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The Experiment with Rights of Nature in India. Kelly D. Alley and Tarini Mehta

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Abstract

On March 20, 2017, the High Court of Uttarakhand, India, ruled that, “The Rivers Ganga and Yamuna, all their tributaries…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” (Mohd Salim v. State of Uttarakhand and others). In the ruling, the Judges appointed three guardians as “persons in loco parentis” [meaning “in place of a parent”] as the human face to protect, conserve and preserve the Rivers Ganga and Yamuna and their tributaries. The public celebration of this judgment drew legitimacy from the transnational discourses and legal initiatives giving “rights to Nature,” but it omitted acknowledgment of other human designs for water, most notably the intention to centralize control of all basin extractions and uses into a single authority. The river Ganga and its tributaries are worldwide known for producing food and water for large populations. Surface water is burdened with pollution. The judgment presents an interesting example of a negotiation of categories of personhood, goddess, and natural resource. However, the Supreme Court stayed this High Court judgment so that government departments could avoid the accountability that a rights-based ruling would require. This paper argues that the continuation of multiple institutions of decision-making and judgment, including the National Green Tribunal, is a better path to protecting these sacred rivers than the path proposed in the landmark ruling.
18
The Experiment utith Rights of Nature in India
Kelly D. Alley and Tarini Mehta
CONTENTS
Summary
on March 20,2012, the High Court of uttarakhand, India, ruled tha! ,The Rivers Ganga
and Yamuna' all their tribltaries '.. ur" i.eclared ," Fr."ii.zr"gal persons/living entities
having the status of a legar person *rii ,l1 ""r;il;i;,.gigi", duties and riabilities of
a living person in orderlo pr"""rrr" urri "*"urr. river Ganga and yamun a, (Mohd sarim
t' state of uttarakhand and 2tt ut1.In the ruling,.the jud-ges uiiorr.r,"a three guardians as
'persons in loco parentis' [meaning t. fr""" "r u pu.uit,1 uiin" human face to protect,
conserve and preserve the Rivers bu"g, and yamun, ,.ra ih"i, t.ibr,aries. The pubric
celebration of this i-"ogi,"la diy r"g?^u"y from *," iransnational discoursei and
legal initiatives giving iigt t, t" Nutr.Sf iut it omitted acknowledgment of other human
designs for water' moit notably the intention to centratisu "o.,trot of all basin extractions
and uses into a single authority.
The river Ganga and its tributaries are known worrdwide for producing food andwater for large populations. surface water is burdened with pollution. The judgment
presents an interesting example ^of a negotiati"l "j *;ig=;;i", oi p"."orrhood, goddess and
natural resource' Frowever, ti'r" srpr"rrT. Corrt ,trr-"-g this High Court judgment so that
government departments could urroid th" accountatility that u?ight"-bu"ed ruring would
require' This paper argues that the continuatiorr o;-rrtipr" i'rJtrtiorr" of decision-?ruti.rg
and judgmen! including the Nationur cr"u,'r Tribunal, is a better path to protecting these
sacred rivers than the pith proposed in the hnamarkrut;;. '*'
365
366 Sustainability and the Rights of Nature ht P-
Ritual bathing in the Ganga (Ganges) River in 2001. (Photograph by Kelly D. Alley.)
Introduction
In India and worldwide, the river Ganga (Ganges) has been a Mother, Goddess, pulrt-.: ,
sustainer of all iife for Hindus for millennia.l The cleaning of Mother Ganga, on tl.,c '
hand, is a more recent invention.2 This invention now comprises a number of comp1, -:
and largely unsuccessful, plans to arrest the mounting pollution and deterioratins
quality of this sacred river.3 This deterioration directly feeds the growing use, overL.S:
depletion of groundwater in this basin and others across the country.a
Today arouncl one billion people reside in the Ganga Basin. The Ganga passes L.r
than 30 major cities and towns on the traverse from the Himalayas to the Bay of Beng:.-
Upper Canga Plain in the state of Uttar Pradesh is the most industrialised part of th. l
basin, home to sugar factories; leather tanneries; textile industries of cotton, woo1, jr,r:=
silk; food-processing industries related to rice, dal and edible oils; paper and pulp indr-rs
heavy chemical factories and fertiliser and rubber manufacturing units. A number oi - -
industries discharge wastewater that contains hazardous chemicals and pathogens.
major thermal power plants also depend upon water from the Ganga and the heated i= -
flow affects river ecology. The discharge of untreated municipal sewage draining :
the urban centres makes up three-fourths of the pollution of the river. IJnfortunatel .
building of sewage treatment plants to break down this sewage and the enforcem.r-'
compliance to discharge regulations for municipalities and industries have been han'Lr-.
by Centre-State politics, funding and infrastructure problems and other socioeco: .
complications related to revenue flows at the city and state levels. Over the past few dec.
concerned citizens have been using the courts and the main environmental tribunal ::- '
country, the National Creen Tribunal, to push agencies to do the work they or€ r€spor-:
for doing to remediate water quality and prevent further pollution.
In this context, a Rights of Nature approach was recently attempted by High Court Ju.
in the case titled Mohtl Sulim u. State of Uttarakhrmd and others. This was an earnest atttr
by judicial authorities to enforce water conservation, but the Supreme Court sqlr: :
quashed it a few months later. The case helps us to understand what a Rights of \,..
The Experiment with Rj
framework would loo*
values, government strr
to shed light on the fua
of specific domestic cur
Precursors of Naturr
Many activists arourd I
replace the current regr
integrity and freedosr t
should be designed, crrea
United States has notma
Nature, other countrie d
recently executed in Irrdi
of Nature framework Th
us to ask whether this n
on going water po llutior_
in India by focusing spec
India's legal frames-od
rights. These liberties a
rights framework. Tlre a
India's tradition of puhli
i nvesti gat i ve jo urnali-snq
decades. A unique kird o
wherein c ha rism atic iusti
The Hon'ble Mr. lustice !
years of the Indian Lni{rt
ambit ["extent',] of furdar
"Due process" dehberatd
play by holding that a -pn
Justice Krishna h.er rt-al
public interest litigation_ I
thqfol lowin g commertts
Ou r adjectival trelatrr;
deals not with rryrhis
poor, the urban lar an
terror if technical miy
out the cause-title sed
and fairness is not fal
representative actions, ;
of legal proceedings ar
man and a neces-rr d
merits by suspect relia
viewed on wider perqr
g rievances, a s d istingui
view, backed b-v precec
The Experiment utith Rights of Nature in India 367
framework would look like in India and what its problems may be in terms of religious
values' government struc-turg politics and "t t ;;-"h'rp.; il;;"ltr., or*,""u issues "rrir,up
to shed light on the feasibilitytr u night, or Nurrr"'rr",."-*f,*nen considered in terms
of specific domestic constraints ,"d ";p;;"nities.
Precursors of Nature's Rights in rndia: public Interest Litigation
Many activists around the world have argued that a Rights of Nature framework should
replace the current regulatory o. _urk"tlbu""a i"guiii;.r.r"irort, to guarantee nature,s
integrity and freedomio Rourlsh.u Al;.; with thisio*u r,urr" added that the framework
should be designed,.created, supported u?d "rrfor""; J"x r"""], or government. whle the
united srates has not made *""r'r n*J-uy in.seting 6 ;r;;;Lamework for the Rights of
Nature' other countries-offer interesting, eiperimental exur.pLs. ln this regard, the initiatives
recently executed in India provide anoi}r", i"i.rao* into delibe;;ting on the utility of a Rightsof Nature framework' This case, r*" trr" oir,"rs in Ecuador, solivia and New Zealand, allowsus to ask whether this framework can assist ir, "o.rr"rrrir,g ri;i"" ecology and reducing
ongoing water poilution. T rli" chapter, wernrin pres"*,h":;;rq"e case of Rights of Nature
in India by focusing specificalry "" ln-t" to p.ui"rrru river basiis and water supplies.
India's legal framework is already g"n"ror" to petitioners and to notions of fundamental
rights. These liberties and their r",i"t"ri"rr g9i=r.p-""i urJ pr""rrsors to a nature,s
rights framework. The advoca"y ,"pu"i-oi a Rights'"iivri"r" ,pproach can be found in
India's tradition of public interlst ,j, r".i"r-*tion litig;., *r.ri.n emerged along with
tnvestigative iournalism,-1"T1. rights and environr"l^i"i'r.,.v1sm over the last threedecades' A unique kind of judi"iur p8p"1i"* has evolved;i;;; p"blic inrerest ritigatiory
wherein charismatic i.""tr5Q ,"d p'"tii;"." rrrrr" become "".,,iu, to the power of the raw.6
The Hon'bte Mr. Jusiice s. p. Bharucha ""ptui.," T;6_"*..i-i;"o? r"gur arrrt" ir-6,"-"*ry
years of the Indian Unr3n in thls way: 'The're was then the age of expanding the scope and
ambit [%xtent"] of fundalent{ rig(tr, r"irg, pu.ti" urarry,trie wide language of Artrcre 21.
"Due process" deriberately esche#eat, tr-," rt"nding r;'irr"., was ludicialy brought into
play by holding that a 'procedure estabiishea by hw,, had to be just and fair,.7
Justice Krishna tyer wa3 the first t. ht;i" conceptual foundation for what is now called
'":ti5,:T:l?1ffi"i[, rn1e76,*r'it"'rrtir,g on an industriar dispute, Justice ryer made
our adjectivar [relating to] branch of jurisprudence [knowredge of law], by and large,
deals not with sophisticaied litigant', lpuopt" invoived i, "'rr* suitr but the rural
poor' the urban lay and the weakI. .o"iJtd iugr.ents for *t "." ir* wili be an added
terror if rechnicar mis-descripri""" ,"J1"^n"rc"r-,"r", i, Jiriii"i pr"rarngs and setting
out the cause-titre:r:at: a secret weapon to non-suit a part. wf,"ru four pray is absent,
and fairness is not faurted, ratjtude i, u g.u."u of.p.oc.s"rar 1usfice. Test ritigations,
representative actions, pro bono pubrico 1rol. tt," pruir"g""lr ,riJirke broadened forms
of legal proceedings .." in k"eping with-in" current accent on justice to the common
man and a necessary disincentive io those who_wish to bypass the real issues on themerits by suspect l*"".: on peripheralprocedural ,hori.;;;;s. Even Article 226,
::::-:i ll wid,qr gersqe5tive., mayte ,*".",br;;;;#;il#.:h,ective or common
grrevances/ as distinguished from assertion of indivia"rirtgrrir, atirough the traditional
view' backed by precedents has opted r* tn" narrowe*ir".^rii"" public interest is
{xtu*.-.rs I III
368 Sust&inability and the Rights of Nature in F,
promotcd by a spacious construction of locus standi [to be heard in court] in our si,c- -
econom ic circumstances and conceptual latitudinarianism permits taking liberties .,r .. -
individualization of the right to invoke the higher courts where the remedy is shar=-'
by a considerable number, particula rly when they are weaker. Less litigation, consi:i.:
w ith fair process, is the aim of adjectival 1aw.8
In the earlv 1970s, justice Bhagwati and Justice Iyer were involved with the estab.,: '
of legalaid schemes for 'poor persons and members of backward classes'.e Laie:
Bhagwati articulated in a more decisive way the nature of public interest litigatiorL -:'
he summarised the court's position on judicial procedure as follows:
This Court will readily respond even to a letter addressed by such individual actir-r: ',-
bonopublico. ItistruethattherearerulesmadebythisCourtprescribingtheproce-:.,.
for moving this Court for relief under Article 32 and they require various formalitr..
be gone through by a person seeking to approach this Court. But it must not be forgi ::. -
that procedure is but a handmaiden of justice and the cause of justice can ne\ r- - -
allowed to be thwarted by any procedural technicalities. The court would ther.: '-
unhesitatingly and without the stightest qualms of conscience cast aside the tech:' -'
rules of procedure in the exercise of its dispensing power and treat the letter of psl -- , .
minded inclividual as a writ petition and act upon it ....r0
In this pronouncement and others, Justice Bhagwati contended that social c :' -
require a relaxation of procedure. The social conditions are of two dimensior,.
one hand, inequality and differential access to justice and power prevailed; on .--:
particular kinds of executive practices were at work. These executive practices \\'.r.-
out through inaction, as a breach of the law or dereliction of duty. Along with th. .
procedural relaxation, Justice Bhagwati stressed the judicial remedy of manda.:'. ,
command'is a judicial remedy in the form of an order from a superior court]. Ar-,' , -
of the public with sufficient interest can call for judicial redress for any public injr-r
from breach of public duty or from the violation of some provision of the Cons:-.,
the law. A citizen can seek enforcement of public duty or observance of such cofl:,,- -
or legal pror.isions by standing for the public interest.
Justice Bharucha also commented on the central role that the remedy of manda::- -
in public interest litigation, stating that the remedy has tanvassed the mandate Lri -:-
that no one is above the law'.11 He added that the prosecutions that were launchei .: - -
to the continuing mandamus in vineet Narain [the Hawala case] 'produced rea*- .
the people that the Courts would not turn a blind eye only because powerful me:' .
places were involved'.12 He continued:
Public irrterest litigations have also led to the Courts'pronouncements in pollutiL.r-
environment matters. I would be the first to concede that these pronouncement>
sometimes been a mixed blessing, but we must remember that in these matters, a: - -
many others, the Court has had to step in because the legislature and the executir -
not acted upon their obligation to protect the quality of 1ife.13
These discussions have also raised issue with the particular kind of lawyerilLs --
When introducing a publication series on public interest litigation, a contribLr:, '-
wrote: 'It compels the lawyer to unshackle herself from legalese, reach out to ar---
herself of other disciplines. It teaches her to assimilate the legal principles in:,- - '
situations and present thembefore the court in a'Judicially manageable" form. f -
up several opportunities for innovation and creativity'.1a
'lhe Experiment u
Standing for Naturr
The Supreme Court, sr
unique'public interest
to the National Green I
ovelsee cases concernei
with scientific assessrr
after many years of dis
dispense environmerrta
with knowledge of scie
matters on the basis of
cases taken up by the Tri
(357d. Environmental cl
and thereby avoid or u
scoping and evaluatiort c
by the National Green tr
soundness of its decisiqt
As part of this ura\-e oI
most importa nt enr-irsu
the National Green Trilnr
charging that, despite th
taken effective steps topx
to restrain leather tanner
industrial and domestic e
petition into two parts T
the Municipal Corporati<r
the 'Ganga Pollution Casr
history of Indian enr-irwr
In the original petition,
of the Jajmau district of
river. He also claimed th
treatment of domestic set
tanneries of the Jajmau d
Pollution Control Board" I
Indiat Standards Instihrn
At the time the Ganga I
initiating its first envirtxu
Ganga Action plan (rereaJ
by diverting and treating
Executed through the Mi
scheme provided grants t
river Ganga in three states.
them over to city municipe
Entering the mid-1990s; d
efforts of the governanert
dereliction of duty. Bv 19gi
basin, penalised ihu-stut
Ministry of Environment t
The Experiment with Rights of Nature in lndia 369
Standing for Nature: The National Green Tribunal
The Supreme Court, once the primary court for environmental litigation through a legally
unique 'public interest celli has now ceded most of its environmental decisiln-making
to the National Green Tribunal. The National Green Tribunal was established in 2010 to
oversee cases concerned with environmental degradation, combining legal deliberation
with scientific assessment and monitoring.ls Th; National Green Tribunal was created
after many years of discussion on the best ways to deal with environmental issues and
dispense environmental justice in India. It is composed of judges and expert members
with knowledge of science and environment, and the explctition is thai they decide
matters on the basis of environmental merits and citizen iorr"".r,". The majoriiy of the
cases taken up by the Tribunal are related to pollution (31Q andenvironmental clearances
(357d' Environmental clearances are required for 39 iypeb or projects in order to assess
and thereby avoid or minimise their environmental impacts. This involves screening,
scoping and evaluation of a proposed project. At the ru-" tirne, several judgments purr"d
by the National Green Tribunaf have brought public scrutiny, raising questlons about the
soundness of its decisions.
As part of this wave of transferring cases, in 2016, theSupreme Court passed one of the
most important environmental cases, commonly known u" th" Ganga iollution Case, to
the National Green Tribunal. In 1985, M.C. tvtehta ntea a writ petition ii-, th" Supreme Court
chargin-g that, despite the strides made in the legal code, government authorities had not
taken effective steps to prevent environmental pollution. M"ehta issued a writ of mandamus
to restrain leather tanneries and the municipil corporation of Kanpur from disposing of
industrial and domestic effluent in the river Ganga.ihe court subse^quently bifurcated the
petition into two parts. The first dealt with the tinneries of Kanpuiand ihe second with
the MuniciPal Corporation. Called Mehta Iandlvlehta II in legislative digests, theybecame
the 'Ganga Pollution Cases'and the most significant water p5llrtio.r litilation inihe short
history of Indian environmental law.
-In the original petition of 1985, Mehta requested the court to order the leather tanneries
of the ]ajmau district of Kanpur to stop discharging their untreated effluent into the
river' He also claimed that the Municipai Corporltio"n of Kanpur was not undertaking
treatment of domestic sewage. The petition named 89 respondents; among them were 75
tanneries of the Jajmau district of the city, the Union of india the Chair"of the Central
follutlol C;rntrol Board, the Chair of the -Uttar Pradesh pollution Control Board and the
Indian Standards Institute.
At the time the Ganga Pollution cases were being heard, the Government of India was
initiating its first environmental scheme to combat-river pollution in northern India. The
-Ganga Action Plan (hereafter GAP) was created to address problems of waste management
by diverting and treating industrial and municipal effluent before it reached the ilanga.
Executed through the Ministry of Environmerrt and Forests, this central gorr"rrr-"r,t
scheme provided grants to create this'infrastructure in the largest cities bo"rdering the
river Ganga in three states. The original plan was to construct these facilities and then turn
them over to city municipalities for longllurr, operation and maintenance.
Entering the mid-1990s, the Supreme -ourt stepped up its efforts to check the centralising
:tr1" of the government by pissing orders thJ reprlmanded government agencies for
dereliction 9f duty. By_1995,the Supreme Court had fi^ned over 200 industries in-the Ganga
basin, penalised the state Pollution Control Boards for false reporting and pressed the
Ministry of Environment to streamline its proposals for treatment plaits thrlough a less
370 Sustainability and the Rights of Nature ht P,.;
wieldy set of supervisory committees. It appeared that the struggle for power was ce::: -
intensifying on paper, as the judiciary, through courtroom dramas, fines and punishr- .
sought to check the power of the executive branch and industries throughout the cr-.-. ''
Yet this judicial activism proved profoundly limited by the very system it sought to - -.
by calling on the same agencies it reprimanded to implement its orders, the Suprem. -
was rendered profoundly ineffective.
The recent shift of environmental cases to the National Green Tribunal marks a
shift from pressure through tontinuing mandamus'in the Supreme Court to pressr,rrr
the persistent complaints of citizens through the National Green Tribunal. In the Tr-:-
the judges call forward stakeholders and direct collaborative solutions. In prior Sr-.':..
Court cases, continuing mandamus occurred in cases when monitoring of compliar-.:--
directed by ihe court and considered necessary to the functioning of governme:-
the effective use of its assets. When the Supreme Court agreed to cede responsrl- - :
the tribunal, the media accused it of 'passing the buck'. The Court responded, :
to monitor rveek after week, months after month, it is difficult ... it [you] can g.' '
[National Creen Tribunal] and if you have a problem you can come back to us'. At ::. .
of April 2077, the Supreme Court passed another key case on the degradation of the \: -
river and floodplains to the Tribunal.
Originally in7994, the Supreme Court had taken suo motu cognisance of the poll;,
the Yamuna on the basis of a news article reporting this. In 2077, abench consisting c,
justice |.S. Kehar and justice D.Y. Chandrachud decided that the monitoring of the ., .. -
projects and actions to clean the river should be done by the National Green Tril:ur..,
transferred the more than two decades-long public interest litigation to it. The S,r-: .
Court held that there should not be 'parallel proceedings' on the same issue,'. -.:-l
informant explained to Alley, 'When cases are sent by the Supreme Court to the [\:.
Creen Tribunal], the [National Green Tribunal] is more motivated to hear them'.r: T:- .
the general sentiment during the tenure of Tribunal Chairperson Swatantra Kun-ia: :
recently, under new leadership in the Tribunal, advocates are submitting their pe .-
back in the Supreme Court and High Courts, hoping for a better hearing.
Provisions Close to Rights of Nature
The Indian Constitution is not unique in incorporating articles that declare the respor-rsi:
of the state and its citizens to protect and improve the environment and safeguard fore.,-
f wildlife. Like those used in other countries, India's constitutional articles were adr.': . -
response to international conferences and conventions. The first provisions in law,r.r. . ,
through the Forty-Second Amendment to the Indian Constitution.ls Passed in7976, the -
Second Amenclment responded to the Stockholm Declaration adopted by the Interrr:..
Conference on Human EnvironmentinT9T2. That Declaration confirmed the respons--
of each member of society to protect and improve the environment. In conformitv tvilh .
objectives, the Forty-Second Amendment inserted Article 48A into the Directive Pri:-, -
of State Policy in Chapter 4 of the Constitution. This declared the State's responsil.r.:-
protect and improve the environment and safeguard the forests and wildlife of the cc -
Another provision, inserted in Article 51A(g), stipulates the duty of every citizen to 'p:
and improvc the natural environment including forests, lakes, rivers and wildlife and t. -
compassion for living creatures'. Both Article 48A and Article 51A impose an obligat,.
the government and the courts to protect the environment for the people and the nati. -
Along with these provisions, the Indian legal system provides a few other SoLLr-:.
law for addressing environmental and especially water pollution problems. Tl-re .
The Experiment aith Ri1
(PreventionandCorM
set out a concern for ern
the Water Act in 1978 an
(Protection) Act of 1ffi6
subject in the State Ust
Act empowered the L.ni
was affirmed when all s
The administratire re
Central Pollution Contn
Boards develop plans So
and executes a national
data and advises the G
implement the Water,l
conducting research on
been awarded the auth
and effluents from indu
Although enr-irc,: :'
and the Fundamer,:.
under the justiciable . r
clirectly enforcea L. 1=
flesh out the constitutiuri
to have recourse to [t]re r
the pollution of water o
words, the courts hal e h
Rights. Environ:nental sa
to the enforcement of cr
ecological norm has adr
perceived failures of othr
Standing and Other prq
As the preceding quo&s
with opening up uses of
ideals of equality and irx
procedural matterc in uni
countries. As litigants beg
justices began a vigorousr
discussed what was nrear
constitutional rights of la
interest in relaxing tlre ru
of India,22 Justice Iyer comr
Our currentprocessua
broad based and p@
'public interest lifipti
numbers seeking rm
driven to an expensirr
in our democracr-. lt-e
of action' and 'persur
some jurisdictions-=
The Experiment with Rights of Nature in India 371
(Prevention and Control of Pollution) A ctof 79741s('the waterAct,) was the first to specifically
set out a concern for environmental protection. Parliament adopted minor amendments to
the water Actin1978 and revised it in tgsg^to conform to the provisions of the Environment
(Protection) Act of 1986.20 Although the Constitution deter'mined that water would be a
subiect in the state List and woulitherefore rull ""J".ir'r" pr.rri"- of the state, the water
Act empowered the Union Government to legislate in the iiiu or state control. That power
was affirmed when all states in the Union approved the Act.
The administrative regulation under the water Act provided for the establishment of a
Central Pollution Control Board and, under this, a goala i. """rr state of the union. These
Boards develop plans for the control and prevention of pollution. The Central Board plans
and executes a national Programme for preventing polluiior; carries out researcfu compiles
data and advises the Goveinment on water and air pollution matters. The state Boards
implement the water Act by inspecting industrial una -u"t"-ater treatment plants and
conducting research ofr -uie, quality Jnd sewage truut-".i *ethods. Both Boards have
been awarded the authority to set standards for water quali ty, airquality and emissions
and effluents from industry and other sources.
Although environmentaiprotection is included in the Directive principles of state policy
and the Fundamental Dutiei of the Indian Constitutiory "rrrriror,m"rtal rights are not listed
under the justiciable,Fundamental Rights of the Indian Constitution. Hence, they are not
directly enforceable' Io*:"."1 ry utiliJing these provision" o., "r-,rrirorrmental protection to
flesh out the constitutional right io life, the'supreme Court has held that ,u .itir"'. r,us a right
to have recourse to lthe ,"-"di", provided bg articte 32 of the Constitution foruemoving
the pollution of water or air Y-ry;h may be detrimental to the quality of life,.21 In other
words' the courts have been willing to rlad the Directive prlnciples into the Fundamental
Rights' Environmental cases have uiso benefitied f1-;i;;;;"'utarrut advantages attached
to the enforcement of constitutiorral rights. The Indian courts, willingness to apply an
ecological norm has advanced a broadlr judicial commitment to the rectification of the
perceived failures of other branches of government.
Standing and Other procedural Matters
A:.,th" preceding quotes leveal, justices in the postindependence period were concerned
with opening up uses of the law to citizens of all socioe.o.,o*1. classes, to act upon their
ideals of equality and justice. In the process of establishing these ideals, justices defined
procedural matters in unique ways and set th""u pro."Jrr""-rp* rr"m those used in other
countries' As litigants began to approach the court with "or.".-." of a public interest nature,
justices began a vigorous debatetver standing and procedural matters. Concerned citizens
discussed what was m.e}t by the public interest urrd *ho could represent or argue for the
constitutional rights of largenumters of citizens. The short history reveals a unanimous
interest in relaxing the rule of standing .rn Akhil Bhartiya sornit-xrro*chari sangh,. Llnion
of lndia,22 Justice Iyer commented on th"e issue of standiig i
our current processual jurisprudence is not of individualistic Anglo Indian mould. It is
broad based and people oriented, and envisions access to justice through tlass actions,
'public interest litigation' and representative proc,eedings. Indeed little Indians in large
numbers seeking remedies in courts through ""n*ti;;;;;u"dings, instead of being
driven to an exPens.ive.plurality of litigations, is an affirmation ot participative justice
in our democracy. we have no hesitatiln in holding that the;;;ow concept of tause
of action' and 'person aggrieved' and individual htlgation l" u""o*l.rg obsolescent in
some jurisdictions.23
372 Sustainability and the Rights of Nature in Prart
In many cases, justices have grappled with a determination over the 'person aggrier -.-
Generally in public interest cases, the issue of standing has been linked to other procedr,.:
matters. For instance, justices broadened the guidelines for writing an acceptable r,,
building upon the general sense since early postindependence jurisprudence that the gene - .
format should be flexible to various forms of appeal. In 1956, Justice Mukherjee claimed t1- .. '
'Under Article 32,tIrc court enjoys a broad discretion in the matter of framing the rtrit:
suit the exigencies of the particular case and it would not throw out the application ot :'.
petitioner simply on the ground that the proper writ or direction has not been prayed ft
Looking across the many environmental cases of the past 20 years, we find that H--
Court and Supreme Court ]ustices have accepted letters, appeals and newspaper editori.. .
as writ petitions for the public interest. In these letters and appeals, petitioners have r.t,rrtr.
to protect fr:esh water bodies and coastal zones, forests, national monuments, plann-,--
provisions ancl urban heritage sites, among other national goods. Petitioners have usr -
Articles 32 ancl 226 to put pressure on state offices and on private agents of industriaL a:-,-
technolo65ical development to manage and adequately dispose of waste by-products. justic..
have appointed amicus curiae (an impartial adviser) to assist petitioners in approachi:- -
the court for the public interest.
While accepting a relaxed notion of standing and a broad range of petition types, t:.
Indian courts have also exercised suo motu powers (Latin: bf his or its own accord', an actic:-
initiated by an authority on its own). Justices have exercised the suo motu power to interve: -
directly in the administration of a State or private project.
Ganga and Yamuna Rivers as Persons
We now turn to the recent high-profile ruling designating the Ganga and Yamuna rivers
as juristic persons. This case was heard in the High Court of the state of Uttarakhand and
notbytheNational GreenTribunal. OnMarch20,2017,the High Courtruled inMohd Salim
o. State of Uttarakhand and Others that,'The Rivers Ganga and Yamun4 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'.2s
The immediate motivation for the landmarkruling, as Lokgariwar and others have noted,x
comes from the case of the Whanganui river in New Zealand. In that case, the river was
declared a living entity with full legal rights by the country's parliament after a long push
by the Maori, an indigenous group.27 In India, a discussion on the need to grant personhood
to these rivers startedin20\4 when members from the Community Environmental Legal
Defense Fund met with members of the Global WASH Alliance-India and Ganga Action
Parivar. Together they developed the National Ganga River Rights Act, which recognised
the rights of the Ganga River basin and the people of India to a healthy river ecosystem.2s
Led by the head of a popular ashram in Rishikesh, the Ganga Action Parivar and the
WASH Alliance gathered a group of 25 religious leaders and called upon the government
to declare Ganga a persory as a way to enforce stronger steps to protect her. They proposed
the new law to 'grant legal rights to the Ganga' and submitted their letter of request to the
Union Science and Technology Minister at an event organised by Global Interfaith WASH
Alliance and UNICEF-India.
The Experinteti t,
The leader of this gn
secure its own l%al rig
can later be done for all
one alreadybeinginp&
had been'rendered dn
called for up to ser-en i
trouble. ... 80% of our r
dry piece of legislatiuri
This meeting fid nof
of the government urrtil
brought the New TeaL
Judges when argrring f
it upon himself to rese
his judgement. In the r
appointed three gr-rardii
the chief secretarr- of th
general of the state (a :
place of a parent'] as th
and Yamuna and ttx{r
status of [the rivers] al
court confirmed that ar
state would initiate crin
as people were s[1] trri
went on to designate th
another case related b r
in strengthening the Rig
'... the Glaciers indr
meadows, dale, ju.n
entity/legal persur,
having the statu-s c*i
of a living persoru in
rights akin to tundal
This second ruling rt-a
brother, also an adr-ocatr
a imed to reguJate ptastk
case, the Lalit Miglarri I
(both central and statel i
Ganga. In an effort tcr er
justices reaffirmed arrd_ i
of the Ganga and Yamu
juristic rights. The just
management of the glaci
declared that designatirq
their preservation. The iu
and djrected action agai:
ashrams (religious insEh
While the ruling on :
conservation and protect
The Experiment with Rights of Nature in India J/5
The leader of this group noted to the media that 'we feel that by enabling the Ganga to
secure its own legal rights to survive and thrive, just like a cornpany or a person, the same
can later be done for all other rivers such as the Indus'.2e on the need fo, a new law despite
one already being in place, he said the water (Prevention and Control of pollution) Act, 7974,
had been 'rendered dry' over the last four decade s. 'rn 1974, awater Act was passed that
called for up to seven years [in] jail for repeat polluters. yet 42years later, our nation is in
trouble' " ' 80% of our drinking water is polluted, mostly with sewage. The water Act is a
dry piece of legislation,, he saidlso
This meeting did not result in a more serious consideration of an Act or law on the part
of the government until the High Court ruling *u" pro*rrgu1"d. In that case, the advocate
brought the New Zealand Rigits of Nature-e*u-il" to tfie attention of the High Court
Judges when arguing for rivei protection and pollution prerrerrtiorr. The lead justice took
it upon himself to research this case and other Right; ;iN;ture initiatives as he formed
his judgement' In the.ruling, the lead ju{]ge, ,r,j thu supforting justice on the bench,
appointed three guardians-the directoi of Namami Gr"frfi """rral government official)
the chief secretary of the state of Uttarakhand (a gtate gorr"?.,;ur-rt official) and the advocate
general of the state (a state government officiar) - u", ,p"r;;;" in roco parentis [Latin: ,in
place of a parent'l ?" f: furiran face to protect, "orrr".iru and preserve the Rivers Ganga
and Yamuna and their tributaries'. ny tdis order, the officers were bound to uphold the
status of [the rivers].and a-lso to promote the heaith ur,a -"li-u"ing of these rivers,.31 The
court confirmed that any harm done to the river would be a cognisable offence and the
state would initiate criminal proceedings.ryitl.roulwaiting for a pefltioner. Ten days later,
as people were still trying to understa.r? qu implicationl "iir,i" order, the same Justices
went on to designate the glaciers, lakes and wetrands or tn"r" ur"irc u" r"g"i;"rJJ"r, i,
another case related to reiource uses in the state.32 rrr.y *"r" intentional in their interest
in strengthening the Rights of Nature approach even further when they stated,
" " the Glaciers including Gangotri & yamunotri, riverq streams, rivurets, lakes, air,
meadows, dales, jungles, foresis wetlands, g.u""irr,arr-";;i;;, and waterfalls, legal
entity/legal person/juristic person,/juridiciaT personr-;;;;"r" on/artificialperson
having the status of a legal pl.ror,, *ltr, ult corresponding rights, duties and liabilities
of a living person.in odu. io preserve and conseive th#. ii;y are also accorcred the
rights akin to fundamental rights/legal rights,.s:
This second ruling rlas.th; result o{ a petition filed by Lalit Miglani and argued by his
brother' also an advicate in the sr*"uift Court. The previous orders in this second case
aimed to regulate plastic waste and the iischarge "f J*;g; i;o the Ganga. This second
case' the Lalit Miglani PIL, revealed the gross negligence of governmental authorities
(both central and state) in discharging thelr statutlrf auti""io p.ur."nt pollution of the
Ganga' In an effort to.ensure the [riection of the natural resources of the region, the
justices reaffirmed and, in f1ct, expanded their first jr;g;;;;"on the juristic personhood
of the Ganga and Y1m11a by including other natural-resor."", within this notion of
juristic rights'-The justices tt." rguiri appointed five legal representatives for the
management of the glaciers, rivers, streamJand other resouies ,in loco parentis,.3a They
declared that designating,ecosystems as juristic persons *;, ;^ imperative measure for
their preservation. The judges also directJd the establirrr*"rri oi
and directed action againsl and closure of ponutins rndustries i::if,ilffili:':f.i"j:
u"_hlu*" (religious inslitutions;.ss
while the ruling on personhood in Mohd. salim is ostensibly for environmental
conservation and protection, its roots in religious sentiments ,r,a pnito"optry cannot be
374 Sustainability and the Rights of Nature in Prqct
set aside. ]ustice Sharma began his presentation on these aspects by stating that, 'Rir; -
Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and rever.,-
He continued,'The Ganga is also ca1led "Canga Maa". It finds mentioned [sic] in ancr..-
Hindu scriptures including "Rigveda"'.:6 With this statement, he mentioned other case:
which a Hindu idol had been seen as a juristic entity capable of holding propertv.
The Problem of Guardianship
Both these cases prompt the question: In the Indian context, is it possible for a nat-..
entity to have legal standing on the basis of notions of standing already in existence-
La Follette ancl Maser argue:
Ti is of course no answer to say that Nature, or any being of Nature, should be denieci
rights because it cannot speak. The American legal system gives rights to manv entitie:
that cannot speak: cities, states, and the federal government are the most common
examples. This could be multiplied to include water districts; religious organizations;
social service organizations, such as the United Way; trusts and estates; joint venture
partnerships; and many others. A11 these entities hire attorneys to speak for them ar.rd
argue their cases in court.37
Western inclustrialised society, La Follette and Maser note, seems to fincl litt,.
no intrinsic value in Nature unless it is demonstrably 'good for something' or ca:- - :
converted into something of material value.3S By contrast, the Canga is a Goddess .
her own sacred power and history. Ganga is a Goddess and also a Mother, and :.- -
also consider her a person or personified Goddess. So in these Hindu interpretatio:-.
is feasible to some that she should be able to avail herself of the right-to-life pror.r.--
in the constitution.3e Before looking into this religious interpretation of Goddess :
personhood, however, we need to consider what guardianship means in the transnat-,-
legal discourse.
As La Follette and Maser note, the questions to be answered in the case of a surrc,:'
who advocates for Nature include the following: Who could be qualified? How woultl :
be selected? What obligations would they have? And what powers would be granteti -
by whom? h.{ost importantly, to whom would a Nature's Rights guardian be account: --
and according to what standards? They write:
A guardian (or ombudsman, to use a term for a governmentally appointed advocate.
usuallv \ .ith limited powers) could be a €lovernment agency, but might prudently be
expanded to include qualified environmental organizations that could act as additional,
independent, guardians with rights to advocate for species or ecosystems in planninp5,
and also through litigation. This is a system already in use in Germany. Guardian:
could be given additional roles in protecting resollrces of the globai commons/ such as
oceans or the air: monitoring the health of the commons, and having powers to enforce
treaties and national laws affecting the commons. The guardian would have the power
to appear before international rule-making and legislative bodies on behalf of the aspect
of Nature the guardian represents, and also have powers to bring suit if the commons
is endangered by human activity.aL)
In order for any guardianship or ombudsman to enforce Nature's Rights, the,..
system must give Nature, or its surrogate, 'standing' to fight for rights and defend ag.-.
harms done to them. As the history of Indian litigation shows, justices have sufficie '
The ExperimeatwilhR
liberalised the notimr ;
environmental rights.
basis of recreational a
will be harmed.{
The notion of stard
guardians who are &
would not alter the ab
case of pollution or errr
implead the three gua
that arise as a result o
to understand the rcQ
understand the goddes
Other Considerations:
The Hindu religious r*
particularly in terms o
goddesses. Of the six .
popular and influentiaj
Advaita - and all inr-ol
philosophy of dualism.
In terms of the spirifru
toward the rea_lisatisr
followers of Dvaita ard
as the path to liberatfo
separate from Brahman
the universal self, or all
individual self seems di
i mpersonal. It transcerr
[ultimate reality] is n-ii
Brahman is the u]timtr
of its relationship nith I
between Nirguna Brahr
Brahman is illuson-.
The abstract phil'osopl
of the concept of a persu
to, deities are either cux
one surrenders w-ith de*l
religious practice; arlrli+i
manifold deifications to ;
life and society, with sm
Personhood of deities i
In relation to this perso
identified, one that consi
another that sees deities
views result in worship, r
worship is directed torm
deity epitomises the ene
The Experiment with Rights of Nature in India 375
liberalised the notion and procedures for standing to allow a range of actors to argue for
environmental rights. Likewise, in the u,iJed stues;gro"p" hrrru been able to sue on the
ffin:'a::xjloraf aesthetic or ecological rosses, ";"?;#xv 'for, the prr* o. Lui.,g *,ut
The notion of standing in the High Court ruling in India hinges on the role of the
guardians who are designated as ttree government officials. uu:*"r"r, ar..l";rig*"",
would not alter the ability of a public-spiiited person to file public interest litigation in
case of pollution or environmentil harm io the Ganga o, yr*rnu. In such a case they could
implead the three guardians as,responderts. NonEther""rr-ih"r" are other complications
that arise as a result of such a framework. Before considering these problems, we need
to understand the religious interpretations of these sacred rivers and the ways devotees
understand the goddess as a diviire being, a Mother ur,d u p".rorr.
Other Considerations: Retigious Doctrines of personhood
The Hindu religious viewpertaining to deities is foundational to this judgment and others,
particularly in terms of the personlfication of different elements of nature as gods and
goddesses' of the six Astiki schools of Hindu philosophy, vedanta is one of the most
popular and influential. It has three schools of t:horgr,tI-lvaita,vishishta Advaita and
Advaita - and all invoke different forms of personhJod for divinity. while Dvaita is the
philosophy of dualism, vishishta Advaita is qualified monism and Advaita is monism.
. In terms of the spiritual journey, these three elitomise the progression of the consciousness
toward the rearisation of urtimate reality, exemprifieJiy i,arruitu philosophy. while
followers of Dvaita and vishishta Advaita believe_in u p"r"J.,ur god and explain devotion
as the path to liberation, Advaita metaphysics holdJ thrt;;" world has no existence
separate from Brahman, the ultimate reality. The self that is experiencing, or the jiva, and
the universal self, or atmary are the same; tirey are both B;;l;"", despite the fact that the
individual self seems distinct. The Brahman of Advaita vedanta advocated by sankara is
impersonal' It transcends all attributes and thoughts. a" a"r"riu"d by sankara, ,Brahman
[ultimate reality] is without parts or attributesl.. or," *ittlort a second,. This Nirguna
Brahman is the ultimatereatiiy as it truly is. It, however, b""o-"s a personal god because
of its relationship with the principle of Maya. The Advaita veaanta school distinguishes
between Nirguna Brahman (attributeless) and Saguna sruh-u., (with attributes); Saguna
Brahman is illusory.
.The abstract philosophy of Advaita is difficult to grasp and comprehend; thus, the value
3f tfe.c.oncert of a personal god is acknowledged. D'ep;;*g;; the tradition one adheres
to' deities are either concepti beneficial forspiritual p.ogr""Jo. real beings toward whom
one surrenders with devotion. Either way, they ur" u i."y'"t"-"r,, orHir,a#prjro"oprry r.ra
religious practice; additionally, the expansive and multifarious Hindu traditions create
manifold deifications to natural elements and qualitie" r""ogr;"a as valuable for human
life and society, with some ritual practices traceable to the vedas.
Personhood of deities is therefore a key aspect of the living spiritual traditions of India.
In relation to this personificatron, broadly-speaking, t*o -diif"r"nt approaches can be
identified, one that considers deities p"r"o,ifi"utions Ji abstr*t "rr"rgl", and qualities and
another that sees deities as real |"i.s" embodying divine "r"rgi"" and qualities. Both
views result in worship, with the diffeience that in ii'," for*", case, the spiritual aspirant,s
worship is directed toward the ene-rgy symbolised uy ttt" a"ity. In the latter case, the
deity epitomises the energy or qualit-f *rat is the object of Jevotion. In both cases, the
376 Sustainability qnd the Rights of Nature in Prqctice
representation of the deity is of importancg as is the emotional connection developed with
that form and the narrative around it. To give an example, during the Hindu festival of
Diwali, millions of Hindus pray to Goddess Lakshmi and light lamps to urge her to enter
and bless their homes, fum in the belief that through proper worship the goddess will be
propitiated and pleased. Ganga is another such deity. She is worshipped as a goddess, and
places of worship have developed along her banks, including the ancient towns of Varanasi
and Haridwar. For the devout Hindu, she is a mother, protector, remover of sin and purifier
of matter and consciousness.
In the worship of Ganga, one finds the two approaches commingling, for Ganga is at
once 'the Supreme Shakti of the Eternal Shiva'and also a real being.a2 Several mythological
stories about Ganga as the personified goddess exist in scriptures. Devotees bathe in her
waters to be cleansed of their sins; the ashes of the dead are immersed in her waters, which
leads the departed soul to a higher birth; her name is chanted with the belief that it will
bestow freedom from poverty and protection, even lead to liberation. For the Hindu mind,
Ganga is supreme among rivers, an hrchetype of sacred water'. Other rivers are said to be
like the Ganga; others are said even to be the Ganga. Such is the strength of the belief in the
personhood of the Ganga and in her divinity and powers. Yamuna, Godavari, Saraswafi,
Sindhu and Kaveri are the other sacred rivers of India. TWo of the most sacred Hindu
pilgrimage places, Gangotri and Yamunotri, are the sources of these two sacred rivers-
The river Yamuna is a tributary to the Ganga and, like Ganga, Goddess Yamuna has been
personified. In Hindu mythology, Yamuna is also a mother who sustains and provides, but
she is more concerned with the blessings of this life than Ganga, whose role is purification
and preparation for death. Yamuna is the daughter of Surya (the sun god) and Saranytr
The lord of death, Yama, is her brother.a3
Uma Bharti, when she was Minister of Water Resources, put her own sentiments in this
way at an opening statement for a climate conference in 2016:
I never looked at Ganga from the religious point of view. Because the Hindu point of view
is such that we look at everything with a religious point of view. So the religious point of
view is always hidden there. It is always there. It canlot be without it. A Hindu vision
will never be without a spiritual vision. Trees, stoneq rivers, animals, insects, stars, sky,
water, air. God is existing in everything, everywhere. Ganga is the very cool economic
flow of this country. Because Bihar and UP (Uttar Pradesh), the biggest populated states,
are completely dependent totally on Ganga. And Ganga is a story of how we destroy
rivers. So Ganga becomes a model of how we save rivers. In that ecological flow is
necessary, cleaning of Ganga through various methods is very necessary. And saving
the rivers of this country because I always say that rivers and women have to fight for
their own existence. Nobody helps them. They create their own existence, they save their
own existence. It is very difficult for them. They struggle a lot. So the flow of women's
growth and the flow of the river also.a
However, the religious and cultural basis for the High Court decision begs tlre
question of whether the river's value for conservation arises solely from this connection
to values or'from considerations of it as a highly polluted, transboundary river vital fc
the livelihoods of millions. It appears, in this case, that environmental conservation cr
natural resources does not have importance as a value standing alone, but is based on tlrc
cultural, social or religious understandings of these resources. The leading Justice Sharma
of the Uttarakhand High Court justified his position by stating, 'The extraordinarr
situation has arisen since Rivers Ganga and Yamuna are losing their very existence-
This situation requires extraordinary measures to be taken to preserve and conserre
The Experiment zoilh R
Rivers Ganga and Yan
analysis of the religir
in the Hindu faithhas
related to the Gang+ t
customary in the lqal
It appears that thev di
personhood andprqx
to these rivers in ttrese
to serve the purposeol
rights these rivers har
faith, practice ald mvl
Overlapping lnstitutin
Moving on to institutir
based on religiousbdid
and conservation- Ttsr
these rivers and guidin4
in decisions on rivert' r
religious leaders or c(xr
in terms of on tlre grcr
there would be anv add
Secretary of the State a
loco parentis as the hur
Yamuna and their trilnl
rivers have alreadv bes
itself not bring much clll
leading to fewer checks
Apart from its reli$fur
and Alok Singh in,lfofrd
of federalism and testec
government to take stq
in the state list of tlre C
empowered to enact lar
directed that encroaclrr
central governmerrt rrre
Uttarakhand and LAhr
But there were other in_C
In the December 2fi16.
constituting a Ganga Lfa
mandated under Sectlxr
reorganisation into tlre tr
allotments of control ard
agricultural fields in the
needed to solve canal at
central and state go\=ernr
jurisdiction of Ganga ma
level. Even though tlre j
and states, by involving
The Experiment with Rights of Nature in India 377
Rivers Ganga and Yamun a'.as yet, in the next paragraph, the judgment launched into an
1a.lrs-i1 of-the religious and cultural importi.,." of these riversl Rooting the judgment
in the Hindu faith has usually been an implicit rather than explicit justi#atioi-, irr'"r"",
related to the Ganga; the justices in this "d"" uru therefore going beyond what has been
customary in the legal procedures of the Supreme Court uia ruutior,al Green Tribunal.
It appears that they did so to argue for the cbncept of personhood, using prec.Jerrt, of
personhood and property rights pertaining to Hindu allties. the pe.sonliood attributed
to these rivers in these rulings was not just a metaphor for assertirig the Rights of Nature
to serve the purpose of environmental protection. It was also an expression of the divine
rights these rivers have held in colonial and postindependence law as well as Hindu
faith, practice and mythology.
Overlapping !nstitutions and politics in ,Cuardianship,
Moving on to institutional and bureaucratic considerations, it is not clear how personhood
based on religious beliefs and prior rulings on deities'rights will help i, U"tt"r riur",ug;-"r,t
and conservation. There are many agen"ie" involved in-controllingivater uses, monitoring
these rivers and guiding.agclio^n-mitlng on water allocation. How would they be included
in decisions on rivers' rights? Since theiulings did not draw in and "*pr1d the roles of
religious leaders or communities in guardians"hip, it is not clear where the innovation lies
in terms of on the ground enforcement of protections and regulations. It is doubtfut that
there would b9 any additional benefit by miking the directo, Jf Nu-r-i Gange, ttre ctrier
Secretary of the State of Uttarakhand, and the -Advocate General of the State",persons in
loco parentis as the human face to protect, conserve and preserve the Rivers Ganga and
Yamuna and their tributaries'.46 Theie and othe-r agencies responsible for conservirrf th"r"
1iv11s haye already been failing- miserably; adding the additional titie of guardian?iu i.
itself not bring much change and will on\rnarrowlhe range of decision-mJkers, potentially
leading to fewer checks and balances orrpower.
Apart from its religious foundations, the judgment delivered by Justices Rajiv Sharma
and Alok Singh in Mohd Salim rs. State of lJttarakiand and Otherswas concerned with issues
of federalism and tested whether a state - through its judiciary - could order the central
government to take steps to protect the river.aT Stut"" irave significant power ove, wate,
in the state list of the Constitution (i.e. the list of subjects or, iuhi"h staie legislatrr", ,r"
empowered to enact laws). In earlier orders in the Mohd Salim case, the Hi[h Court had
directed that encroachers along the Ganga canals and riverbanks be evii-ted, and the
central government was ordered to clarify the division of canal land and authoriti u"trr"ur",
uttarakhand and Uttar Pradesh (Uttarakhand was carved out of Uttar pradert, ir, zooo;.
But there were other institutional tangres just under the surface.
In the December 2016hearing, the Court ordered that there should be no more delay in
constituting a Ganga Management Board under the Irrigation Department. rhis haJueen
mandated under Section 80(2Xb) of The Uttar Pradesh R6organi zationAct 2000.as After the
reorganisation into the two states of Uttar Pradesh and Uttaiakhand, there remained. faulty
allotments of control and maintenance along the many canals that distribute river water to
agricultural fields in the region. The justicei saw thai the Ganga Management Board was
needed to solve canal and related property disputes and cooidlnate river uses between
lentrf and state governments in this rive, tasin, but the actual ruling on personhood put
jurisdiction of Ganga matters under the Namami Gange project ut *,3c""lui g.""r"-"",
level' Even though the justices appeared to advocatle ftr coordination between centre
and states, by involving one representative from each of the states of Uttar pradesh and
378 Sustainability and the Rights of Nature in practice
A cow drinking from thc pollutcd Yamuna River in 2018. The Yamuna is a tributary of the Ganga and a ma
river of its or.t,n as wcll. (Phobgraph by Ke1ly D. A1lcy.)
Uttarakhand and a chairman of the board nominated by the central government, ttle
configuration appeared messy.4e It was potentially problematic, as the river Ganga passes
through five states.
- During the hearing in March 2076, an official in the Ministry of Water Resources told
the court that despite the long correspondence, neither the states of Uttar pradesh or
Uttarakhand had cooperated with the central government in constituting the Gang-a
Management Board. This was a problem of noncooperating state govern*"nt" that were
ruled by opposition parties. In the March hearing, the judges asked for finalisation of
committee membership within 60 days.
As already mentioned, the invocation of fundamental rights in the protection of ttp
environment has been extensive. In the current case, however, the immediate and more
powerful administrative interest of the central government was not to grant Ganga arxl
Yamuna rivers fundamental rights, but to constitute the Ganga Mana[ement Bolard to
rein in noncooperating states. By doing so, the central government could use a centralised
method of planning for all water uses in these basins, including hydropower, irrigatiorl
potable supply and wastewater and water treatment. The justicesigieed with this nJed for
a Board. In the March 2017 hearing, while fussing at all parties for delaying the constitutiur
of the Board, the judges issued the order on personhood for the rivers, in effect joining the
interest in centre-state coordination with a Rights of Nature approach. They stated,-^Itre
Constitution of the Ganga Management Board is necessary for the purpose of irrigation,
rural and urban water supply, hydropower generation, navigation, industries. TIere is
utmost expediency to give legal status as a living person/legal entity to rivers Ganga ard
Yamuna r/w Articles 48-A and 51A(g) of the Constitution of India,.5d
This personhood ruling became news across environmental policy communities as an
achievement. But it supported another agenda to centralise authority. The problem with
centralising authority means that vetting, monitoring and investment in piojects would
The Experiment with l
be narrowed to ttre c}
about this in the curc
Quite surprising\.i
and powerful barrish
Court to stay this Hgl
pending a final hearit
motivations as follor,,r:
The order h"d pnt
several states, ool
also raised questic
for damages ard r
pollution in th€ ris
In the petitiory it app
and responsibili[.- iffi
Ganga's rights or rt{rcr
In addition, the Suprr
right, the central goru
and flow through rnn
decision-makers. Agail
the legal manoeu\-rEs,,
ruling was stayed beca
both state and central p
government fiIed a star
streams and others, rqi
of a Rights of Nature q
so the conclusion on pe
workingin theSuprm
the problems back to th
Conclusion
As La Follette and \faspr
maybe through a corrhin
operating in an indepux
of the planling and deci
appear to workbest rrtsr
each other's behar-iou-rs -
SupremeCourtandN*lr
behaviours of gor.ern_rrerr
The Nationai Green I
cou nterbalancing forces ir
rs rampant. This is rr"hv t
ongoing pollubion arxl eq
guardians would hare ru
The Experiment with Rights of Nature in India 379
be narrowed to the choices of the central government agencies involved. We will say more
about this in the concluding section.
Quite surprisingly, inluly 2017, the State Government of Uttarakhand hired a well-known
and powerful barrister to represent them in a special leave petition or SLP to the Supreme
Court to stay this High Court order on personhood.sl The Supreme Court stayed the ruling
pending a final hearing, which has not yet occurred. At the time, the media reported the
motivations as follows:
The order had put the state government in a quandary. Since the rivers flow through
several states, only the Centre could frame rules for their management. The ruling
also raised questions like whether the victim of a flood in the rivers can sue the state
for damages and also about whether the state and its officers will be liable in case of
pollution in the rivers in another state through which it flows.s2
In the petition, it appears that the state government does not want to assume the liability
and responsibility for the grievances that people could bring to the court in the name of
Ganga's rights or when suing the rivers as primary agents of floods and other disasters.
In addition, the Supreme Court appeared to argue thaf even though water is a state
righf the central government needed to be in control since the rivers are transboundary
and flow through many states. State rights mean the state governments are the primary
decision-makers. Again, the interest in gaining more centralised control is at the root of
the legal manoeuvres, and the Supreme Court appeared to support that interest. But the
ruling was stayed because it brought on a host of other responsibilities and liabilities that
both state and central governments did not want to bear. A few months later, the central
government filed a stay against the other High Court ruling on personhood for glaciers,
streams and others, registering their continued disinterest in upholding the responsibilities
of a Rights of Nature approach. The final hearings have been pending for almost 2years,
so the conclusion on personhood remains unclear. Yet the general view among advocates
working in the Supreme Court is that the personhood ruling will be overturned, bringing
the problems back to the status quo.
Conclusion
As La Follette and Maser note: 'The best way to achieve honest, factual ecosystem monitoring
may be through a combination of a Nature's advocate or prosecutor with enforcement power,
operating in an independent governmental capacity, and citizen enforcement at every level
of the planning and decision-making process'.s3 In this sense, regulation and enforcement
appear to work bestwhen there are multipleplayers checking each other's powers and vetting
each other's behaviours. This has bden the state of affafus in Indi4 where the High Courts,
Supreme Court and National Green Tribunal have permitted citizens to check the powers and
behaviours of government rninistries, departments and projects through their writ petitions.
The National Green Tribunal, the High Courts, and Supreme Court are important
counterbalancing forces in a political and institutional environment where noncompliance
is rampant. This is why the ruling on personhood was not in fact a viable solution to the
ongoing pollution and ecological problems in these river basins. The appointment of three
guardians would have narrowed the checks and balances on the powers and behaviours
380 Sustainability and the Rights of Nature in Practice
of those implementing policies and projects for these rivers. It would have eliminated or
sidelined the powers of the National Green Tribunal to allow citizen monitoring and policy
input. It would have centralised authority to decide water allocations to the Namami Gange
departmenf a central governmental body and two state officials, and it would have mandated
a Ganga Management Board with decision-making powers to decide all the uses of these
river waters. Such centralised decision-making rights would uldermine judicial oversight
and citizen input.
The ongoing problems of compliance with court orders involving pollution and overuse
of these river resources have frustrated the Courts and the National Green Tribunal. In the
cases described in this paper, these frustrations have pushed conservation-minded judges
to look for new tools to regulate water users. The personhood ruling is one such tool that
the judges reached for. They overshot, because the proposed guardianship would have set
a new precedent for responsibilities and liabilities that government agencies did not want
to uphold.
The Personhood decision of the High Court currently stayed by the Supreme Court
pending final judgment also raises issues related to the role of guardians and what would
amount to dereliction of their duties. In this regard, an interesting comparison can be
made with the law related to guardians of vulnerable persons such as childrery victims,
detained persons, mentally challenged persons and so forth. Indeed, the guardianship
law paradigm fits better thary for instance, the public trust doctrine, when one adopts
the personhood model. However, the complications one sees in guardianship cases could
very well arise here too, along with additional complications, because the rivers would not
be able to express their interests and wishes in the way other vulnerable persons may be
able to do. What then is in the best interests of these rivers? Because these interests would
be decided by state and society, such an approach remains anthropocentric and in effect
undermines the very purpose of endowing such natural resources with rights that do not
cater directly to human intention. These are some of the challenges that a Rights of Nature
approach would need to deal with and address, not only in India but in other contexts
where specific individuals or entities are granted guardianship roles.
This does not mean that a Rights of Nature framework is not possible in India or
elsewhere. The concerns for thriving ecosystems are critical to the sustainability of human
life, and a more eco-centric way of understanding conservation and ensuring compliance
would be beneficial. But to limit the potential human misuses of such an approach, a
critical understanding of the values, institutions and political intentions of movements
and countermovements involving Nature's Rights, including the specific definitions and
parameters of guardianship needs to be applied.
Notes
1. (a) Allcy, K.D. and Drew, G. 2012.'Ganga' inHinduism, Oxford Bihlio;qraphies. Oxford, UK: Oxft,i-
University Press; (b) Eck, D.L.1982. 'The Goddess inHindu SacredGeography'inTheDirine Consr , :
Ratlha ond the Goddesses of lndia. Hawley, J.S. and Wulff, D.M. (eds). Boston, MA: Beacon Press.
2. (a) Alley, K.D. 2002. On the Banks of the CLtnga: When Wasteutater Meets a Sat:red Rlzrer. Ann Arb,
MI: University of Michigan Press; (b) Alley, K.D. 2014. "Ganga and Varanasi's Waste-Wat.-
Management: Why Has ltRemained Such anIntractable Problem? SANDRPSouthAsia Netlr.r,:,
on Dams, Rivers and People (blog); (c) A11e1,, K.D. 2015. "Killing a River: Failure of Regulatior
in Liz,in:< Riz,ers, Dying Rizters A Quest through hrdia. lyer, R. (ed). Oxford, UK: Oxford Universi:
The Experiment with l
Press; (d) Aller-" Kl
Oxford Unilersifr
Rioer of Northern 7
Murty, M.N. 2t[r-
Delhi: Oxford L-nir
3. (a) Rauta, R- 2O15-
through lndia. lre=.
National Riz,er Garylg
"The Ganga: A Tric
Oxford, UK: Ox$m
4. Scott, C.A. and *ra
in the Indus{,aryI
5. (a) La Folletts C i
Boca Raton, Fti CR
Rights for Nature:
O'Donnell, E.L- arr
New Zealand, and
Natural Sites Be D
sacrednaturalsiEsr
6. Bhuwania, A. 20il
Cambridge LrlC Cr
7. (a) Alley, K.D. 2ff8
Enaironmental lt;.
Constitution of Indi
Kapur, J. (ed)., p_ ;![
8. (a) Alley, K.D. 2t[9.'
1.1998. 'Preface'in I
9. (a) Alley, K.D.2tB.
A.K. 1998. 'In Publt
Int er e st Litigatin -7-1
10. (a) Alley, K.D.llan_
(ed).1998. Supretw{
11. (a) Al1ey, K.D. lffirg-'
S.P. Golden ]utri,lee )
12. Bharucha, S.P- C,o&&
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LLL.
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5.1999. 'PtLin 1ryyn
I. (ed)., pp. V-XIL
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Reflections on the -\
441.-468; (b) Kumar..
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The Experiment with Rights of Nature in lndia 381
Press; (d) Allev K.D. and Dreu,, G.2012. "Clanga" tn Hittdui-cnt, Ox.tord Bibliograpthies. Oxforcl, UK:
Oxford University Press; (e) Haberman, D.L. 2006. Rirer o.f Lot,e itt nrt Age ol Pollution: Tht, Yanutna
Riaer of Northttrn lizdla. Berkeley, CA: University of California Press; (f) Markandaya, A. and
Murty, M.N. 2000. Cleaning Up the Ganges: A Cost Benefit Attnlvsis o.f tltc Cnttgn Atliort P/arr. Nen
Delhi: Oxford University Press.
3. (a) Rauta, R.2015. "The Clanga: A Lament and a PIea" in Llz,irg Ritt:rs, DL1itty, llit,os: A Quest
tlrrough lndia. lver, R. (ed). Oxford, UK: Oxford University Press; (b) Sanghi, R. (ed). 2014. Our
National Rtacr Cturga: LtJ.eLine of the MilLions. New York, NY: Springer; (c) Tare, V and Ror,,, G. 2015.
"The Gang;r: A Trickle of Hope" in Iyer, R. (ed). Lit,ing Riaers, Dyitg Riitrs:A Qucst throuch Indin.
Oxford, UK: Oxford University Press.
4. Scott, C.A. and Sharma, B. 2009. 'Energy Supply and the Expansion of Groundn,ater Irrigation
in the Indus-Ganges Basrn'. Internatiottnl lournnl of Rioer Basin Manoge ment 7(2):719-124.
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Boca Ratcrn, FL: CRC Press; (b) O'Donne11, E.L. At the Tntersection of the Sacred and the Legal:
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382 Sustainability and the Rights of Nature in Practice
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34. Ibid.
35. Ibid.
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38. Ibid.
39. A sample of residents of Varanasi gathering on the Ganga banks were surveyed in October l -
on this point. About half agreed that Ganga could be considered a 'person'. All agreed that .
was a lVfother and should have rights.
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Article
Participatory deliberation, whereby diverse experts and publics collectively engage in decision-making, can ensure a more informed and just decision by centering historically marginalized perspectives and engaging a spectrum of value systems. Broad and diverse participation is crucial for the equitable distribution of risks and benefits resulting from complex and uncertain decisions such as environmental gene editing. From an ethical position that gives intrinsic value to the nonhuman and recognizes the interconnectedness of species across generations, we argue that deliberation over environmental gene editing must include the voice of nature and the voice of future generations. Inclusion of these key participant groups can encourage reflection on the human relationship with nature and help safeguard intergenerational equity of decisions reached. By drawing from the legal rights of nature movement, the Boardman River Dams Project, and methods for representative participation, we offer strategies for inclusion of nonhuman nature and future generations in deliberative processes about environmental gene editing and other crucial decisions about our shared environments.
Article
Ecological Crisis and Rights of Nature There is widespread despair and concern about the current ecological crisis. The adverse impact of climate change and the need to rethink and restore human relationships with nature is more needed now than ever before. While relationships with nature have always been complicated in the modern world, many communities are re-imagining human–nature relationships by restoring or reassembling indigenous traditions that see humans as one with nature and that attribute sacred value to nonhuman members of the world. This approach is largely absent in the Enlightenment philosophies inherited by modern science and international legal systems, where nature is just a “resource” to be exploited for human purposes. Many people believe that the root cause of the environmental crisis is the unending capitalistic extraction of resources. Rapid and unprecedented ecological changes, however, have shone a light on the insufficiency of a regime of rights restricted to humans. Therefore, we need a paradigm shift in the way the modern world perceives nature. The rights of nature approach is an effort in this direction, and the concept focuses on restoring relationship with humans to prevent the mindless plunder of nature, which is considered merely an inanimate storehouse of resources (La Follette).
Book
Based on empirical research, this book shows how public interest litigation (PIL) grants the appellate courts enormous flexibility in procedure, allowing them to manoeuvre themselves into positions of overweening authority. While PIL cases are usually politically analysed solely in terms of their effects, whether beneficial or disastrous, this book locates the political challenges that PIL poses in its very process, arguing that its fundamentally protean nature stems from its mimicry of ideas of popular justice. It examines PIL as part of a larger trend towards legal informalism in post-Emergency India. Casting a critical eye over these institutional reforms that aimed to adapt the colonial legal inheritance to ‘Indian realities’, this book looks at the challenges posed by self-consciously culturalist juridical innovations like PIL to ideas of fairness in adjudication, as well as democratic politics.
Ganga' inHinduism, Oxford Bihlio;qraphies
  • K D Allcy
  • G Drew
  • D L Eck
Allcy, K.D. and Drew, G. 2012.'Ganga' inHinduism, Oxford Bihlio;qraphies. Oxford, UK: Oxft,i-University Press; (b) Eck, D.L.1982. 'The Goddess inHindu SacredGeography'inTheDirine Consr, :
A. and *ra in the Indus{,aryI
  • C Scott
Scott, C.A. and *ra in the Indus{,aryI
Constitution of Indi
  • K D Alley
Alley, K.D. 2ff8 Enaironmental lt;. Constitution of Indi Kapur, J. (ed)., p_ ;![
httf 'r protection-of -enriru |ustice: Is the Naticn
  • Environment
Environment'. httf 'r protection-of -enriru |ustice: Is the Naticn 169-88.
Rirer o.f Lot,e itt nrt Age ol Pollution: Tht, Yanutna Riaer of Northttrn lizdla
  • K D Allev
  • G Dreu
  • D L Haberman
  • A Markandaya
  • M N Murty
Commentbyadr-omr Press; (d) Allev K.D. and Dreu,, G.2012. "Clanga" tn Hittdui-cnt, Ox.tord Bibliograpthies. Oxforcl, UK: Oxford University Press; (e) Haberman, D.L. 2006. Rirer o.f Lot,e itt nrt Age ol Pollution: Tht, Yanutna Riaer of Northttrn lizdla. Berkeley, CA: University of California Press; (f) Markandaya, A. and Murty, M.N. 2000. Cleaning Up the Ganges: A Cost Benefit Attnlvsis o.f tltc Cnttgn Atliort P/arr. Nen Delhi: Oxford University Press.
Our National Rtacr Cturga: LtJ.eLine of the MilLions
  • R Rauta
  • R Sanghi
  • Tare
  • , Ror
Rauta, R.2015. "The Clanga: A Lament and a PIea" in Llz,irg Ritt:rs, DL1itty, llit,os: A Quest tlrrough lndia. lver, R. (ed). Oxford, UK: Oxford University Press; (b) Sanghi, R. (ed). 2014. Our National Rtacr Cturga: LtJ.eLine of the MilLions. New York, NY: Springer; (c) Tare, V and Ror,,, G. 2015. "The Gang;r: A Trickle of Hope" in Iyer, R. (ed). Lit,ing Riaers, Dyitg Riitrs:A Qucst throuch Indin. Oxford, UK: Oxford University Press.
Energy Supply and the Expansion of Groundn,ater Irrigation in the Indus-Ganges Basrn'. Internatiottnl lournnl of Rioer Basin Manoge ment
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