Protecting Indian Rivers: Need for Legal Reforms
Written by Shivansh Soni
Research Associate at Law & Order (Sept-Oct 2020)
Maharashtra National Law University, Nagpur
Source: Scroll.in
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Introduction
“Unless men are held to possess some attribute over and above those which they have in common with natural objects- animals, plants, things, etc, (whether this difference is itself called natural or not), the moral command not to treat men as animals or things has no rational foundation”[1]
Environmental degradation and the loss of habitat for animals makes it evident that there are some exponential yet unacknowledged threats to humanity. Countries across the world are, therefore, creating a paradigm shift to protect the environment in furtherance of which many of them have, since 2006, acknowledged and adopted such provisions and laid down judicial precedents. Inter Alia the primary concern in this regard was how to go about the protection. Rights of nature came out as a solution to this whereby the natural objects in themselves are given legal rights.[2] Talking specifically about India, the Uttarakhand High Court in the year 2017 gave the Ganga and Yamuna rivers of India legal status with corresponding rights, duties and liabilities.
On the other hand, rights of nature are nowhere stipulated in the Constitution of India, the national laws, or in any substantive law for that matter.
Notwithstanding the judicial pronouncement to protect the rivers, there are a few legislative actions which are awaited to protect the rivers in India. The article briefly entrenches upon the laws governing our rivers and the judiciary’s standpoint on their status, and attempts to find out an efficient solution to protect them.
Legislative Background
Though there are no outright legislations for the protection of rivers, yet there are provisions in a number of Acts which provide for the same. Section 6(2)(a) of the Environmental Protection Act, 1986 provides the Central government the power to make rules in matters concerning the standards of quality of air, water or soil. Similarly, Section 133 of the Wildlife Protection Act, 1972 provides for a conditional removal of nuisance over rivers which are or may be used by the general public.
Section 17 and 18 of the Water (Prevention and Control of Pollution) Act, 1984 provides for the function and powers of the state to give directions which includes providing for the protection of any stream (river).
Furthermore, the Coastal Regulation Zone Notification issues in exercise of powers conferred by clause (d) of Sub-rule (3) of Rule 5 of the Environmental (Protection) Rules, 1986 empowers the central government to restrict setting up of or any expansion of industries in any Coastal Regulation Zone (CRZ) which may infiltrate any river. The Union government under the aegis of Namami Gange project has called to bring in a new legislation to prevent the river ganga from pollution.[3] This law is, however, vetted by multiple authorities before final approval of the cabinet however when finalized it would serve in the best interest of nature and humans equally.
A paradigm shift created by the Judiciary
There are a plethora of judgements which have adjudicated over the need of rivers to be protected, however, the recent judgements have gone a step ahead and specifically granted rivers legal status/entity. As aforementioned, the first judgment to accord the status of legal entities was the case of Mohd Salim v. State of Uttarakhand[4]. The authorities concerned with Namami Gange and a few others were to Act as the legal parents of these holy rivers. Furthermore, the same court penned down another judgement Lalit Miglani v. State of Uttarakhand[5], on the same lines i.e., whereby Himalayan Gangotri and Yamunotri Glaciers were accorded the status of legal entities. Thereafter, animals in the northern state were also granted legal status at par with those of rivers.[6] These judgements by the Uttarakhand High Court have been substantiated by other high courts as well in recent times.
The Punjab and Haryana High Court in a recent judgement[7] declared that Sukhna Lake is a living entity having due rights, duties and liabilities at par with a living person.
It is imperative to note here that rights in this context shall not refer to civil or political rights but the basic rights to sue and be sued, enforce or be a party to contracts and to avail the remedies for its own benefit and not the benefit of any human beings.
Analysis
The intentions of the judiciary in this context may be to protect the environment, yet granting the corresponding rights over the river which flows beyond the territory of Uttarakhand and evidently beyond the jurisdictions of the High Court creates the obvious jurisdictional problem. Secondly, the judgement of Mohd. Salim (above) talks about the liabilities of rivers, but the question as to who shall actually be subject to that liability and definitely on what criteria could this liability possibly be invoked remains unanswered. These aspects necessarily ought to be scrutinized in order to arrive at the most efficient solution for the protection of the legal status of rivers.
Way Forward
Many jurisdictions across the world have widened the ambit of their existing legal rights to recognize the human right to a healthy environment[8] which when looked from the the Indian standpoint, shows us that Article 21 of the Constitution could be seen to have been a gateway to protect the environment[9]. As provided in the case of Virender Gaur v. State of Haryana,[10]
“Environmental, ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21. It would be impossible to live with human dignity without a humane and healthy environment”.
Any assertion to provide for complete protection of the environment at this juncture would seem hypothetical and also, would morally require the securing of nature’s own rights in the first place.[11] As a suggestion, property rights amidst the existing legal framework could be one such alternative. The author proposes for a legislation to formalize the largely unrecognized property rights upon nature (and thereby upon rivers). The regulation of this legislation could simply be relied upon on private governance in the backdrop of Indian trust laws by creating a trust.
As per the Indian Trust Act 1882, “trust” means, “An obligation annexed to the ownership of property, & arising out of a confidence reposed in & accepted by the owner for the benefit of another or for another and owner”. This would ensure that the concerned authorities would, within the authority of the governing laws, act as the representatives of rivers. This method not only clarifies the conundrum of liabilities of rivers as aforementioned by subjecting the governing individual/trust to the benefits and liabilities accruing, but also is the method which would work very well within the jurisprudential framework of the law in India.
[1] M. Varn Chandola, Dissecting American Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment, 8 Wisconsin Environmental Law Journal 3 (2002). [2] Many Countries like Bolivia, Colombia, Ecuador, India, Mexico, New Zealand, the US now have Welfare laws. [3] Namami Gange Mission, Ministry of Jal Shakti, Government of India, https://www.nmcg.nic.in/NamamiGan ga.aspx, (Last Visited 5th October). [4] 2017 SCC OnLine Utt 367: (2017) 2 KLJ (NOC 4) 7. [5] Writ Petition (PIL) No.140 of 2015. [6] Narayan Dutt Bhatt v. Union of India, Writ Petition (PIL) No. 43 of 2014. [7] Court on its Own Motion v. Chandigarh Administration, CWP No. 18353 of 2006 (Judgment on March, 2000). [8] Spain, France, Portugal, Finland, Greece and to some extent India through the judicial precedents have begun recognizing the human right to clean environment. [9] Noralee Gibson, The Right to a Clean Environment, 54 Sask. L. Rev. 5 (1990). [10] 1992 (2) SCC 577, ¶ 7. [11] Rights of Nature Law, Policy and Education, Harmony with Nature, United Nations, http://www.harmonywithnatureun.org/rightsOfNature/ (Last Visited 07/10/2020). BIBLIOGRAPHY
Articles
1. Noralee Gibson, The Right to a Clean Environment, 54 Sask. L. Rev. 5 (1990).
2. M. Varn Chandola, Dissecting American Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment, 8 Wisconsin Environmental Law Journal 3 (2002).
Case Laws
1. Virender Gaur v. State of Haryana, 1992 (2) SCC 577.
2. Lalit Miglani v. State of Uttarakhand 2017 SCC OnLine Utt 367.
3. Mohd Salim v. State of Uttarakhand Writ Petition (PIL) No.140 of 2015.
4. Narayan Dutt Bhatt v. Union of India, Writ Petition (PIL) No. 43 of 2014.
5. Court on its Own Motion v. Chandigarh Administration, CWP No. 18353 of 2006.