Friday, 25 August 2017

Rivers as Legal Persons

Rivers as Legal Persons

Source: Economic & Politica Weekly

A Regressive Step
Bushra Quasmi ( teaches at the Damodaram Sanjivayya National Law University, Visakhapatnam.

The recent decision by the Uttarakhand High Court to declare the Ganga and Yamuna rivers as “juristic persons” is skewed and based on flawed legal reasoning. The judgment threatens to undermine years of progress made in environmental jurisprudence and fails to serve the purposes of environmental conservation and sustainable use of river water.

The High Court of Uttarakhand has consecrated two Indian rivers as juristic persons along the lines of Hindu idols, companies and the Church in a stand-alone judgment on 20 March 2017 (Mohd Salim v State of Uttarakhand, 2017). A division bench comprising Justices Rajiv Sharma and Alok Singh declared,
The Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously and intermittently of these rivers, as juristic/legal persons/living entities having the status of legal persons with all corresponding rights, duties and liabilities of a living person in order to preserve and conserve the rivers. (Paragraph 19).
The bench exercised the doctrine of parens patriae and directed that a Ganga Management Board be constituted. It appointed the director of the Namami Gange Programme1 and the chief secretary and advocate general of the state of Uttarakhand as persons in loco parentis as the “human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries.” These officers have been entrusted with the onerous task of promoting the health and well-being of both rivers.

Skewed Reasoning

The bench, while arriving at this conclusion, was ostensibly motivated by the profound sense of faith of certain communities in the piety of both rivers, as well as the need to protect India’s wealth of natural resources. The rationale is lucid, as many people repose their faith in the rivers as deities, while also being dependent on the rivers for multifarious purposes, such as sustenance, irrigation, livelihood and development. Further, the Indian judiciary is saddled with a sacred duty, as the champion of the people’s rights, to protect the rights of citizens to a wholesome environment, enjoyment of natural resources, and their fundamental right to water. Thus, the mandate is clear; it is imperative that the rivers be protected.

The reasoning applied by the bench is skewed and roundabout, and only stands in that the concept of a “juristic person” is well-recognised in legal theory. However, the bench has willy-nilly cherry-picked legal principles and pronounced a judgment that threatens to undermine years of progress made in environmental jurisprudence. As per the bench, the concept of an artificial juristic personality was created in response to the need for assigning rights and liabilities to artificial beings for “subserving the needs and faith of society.” It has proved to be an effective tool to look into the functioning of companies, corporate bodies, as well as places of religious worship. Paragraphs 14 and 15 of the judgment discuss this concept of artificial personality, where an inanimate object, a non-natural person or an association of persons is awarded a distinct juristic personality along with all the corresponding rights and liabilities. This juristic person functions through a manager or appointed guardian who is entrusted with the responsibility of managing funds for the corpus.

It is, thus, under a well-settled principle of legal theory that trusts, minors, hospitals, etc, are endowed with an artificial personality. The concept is especially useful in India as it provides for accountability and transparency of private trusts, temple boards, maths, waqfs, etc. However, to apply it to a common pool resource like a river is a stretch. Further, the notion that it will be of any use or significance when applied towards conservation of a river is questionable.

First, a river is not a deity simpliciter. A particular section of society may repose faith, belief and worship in a river, but for others it is only a natural resource to be utilised in an effective and sustainable manner. There is no comparison between an idol in a temple or a private company, and a river, which is a natural common pool resource. The bench has cited Yogendra Nath Naskar v Commission of Income Tax, Calcutta (1969) as a precedent where it was held that a “Hindu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property.”

This reasoning cannot be applied to a river as there is stark difference between a flowing river with its many tributaries—a natural resource that belongs to generations of people with millions of stakeholders dependent on it for survival and sustenance—and a temple management board. Temple boards are socio-religious trusts comprising members nominated by both the government and community. Their aim is to manage temples and their assets and to ensure their smooth operation in accordance with traditional rituals and customs prescribed under religious scriptures. Their very nature is exclusionary to non-believers. A river board, on the other hand, as per the River Boards Act, 1956 was envisaged as a state body designed to advise the central government on development opportunities, and to coordinate activities and resolve disputes pertaining to rivers. Under their mandate, the boards were required to provide advice to the government on various issues related to rivers. However, due to the failure of the Indian government to constitute a river board since the act was enacted almost 50 years ago, the exact nature of a river board cannot be ascertained. However, the secular and inclusionary nature of such a board—should one be created—cannot be doubted.
Further, the justices have alluded to the endowment of juristic personality on an idol that is linked with a natural person like a shebait or manager. Reference has been made to Prosanna Kumari Debya v Golab Chand Baboo (1875), which deals with the role of shebaits when an inanimate object is consecrated as a deity so that divinity may be attributed to it. There is a tacit direction that the members of the Ganga Management Board will have duties and responsibilities like that of a shebait. This is an absurd perversion of constitutional morality, which will give birth to numerous problems between various stakeholders in any river issue. For example, were the religious wishes of one section of society to come into conflict with the needs of another, as is bound to happen in a multicultural pluralistic society, it will be difficult to assign priority to either.

Need for a Scientific Approach
Second, sustainable development and environmentalism are simply better served through a scientific approach supported by inclusive steps that involve people irrespective of distinctions of belief, faith, caste and gender. Historically, Indian environmentalism did lay emphasis on religious scriptures and texts in the 1960s, but in a rapidly industrialising and globalised world, such an ideology is simply not sufficient to address the problems of climate change and ecological imbalance. The introduction of a religious narrative now, after years of constitutional and political struggle seeking to look at conservation through a dispassionate and scientific lens, is a regressive step. Natural resource conservation efforts in India are already suffering from various problems associated with activities of a religious nature, such as pollution caused during kumbh melas, mass prayer meetings, etc. The Art of Living case (Manoj Misra v Delhi Development Authority and Ors, 2016) is now a textbook example of the non-alignment of religious sentiments of people and ecological, environmental interests.
Third, the appointment of officers of the lone state of Uttarakhand as persons in loco parentis for the two rivers is likely to create more problems as future strategies for river conservation are devised. The language used in the judgment appears to give the impression that the state of Uttarakhand shall have the sole responsibility and associated rights for the “promotion of health and well-being” of the rivers and their tributaries. As one of the largest river systems in the world—flowing through the states of Uttar Pradesh, Bihar, Jharkhand and West Bengal, besides Uttarakhand—there are bound to be conflicts between these states when it comes to strategies, planning, and implementation of river rejuvenation and conservation efforts. Further, the exact contour of duties of loco parentis, when applied to natural resources, is uncharted territory.
Nevertheless, if the newly assigned personality to these rivers helps conservationists jump a few hoops towards a cleaner and more rejuvenated Ganga and Yamuna, or inspires more sentimental vigour in society towards the environment and ecology, then it will be a welcome decision. However, one is not hopeful, knowing that the condition of natural resources, ecology, and biodiversity of the country are in a shambles despite the fact that rivers and nature are culturally regarded as maternal figures.

1 The Namami Gange Programme is run by the National Mission for Clean Ganga, which is a registered society and acts as the nodal agency responsible for the implementation of various projects to clean up and rejuvenate the river Ganga.
Cases Cited
Manoj Misra v Delhi Development Authority and Ors (2016): NGT.
Mohd Salim v State of Uttarakhand (2017): SCC OnLine, Utt, p 367.
Prosanna Kumari Debya v Golab Chand Baboo (1875): LR, IndAp, 2, p 145.
Yogendra Nath Naskar v Commission of Income Tax, Calcutta (1969): SCC, SC, 1, p 555.


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