Finally, it is important to reflect on the cases in their wider socio-political context. The social and political milieu in India has seen a rise in policymaking on religious matters, which has exposed the work of the courts to intense scrutiny.Footnote 85 The Ganga and Glaciers judgments are therefore part of a wider debate on the relation between law and religion, transcending the field of environmental law. It is relevant and necessary in this context to interrogate the reasons that cite religion as a motivation for environmental protection. Although religion constituted a major rationale for the judicial conferral of legal personality on Indian rivers because of their sacrosanct status for Hindus, this was not done with a view to elevate a Hindu political ideology. Evidence suggests that the framework for river protection was motivated by a secular agenda.Footnote 86 Courts continue to impose sanctions on religious activities that pollute the environment, irrespective of religion.Footnote 87 The best explanation for the judges’ motives in citing religious texts therefore remains that they acted on personal beliefs.
The use of religious imagery in a judgment, however, may have unforeseen political consequences. In light of the varied and complex political factors that accompany some cases in India, such judgments may be used to further a political purpose, as evidenced by the fallout of the Shayara Bano judgment.Footnote 88 Previously, issues such as interstate water sharing in India have been politically sensitive, polarizing, and have created fault lines in community-led governance of natural resources. Political parties have already compared the river and its inhabitants with religious figures.Footnote 89 Similar messages emanating from judicial decisions could be misappropriated by political elites in a way that might lead to the exclusion of certain communities in the cultural discourse on river conservation. In a secular legal system, conferring personhood on a national river for the goal of safeguarding religious beliefs is legally problematic, as rivers cannot be tied with any particular religious belief. The concept of legal personality is a creation of law and, to be effective, it must be grounded in strong legal principles. In a legally laudable development the Ganga decision has been stayed by the SCI, which looked for concrete legal justification for conferring legal personality on the rivers rather than an appeal to faith.Footnote 90
Moral duty to protect the environment
While the Court has referred primarily to the protection of faith as the reason for conferring legal personhood on rivers, it has also emphasized constitutional and moral obligations to protect the environment. In Glaciers it stated:
All persons have a constitutional and moral responsibility to endeavour to avoid damage or injury to nature (in damno vitando). Any person causing any injury and harm, intentionally or unintentionally, to the Himalayas, glaciers, rivers, streams, rivulets, lakes, air, meadows, dales, jungles and forests is liable to be proceeded against under the common law, penal laws, environmental laws and other statutory enactments governing the field.Footnote 91
Morality often guides the law and, if we consider that the assignment of legal personality depends on a society's value system,Footnote 92 reliance on morality can be justified as a strong force in lawmaking. However, Indian jurisprudence has fleshed out the distinction between social morality and constitutional morality, while upholding constitutional morality.Footnote 93 By referring to the moral obligation of individuals to protect the environment and prescribing legal sanctions for the same failure, the Court in Glaciers conflated a moral responsibility with a constitutional mandate. This conflation of moral responsibility with a constitutional mandate can lead to ambiguity in the imposition of legal sanctions, as legal sanctions are imposed only for the violation of constitutional morality.
3.3 Delimiting the Contours of Rights and Duties
Recalibration of rights and responsibilities
The Court in Glaciers was concerned mainly with the protection and preservation of the river system. However, arguably it paid insufficient attention to the dilemmas to which its decision would lead, such as the difficult recalibration of the relation between rights and responsibilities. The judgment implies that human beings can be held liable for injury or harm caused to natural entities. However, the judgment fails to explain whether natural entities can be held legally accountable in turn. If a forest must be cleared for the protection of the river, can an action lie between the two entities? Such cases call for a difficult balancing exercise between the rights of these entities. The question will be whether this balancing act will serve to protect and preserve the stand-alone rights of nature or whether it will take in the broader context of development, bringing anthropocentrism again to centre stage.
A pointer to such a dilemma arose before the UtK HC immediately after its declaration of the Ganga as a legal entity. A case was filed in the UtK HC, which had to issue a legal notice to the river Ganga in relation to a proposal of the state government to construct a garbage dump in Rishikesh, a town through which the river flows.Footnote 94 Though the case was dismissed, the matter highlights the complexities surrounding the imposition of liability on the river for acts over which it has virtually no control. This scenario clearly points to the fact that the decision to declare the river Ganga as a legal entity was an abrupt and impulsive development without a real understanding of the socio-cultural settings and the functioning of nature in a deep manner. The Indian response seeks to amalgamate rights, duties and responsibilities into a ‘person’ in a manner that blurs the lines between legal and human rights.
Blurring the line between legal personhood and human rights
One of the fundamental requirements of legal personality is the clear definition of the content and demarcation of the scope of rights and duties granted to such persons.Footnote 95 For instance, corporate legal personhood characteristically confers the right to enter into contracts, the right to own property, and the right of standing.Footnote 96 In Glaciers, the UtK HC stated that natural entities would enjoy rights corresponding with those of a living person, including fundamental rights. Having a clearly defined set of rights – such as the rights to exist, flourish and regenerate – would have provided greater clarity on the attributes of such personhood and provided impetus for the establishment of appropriate mechanisms for the implementation and protection of the rights of nature. However, the judgment has simply amalgamated different rights regimes into a single regime to be conveniently applied to nature while consequently ignoring their complexity.
This approach is contrary to the proposal adopted by Christopher Stone, who is credited with initiating the rights of nature movement.Footnote 97 Stone suggested specifically that the rights of nature need not be identical to human rights and could even differ among various natural entities.Footnote 98 A reference to rights of nature should have required the UtK HC to investigate the specific rights to be granted to a river, such as the right to flow, the right to exist, and so on. The decision to equate the legal rights of nature with human rights may have been a consequence of the Court's premise to treat the river as a being on a par with human beings. However, the conflation of ‘legal person’ and (human) ‘living person’ complicates the situation by failing to tailor the rights properly to the needs and circumstances of the natural entity at issue, which can lead to an overly anthropocentric interpretation and may be challenged in future litigation.Footnote 99
The conferment of legal personhood on nature is a recent development and allows us to rethink the status of non-humans in the environment. Legal personhood also places human activity within the framework of nature's laws and limitations. A carefully constructed framework to operationalize this balance between human activity and rights of nature would be a potent tool for ecological sustainability. The Court in Ganga and Glaciers did not engage with the question of whether nature fulfils the criteria of corpus and animus for personhood. In Glaciers, quoting from Salmond, the UtK HC states that juristic persons are arbitrary creations of law, yet it legitimizes their existence as essential for the development of society.Footnote 100 It goes on to say that glaciers and associated natural entities need to be declared legal persons for their survival, safety, sustenance, and resurgenceFootnote 101 but does not outline a detailed action plan for how this could be achieved. In the absence of a detailed discussion of how natural features qualify for the elements of personality, the judgments fail to offer a definite answer and advance the jurisprudence on the rights of nature.
3.4. Parens Patriae
The Court relied on the parens patriae doctrine to rationalize its decisions. The doctrine is rooted in the understanding of the state's guardianship of common resources and its sovereign interestFootnote 102 in the protection of citizens, particularly when the citizens are incapable of protecting themselves.Footnote 103 This concept flowed from the Directive Principles of State Policy under Articles 38, 39, 39A, 48A and 51A(g) of the Constitution, which compel the state to strive towards becoming a welfare state.Footnote 104
In Ganga, the Court applied the doctrine to declare that the Chief Secretary of State, among others, acts in loco parentis. The Chief Secretary's functional domain ranges from industrial licensing, to waste management, to the protection of the environment. These wide-ranging functions raise conflict of interest concerns. It is difficult for the Chief Secretary to balance the conflicting interests of the rivers and the industries which that official regulates. In Glaciers, in turn, the Court declared seven persons to be in loco parentis as the ‘human face’ to preserve natural features in Uttarakhand.Footnote 105 The basis on which they were appointed to represent the interests of the river remains unclear.
The appointment of state officials as the legal guardian of the river is in conflict with the original idea propounded by Stone where he considers only those people who have manifested unflagging dedication to the environment to be appropriate representatives of the interests of nature.Footnote 106 Stone's suggested approach is reinforced by the participatory and inclusive model adopted in New Zealand, where the interests of both Indigenous communities and the government are represented.
Government agencies cannot fulfil the criterion of institutional autonomy, especially when the same agencies are concurrently entrusted with the protection of the environment and the regulation of competing interests. Yet the judgments in Ganga and Glaciers use the concept of parens patriae to affix to state entities the status of protector of natural resources. When rights of nature are ensured through the appointment of state instrumentalities, there is a greater need to specify clearly the contours of the rights granted to nature, all the more because the acts of the state also contribute to environmental pollution. In other jurisdictions conferment of personhood on nature was followed by the appointment of independent agencies, which are representative of Indigenous communities and government. Apart from the establishment of the Ganga Management Board, neither judgment is particularly clear about the mechanisms through which the newfound legal personhood-related rights would be implemented and enforced.
In Ganga, the Court appointed a state official as the human face to protect the rivers. The decision bestows a superior locus standi on these government entities, which trumps the locus standi of any other private person. The decision therefore raises an important question: can PIL actions be filed on behalf of the river when specific guardians have been appointed to protect and preserve the rights of rivers? As a tool of environmental protection, PIL provides an opportunity for public-spirited individuals to promote environmental matters. It is premised on the fact that no single person is responsible for a particular public resource.Footnote 107 It appears that, as a consequence of the application of the parens patriae doctrine, the option left for a public-spirited citizen would be to file a case against the guardians for failing to protect the interests of the river: a case could be filed against the guardians, for instance, for failing to initiate actions against the polluting industries. However, even in such cases the court may acknowledge the superior locus standi of the guardians for the protection of rivers. This is because under the judgment, state officials are not just representatives but ‘persons in loco parentis as the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries’.Footnote 108 This has to be read in light of the way in which parens patriae claims are generally used in environmental litigation of late,Footnote 109 with environmental PIL actions having a non-adversarial and almost inquisitorial nature. In this context, the government or court, rather than the petitioner, is dominant in determining the course of the litigation. Therefore, the invocation of parens patriae through a state official will essentially have the effect of liquidating the locus standi of the petitioner and dilute the existing constitutional rights of citizens to file a PIL action in order to seek justice in environmental matters.
Further, the operation of loco parentis will raise questions about the human impact on and inclusiveness of environmental protection measures – with a special focus on environmental harm that is disproportionately experienced by marginalized communities. The direction of the Court in Glaciers to not allow beggars on ghats (a flight of steps leading down to a river) clearly highlights the impacts of human activity on the environment and the flaw in adopting a selective, exclusionary approach to protecting nature.Footnote 110 This exclusion risks the loss of traditional methods of conservation and sidelines grassroots environmental activism.Footnote 111 This is notwithstanding the emphasis in the Glaciers judgment on the important role of the inhabitants of these ecosystems in protecting the environment, observing that those ‘whose lives are linked to the rivers … must have their voice too’. Footnote 112 In muffling the voices of activists through the parens patriae doctrine, the river, too, is silenced.
It should be noted in this context that Glaciers does make provision for the nomination of public representatives from cities, towns and villages of Uttarakhand to represent the communities living on the banks of the Ganga and Yamuna rivers.Footnote 113 It is therefore important to ensure equitable membership within the management committees of the rivers so that the interests of all vulnerable groups are accounted for. A sound model of representation is set out in the Colombian Atrato judgment, which painstakingly outlines the mode of representation, the timelines, powers and functions of the guardians of the Atrato river, along with future action plans for the welfare of the river, which includes a role for expert epistemic communities in such plans.Footnote 114 Further, the Atrato judgment specifically assigns to communities the power to choose their representatives without giving the government an upper hand.Footnote 115 Such detailed provisions offer much needed guidance to consider the interests of marginalized sections of society whose voices are generally ignored or under-represented.
In contrast, Glaciers has not clarified whether the representatives will be nominated by the government or chosen by the communities themselves. This highlights a broader omission on the part of the UtK HC. The judgments confer legal personhood on nature with a primary focus on the theories of legal personality but fail to engage with the ‘rights of nature’ discourse in environmental law. The Court makes a brief reference to rights of nature when analyzing international jurisprudence but does not deliberate on the impact of the approach on existing methods or tools of environmental protection under Indian law.
4. LOCATING THE JUDGMENTS IN THE TRANSNATIONAL CONTEXT
The Ganga and Glacier judgments arose as a result of the acute environmental degradation of Indian rivers despite the existence of an elaborate scheme of constitutional and environmental protection measures. The decisions, building on the previous jurisprudence of Indian courts on legal personality,Footnote 116 assume that conferring legal personality on nature and its components is the appropriate mechanism to address environmental concerns. Evidently, the decisions of the UtK HC are not the first legal pronouncements in the world concerning the legal personality of nature. Naturally, the relevant inquiry in this regard therefore centres on the extent to which the Indian decisions have advanced or engaged with the transnational legal debate surrounding rights of nature. In this section we will discuss the same.
In 1972, Stone advocated legal rights for natural objects. He argued that nature could institute legal actions at its behest through a legal guardian, and injury to natural objects must be taken into account.Footnote 117 Stone's arguments found a foothold in the dissenting opinion of Justice Douglas in Sierra Club v. Morton, who argued that the court should recognize the concept of standing of the environment through a guardian ad litem.Footnote 118 Thomas Berry, who asserted that human beings and natural entities possess certain inalienable rights, took this argument forward.Footnote 119 These scholastic assertions kick-started a legal debate on the rationale and modalities of granting legal personality to nature.Footnote 120 The fact that rights of nature can be enforced only through human agency and thus lack an independent will to initiate legal action has fuelled a debate about whether nature meets the core requirements of legal personality: corpus and animus.Footnote 121
Despite the indeterminacy associated with the question of whether nature meets the requirements of corpus and animus, a diverse range of jurisdictions have employed numerous justifications and strategies in order to endow natural resources with legal rights and personality. For example, Ecuador made rights of nature a part of its constitutional mandate and ethos in 2008.Footnote 122 Similarly, the government of New Zealand declared the Te Urewera National Park a legal person pursuant to the passage of the Te Urewera Act in 2014. This was done in order to establish and preserve a legal identity for Te Urewera because of its natural importance and intrinsic value.Footnote 123 To ensure that the personhood conferred on the natural feature is exercised in a meaningful way, a board consisting of representatives from the Indigenous population and the New Zealand government was established to exercise the rights, powers and authorities of Te Urewera.Footnote 124
New Zealand continued to expand its recognition of natural entities as legal persons. Centuries of Māori struggle to maintain their spiritual connection with the Whanganui river culminated in the unprecedented enactment of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (Te Awa Tupua Act), which granted legal personality to the river.Footnote 125 The legislation was an attempt to uphold the Indigenous worldview of nature and its spiritual association with the river. The Te Awa Tupua Act identifies specific rights of the river and it appointed guardians to represent the Indigenous population and the New Zealand government in governing and managing the river.Footnote 126 However, it should be noted that – unlike the judgments in Ganga and Glaciers, which have conferred on the rivers rights similar to those of a human being – both the Te Urewera Act and Te Awa Tupua Act identify specific legal rights for the river; the Te Awa Tupua Act prescribes the need to govern the river in a manner consistent with the existing rights of private citizens, other entities, and local authorities in relation to the river.Footnote 127
These legislative initiatives have been further supplemented by judicial decisions. The Constitutional Court of Colombia conferred legal personality on the river AtratoFootnote 128 and identified specific rights held by the river, including the rights to life, health, water, food security, a healthy environment, culture, and territory for the actors.Footnote 129 Representatives from the government and Indigenous communities who inhabit the Atrato basin were put in charge of the legal representation of the river's rights as ‘the guardians of the river’.Footnote 130
Our assessment reveals that while India has joined the list of jurisdictions to confer legal personhood on nature, its ascription of personhood to nature differs in substance and method from that of other jurisdictions. The judgments reveal a lack of engagement or substantive discussion with the international jurisprudence on nature, which could have provided rich source material for the development of astute measures for the protection of the environment. The lack of engagement with rights of nature has not only resulted in the Court failing to detail the personality elements of nature, but has also resulted in the Court basing its decision on unsound rationality with reference to faith and morality. Notably, it overlooked the context in which other jurisdictions have adopted the legal personhood of nature. The Whanganui river was granted legal personhood – in recognition of an Indigenous or Māori understanding of man's relationship with the natural world.Footnote 131 The legal developments surrounding the Whanganui, Te Urewera and the Atrato are thus premised on the cultural integrity model, which has more to do with protecting the spiritual connection between Indigenous communities and riverine ecosystems in those countries.Footnote 132
The importation of international precedent in Indian jurisprudence must come with an effort to understand the cultural components of such precedents.Footnote 133 While Indigenous cultures can benefit from the recognition of rights of nature and protect their natural surroundings against the state, it identifies the community as a special case and confines the mandate of protecting the river to achieve objects that are integral to the community's perception of the river's welfare. This comes at the cost of divesting others, who may have a general claim over the environment as an extension of their human rights. That is why, even in the case of the Whanganui river, the enacted legislation was careful to uphold the existing private rights of individuals over the river bed in terms of rent, easements, and similar concerns.
In the Indian context, the recognition of the rivers’ personhood was based on the value the rivers held to advance ‘socio-political-scientific development’ along with the spiritual significance of the Ganga and Yamuna rivers for Hindus. The group of people whose spiritual connection with nature was used to justify nature's protection are not necessarily the Indigenous peoples of India, and the Ganga and Yamuna are not the only rivers that Hindus consider holy.
Further, the Indian approach to Indigenous rights diverges from international law on Indigenous rights.Footnote 134 Although India voted in favour of the United Nations Declaration on the Rights of Indigenous People,Footnote 135 it stated that it does not consider any specific section of its people to be ‘Indigenous people’, noting instead that its entire people are Indigenous.Footnote 136 Thus, when an international perspective is at odds with the cultural norms of India, judges must be extremely careful in incorporating such legal principles into Indian legal doctrine. The subject matter of the dispute in Ganga was not directly or indirectly related to Indigenous rights; the matter under consideration was pollution and the deficient implementation of environmental laws. To travel beyond the doctrinal approach of environmental principles, and create a separate legal personality, can be justified only if it is an improvement over existing principles. The next section of this article analyzes the potential of the judgment to achieve its objective of addressing environmental degradation.
5. ANALYZING THE JUDGMENTS IN THE FACE OF EXISTING ENVIRONMENTAL LAWS IN INDIA
The Constitution of India in its original draft scarcely mentioned the need for the preservation of the environment as the Directive Principles of State Policy focused on the ownership and control of material sources and the need to distribute those resources equitably for the public good.Footnote 137 The clarion call for environmental legislation in India sprung forth as a reaction to the UN Conference on the Human Environment of 1972 (Stockholm Conference).Footnote 138 A plethora of laws were passed by the Parliament to address environmental concerns. The judiciary complemented these provisions by incorporating international environmental principles with due regard to the domestic context in which such principles had to be applied.Footnote 139 In this respect, we refer to two long-standing environmental law principles – the polluter pays principle and the public trust doctrine – and contrast their efficacy with the proposed solution of legal personhood for nature. The following section offers some insights into whether legal personhood is an improvement on the existing legal framework for environmental protection in India.
5.1. The Polluter Pays Principle
The polluter pays principle (PPP) is one of the key principles on which the National Green Tribunal (NGT) in India relies for delivering its decisions.Footnote 140 The PPP attempts to mitigate environmental degradation by allocating the costs of and repairing the damage among multiple stakeholders through preventive, punitive, and restorative measures.Footnote 141 As with most of the core environmental principles, the PPP has its roots in anthropocentrism.Footnote 142 Anthropocentric environmental laws tend to focus on human needs, and injury or damage to nature may not be remedied or compensated. Thus the understanding of harm in the PPP is generally anthropocentric. In the case of environmental degradation, an approach that does not focus on environmental harm itself is highly inadequate.Footnote 143 It was this human-centric focus that the advocates of the rights of nature contested. They believed that the invocation of legal personhood of nature would lead to the recognition of the intrinsic value of nature and recognition of environmental harm. In the Indian context, however, this belief is largely misplaced.
Firstly, the Indian courts have interpreted the PPP in a way that includes consideration of harm to the environment itself. In Indian Council for Enviro-Legal Action v. Union of India,Footnote 144 one of the first cases to employ the PPP, the SCI observed:
The liability to compensate is twofold; one, to compensate the victims of pollution for inconvenience and health loss; and the other, to restore the environmental degradation viz., of the soil, underground water and the vegetation cover of that area. Such remediation of damaged environment is part of the process of ‘sustainable development’.Footnote 145
As noted in the observation of the Court, the PPP in the Indian context was applied to compensate for environmental damage and not just to remedy the suffering caused to victims.Footnote 146 Courts have also held that the principle of ‘polluter pays’ does not mean that the polluter can pollute and pay for it later.Footnote 147
It could still be argued in this context that environmental damage under the PPP is conceived from an anthropocentric perspective in that the principle emphasizes the value of the environment to humans. In contrast, the rights of nature approach accords nature a legal status and the capacity to sue in respect of harm per se, defending its intrinsic value and not merely its instrumental value. However, even this argument is problematic as the very concept of the intrinsic value of nature and its quantification is a social construct that eventually leads back to the same anthropocentrism.Footnote 148
It should be acknowledged that, despite the PPP accounting for environmental damage, the institutional and structural issues associated with its implementation in India have left the country struggling with massive levels of environmental degradation.Footnote 149 This points to the fact that, unless a principle is supported by a carefully constructed framework and effective implementation machinery, the ecological sustainability that the principle attempts to achieve continues to suffer. By extension, in the absence of a carefully structured framework, it is inconceivable to see how the newfound legal personhood of nature would address the implementation flaws associated with the anthropocentric environmental principles and protect the intrinsic value of nature.
5.2. The Public Trust Doctrine
The public trust doctrine (PTD), under which the state holds natural resources in trust for the benefit of the people,Footnote 150 evolved in the context of water resources.Footnote 151 The SCI, in M.C. Mehta v. Kamal Nath, directed that natural resources be held in trust for the common good of citizens, planting the roots of the PTD in India.Footnote 152 Public trust has continued to widen its impact in environmental jurisprudence in IndiaFootnote 153 with the duty of the state to protect natural resources – such as the air, sea, water, and forests – being regarded as absolute and rooted in the Constitution.Footnote 154
Though based on anthropocentrism and human benefit, the PTD is a powerful means of addressing environmental harm and degradation.Footnote 155 The doctrine has been invoked often as an important affirmative tool to protect natural resources and strike down actions that destroy the nature of property held in public trust. When the PTD enables and even obliges states to affirmatively fulfil their public trust duties of protecting natural resources, a move towards conferment of legal personhood on nature can be appreciated only if the newfound legal status is able to make a substantial difference to the way in which environmental protection is addressed or if the extant application of the PTD suffers from certain drawbacks which personhood remedies.
In this context, one of the limitations on the enforcement of the PTD is the uncertainty surrounding the scope of the state's duties regarding public resources. This problem is yet to be addressed adequately by the courts in India, which are yet to formulate a precise definition of the state's duty under the PTD. Consequently, the PTD continues to be defined in accordance with the circumstances of the specific case, without uniform guidelines on how states must treat resources held in public trust.
While Ganga and Glaciers were both opportune cases to address this vacuum, the judgments have not elaborated specific duties or guidelines for the declared guardians of natural features towards their protection. The Court in both cases, through the invocation of parens patriae, entrusted state officials with the responsibility to protect and preserve the river system. Yet it failed to articulate how the scenario in which state officials are given the responsibility to protect the river will differ from the application of the PTD, which also identifies the state as the trustee and guardian of natural resources. Moreover, even without the conferment of legal personhood and guardianship on rivers, states could have standing to sue under the doctrine of parens patriae on the basis of their sovereign ownership of their resources.Footnote 156
6. CONCLUSION
This article has traced the broadening horizons of legal personality and rights jurisprudence in India, which culminated in the conferment of personhood initially on the river Ganga and consequently to a broader set of natural features. The granting of legal personhood to nature alters the traditional legal status of nature as an object of rights to a holder of rights, which marks a step forward in jurisprudence. However, the problematic nature of references to religion and morality employed by the UtK HC as the legal rationale for declaring nature as a legal person requires a rethink, as the determination of constitutional rights and wrongs in the context of natural features should rely on positivist and constitutional legal values.
The failure to engage with rights of nature at a deeper and granular level has resulted in the judgments falling short of delineating the specific contours of nature's rights and establishing independent mechanisms for the implementation of such rights. The judgments have also failed to appreciate the differences between the circumstances of attribution of legal personality to rivers in other countries and the methodology involved in such attribution. Finally, the invocation of parens patriae to appoint instrumentalities of the state as guardians of the river remains problematic when the states concerned act as major polluters themselves. In light of the appointment of state instrumentalities to tackle these important issues, it is difficult to imagine how the conferral of legal personhood by the judgments will differ from earlier approaches, how they will ensure effective environmental protection and ensure that their precedential value extends beyond a mere symbolic shift in the perception of environmental law.
State involvement also conflicts with the importance that the rights of nature movement attaches to independent entities, who have shown unwavering dedication to the environment, acting as the guardians of environmental components. Drawing upon its past activism, it appears that the judiciary was eager to project an image of being serious about environmental protection and follow recent trends in other jurisdictions. However, a lack of contemplation of the socio-cultural narrative and the modalities of implementation have prevented the judgments from establishing concrete and detailed mechanisms for protecting nature. Hence, many of the problems that plague existing environmental laws may simply re-emerge. While the development of granting legal personality to natural entities should be welcomed, the legal rationale and method of implementation envisaged by the Indian court judgments are founded on legal ambiguities.
Nevertheless, by invoking the legal personality of the river in a non-Indigenous context, both the judgments contribute to the global debate on this issue and set a significant precedent for rights of nature litigation in India and elsewhere. It is therefore important that the legal processes undertaken in this direction continue to be refined. The judgments are pending appeal before the SCI. A further understanding of the importance of the judgments may be achieved once the SCI delivers its judgment and observations.
