HAVE WE GIVEN RIVERS RIGHTS ONLY TO FURTHER THE RIGHTS OF PEOPLE?

By Filzah Belal

Filzah Belal is a final year undergraduate law student at the National Law University and
Judicial Academy, Assam.

A right is a legal tool that protects the interests of a person. In law, a “person” does not only
include a human being, it also includes all those personalities that have been given legal
recognition of being a person. One of the most prominent exercises of endowing a personality
is the legal personality of a corporation which is considered as an artificial person in the eyes
of the law. Similarly, we have seen that a few countries have progressed towards giving such
personification upon river bodies.  

Giving rivers the status of an artificial person under the law can serve various purposes, such
as protecting the river body from pollution or any other form of degradation. The Indian
Courts have recently joined the trend when the High Court of the State of Uttarakhand
granted the sacred River Ganga and Yamuna [1] with the status of ‘personhood’. It is a step
appreciated by many because now that these rivers have rights, polluting them would be on
the same pedestal as harming a person.

To understand the rationale behind this judgement, we must know the circumstances which
led the matter reaching the Court. The judiciary had to take this step in the interest of the
protection of the water bodies of Yamuna and Ganga (and environmental protection in the
larger picture) when there was reluctance on the part of the officials to create a body to
protect the river body. While this looks like a step which is aimed at protecting the river, we
cannot overlook the fact that it also protects human lives and our interests.

The Sociological School of Law, one of the schools of jurisprudence, states that laws must be
consistent with the norms of the society, or must keep pace with the needs of the society. In a
society that is becoming more and more aware regarding climate change is proof that this
step by the Court was much needed. Therefore, it can be established that protecting the river
body also protects the interests of people dependent on them. The Court even appointed
officials who act as custodians of these water bodies.

When we talk about ‘interests’ vested in the river bodies, it somehow protects the interests of
the people who depend on it. When River Whanganui in New Zealand was granted a legal
personality, [2] it was the local tribe Māori in whose interest the ruling was favoured. They
had fought for the recognition of the river for a long time to enforce environmental protection
in a stronger way.

Since a very long time people living adjacent to water bodies are given equal rights to the use
of these water bodies. If the idea is to change now, dispute would be as to who shall be held
liable for instances of say, changing of river course. The concept of riparian rights gives all
adjacent land owners equal rights to use the water, but with a change in the course of the
river, some would be deprived of this use, and some will be aggrieved by the change. If a
river changes its course, would the river (or its representative) be held liable for
encroachment? We must not forget that even if it is the representative to be held liable, he is
still incapable of taking control over the course of flowing river.

Here is where we must ask whether we actually care for the looming threat that our
environment is facing, or are we still looking for ways to continue exploiting the environment
with disregard towards the environmental calamities. The judiciary must also create a balance
between giving river bodies the right to satisfy needs of people and preventing the limited
water resources that we have to depend on.

In India, ‘Varuna’ is the name of the God of Oceans as per Hindu mythology. Similarly,
River Ganga and Yamuna are considered sacred and have significant religious importance.
However, there is rampant pollution of these bodies too. With the outlook of the people still
haven’t been changed completely (the consciousness about a sustainable lifestyle has a long
way to go from being fully achieved.

Using the tool of law, rivers have been made legal/juristic persons and the judiciary has
bestowed upon it certain rights. However, as is apparent, the question remains whether rivers
have been given right in their own interest or to protect the interests of the mankind in the
rivers.

Giving rivers ‘rights’ would mean giving them the status of a citizen in this regard, though
not with all rights (for instance, corporates don’t get many political rights). So, polluting it
would lead to violation of the right to clean water, in contrast to this, now such pollution
would violate the right of the river itself. Even though there are laws to regulate environment
protection, there is paucity in the number of courts. This has led to a huge number of pending
cases and hampering delivering justice.
If rivers were given rights to protect themselves it would be in order to protect themselves
from pollution that is being caused by humans. Giving them rights would mean that people
who bathe in the banks of the rivers, who perform religious rites in these rivers, people who
survive on the water of these rivers, shall all be liable in the court of law. It will become the
obligation of the Judiciary, and of the Executive and Legislature, to protect the interests of
the water bodies, and the environment at large; to protect the environment not as a matter of
responsibility of humans but as a matter of rights of the environment – including rivers.

On the other hand, if rights are conferred upon the rivers as a means to protect the vested
interests of humans in the rivers, it will mean protecting human activities that actually
contaminate the waters, be it the corporations or the benign dependents that contaminate the
rivers. Even Bentham’s principle outlines how the interest of the majority of people must be
protected. In this case if we try to relate, we will notice how the interest of the people are
secured by giving rivers rights. It is not the protection of the interest of the rivers – they have
been polluted across the globe since time immemorial – but the protection of the vested
interests of the persons deriving benefits from it. This in itself defeats the purpose of
environmental protection and the laws that are in place in the same regard.

The difference in the two approaches taken by the lawmakers and the judiciary is in the way
they wish to pursue the problem and how the problem is to be tackled. While both will give
river bodies a legal personality, the nature in which the right shall be protected will be
different. Only time will tell what shall be the outcome of this movement of giving rivers
rights.

[1] https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-
same-legal-rights-as-human-beings

[2] https://www.parliament.nz/en/get-involved/features/innovative-bill-protects-whanganui-
river-with-legal-personhood/