River As A Living Entity

10/15/21, 11:57 AM River as a living entity - Frontline
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CONSERVATION
River as a living entity

SHRISHTEE BAJPAI
Print edition : October 22, 2021
 
The Ramganga river, Corbett National Park, Uttarakhand. Photo: Ashish Kothari
Recognising river ecosystems or other entities of nature as having rights offers the possibility of
managing and governing habitats based on the ecological realities of a region. When a river is
recognised as a legal person, it has a right to maintain its spirit, identity and integrity.
A dolphin bobs up from the quiet flowing waters of the river. At a distance,
fisherfolk are quietly angling while our boat chugs along the vast stretches
of mangrove forests. We were on the revered and celebrated river Ganga
https://frontline.thehindu.com/environment/photo-essay-river-as-a-living-entity/article36984037.ece?homepage=true 1/11
near Sundarbans in West Bengal, where the daily lives of most of the river-
dependent communities are still at ease with the rhythms of the river. But

amid these serene activities there is a stark reality: excessive effluence
flowing into rivers and polluting them, hydroelectric dams disrupting the
water flow, and river interlinking projects threatening the riverine ecology,
desecrating them in every conceivable way.
The latest Intergovernmental Panel on Climate Change (IPCC) report1

notes that humans have had an unprecedented and irreversible impact on
climate. The factsheet for South Asia notes that the region will witness
intense heatwaves and humid heat stress, glaciers will decline, and there
will be a relative increase in sea levels.2
According to the Central Pollution Control Board’s latest report, India has
45 critically polluted river stretches and 300-plus polluted stretches. One-
third of India’s wetlands have been lost in the past four decades. The Ganga
and the Yamuna, two of the most sacred rivers in India, are choking with
untreated sewage and industrial waste that make their water unfit for
consumption.
Excessive damming and diversion of rivers have resulted in sinking of

deltas and affected the entire riverine ecosystem and the communities
living downstream. The dominant view that “any drop of water flowing
into the sea is a waste” is basically a formative strategy to dam and divert
every drop of water for human use. Recent incidents of landslides and flash
floods in the western Himalaya are indicative of the effect of large
hydropower and other development projects on fragile ecologies.
All these are linked to several factors, including the extractive,
anthropocentric model of development, centralised and bureaucratic
governance with little participation of long-time users/residents of
riverine areas, a lack of legally mandated and democratic institutional
spaces for different interest groups to come together to share
data/information/experiences, a lack of ecological understanding among

decision-makers, and neglect of cultural/spiritual traditions relating to

rivers.
A different course
With the onset of climate change and potential mass extinction of species,
and the closing window of opportunity to take meaningful action, a
growing number of communities, organisations and governments around
the world are calling for anthropocentric legal and governance systems to
be replaced with ecocentric ones. The last 15 years have seen a dramatic
increase in the number of laws based on ecological jurisprudence—a legal
philosophy that sees nature not as a set of objects to be exploited but as a
community of subjects (humans and non-humans) who are connected
through interdependent, reciprocal relationships.
In 2017, the Uttarakhand High Court ruled (in two separate orders on March
22 and 30) that the Ganga, the Yamuna, their tributaries, and the glaciers
and catchments feeding these rivers in Uttarakhand had rights as a
“juristic/legal person/living entity”.3 In 2018, the same High Court ruled
that the entire animal kingdom had rights similar to that of a living person
(Narayan Dutt Bhatt vs Union of India).4 In March 2020, the Punjab and
Haryana High Court passed an order declaring the Sukhna Lake in
Chandigarh city a living entity, with rights equivalent to that of a person.5
The Bangladesh High Court recognised the river Turag as a living entity
with legal rights and held that the same would apply to all rivers in the
country. The Bangladesh judiciary continues to supervise the rights of
nature and has ordered the closure of 231 unauthorised factories along the
Buriganga river as an enforcement of the rights. Similarly, in Nepal, there is
a new effort to recognise the rights of nature which originates from its
long-standing recognition of the public trust doctrine.
Recognition of the personhood of “more than human” entities in formal

institutions began with Ecuador becoming the first country to recognise

that nature has a right to exist, persist, maintain and regenerate. Several
towns in the United States have made by-laws that recognise the rights of
nature. Similarly, New Zealand in 2014 recognised the Te Urewera National
Park as a legal entity with rights, powers, duties and liabilities as a “legal
person”. Five days before the Uttarakhand High Court judgment of 2017,
the New Zealand Parliament enacted the Te Awa Tupua Bill, which gives the
Whanganui river and ecosystem legal personality, guaranteeing its “health
and well-being”. Bolivia has enacted the law of Mother Earth, recognising
nature’s legal rights, specifically the right to life, biodiversity,
regeneration, air, water, balance and restoration. In 2009, the United
Nations General Assembly adopted a resolution proclaiming April 22 as
International Mother Earth Day. On December 21 that year, it adopted a
resolution on Harmony with Nature.6 On February 16, 2021, the Magpie
river in Quebec, Canada, was granted rights as a “living person”.
These rights-based laws granting legal personhood for nature aim to shift
the legal status of the natural world from being human property to living
entities in their own right and subjects of law, guaranteeing their right to
exist, thrive, evolve and maintain their natural cycles. These rights are not
conferred by humans; it is a recognition that these rights have always
existed. It lays upon humans the duty to act as guardians for the more-than
human world.
What would the judicial pronouncements according rights to rivers entail?

What does “promote the health and well-being of the rivers” mean? By
recognising the river as a person entitled to rights, in the eyes of the law,
the river has the power to bring suit under its name, have its injuries
recognised, hold its polluters responsible for harms caused to it, and claim
compensation and be entitled to other remedies. Fundamental rights in
that sense are the most basic of obligations.
When a river is recognised as a legal person, its inviolable basic right will be
the right to flow freely. The ecological conditions making up a river’s

natural habitat are to be respected and protected. The river has a right to
maintain its spirit, identity and integrity. At a dialogue organised by
Kalpavriksh, International Rivers and LIFE along with other civil society
actors, a collective vision emerged that the river must have the right to flow
(unhindered), meander, and to flood in its floodplains. A river is “from the
place the rain falls or snow melts, to the sea, and the whole basin,
ecologically (…) including all the flows, underground, on surface, etc., all
that could make up a river should be protected through rights”.8 The rights
of the soil and groundwater flow must also be included while keeping in
mind the close relationship between the two.
This does not mean fishing or other subsistence activities in the river would
come to an end. Rather the recognition of the river as an entity seeks to
maintain a reciprocal relationship that respects the river’s flow, its flora
and fauna, its catchment, and the rocks and soil and other elements of the
landscape it flows through. Consequently, activities that cause irreversible
damage to these conditions, such as dams and diversions, industrial and
urban pollution, fisheries using explosives or trawlers, could be challenged.
The rivers would possess rights that are intrinsic and essential for them to
exist, flourish, regenerate, be restored and evolve naturally.
Issues of implementation
Assuming that these rights are recognised, rivers cannot represent
themselves in a court of law. Therefore, there is a need for a comprehensive
system to implement and protect their rights. The rights can be
safeguarded using the principles of custodianship. The Uttarakhand High
Court order named several government functionaries and a couple of
independent lawyers as “parents”. The court’s follow-up order widened
the ambit: “The Chief Secretary of the State of Uttarakhand is also
permitted to co-opt as many as seven public representatives from all the

cities, towns and villages of the State of Uttarakhand to give representation

to the communities living on the banks of rivers near lakes and glaciers.”
But a question is will state functionaries have the independence to act in
the interest of the river when the government itself is a violator?
An alternative solution is that the custodianship or guardianship be given

to a body of local communities associated with the river (who have, or
should have, traditional or customary rights of the river such as fisherfolk,
farmers along the riverbank, people directly engaged in river-related
services, and people who stand to lose immediately and heavily if the
health of the river is affected); relevant government agencies, and civil
society (that have an established record of independent advocacy on behalf
of the river), with a multi-scale or nested institutional framework to enable
participation across the entire stretch of the river. This would call for
strengthening of local units of decision-making, that is, gram sabhas and
area sabhas. This should also include the representation of various
subsistence-based livelihoods relating to the river by independent
mediators who discharge their duties with transparency and
accountability.
What would account for violations?

The Uttarakhand court order did not mention what amounted to violation
of rights of rivers. However, in order to be able to truly exercise the rights
and implement appropriate redressal, there is a need for a comprehensive
definition of the actions that amount to “violation of the rights of rivers”,
the extent and scope of “the process and nature of restitution”. The
violation of the rights of rivers may be defined as “any obstruction or
impediment that disables the entity from performing its essential
ecological functions”.
Restitution and compensation

The New Zealand law has an extensive section lending itself to restitutive,
restorative and compensatory action. It acknowledged the government’s

decisions and actions for more than a century that resulted in the violation
of the health of the Whanganui and the rights, culture and well-being of
the indigenous people living along the river. Several specific examples were
given, including the dismantling of traditional structures for fishing and
river use, a hydroelectric project and mining.
“....The Crown acknowledges that it has failed to recognise, respect, and

protect the special relationship of the iwi and hapu of Whanganui with the
Whanganui river…. With this apology the Crown seeks to atone for its past
wrongs, and begin the process of healing.”
Such an acknowledgement is a necessary first step towards seeking
appropriate restitutive, and compensatory measures. Restitution should
amount to undoing the violations done in the past, restoring the river’s
ecological balance, including but not limited to remedial biological,
biochemical, and other processes, stoppage of ongoing projects and
processes that are causing violation, adequately compensating all affected
communities and other relevant parties.
Beyond Rights
Law is a modern human construct. It not only talks in the language of rights
and duties that only humans understand but also operationalises them in a
way that can further entrench human-centredness. In most cases where
nature’s rights are recognised in law, they have done so by extending to it
the concept of “personhood” in other words, akin to humans and,
therefore, having human rights.
The Lepchas of Sikkim consider the Rongyung river in Dzongu a sacred
reserve. “We believe that when someone dies their soul travels through the
river Rongyung to reach the caves of Kanchenjunga,” says Gyatso Lepcha
from the Affected Citizens of Teesta (ACT), who has been involved in
resistance against large hydropower projects in the region. For long, the
indigenous communities have lived in harmony with nature and have

articulated rights through their visions of “good life” deeply rooted in their
connections to the rest of life. Buen vivir, or living well, an ensemble of
South American perspective of a good life, expresses a deeper change in
knowledge, affectivity and spirituality, and gives an ontological opening to
other forms of understanding human and non-human relationships (Chuji
et al. 2019)[9]. Similar, yet different in many ways, the Gond Adivasis of
central India say, “the rest of nature is our God. Adivasis do not make
cement idols or statues. The leaves, tree, animals, and the spirits in the
forest are our gods.”10 It reflects the solidarity that binds all humans and
more-than humans together. “These expressions thread a tapestry of
many varied possibilities of defining ways of social life and well-being.
While actively resisting the idea of development that thrives on endless
growth, commodification of human and natural lives.” 11
Hence, any such movement on recognising the rights of the rest of nature
must challenge the fundamental forms of injustices, including capitalism,
stateism, anthropocentrism and patriarchy.
Bioregional Governance
Another significant question is, once a river’s rights are recognised in one
country, can those rights “flow” with it into another country, or will
multinational agreements become necessary? Can this paradigm offer
peaceful collaborations in the contested borders on ecological grounds?
Recognising river ecosystems or other entities of nature as having rights

offers the possibility of managing and governing habitats based on the
ecological realities of the region. It brings out the bizarre fact that the
human-drawn nation state, and political lines on maps in various parts of
the world (such as in South Asia by national elites or in Africa and Latin
America by colonial powers) have created conflict situations or disrupted
ancient cultural and ecological flows and relations. We need to begin

reimagining governance from a bioregional governance point of view,

which is based on the understanding that the geographic, climatic,
hydrological and ecological attributes of nature support human and more
than human living communities, and that these have flows and
contiguities that need to be understood and respected. This would also
mean bridging the gap between the customary ways of decision making
and the current legal frameworks. There is a need for more imaginative
lawyers, activists and judges to help move towards an eco-centric and
diverse legal framework.
Questioning Development
The fundamental contradiction between the current approach of extractive
development and the rights of nature, where the former is inherently
exploitative of resources for ever-increasing human needs, underlies the
current social milieu. As in the case of all environmental laws and
constitutional provisions relating to the environment in India, when there
is a contradiction between growth-centred development and the
environment, the latter is sacrificed (Shrivastava & Kothari, 2012).
Recognising the need for unpacking several of these questions at a regional
level, an alliance committed to representing the interests of free-flowing
and healthy rivers, and their dependent communities, has emerged in
South Asia.
Rights of Rivers South Asia Allaince

Evolving as a network of organisations, individuals, and other networks
from South Asia and across the world, the Rights of Rivers South Asia
Alliance aims to foster dialogue and collaboration around the concept of
rights of rivers, and to enable community empowerment, regeneration,
conservation and responsible policymaking. The collective recognises that
we need to change our institutions, bureaucracy and jurisprudence as an
essential step in transforming the current destructive relationship with

nature to one that honours the deep interconnections between humans

and nature.
Shrishtee Bajpai is a researcher-activist with Kalpavriksh and Vikalp

Sangam. She is a founding member of Rights of Rivers South Asia Alliance
and executive committee member of Global Alliance for the Rights of
Nature.
References
1 https://www.ipcc.ch/report/ar6/wg1/
2
https://www.ipcc.ch/report/ar6/wg1/downloads/factsheets/IPCC_AR6_
WGI_
Regional_Fact_Sheet_Asia.pdf
3 In July 2017, the Supreme Court stayed the Uttarkhand High Court order
after the Uttarakhand government filed a petition arguing that the order
was legally unsustainable and simply not “practical”. The stay in Indian
jurisprudence implies that the order will not be judicially operative from
the day of the “stay order”. However, it does not mean that the said order is
wiped out of existence.
4 Narayan Dutt Bhatt vs Union of India, 2018, page 50, Writ Petition (PIL)
No. 43 of 2014, (2017).
5 CWP No. 18253 of 2009 and other connected petitions vs State of Punjab
and Haryana, page 137, 2020.
6 http://harmonywithnatureun.org/chronology.html
7https://vikalpsangam.org/article/dialogue-on-rights-of-rivers-report-
and-
annexures/
8 http://vikalpsangam.org/article/dialogue-on-rights-of-rivers-report-
and-

annexures
9 Chuji, M., G. Rengifo and E. Gudynas (2019): “Buen Vivir”, in Ashish

Kothari, Ariel Salleh, Arturo Escobar, Federico Demaria and Alberto Acosta
(eds), Pluriverse:
A Post-Development Dictionary, Delhi: Tulika and Authors Upfront.
10 In a personal conversation with Samaru Kallo of Zendepar village in

Korchi taluka of Gadchiroli district in Maharashtra.
11 Bajpai, S. (2020): A living hill: Reflections on animistic worldviews,

Heinrich Boell Foundation, India Centre.

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10/15/21, 11:57 AM River as a living entity - Frontline

COVID: Will European tourists In bid to boost biodiversity,

Print edition : October 22, 2021

The Ramganga river, Corbett National Park, Uttarakhand. Photo: Ashish Kothari

The latest Intergovernmental Panel on Climate Change (IPCC) report1

Excessive damming and diversion of rivers have resulted in sinking of

data/information/experiences, a lack of ecological understanding among

Recognition of the personhood of “more than human” entities in formal

What would the judicial pronouncements according rights to rivers entail?

permitted to co-opt as many as seven public representatives from all the

An alternative solution is that the custodianship or guardianship be given

What would account for violations?

Restitution and compensation

“....The Crown acknowledges that it has failed to recognise, respect, and

Recognising river ecosystems or other entities of nature as having rights

ancient cultural and ecological flows and relations. We need to begin

Rights of Rivers South Asia Allaince

essential step in transforming the current destructive relationship with

Shrishtee Bajpai is a researcher-activist with Kalpavriksh and Vikalp

9 Chuji, M., G. Rengifo and E. Gudynas (2019): “Buen Vivir”, in Ashish

A Post-Development Dictionary, Delhi: Tulika and Authors Upfront.

10 In a personal conversation with Samaru Kallo of Zendepar village in

11 Bajpai, S. (2020): A living hill: Reflections on animistic worldviews,

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