AUTHOR: V SATYA ANIRUDH ANANDA SASTRY, AMITY UNIVERSITY, NOIDA
Introduction
Across the globe, an important movement is gaining traction to safeguard rivers by bestowing upon them legal personhood, or acknowledging them as living entities. Across the globe, activists are indeed urging many local, national, and international bodies to then legally recognize natural features such as some rivers, granting to them legal personhood or the natural right to flourish. The burgeoning movement of rights-of-nature seeks to catalyze lasting change to the environment by empowering rivers with a voice within legal frameworks. Although rivers comprise a limited fraction of total freshwater, they remain vital in fulfilling water needs for an important percentage of the population. The increasing utilization of water resources underscores the growing necessity for institutional arrangements.
Background
In 2017, the Uttarakhand High Court declared that the Rivers Ganga as well as Yamuna existed as living entities possessing legal personhood, for addressing environmental degradation as well as administrative inaction and cultural importance. The ruling targeted to empower various enforcement mechanisms and ensure complete protection against pollution and exploitation. This decision aligns with the entire global movement to safeguard natural ecosystems through legal recognition and rights-based frameworks. In 2023, the Magpie River within Quebec, Canada, had been granted legal personhood because of the Innu Indigenous community's various efforts. Countries such as Ecuador, New Zealand, Colombia, Australia, and Mexico have gone on to adopt similar approaches, being often inspired by Indigenous traditions and cosmologies. Rivers such as Whanganui and Atrato have also been granted legal status. In addition to that, guardians have been appointed to advocate for their interests. The recognition for rivers as legal persons marks a shift within environmental law and ethics.
Issues
Implementation deficiencies and lack of cooperation are highlighted in cases like Mohd. Salim v State of Uttarakhand.
There is an international practice of providing legal rights to rivers, such as the Vilcabamba, Peru in Ecuador, the Whanganui River, located in New Zealand, the Atrato River in Colombia, the banks of the Ganga and Yamuna in the country of India, and the Magpie River in Canada.
The obstacles involve regulation and pragmatic execution, as well as uncertain rights and legal repercussions.
Blending river rights with human needs is a hard subject, as farmers have demonstrated by opposing Lake Erie's rights.
Jurisdictional restrictions and federalism call into question the application of legal recognition to other states.
Conceptual fit with Western legal systems is difficult, as nature's legal rights cannot be accepted within historically capitalist systems.
Differing judiciary views and reversal of outcomes demonstrate a deficit of consistency in assigning legal rights to nature.
The right to flow remains unclear, especially when conflicting with existing water allocation and usage.
Judgment
In 2017, the Uttarakhand High Court gave the Ganga and Yamuna rivers legal status, contending that pollution and abandonment endangered their existence. The court referred to Indian law and constitutional provisions, i.e., Articles 48A and 51A(g), to underscore the necessity to preserve and enhance the environment. The same attempts have been made in Ecuador, New Zealand, and Canada, where rivers have been accorded 'person' status in an attempt to retain their ecological and cultural significance. The ruling points to the importance of giving legal rights to ensure the protection of such valuable water bodies.
Analysis:
Indian
India's concern in the legal personality of rivers stems from the 2017 Uttarakhand High Court decision in Mohd. Salim v. State of Uttarakhand as the decision deemed the Ganga and Yamuna rivers—and, by implication, their tributaries—to be legal and tangible beings with human-like rights, obligations, and liabilities. It was based on these rivers that have spiritual and cultural significance for Hindus.
Constitutional obligations under Article 48A (environmental conservation) and Article 51A(g)
Existing Indian law recognizes Hindu deities as legal entities.
Jurisdictional constraints: Because the rivers cross several states, each state-level decision can be challenging to enforce nationwide.
Supreme Court contribution: The verdict was remained, raising issues related to federalism, transparency in parenthood obligations, and enforcement.
Persistent breakdown: Although its iconic position, pollution in the Ganga and Yamuna continues, highlighting the disparities among acknowledging and performance.
Latest happenings in India: As of 2024, the Supreme Court had not delivered a final verdict, and the rivers' legal personhood status remained in ambiguity. Furthermore, Namami Gange, a significant river restoration effort, stays alive inside a policy framework rather than a rights-based one. The debate over a Uniform Environmental Code has heated up, but legal personality for nature has yet to be entrenched in national law.
International
The environment's acknowledgment as a rights-bearing entity is gaining traction around the world, fueled by tribes and postcolonial legal activism. This region, particularly Ecuador, was the first to constitutionally recognize nature's rights, with the Vilcabamba River case in 2011 setting a precedent. In 2016, Colombia's Constitutional Court recognized the Atrato River as a legal entity, noting Indigenous and Afro-Colombian rights as well as ecological fairness. The Whanganui River was granted legal personhood under New Zealand's Te Awa Tupua Act, and the Magpie River in Canada will be granted legal personhood in 2021. The Yarra River Protection Act in Australia acknowledged the river as a "living entity" that reflected Indigenous Wurundjeri values, but it did not confer legal personhood. The U.S. has obstacles in incorporating these structures within its legislative structure.
Conclusion
The recognition of rivers as legal persons in India and the world is a paradigm shift in environmental jurisprudence but is beset with challenges. There will be a need to balance symbolic recognition and effective governance, and social change towards environmental custodianship.
References
LawSikho, Legal Rights to Rivers: An Emerging Trend, IPLEADERS (Apr. 21, 2020), https://blog.ipleaders.in/legal-rights-to-rivers-emerging-trend/.
Phoebe Weston, Rivers are Gaining the Same Legal Rights as People, THE GUARDIAN (July 25, 2021), https://www.theguardian.com/environment/2021/jul/25/rivers-around-the-world-rivers-are-gaining-the-same-legal-rights-as-people.
Ramin Pejan, A Right to Flow: Legal and Policy Tools to Protect Groundwater-Dependent Ecosystems, INT’L ENV’T L. RES. CTR. (2017), https://www.ielrc.org/content/e1704.pdf.
