‘Riverine rights’ jurisprudence - the eddies, vortices, ebbs, flows, & wakes

Be like a river, should you? Beware, you may not have any rights!

Screenshot of a section of a photo essay by Ritayan Mukherjee titled ‘Mountain is our Religion’ published in FountainInk

The above is a picture of a Dongria man in a traditional dress and hair makeup. The picture was taken by Ritayan Mukherjee, a Kolkata-based photographer, for their photo essay titled “Mountain is our religion” in FountainInk.

The Dongria Kondhs are a sub-tribe of the Kondh tribe. They live in the dense forests of the Niyamgiri Hills in Odisha’s Kalahandi district. Listed as a Particularly Vulnerable Tribal Group (PVTG) by the Government of India, they are animists, speak the Kui language and practice shifting cultivation as their primary livelihood, along with hunting-gathering.

For centuries Dongrias were isolated from the world. That came to an end in 2006, when they came to public attention as a tribe that peacefully fought the mining giant Vedanta Corporation to save their sacred mountain. Through this struggle, the Dongrias are struggling to maintain their eons old traditional eco-friendly way of living.

Did you notice the italicized “sacred” above? The mountain they are struggling to save holds an integral place in their ‘culture complex’. This can be seen in the light of the concept of ‘Nature-Man-Spirit Complex’ propounded by Indian anthropologist Professor L.P. Vidyarthi, one of the most renowned Indian anthropologists of the 20th century.

The concept was put forth by Vidyarthi in his 1963 book ‘The Maler: A Study in Nature-Man-Spirit Complex’. In the book, he describes the culture of a hill tribe in eastern Bihar, the Maler, in terms of this complex where the three ingredients of the complex are interdependent and mutually complementary. It is based on the fact that arising out of man’s close interaction with and dependence on nature is his belief in the supernatural and the spirit world. It has been found that in tribal India, there is an intimate relationship and interaction between social organizations on one hand and religious complexes and ecological conditions on the other. Vidyarthi asserted that Maler culture originated, developed and flourished in the lap of nature. In addition to providing land for slash-and burn cultivation, a main source of Maler economy. the forests provide them with food, drink, shelter, medicine etc. He discovered that every moment of the Maler life was profoundly influenced by nature on the one hand and spirit on the other.

This is what social scientists and indigenous rights lawyers call the ‘indigenous worldview’ — though now it is more mainstreamed a term. When I first came across the concept, my first thought was, “But what exactly does this mean? I still don’t think I get the feel of this concept”. Maybe you too are like me — or maybe not. Regardless, here’s an exercise you should try. Ask yourself a question — “What is Nature?”. Once you think you have a decent answer to it, ask yourself another one — “Who is Nature?”. To make this exercise simpler, you could just ask the same questions with a specific component of nature as the subject. For example — ask yourself “What is a river?” and then “Who is a river?”.

Earth Jurisprudence (or Environmental Jurisprudence)

“The Bihari boatman knows the Ganga as a sanctuary for smooth-coated otters and the critically endangered blind dolphins, cousins of the Amazonian pink boto and the Yangtze River’s baiji. The Dalit fisherfolk know it as the mother of Toofani Baba, their stormy guardian. The Muslims know the river as the place where tazia is immersed on Muharram to celebrate the martyrdom of the Prophet’s grandson and his seventy-two companions. The Buddhists know the river as the metaphor through which the Buddha illustrated many of his teachings. And many know the river as the place where the ashes of their ancestors disappeared.”

— Excerpted from this article by Bidisha Banerjee written for the Scroll.in

What was your answer to the question — “Who is a river?”. Chances are you might have struggled with the question in the first instance. Regardless of whether or not you had an answer to the question, the point of the exercise was to get a feel for the concept of ‘indigenous worldview’.

Indigenous communities live a life intricately woven with Nature. What a river (or nature, more generally) means to them needs to and can only be understood from their worldview. This, it turns out, has sown the seeds of a sort of a revolution in the realm of jurisprudential theory — the concept of ‘Earth Jurisprudence’. But why does the space for emergence of such jurisprudence arise, in the first place?

Earth jurisprudence is a philosophy of law and human governance that is based on the fact that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. This philosophy can also be seen in light of the concept of ‘framing’ in cognitive science. (You can read another article of mine where I delve into the issue of framing in the context of environment and ecology.)

In 1979, James Lovelock published a slim volume entitled “Gaia: A New Look at Life on Earth”. The book’s central hypothesis is that “the entire range of living matter on Earth, from whales to viruses and from oaks to algae, could be regarded as constituting a single living entity capable of maintaining the Earth’s atmosphere to suit its overall needs and endowed with faculties and powers far beyond those of its constituent parts.”

The ‘why’ behind the emergence of earth jurisprudence & other philosophical underpinnings

With the the dawn of the Anthropocene there is a remarkable change in the way humans are interacting with the planet — in contrast to how indigenous communities interact. Our collective activities have notably altered the planet and its various realms. Rivers too have not been left untouched! These ‘veins and arteries’ of the planet have been clogged and polluted, their flows have been diverted unabashedly and much of their ecosystems altered anthropogenically. Rivers that had once birthed and nurtured the greatest civilizations of the past now require protection for their survival as they continue to sustain humankind through the various ecosystem services. After the United Nations Conference on the Human Environment (1972) in Stockholm, a plethora of environmental laws came into being globally. These modern environmental laws, though, were anchored on an anthropocentric paradigm. They have remained ineffective as human activities continue to irreversibly damage the nature. These paradigms have often obscured the particular interests of “nature” behind the effects of environmental degradation on human interests. For example, the Public Trust Doctrine places emphasis on the public use of natural resources (rather than the protection of nature itself). Such weaknesses have infested environmental laws that were originally intended to protect the environment. This is due to the fact that legal systems treat nature as a property that can be exploited for human needs instead of acknowledging it as an integral ecological partner. This has undermined the interconnectedness that humans share with nature.

The Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public’s reasonable use.

These inherent weaknesses in the existing legal paradigm have created the need for a new form of environmental governance that confers upon nature legal personhood and prioritizes its right to flourish — encompassing the right to restoration, right to its natural processes, and right to ecosystem functioning without interference. As the ‘Rights of Nature (RoN)’ framework gets wider acceptance, ‘sustainability’ as a concept is also likely to undergo revisions. In its current form, for instance, the SDG 6 (Ensure availability and sustainable management of water and sanitation for all) draws its power from the human right to water as a prerequisite for all other rights. But, it is self-defeating in a way when freshwater sources themselves do not have a right to exist and thrive in the first place. Providing legal personhood (and hence standing in a court of law, albeit through a guardian) could give nature a strong tool to defend itself from the biased laws that only take into account human needs.

So now, the key question has become — how to best represent the environment in court, and how to frame the legal challenges to deliver “judicial protection of nature for the sake of nature itself”. These current jurisprudential weaknesses are systemic in nature. They therefore require systemic solutions in the form of development of innovative institutional mechanisms that incentivize a change in the behavior of organizations and individuals. One such recent institutional development, within the boundaries of Earth Jurisprudence, has been the granting of ‘legal personhood’ to nature — a non-human entity. This involves recognizing nature — either as a whole, or a specific part of it, such as a river — as a legal person. In law, this means that nature has a basic set of legal rights that grants it certain rights, duties, and responsibilities. Although referred to as a legal “person,” these legal rights are not the same as human rights, which include civil and political rights. Instead legal rights comprise three elements: legal “standing” (the right to sue and be sued in court), the right to enter and enforce legal contracts, and the right to own property. The concept of granting ‘legal personhood’ to non-human entities is not new, but it has only recently begun to be implemented for nature. ‘Non-human persons’ have been around for a long time now. It is only in the recent times that we have begun to liken “person” and “human being” as synonyms.

The term “persona” in Latin originally signified “mask” and, hence, a “role” one might take on in a theatrical performance. Thus, the dramatis personae (literally the “masks of the drama”), are simply the roles in a play. Traditionally as well, it was not necessarily believed that only human beings could don such masks. Outside of the context of dramatics, personhood was commonly extended to municipalities and voluntary associations in the Republic of Rome. This entailed such collective bodies having rights and responsibilities independent of their individual members. They were not themselves individual human beings, but they donned a ‘mask’, so to speak, by which they presented themselves to the world as singular characters.

— Source: Smith, J. (2021). Nature Is Becoming a Person. Foreign Policy. Retrieved 11 March 2022, from https://foreignpolicy.com/2021/11/24/nature-person-rights-environment-climate-philosophy-law/.

In the early modern period, with the rise of powerful LLCs for the funding and effectuation of international trade, the idea of corporate personhood became common. Eventually, the conceptual distinctness of this idea found support in the works of some of the greatest philosophical minds. “A person is he whose words or actions are considered, either as his own, or as representing the words or actions of another man, or of any other thing to whom they are attributed.”, the English philosopher Thomas Hobbes wrote in his 1651 book, Leviathan. “When [these words] are considered as his own”, Hobbes writes while making a crucial distinction, “then he is called a natural person: and when they are considered as representing the words and actions of another, then is he a feigned or artificial person.” Such artificial persons are corporations, and in Hobbes’s view, the state too.

Cover of ‘Should trees have standing?’ by CD Stone (3rd edition)

So, creation of “legal fictions” has indeed been a well-established mechanism to create legal personhoods for a range of non-human entities. Closer to recent times, the idea of giving nature legal rights was first highlighted in a 1972 essay ‘Should Trees Have Standing?’ by University of Southern California law professor Christopher D. Stone. Showing how nature could be personified in law and could seek legal redressal on its own behalf, Stone combined a philosophical argument with key practical steps to enable the environment to become a legal subject. He identified three legal criteria that “go toward making a thing count jurally”:

(1) “that the thing can institute legal actions at its behest”;

(2) “that in determining the granting of legal relief, the court must take injury to it into account”; and

(3) “that relief must run to the benefit” of it.

Stone argued that if an environmental entity is given “legal personality,” it cannot be owned and has the right to appear in court (has a ‘standing’ in court, in legal parlance). He notes that throughout legal history, each successive rights extension to some new entity has been a bit absurd. He substantiates this claim with the examples of women’s suffrage, the abolition of slavery, prisoners, fetuses and indigenous rights. In this regard, Stone proposed that natural objects be considered ‘legal persons’ or holders of rights, such that they may be represented in Court by legal guardians. In the 21st century, if we find it weird and quirky to view nature in the same way we view people, that may just be because we’ve grown up in an anthropocentric intellectual tradition. Such a tradition has conditioned our minds to treat the natural world as an ‘object’ to be exploited for human use, rather than as a ‘subject’ to be respected and lived in harmony with.

The Rights of Nature movement has its origins in two sources: customary ancient indigenous jurisprudence (which in turn emerges from its worldview), which emphasizes the living and indivisible qualities of nature; and more recently developed Western theoretical conceptions, linked explicitly to substantive and procedural jurisprudential doctrines.

— Source: Report titled “Rights of Rivers: A global survey of the rapidly developing Rights of Nature jurisprudence pertaining to rivers” authored by International Rivers et al.

Stone’s conception of a Right of Nature has been influential in the United States and elsewhere too. In Sierra Club v. Morton, his 1972 article was cited by Justice William O. Douglas in the United States Supreme Court in his famous dissenting judgement. His ideas were further developed by the environmental historian Roderick Nash in a 1989 book ‘The Rights of Nature: A History of Environmental Ethics’. Drawing heavily on parallels to the antislavery movement, Nash argued that Rights of Nature were the logical extension of a gradual movement to extend the scope of natural rights within humankind, and then to non-human phenomena. For Nash, Rights of Nature are the inevitable consummation of the ‘rights project’. Other thinkers have developed different theoretical explanations. Leimbacher, for example, has explained it using utilitarianism by arguing that Rights of Nature are necessary to avoid global climate catastrophe. Klaus Bosselmann, on the other hand, has argued radically for a complete redesign of the state to recognize equivalence between human and natural rights. Bosselmann has clearly shifted away from the anthropocentric nature of law and provided a rather radical alternative to Stone’s more modest argument. Some constitutional theorists have argued that Rights of Nature are necessary in order to preserve conditions to allow future generations to participate in the constitutional project. [Source: Report titled “Rights of Rivers: A global survey of the rapidly developing Rights of Nature jurisprudence pertaining to rivers” authored by International Rivers et al.]

The body of scholarship promoting Rights of Nature through a plethora of philosophical justifications is growing. In such a developing scenario, continuing to prosecute environmental cases on the basis of convoluted anthropocentric arguments is detrimental and needs concerted efforts to change. There are many ecological concepts that are not captured by the existing anthropocentric paradigm like natural capital or ecosystem services. Identifying the ecological impacts outside of the anthropocentric conceptions is crucial for effective legal protection of the environment.

Additionally, the argument for the use of legal personality for protecting nature also supports efficiency and cost effectiveness. If the injuries to the environment are ignored, then a significant proportion of the total injuries are not accounted for. For example, the cost of poor water quality to users is calculated in terms of the costs of treatment necessary to improve the water quality. However, this treatment may fail to address the wider issues with the river’s ecosystem health. If the ‘injuries to the river’ are not legally recognized, then they cannot be compensated for too— meaning that the true costs of environmental impacts would most certainly be underestimated.

Within the boundaries of this emerging environmental jurisprudence (or earth jurisprudence), rivers demand special attention. This emerging riverine rights jurisprudence is predicted by many to become a global movement in this century, forcing states and multilateral organisations to regulate the human use of water from rivers and prevent damage to riverine ecosystems.

As could be seen through the cases of the Dongria Kondhs of Odisha and the Malers of eastern Bihar, concepts akin to the ‘Rights of Nature’ have long featured in many systems of indigenous worldview customary law. Many indigenous communities the world over recognize nature and natural phenomena as subjects with legal personhood deserving of protection and respect, rather than commodities over which property rights can be exercised. Indigenous worldviews identify humans only as part of a larger, indivisible natural order. Some examples from outside India include, the Aotearoa/New Zealand Māori concept of ‘kaitiakitanga’ which emphasizes stewardship rather than ownership over natural resources, the South American ‘Kichwan’ notion of Sumac Kawsay which conceives of a harmonious relationship with nature as essential to leading a good life. Indigenous worldviews and legal systems provide an important precedent for the development of the Rights of Nature jurisprudence. We shall see further in this article, how indigenous groups have been prominent within the story of its emergence & development.

Jurisprudential development through a tapestry of cases from around the world

Now having dealt with concepts of indigenous worldview, earth jurisprudence along with the philosophical underpinnings and the need for its development, let us look at the in-situ development of the jurisprudence. Several jurisdictions the world over have developed versions of rights of nature regimes, including Ecuador, Bolivia, New Zealand, Bangladesh, and India, just to name a few. However, these rights vary to different degrees from one country to another. In some cases, nature as a whole is granted legal personhood or living entity. Whereas, in other cases parts of nature such as a river, a mountain, a species, a forest — granted the same status.

ECUADOR AND BOLIVIA

The Vilcabamba river in Ecuador | Source

In 2008, post a national referendum, Ecuador, the first country ever to do so, amended its Constitution to reflect the ‘rights of nature’. The Constitution of Ecuador recognized that ‘Pachamama’ (or “Mother Earth”) has rights “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution” and exhorts that “all persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature”.

In Bolivia, the legal recognition of “Mother Earth” takes the form of collective public interest. The Bolivian Constitution allows any person to legally defend the rights of the environment. The Law of the Rights of Mother Earth (Ley de Derechos de la Madre Tierra) included articles, which identifies specific rights to “Mother Earth” and her constituting life systems.

Evidently, in both Ecuador and Bolivia, nature has been personified as ‘Pachamama’ (or “Mother Earth”) — deemed to be a living entity. These are marked departures from the past anthropocentric orientation to an eco-centric orientation. This move is anchored on a holistic anchoring of the law — to protect nature as a ‘system’ instead of as discrete forests, streams, lakes, etc.

The most well-known of all Ecuadorian Rights of Nature cases is the 2010 case of Wheeler v. Director de la Procuraduria General del Estado en Loja (popularly called the “Vilcabamba case”) — internationally heralded as the first successful case where nature had its rights upheld in court. The case concerned the Vilcabamba-Quinare road expansion project parallel to the Vilcabamba river, without a prior thorough environmental impact study, by the concerned provincial government. This was considered to be breaching nature’s rights, by dumping construction debris into the river, resulting in the narrowing of its width and flooding of nearby areas, and subjecting the surrounding populations to significant risks. The Provincial Court of Justice of Loja ruled in favor of Pachamama, which in this case was instantiated in the Vilcabamba River. The court held the Provincial Government of Loja responsible for flooding damages.

NEW ZEALAND

The Whanganui river in New Zealand (Source: Pixabay)

New Zealand became the second nation to give legal status to rivers. In 2017, the country’s legislature declared the River Whanganui a “juristic entity” and named it “Te Awa Tupua”. As a result “Te Awa Tupua” became a legal person and has rights duties, and obligations that legal being has. A salient point to note here, as stated a little earlier, is that the legal rights granted to the River Whanganui are markedly different from those granted to the River Vilcabamba.

“Te Awa Tupua” has the power of creation of statutory guardians to uphold the interest of the river and recognition of the river’s intrinsic value. This right is granted to the river because, with a length of 290 kilometres, it is New Zealand’s longest river. It drains the the traditional territories of several Whanganui Maori or Iwi tribes. Expectedly, as seen in the cases of the Dongria Kondhs and the Malers, the river is considered to be fundamental to the life of the Whanganui Maori or Iwi tribes — fulfilling its physical as well as spiritual needs for eons (recall the concept of NMS complex by Vidyarthi, introduced in the beginning of this essay). The Maori/Iwi people consider the river as their “Tupua” (ancestor) and believe that they cannot be separated from the river. It is this belief that birthed the beautiful Whanganui proverb — “Ko au te Awa, ko te Awa ko au” (“I am the River and the River is me”).

The dispute concerning the river arose in the February of 1840, “when 14 indigenous Maori chiefs from various Whanganui Iwi sub-sections signed the Treaty of Waitangi”, which gave the governing power to the Crown in exchange of control over their lands, estates, and fisheries. After some years, however, the Crown started to assert absolute control over the Whanganui River and started exploiting its resources. The Whanganui Iwi people opposed vehemently, but they went ignored by those in administrative power. The resentment in the Whanganui Iwi people accumulated over time and eventually ended up in the filing of numerous petitions in the court challenging the government and its administration. They contended that they were still the rightful “kaitiaki (guardians) of the river and its Maori (life force)”, and hence should be granted the right to control its management. They also argued that the Crown’s actions violated their rights as the Waitangi Treaty had only concerned the governance of people and not the Whanganui River. After a long grassroots struggle by the people, finally in 2017 the “Te Awa Tupua Act” came into existence giving legal rights to the Whanganui River. This Act empowered the river to have standing in the proceedings of the court and also explicitly stated its two guardians, one the Crown and the other the Whanganui Iwi.

This has been the boldest legal reference to how the rights of nature should be demarcated and practised, as yet. The Te Awa Tupua Act clearly states the rights and duties of the Whanganui River and in this case, the Court named, for the first time, as to who should the legal representatives of the Whanganui River in the court of law be.

BANGLADESH

The River Meghna in Bangladesh | Wikimedia Commons CC BY-SA 4.0

Bangladesh is sometimes known as the “land of the rivers”. It has got hundreds of them , small and big — and over the years, they’ve been getting increasingly polluted. But after 2019, something happened and every single one of them received a remarkable new level of protection in a single stroke.

In 2019, the High Court Division of Bangladesh recognized the River Turag as a “living entity with legal rights” and also held that the same would apply to all rivers in Bangladesh. The petitioner in this case was an NGO (Human Rights and Peace for Bangladesh, HRPB) and the petition concerned the destruction of the Turag through pollution and illegal constructions. Based on the common law Public Trust Doctrine (introduced earlier in this essay), the Court held that the government had the obligation to protect the rivers — ALL of them.

INDIA

Ghats of the River Ganga in Varanasi | Babasteve/Wikimedia, CC BY-ND

A review of the plethora of thought-provoking decisions of various Indian High Courts and the Supreme Court of India speaks volumes about the development of environmental jurisprudence and the rights of nature in India.

In Orissa Mining Corporation v. Ministry of Environment & Forest (2013), the Supreme Court explicitly declared that the Dongria Kondh’s right to worship Niyam-Raja (a nature god living in the Niyamgiri hills) was protected under Articles 25 and 26 of the Constitution of India. Here, the rights of nature were articulated through the sacred association of the Dongria Kondh people to these hills (recall the beginning of the article and Vidyarthi’s concept of Nature-Man-Spirit (NMS) complex), where they decided on behalf of the hills whether mining should be allowed or not.

In Animal Welfare Board of India v. A. Nagaraja (2014), the Supreme Court allowed that the right to life under Article 21 of the Constitution of India could be extended to animals (non-humans) — conferring the right to live a life of intrinsic worth, honor, and dignity. The aim obviously was to prevent animals from arbitrarily and unlawfully being deprived of their rights.

Shortly after the passing of the Te Awa Tupua Act in New Zealand, the Uttarakhand High Court extended ‘legal personhood’ to the River Ganga and the River Yamuna. In Mohd. Salim v. State of Uttarakhand (2017), the Uttarakhand High Court exercised its parens patriae jurisdiction and declared the rivers Ganga and Yamuna as well as all their tributaries, streams, including any natural water body flowing from or with these rivers as living entities “having the status of a legal person with all corresponding rights, duties and liabilities of a living person”. In yet another PIL writ petition Lalit Miglani v. State of Uttarakhand (2017), the Uttarakhand High Court recognized the Himalayan glaciers Gangotri and Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands etc as “legal persons”.

A basic difference between the cases of the River Ganga and Whanganui river is that the Whanganui Iwi people had to wage a long struggle to save the river — the country is ruled by non-native Whites who do not share its belief in the river’s sacredness. Whereas, the Ganga personhood case was brought to the Uttarakhand High Court due to ecological concerns of illegal construction along the the river, as well as the failure to constitute the Ganga Management Board. In the judgement, Justice R. Sharma of the Uttarakhand High Court expended a considerable amount of time and effort on the legal justification for granting rights to the Ganga and the Yamuna — he also described the importance of the river by recounting the religious and cultural significance to Hindus. Furthermore, while the Te Awa Tupua Act entrusted the protection of the river equally to the Maori and the Crown, the Indian court entrusted it to government officials, namely the Director, Namami Gange, and the Chief Secretary and Advocate General of Uttarakhand.

A month after the Uttarakhand High Court verdict, the Madhya Pradesh Assembly passed a resolution according the Narmada river the status of “a living entity” in order to control pollution, illegal sand mining and to save the river from further damage.

Screenshot of a report headline published in The Indian Express

In as recently as 2020, in Court on Its Own Motion v. Chandigarh Admn., the High Court of Punjab and Haryana declared the Sukhna Lake a “legal entity” or “legal person” with rights, duties and liabilities of a living person. It also declared all citizens of Chandigarh as loco parentis (in the place of a parent) to save the lake from irreversible damages.

Some other cases concerning right of nature, more generally (not riverine rights)

In 2018, in Narayan Dutt Bhatt v. Union of India & Ors., the Uttarakhand High Court, accorded the status of “legal person or entity” to all members of the animal kingdom, including birds and aquatic animals, to ensure greater welfare of animals.

Later in 2019, in Karnail Singh and Ors. v. State of Haryana, the High Court of Punjab and Haryana recognized all animals in the animal kingdom, including avian and aquatic species, as legal entities. All citizens of the state of Haryana were declared persons in loco parentis (in place of a parent), which enabled them to act as guardians for all animals within the state of Haryana.

Challenges with the ‘Rights of Rivers’ jurisprudence & solutions — the Indian context

Granting nature and natural systems the status of legal persons has raised many questions. Some argue that it is impractical and illogical to do so.

Some of the other challenges are as follows:

One, decisions according some select rivers status of legal persons will open a floodgate of litigations. In some cases, citizens would appeal to the courts to grant similar rights as the Ganga to other rivers which, for them, have religious and sacred connotations. Whereas, many others could be charged with assault and “murder” for damaging the “legal entity”. For example, people could sue the river for flooding and the river could sue back the people for polluting and interrupting its continuous flow. A case-in-point would be when Madhya Pradesh’s Minister of Agriculture and Farmer Welfare Kamal Patel re-stated that the River Narmada was a “living entity”. Officials were then in fact told to register ‘attempt to murder’ cases under Section 307 of the Indian Penal Code (IPC) against illegal sand miners.

Screenshot of a report headline published in The Times of India

Two, the court’s ruling was blurred regarding transboundary national and international implications, liabilities and as to who bears the overall final burden. For example, what if the legal guardian takes some decision on the river’s behalf and the decision later proves to be detrimental to the river ecosystem’s interest. Even worse, what if the guardian themselves are responsible for damaging the river.

Three, there also is a jurisdictional challenge because of the stripping of the rights of nature in short periods. Rivers often transcend human-made state and country borders. In cases where a certain riparian country or state grants rights to a river but another neighboring riparian does not, it becomes difficult to legally protect the entire river from harm, thus defeating the purpose in its entirety. It is because of this reason that in July 2017, the Supreme Court of India stayed the operation of the rights of the Ganga and the Yamuna as legal entity based on an appeal petition by the State of Uttarakhand reporting a number of legal and administrative issues. For example, the State of Uttarakhand argued in court that a single state cannot be responsible for a river that flows beyond its borders. After 109 days as “living persons” under the law, the rivers Ganga and Yamuna (also accorded the status of goddesses in Hindu faith) returned to being merely rivers. A similar incident happened in the United States— a year and a day after its passage, the Lake Erie Bill of Rights was ruled invalid.

Four, there is also this challenge of rights of nature litigations tending to get tied up in courtrooms. Not everybody has the kind of money or financial bandwidth required to file and fight litigations often spanning years. A case-in-point here is the Ecuadorian Vilcabamba case. The NGO which had filed the lawsuit won in court, but the company against whom the ruling was made didn’t obey the ruling — and the NGO reportedly didn’t have enough money to sue the company again. And hence, the ruling wasn’t properly enforced.

Screenshot of a report headline published in Thomson Reuters

Five, unless we specify the ambit of a river’s rights under an eco-centric approach and design laws for proper implementations and enforcement, simply granting legal personhood to nature would not achieve the desired goals. The far-sighted, inclusive and innovative approach taken in the New Zealand legislation (the Te Awa Tupua Act) can teach us a great deal about the protection and management of ecosystems. Two aspects of the New Zealand legislation demand special attention:

(i) a wider and inclusive legal representation for the environment that the Act affords, which includes the indigenous peoples — The knowledge and experience of indigenous populations, who have a rich tradition of coexisting harmoniously with nature, should be harnessed to promote Rights of Nature. Indigenous communities should be our natural ally in the jurisprudential development because their non-anthropocentric worldviews serve as an existing manual for broader frameworks.

(ii) the adoption of a holistic definition of the ‘environment’ — public education and community-based social monitoring, auditing and evaluation systems for the Ganga could help.

Six, the Indian context brings an added layer of complication. In a country like India which is so culturally rich, a perceived conflict between the right of nature and the human right to ‘culture’ and right to practice one’s own faith will always tend to exist. A case-in-point would be the religiously revered River Ganga. In such conflicts, the legislatures will be in a difficult situation trying to resolve the deadlock with culture versus the right of nature. Humans will most probably win this battle against nature exercising its rights.

Seven, another imminent challenge would be the balancing of the purported developmental activities against the protected rights of rivers. In modern societies, generally speaking, the extent of exploitation of natural resources is directly proportional to the level of development of the society. Granting nature rights of its own would not sit comfortable with the ‘corporate-government nexus’.

Eight, the world does not have a comprehensive & clear understanding of the workings of the laws of river rights, yet. How to implement and enforce such laws are still being debated. Should it be through custodianship laws or through compensatory jurisprudence via strategic judicial activism or through some other entirely novel and innovative form of enforcement mechanism? A case-in-point to demonstrate the issues that poorly designed legislations can create would be the Bihar Prohibition and Excise Act, 2016. The law’s inefficient and poor legal design has led to an avalanche of litigations — so much so that 16 of 26 judges of the Patna High Court are fully occupied solely with litigations under the Act, according to recent reports.

Screenshot of a report published in The Tribune

Nine, a piecemeal approach has led to limited success. In the attempt to confer legal rights to rivers, little attention has been paid to the linkages that define river systems in the first place. Legislations have not accommodated the interactive pathways between rivers and the surrounding landscape. Deliberations on legal personhood have remained confined only to the visible channels. They have undermined the interconnections that sustain the ecosystems along the river and in the riparian zones. For example, we saw earlier in this essay that, in the case of the River Ganga, the court had initially disregarded the scope of legal personhood to other connected elements of a river. It took another Public Interest Litigation (PIL) writ petition for the court to bundle together the legal personhoods of the river and the glaciers. But it is crucial to realise that rivers are not just connected to glaciers. They are also linked with elements of an entire natural system like floodplains, aquifers, riparian vegetation, catchments etc. Four interactive pathways exist in river hydrology— lateral (river-floodplain), longitudinal (across different river stretches), vertical (surface water–groundwater interaction) and temporal (biocomplexity of riverscapes, created over time). Thus, the extent to which the right of a river can be established needs to be backed by rigorous scientific assessments using the concept of river connectivity and exchange pathways as an initial starting point.

Four interactive pathways: A — longitudinal; B — vertical; C — lateral and D — temporal (Source: J. Bandyopadhyay, Water, ecosystems and society: a confluence of disciplines (1st ed., 2009))

Ten, legislative limitations in terms of rivers’ territorial jurisdiction have meant that river systems have been usually reduced to smaller manageable units. Institutions governing them have followed suit. This reductionist approach — directly in conflict with a holistic eco-centric approach — appears to be a critical bottleneck in the case of large rivers that cross provincial and international boundaries. Basin-level laws for such rivers seem like a moonshot, especially when riparian states don’t even have cooperative institutional mechanisms for basin-level integrated management. Perhaps, diplomacy through multilateralism could be a possible route to resolve this bottleneck at the international boundaries. At the provincial boundaries, arguably, assigning the status of a legal entity to rivers could also nudge the union government to build such a cooperative mechanism as a National River Basin Authority. Under Article 262 of the Constitution of India, the Union Government would be well within its rights to undertake such a move.

Eleven, recognising rivers as legal entities could be counterproductive if it leads to a foundational shift in the community’s attitude towards conservation and reduces their willingness to act — out of the belief that the river is now capable to protect itself.

With a plethora of challenges that have cropped up in the discussion so far, what does the future of the ‘Right of Rivers’ (‘Rights of Nature’, more generally) movement hold? Also, are there other ways of achieving the same end goal that we set out to achieve through granting nature ‘legal personhood’?

Sustaining the movement & alternate approaches — a conclusion

It is time to conclude. Earth jurisprudence as a philosophy and practice of law and governance tries to shift the approach from nature as an ‘object’ of law to a ‘subject’ of law. Any such paradigmatic shift almost inevitably needs a questioning of the most fundamental forms of bias and injustice — anthropocentrism and patriarchy. Arguably then, the larger question that arises is whether the human society is even ready for such a transition — or whether it still wants to the tread the primrose path. Such a culture shift would need much more than legislations that confer legal rights to rivers. For this rights-based framework to be fully effective, it needs to be harmonized with ideas of sustainable development from an eco-centric perspective.

In the Indian context, a glimpse of this inner conflict that accompanies this paradigmatic and cultural shift can be demonstrated from a recent example —

On one hand, in her budget speech in the Parliament on the Union Budget 2022, the Hon’ble Minister of Finance announced the finalisation of five new river-interlinking projects: Damanganga-Pinjal, Par-Tapi-Narmada, Godavari-Krishna, Krishna-Pennar and Pennar-Cauvery, along with an outlay of ₹44,605 crores for the Ken-Betwa river linking project in the country’s Bundelkhand region. On the other hand, just a few months earlier, the government-appointed 11-membered committee (headed by Mihir Shah) which was mandated to draft the country’s new water policy released its report. In the report, the committee talked about formulating a method to develop the rights of rivers. As we know by now, river interlinking and rights of rivers have very slim to no chances of going together hand-in-hand.

Some scholars who argue against such a rights-based jurisprudential framework for varying reasons also offer other alternative approaches that, according to them, are grounded in reality and are equally effective. Recent work in comparative constitutional law has focused on the characteristics of constitutional rights that are most associated with success. In general, scholars have found that provisions that protect organizations, collectives, communities, activists and interest groups are most likely to be effective. This lesson, they argue, must be employed in constitution-making for achieving environmental goals. Concrete substantive rights for the people and organizations that seek to promote a healthy relationship with the environment are more likely to lead to results than guarantees to abstract non-human entities. According to them, the rights of nature jurisprudence is not grounded in its immediate practical effect, but rather in its symbolic, expressive, and cultural reformative effect. This, according to them, may be the best and only justification for nature’s rights. According to them, there may be a place for nature’s rights in the toolkit just as a means of communicating social values and commitments. Outside of that, they argue for more concrete substantive targeted rights. These substantive rights should provide tangible protections for a robust civil society participation in environmental advocacy and that in turn may be more likely to lead to tangible results.

Regardless of which of the facet(s) of the discussion one might be on, what is important is that the discussion happens as this jurisprudential development picks up pace all over the world. What is also non-negotiable is that the discussion should involve diverse people and must be inclusive. As the jurisprudential development moves forward and the framework takes its shape, we would need skilled designers with a legal acumen and the ability to think multi-dimensionally as well as innovative lawyers, judges and policy-makers to play their crucial parts. Simultaneously scholarship in the field has to continue to grow and also keep pace with increasing grassroots activism .

As an initial step, a group of relevant stakeholders has already identified six fundamental values that could serve as a legislative starting point for governments and multilateral organisations. Popularly known as the Universal Declaration of River Rights, these are –

1. The right to flow.
2. The right to perform essential functions within its ecosystem.
3. The right to be free from pollution.
4. The right to feed and be fed by sustainable aquifers.
5. The right to native biodiversity.
6. The right to restoration.

Finally, we must remember to keep working towards repairing the fault lines that we have created in our relationship with nature over the past centuries, or prepare for a cataclysmic rupture of the relationship. Humankind would ultimately achieve harmony with nature not so much because we would have given it legal rights, but because it would simply have been the ‘right’ thing to do (pun intended).

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