18

The Exper iment utith Rights of Nature

in India

Kelly D. Alley and Tarini Mehta

CONTENTS

Summary
on March 20,2012, the High Court of uttarakhand,
and Yamuna' all their tribltaries India, ruled tha! ,The Rivers Ganga
'.. ur" i.eclared ," Fr."ii.zr"gal persons/living
having the status of a legar person entities
*rii ,l1 duties and riabilities of
a living person in orderlo pr"""rrr"
urri ""r;il;i;,.gigi",
t' state of uttarakhand and ut1.In the "*"urr. river
ruling,.the
Ganga and yamun a, (Mohd sarim
jud-ges uiiorr.r,"a three guardians as
'persons in loco parentis' 2tt
[meaning t. fr""" u pu.uit,1 uiin" human face to protect,
conserve and preserve the Rivers
bu"g, and"ryamun, ,.ra ih"i, t.ibr,aries. The
celebration of this i-"ogi,"la diy pubric
r"g?^u"y from *," iransnational discoursei
legal initiatives giving iigt t, t" and
Nutr.Sf iut it omitted acknowledgment
designs for water' moit notably the of other human
intention to centratisu of all basin extractions
and uses into a single authority. "o.,trot
The river Ganga and its tributaries
are known worrdwide for producing
water for large populations. surface food and
water is burdened with pollution. The judgment
presents an interesting example
a negotiati"l *;ig=;;i", oi p"."orrhood, goddess and
natural resource' Frowever, ti'r" srpr"rrT.
^of "j
Corrt ,trr-"-g this High Court judgment so
government departments could urroid
th" accountatility that u?ight"-bu"ed ruring that
require' This paper argues that the
continuatiorr o;-rrtipr" i'rJtrtiorr" would
and judgmen! including the Nationur of decision-?ruti.rg
cr"u,'r Tribunal, is a better path to protecting
sacred rivers than the pith proposed
in the hnamarkrut;;.
'*' these

365
366 Sustainability and the Rights of Nature ht P- The Experiment with Rj

framework would loo*

values, government strr
to shed light on the fua
of specific domestic cur

Precursors of Naturr
Many activists arourd I
replace the current regr
integrity and freedosr t
should be designed, crrea
United States has notma
Nature, other countrie d
Ritual bathing in the Ganga (Ganges) River in 2001. (Photograph by Kelly D. Alley.) recently executed in Irrdi
of Nature framework Th
us to ask whether this n
on going water po llutior_

Introduction in India by focusing spec

India's legal frames-od
In India and worldwide, the river Ganga (Ganges) has been a Mother, Goddess, pulrt-.: ,
rights. These liberties a
sustainer of all iife for Hindus for millennia.l The cleaning of Mother Ganga, on tl.,c ' rights framework. Tlre a
hand, is a more recent invention.2 This invention now comprises a number of comp1, -: India's tradition of puhli
and largely unsuccessful, plans to arrest the mounting pollution and deterioratins i nvesti gat i ve jo urnali-snq
quality of this sacred river.3 This deterioration directly feeds the growing use, overL.S: decades. A unique kird o
depletion of groundwater in this basin and others across the country.a wherein c ha rism atic iusti
Today arouncl one billion people reside in the Ganga Basin. The Ganga passes L.r The Hon'ble Mr. lustice !
than 30 major cities and towns on the traverse from the Himalayas to the Bay of Beng:.- years of the Indian Lni{rt
Upper Canga Plain in the state of Uttar Pradesh is the most industrialised part of th. l ambit ["extent',] of furdar
basin, home to sugar factories; leather tanneries; textile industries of cotton, woo1, jr,r:= "Due process" dehberatd
silk; food-processing industries related to rice, dal and edible oils; paper and pulp indr-rs play by holding that a -pn
heavy chemical factories and fertiliser and rubber manufacturing units. A number oi - -
Justice Krishna h.er rt-al
industries discharge wastewater that contains hazardous chemicals and pathogens. public interest litigation_ I
major thermal power plants also depend upon water from the Ganga and the heated i= - thqfol lowin g commertts
flow affects river ecology. The discharge of untreated municipal sewage draining :
the urban centres makes up three-fourths of the pollution of the river. IJnfortunatel .
Ou r adjectival trelatrr;
building of sewage treatment plants to break down this sewage and the enforcem.r-' deals not with rryrhis
compliance to discharge regulations for municipalities and industries have been han'Lr-. poor, the urban lar an
by Centre-State politics, funding and infrastructure problems and other socioeco: . terror if technical miy
complications related to revenue flows at the city and state levels. Over the past few dec. out the cause-title sed
concerned citizens have been using the courts and the main environmental tribunal ::- ' and fairness is not fal
country, the National Creen Tribunal, to push agencies to do the work they or€ r€spor-: representative actions,
;

for doing to remediate water quality and prevent further pollution. of legal proceedings ar
In this context, a Rights of Nature approach was recently attempted by High Court Ju. man and a neces-rr d
merits by suspect relia
in the case titled Mohtl Sulim u. State of Uttarakhrmd and others. This was an earnest atttr
viewed on wider perqr
by judicial authorities to enforce water conservation, but the Supreme Court sqlr: : rievances,
g a sd istingui
quashed it a few months later. The case helps us to understand what a Rights of \,.. view, backed b-v precec
 The Experiment utith Rights of
Nature in India
367

framework would look like in India

and what its problems may be in
values' government struc-turg politics terms of religious
and t ;;-"h'rp.; il;;"ltr., or*,""u
to shed light on the feasibilitytr "t Nurrr"'rr",."-*f,*nen issues
u night, or "rrir,up
of specific domestic constraints ,"d considered in terms
";p;;"nities.

Precursors of Nature's Rights in rndia: public

Interest Litigation
Many activists around the world have
argued that a Rights of Nature framework
replace the current regulatory o.
_urk"tlbu""a i"guiii;.r.r"irort, to guarantee should
integrity and freedomio Rourlsh.u Al;.; nature,s
with thisio*u r,urr" added that the framework
should be designed,.created, supported
united srates has not made *""r'r n*J-uy "rrfor""; J"x r"""], or government. whle the
u?d
in.seting 6 ;r;;;Lamework for the
Nature' other countries-offer interesting, Rights of
eiperimental exur.pLs. ln this regard,
recently executed in India provide the initiatives
anoi}r", i"i.rao* into delibe;;ting
of Nature framework' This case, r*" on the utility of a Rights
trr" oir,"rs in Ecuador, solivia and
us to ask whether this framework New Zealand, allows
ongoing water poilution.
can assist ir,
rli" chapter, wernrin pres"*,h":;;rq"e
"o.rr"rrrir,g
ri;i"" ecology and reducing
T
in India by focusing specificalry case of Rights of Nature
ln-t" to p.ui"rrru river basiis and water supplies.
"" g"n"ror"
India's legal framework is already
to petitioners and to notions of fundamental
rights. These liberties and their r",i"t"ri"rr
rights framework. The advoca"y ,"pu"i-oi g9i=r.p-""i urJ pr""rrsors to a nature,s
a Rights'"iivri"r" ,pproach can
India's tradition of public interlst
,j, r".i"r-*tion litig;., *r.ri.n emergedbe found in
tnvestigative iournalism,-1"T1. along with
rights and environr"l^i"i'r.,.v1sm
decades' A unique kind of judi"iur over the last three
p8p"1i"* has evolved;i;;; p"blic inrerest
wherein charismatic ritigatiory
i.""tr5Q ,"d p'"tii;"." rrrrr" become to the power of the raw.6
The Hon'bte Mr. Jusiice s. p. Bharucha "".,,iu,
years of the Indian Unr3n in thls ""ptui.,"
way: 'The're T;6_"*..i-i;"o? r"gur arrrt" ir-6,"-"*ry
was then the age of expanding the
ambit [%xtent"] of fundalent{ rig(tr, scope and
r"irg, pu.ti" urarry,trie wide language of Artrcre
"Due process" deriberately esche#eat, 21.
tr-," rt"nding r;'irr"., was
play by holding that a 'procedure
estabiishea by hw,, had to be just
ludicialy brought into
and fair,.7
Justice Krishna tyer wa3 the first t. ht;i" conceptual
foundation for what is now called
rn1e76,*r'it"'rrtir,g on an industriar dispute,
'":ti5,:T:l?1ffi"i[, Justice ryer made

our adjectivar [relating to] branch of jurisprudence

deals not with sophisticaied litigant', [knowredge of law], by and large,
lpuopt" invoived i,
poor' the urban lay and the weakI.
.o"iJtd iugr.ents "'rr* suitr but the rural
terror if rechnicar mis-descripri""" ,"J1"^n"rc"r-,"r", for *t "." ir* wili be an added
out the cause-titre:r:at: a secret weapon i, Jiriii"i pr"rarngs and setting
to non-suit a part. wf,"ru four pray
and fairness is not faurted, ratjtude is absent,
i, u g.u."u of.p.oc.s"rar 1usfice. Test ritigations,
representative actions, pro bono pubrico
1rol. tt," pruir"g""lr ,riJirke broadened
of legal proceedings .." in k"eping forms
with-in" current accent on justice to the
man and a necessary disincentive common
io those who_wish to bypass the real issues
merits by suspect on peripheralprocedural ,hori.;;;;s. on the
l*"".:
wid,qr gersqe5tive., mayte Even Article 226,
,*".",br;;;;#;il#.:h,ective
::::-:i ll
grrevances/ as distinguished from
assertion of
or common
view' backed by precedents has opted
indivia"rirtgrrir, atirough the traditional
r* tn" narrowe*ir".^rii"" public interest
is

{xtu*.-.rs
I III
368 Sust&inability and the Rights of Nature in F, 'lhe Experiment
u

promotcd by a spacious construction of locus standi [to be heard in court] in our si,c- -
econom ic circumstances and conceptual latitudinarianism permits taking liberties .,r .. -
individualization of the right to invoke the higher courts where the remedy is shar=-' Standing for Naturr
by a considerable number, particula rly when they are weaker. Less litigation, consi:i.:
w ith fair process, is the aim of adjectival 1aw.8 The Supreme Court, sr
unique'public interest
In the earlv 1970s, justice Bhagwati and Justice Iyer were involved with the estab.,: ' to the National Green I
of legalaid schemes for 'poor persons and members of backward classes'.e Laie: ovelsee cases concernei
Bhagwati articulated in a more decisive way the nature of public interest litigatiorL -:' with scientific assessrr
he summarised the court's position on judicial procedure as follows: after many years of dis
dispense environmerrta
This Court will readily respond even to a letter addressed by such individual actir-r: ',- with knowledge of scie
bonopublico. ItistruethattherearerulesmadebythisCourtprescribingtheproce-:.,. matters on the basis of
for moving this Court for relief under Article 32 and they require various formalitr.. cases taken up by the Tri
be gone through by a person seeking to approach this Court. But it must not be forgi ::. - (357d. Environmental cl
that procedure is but a handmaiden of justice and the cause of justice can ne\ r- - - and thereby avoid or u
allowed to be thwarted by any procedural technicalities. The court would ther.: '-
scoping and evaluatiort c
unhesitatingly and without the stightest qualms of conscience cast aside the tech:' -'
by the National Green tr
rules of procedure in the exercise of its dispensing power and treat the letter of psl -- , .
minded inclividual as a writ petition and act upon it ....r0 soundness of its decisiqt
As part of this ura\-e oI
In this pronouncement and others, Justice Bhagwati contended that social c :' - most importa nt enr-irsu
require a relaxation of procedure. The social conditions are of two dimensior,. the National Green Trilnr
one hand, inequality and differential access to justice and power prevailed; on .--: charging that, despite th
particular kinds of executive practices were at work. These executive practices \\'.r.- taken effective steps topx
out through inaction, as a breach of the law or dereliction of duty. Along with th. . to restrain leather tanner
procedural relaxation, Justice Bhagwati stressed the judicial remedy of manda.:'. , industrial and domestic e
command'is a judicial remedy in the form of an order from a superior court]. Ar-,' , - petition into two parts T
of the public with sufficient interest can call for judicial redress for any public injr-r the Municipal Corporati<r
from breach of public duty or from the violation of some provision of the Cons:-., the 'Ganga Pollution Casr
the law. A citizen can seek enforcement of public duty or observance of such cofl:,,- - history of Indian enr-irwr
or legal pror.isions by standing for the public interest. In the original petition,
Justice Bharucha also commented on the central role that the remedy of manda::- -
of the Jajmau district of
in public interest litigation, stating that the remedy has tanvassed the mandate Lri -:- river. He also claimed th
that no one is above the law'.11 He added that the prosecutions that were launchei .: - - treatment of domestic set
to the continuing mandamus in vineet Narain [the Hawala case] 'produced rea*- tanneries of the Jajmau d
.

the people that the Courts would not turn a blind eye only because powerful me:' .
Pollution Control Board" I
places were involved'.12 He continued: Indiat Standards Instihrn
At the time the Ganga I
Public irrterest litigations have also led to the Courts'pronouncements in pollutiL.r- initiating its first envirtxu
environment matters. I would be the first to concede that these pronouncement> Ganga Action plan (rereaJ
sometimes been a mixed blessing, but we must remember that in these matters, a: - - by diverting and treating
many others, the Court has had to step in because the legislature and the executir - Executed through the Mi
not acted upon their obligation to protect the quality of 1ife.13 scheme provided grants t
river Ganga in three states.
These discussions have also raised issue with the particular kind of lawyerilLs --
them over to city municipe
When introducing a publication series on public interest litigation, a contribLr:, '- Entering the mid-1990s; d
wrote: 'It compels the lawyer to unshackle herself from legalese, reach out to ar--- efforts of the governanert
herself of other disciplines. It teaches her to assimilate the legal principles in:,- - ' dereliction of duty. Bv 19gi
situations and present thembefore the court in a'Judicially manageable" form. f - basin, penalised ihu-stut
up several opportunities for innovation and creativity'.1a Ministry of Environment t
 The Experiment with Rights of Nature in lndia
369

Standing for Nature: The National Green Tribunal

The Supreme Court, once the primary court for environmental
litigation through a legally
unique 'public interest celli has now ceded most of its environmental
decisiln-making
to the National Green Tribunal. The National Green Tribunal was established
in 2010 to
oversee cases concerned with environmental degradation, combining
legal deliberation
with scientific assessment and monitoring.ls Th; National Green Tribunal was created
after many years of discussion on the best ways to deal with environmental
issues and
dispense environmental justice in India. It is composed of judges
and expert members
with knowledge of science and environment, and the explctition is thai they decide
matters on the basis of environmental merits and citizen iorr"".r,". The
majoriiy of the
cases taken up by the Tribunal are related to pollution (31Q
andenvironmental clearances
(357d' Environmental clearances are required for 39 iypeb
or projects in order to assess
and thereby avoid or minimise their environmental impacts. This involves
screening,
scoping and evaluation of a proposed project. At the ru-" tirne,
several judgments purr"d
by the National Green Tribunaf have brought public scrutiny, raising
questlons about the
soundness of its decisions.
As part of this wave of transferring cases, in 2016, theSupreme Court passed one of the
most important environmental cases, commonly known u" th" Ganga
iollution Case, to
the National Green Tribunal. In 1985, M.C. tvtehta ntea a writ petition
ii-, th" Supreme Court
chargin-g that, despite the strides made in the legal code, government
authorities had not
taken effective steps to prevent environmental pollution. M"ehta issued
a writ of mandamus
to restrain leather tanneries and the municipil corporation of Kanpur
from disposing of
industrial and domestic effluent in the river Ganga.ihe court subse^quently
bifurcated the
petition into two parts. The first dealt with the tinneries of Kanpuiand
ihe second with
the MuniciPal Corporation. Called Mehta Iandlvlehta II in legislative
digests, theybecame
the 'Ganga Pollution Cases'and the most significant water p5llrtio.r
litilation inihe short
history of Indian environmental law.
the original petition of 1985, Mehta requested the court to order
the leather tanneries
of-Inthe ]ajmau district of Kanpur to stop discharging their untreated
effluent into the
river' He also claimed that the Municipai Corporltio"n of Kanpur was
not undertaking
treatment of domestic sewage. The petition named 89 respondents;
among them were 75
tanneries of the Jajmau district of the city, the Union of india
-Uttar the Chair"of the Central
C;rntrol Board, the Chair of the Pradesh pollution Control Board and the
follutlol
Indian Standards Institute.
At the time the Ganga Pollution cases were being heard, the Government
of India was
initiating its first environmental scheme to combat-river pollution in northern
India. The
Action Plan (hereafter GAP) was created to address problems of waste
-Ganga management
by diverting and treating industrial and municipal effluent before it reached
the ilanga.
Executed through the Ministry of Environmerrt and Forests, this
central gorr"rrr-"r,t
scheme provided grants to create this'infrastructure in the largest
cities bo"rdering the
river Ganga in three states. The original plan was to construct these
facilities and then turn
them over to city municipalities for longllurr, operation and maintenance.
Entering the mid-1990s, the Supreme -ourt stepped up its efforts to
check the centralising
of the government by pissing orders thJ reprlmanded government
:tr1"
dereliction
agencies for
duty. By_1995,the Supreme Court had fi^ned over 200 industries in-the
9f Ganga
basin, penalised the state Pollution Control Boards for false reporting
and pressed the
Ministry of Environment to streamline its proposals for treatment plaits thrlough
a less
 370 Sustainability and the Rights of Nature ht P,.; The Experiment aith Ri1

wieldy set of supervisory committees. It appeared that the struggle for power was ce::: - (PreventionandCorM
intensifying on paper, as the judiciary, through courtroom dramas, fines and punishr- . set out a concern for ern
sought to check the power of the executive branch and industries throughout the cr-.-. ''
the Water Act in 1978 an
Yet this judicial activism proved profoundly limited by the very system it sought to - -.
(Protection) Act of 1ffi6
by calling on the same agencies it reprimanded to implement its orders, the Suprem. -
subject in the State Ust
was rendered profoundly ineffective.
Act empowered the L.ni
The recent shift of environmental cases to the National Green Tribunal marks a
was affirmed when all s
shift from pressure through tontinuing mandamus'in the Supreme Court to pressr,rrr The administratire re
the persistent complaints of citizens through the National Green Tribunal. In the Tr-:-
Central Pollution Contn
the judges call forward stakeholders and direct collaborative solutions. In prior Sr-.':.. Boards develop plans So
Court cases, continuing mandamus occurred in cases when monitoring of compliar-.:-- and executes a national
directed by ihe court and considered necessary to the functioning of governme:- data and advises the G
the effective use of its assets. When the Supreme Court agreed to cede responsrl- - : implement the Water,l
the tribunal, the media accused it of 'passing the buck'. The Court responded, : conducting research on
to monitor rveek after week, months after month, it is difficult ... it [you] can g.' ' been awarded the auth
[National Creen Tribunal] and if you have a problem you can come back to us'. At ::. . and effluents from indu
of April 2077, the Supreme Court passed another key case on the degradation of the \: -
Although enr-irc,: :'
river and floodplains to the Tribunal. and the Fundamer,:.
Originally in7994, the Supreme Court had taken suo motu cognisance of the poll;, under the justiciable . r
the Yamuna on the basis of a news article reporting this. In 2077, abench consisting c,
clirectly enforcea L. 1=
justice |.S. Kehar and justice D.Y. Chandrachud decided that the monitoring of the ., .. -
flesh out the constitutiuri
projects and actions to clean the river should be done by the National Green Tril:ur.., to have recourse to [t]re r
transferred the more than two decades-long public interest litigation to it. The S,r-: . the pollution of water o
Court held that there should not be 'parallel proceedings' on the same issue,'. -.:-l words, the courts hal e h
informant explained to Alley, 'When cases are sent by the Supreme Court to the [\:. Rights. Environ:nental sa
Creen Tribunal], the [National Green Tribunal] is more motivated to hear them'.r: T:- .
to the enforcement of cr
the general sentiment during the tenure of Tribunal Chairperson Swatantra Kun-ia: : ecological norm has adr
recently, under new leadership in the Tribunal, advocates are submitting their pe .-
perceived failures of othr
back in the Supreme Court and High Courts, hoping for a better hearing.

Standing and Other prq

Provisions Close to Rights of Nature
As the preceding quo&s
The Indian Constitution is not unique in incorporating articles that declare the respor-rsi: with opening up uses of
of the state and its citizens to protect and improve the environment and safeguard fore.,- ideals of equality and irx
f wildlife. Like those used in other countries, India's constitutional articles were adr.': . -
procedural matterc in uni
response to international conferences and conventions. The first provisions in law,r.r. . , countries. As litigants beg
through the Forty-Second Amendment to the Indian Constitution.ls Passed in7976, the - justices began a vigorousr
Second Amenclment responded to the Stockholm Declaration adopted by the Interrr:.. discussed what was nrear
Conference on Human EnvironmentinT9T2. That Declaration confirmed the respons-- constitutional rights of la
of each member of society to protect and improve the environment. In conformitv tvilh . interest in relaxing tlre ru
objectives, the Forty-Second Amendment inserted Article 48A into the Directive Pri:-, - of India,22 Justice Iyer comr
of State Policy in Chapter 4 of the Constitution. This declared the State's responsil.r.:-
protect and improve the environment and safeguard the forests and wildlife of the cc - Our currentprocessua
Another provision, inserted in Article 51A(g), stipulates the duty of every citizen to 'p: broad based and p@
and improvc the natural environment including forests, lakes, rivers and wildlife and t. - 'public interest lifipti
compassion for living creatures'. Both Article 48A and Article 51A impose an obligat,. numbers seeking rm
the government and the courts to protect the environment for the people and the nati. - driven to an expensirr
Along with these provisions, the Indian legal system provides a few other SoLLr-:. in our democracr-. lt-e
of action' and 'persur
law for addressing environmental and especially water pollution problems. Tl-re .
some jurisdictions-=
 The Experiment with Rights of Nature
in India
371

(Prevention and Control of Pollution)

A ctof 79741s('the waterAct,) was the first to
set out a concern for environmental protection. specifically
Parliament adopted minor amendments
the water Actin1978 and revised it in tgsg^to to
conform to the provisions of the Environment
(Protection) Act of 1986.20 Although the Constitution deter'mined
subiect in the state List and woulitherefore that water would be a
rull
Act empowered the Union Government to legislate ""J".ir'r" pr.rri"- of the state, the water
in the iiiu or state control. That power
was affirmed when all states in the Union approved
the Act.
The administrative regulation under the
water Act provided for the establishment of a
Central Pollution Control Board and, under
this, a goala i. state of the union. These
Boards develop plans for the control and """rr The
prevention of pollution. Central Board plans
and executes a national
Programme for preventing polluiior; carries out researcfu compiles
data and advises the Goveinment on water
and air pollution matters. The state Boards
implement the water Act by inspecting industrial
una -u"t"-ater treatment plants and
conducting research ofr quality Jnd sewage truut-".i *ethods. Both Boards
-uie,
been awarded the authority to set standards have
for water quali ty, airquality and emissions
and effluents from industry and other sources.
Although environmentaiprotection is included
in the Directive principles of state policy
and the Fundamental Dutiei of the Indian
Constitutiory rights are not listed
under the justiciable,Fundamental Rights of
the Indian "rrrriror,m"rtal
Constitution. Hence, they are not
directly enforceable' ry utiliJing these provision" o.,
Io*:"."1
flesh out the constitutional right io life, the'supreme Court has held"r-,rrirorrmental
,u
protection to
to have recourse to lthe ,"-"di", provided
that .itir"'. r,us a right
bg articte 32 of the Constitution foruemoving
the pollution of water or air
Y-ry;h may be detrimental to the quality of life,.21 In other
words' the courts have been willing to rlad the Directive prlnciples into the Fundamental
Rights' Environmental cases have uiso benefitied
to the enforcement of constitutiorral rights. The
f1-;i;;;;"'utarrut advantages attached
Indian courts, willingness to apply an
ecological norm has advanced a broadlr judicial
commitment to the rectification of the
perceived failures of other branches of government.

Standing and Other procedural Matters

A:.,th" preceding quotes justices in the postindependence
leveal,
with opening up uses of the period were concerned
law to citizens of all socioe.o.,o*1. classes,
ideals of equality and justice. In the process to act upon their
of establishing these ideals, justices defined
procedural matters in unique ways and set
th""u pro."Jrr""-rp* rr"m those used in
countries' As litigants began to approach other
the court with of a public interest nature,
justices began a vigorous debatetver "or.".-."matters.
standing and procedural Concerned citizens
discussed what was m.e}t by the public interest
urrd *ho could represent or argue for
constitutional rights of largenumters of citizens. the
The short history reveals a unanimous
interest in relaxing the rule of standing .rn
Akhil Bhartiya sornit-xrro*chari sangh,. Llnion
of lndia,22 Justice Iyer commented
on th"e issue of standiig i

our current processual jurisprudence is not of individualistic

broad based and people oriented, and envisions
Anglo Indian mould. It is
access to justice through tlass actions,
'public interest litigation' and representative
proc,eedings. Indeed littleIndians in large
numbers seeking remedies in courts through
driven to an exPens.ive.plurality of litigations, ""n*ti;;;;;u"dings, instead of being
is an affirmation ot participative justice
in our democracy. we have no hesitatiln in holding
that the;;;ow concept of tause
of action' and 'person aggrieved' and individual
htlgation l" u""o*l.rg obsolescent in
some jurisdictions.23
372 Sustainability and the Rights of Nature in Prart The Experinteti t,

In many cases, justices have grappled with a determination over the 'person aggrier -.- The leader of this gn
Generally in public interest cases, the issue of standing has been linked to other procedr,.: secure its own l%al rig
matters. For instance, justices broadened the guidelines for writing an acceptable r,, can later be done for all
building upon the general sense since early postindependence jurisprudence that the gene - . one alreadybeinginp&
format should be flexible to various forms of appeal. In 1956, Justice Mukherjee claimed t1- .. ' had been'rendered dn
'Under Article 32,tIrc court enjoys a broad discretion in the matter of framing the rtrit: called for up to ser-en i
suit the exigencies of the particular case and it would not throw out the application ot :'. trouble. ... 80% of our r
petitioner simply on the ground that the proper writ or direction has not been prayed ft dry piece of legislatiuri
Looking across the many environmental cases of the past 20 years, we find that H-- This meeting fid nof
Court and Supreme Court ]ustices have accepted letters, appeals and newspaper editori.. . of the government urrtil
as writ petitions for the public interest. In these letters and appeals, petitioners have r.t,rrtr. brought the New TeaL
to protect fr:esh water bodies and coastal zones, forests, national monuments, plann-,-- Judges when argrring f
provisions ancl urban heritage sites, among other national goods. Petitioners have usr - it upon himself to rese
Articles 32 ancl 226 to put pressure on state offices and on private agents of industriaL a:-,- his judgement. In the r
technolo65ical development to manage and adequately dispose of waste by-products. justic.. appointed three gr-rardii
have appointed amicus curiae (an impartial adviser) to assist petitioners in approachi:- - the chief secretarr- of th
the court for the public interest. general of the state (a :
While accepting a relaxed notion of standing and a broad range of petition types, t:. place of a parent'] as th
Indian courts have also exercised suo motu powers (Latin: bf his or its own accord', an actic:- and Yamuna and ttx{r
initiated by an authority on its own). Justices have exercised the suo motu power to interve: - status of [the rivers] al
directly in the administration of a State or private project. court confirmed that ar
state would initiate crin
as people were s[1] trri
went on to designate th
another case related b r
in strengthening the Rig
Ganga and Yamuna Rivers as Persons
We now turn to the recent high-profile ruling designating the Ganga and Yamuna rivers '... the Glaciers indr
as juristic persons. This case was heard in the High Court of the state of Uttarakhand and
meadows, dale, ju.n
entity/legal persur,
notbytheNational GreenTribunal. OnMarch20,2017,the High Courtruled inMohd Salim
having the statu-s c*i
o. State of Uttarakhand and Others that,'The Rivers Ganga and Yamun4 all their tributaries,
of a living persoru in
streams, every natural water flowing with flow continuously or intermittently of these rights akin to tundal
rivers, are declared as juristic/legal persons/living entities having the status of a legal
person with all corresponding rights, duties and liabilities of a living person in order to This second ruling rt-a
preserve and conserve river Ganga and Yamuna'.2s brother, also an adr-ocatr
The immediate motivation for the landmarkruling, as Lokgariwar and others have noted,x a imed to reguJate ptastk
comes from the case of the Whanganui river in New Zealand. In that case, the river was case, the Lalit Miglarri I
declared a living entity with full legal rights by the country's parliament after a long push (both central and statel i
by the Maori, an indigenous group.27 In India, a discussion on the need to grant personhood Ganga. In an effort tcr er
to these rivers startedin20\4 when members from the Community Environmental Legal justices reaffirmed arrd_ i
Defense Fund met with members of the Global WASH Alliance-India and Ganga Action of the Ganga and Yamu
Parivar. Together they developed the National Ganga River Rights Act, which recognised juristic rights. The just
the rights of the Ganga River basin and the people of India to a healthy river ecosystem.2s management of the glaci
Led by the head of a popular ashram in Rishikesh, the Ganga Action Parivar and the declared that designatirq
WASH Alliance gathered a group of 25 religious leaders and called upon the government their preservation. The iu
to declare Ganga a persory as a way to enforce stronger steps to protect her. They proposed and djrected action agai:
the new law to 'grant legal rights to the Ganga' and submitted their letter of request to the ashrams (religious insEh
Union Science and Technology Minister at an event organised by Global Interfaith WASH While the ruling on :

Alliance and UNICEF-India. conservation and protect

 The Experiment with Rights of Nature in India
J/5

The leader of this group noted to the

media that 'we feel that by enabling the
secure its own legal rights to survive Ganga to
and thrive, just like a cornpany or a person,
can later be done for all other rivers such the same
as the Indus'.2e on the need fo, a new
one already being in place, he said the law despite
water (Prevention and Control of pollution)
had been 'rendered dry' over the last four Act, 7974,
decade s. 'rn 1974, awater Act was passed
called for up to seven years that
[in] jail for repeat polluters. yet
42years later, our nation is in
trouble' " ' 80% of our drinking water is
polluted, mostly with sewage. The water
dry piece of legislation,, he saidlso Act is a
This meeting did not result in a more serious
consideration of an Act or law on the part
of the government until the High Court
ruling *u" pro*rrgu1"d. In that case, the advocate
brought the New Zealand Rigits of Nature-e*u-il"
to tfie attention of the High Court
Judges when arguing for rivei protection and pollution
prerrerrtiorr. The lead justice took
it upon himself to research this case and other
Right; ;iN;ture initiatives as he formed
his judgement' In the.ruling, the lead ju{]ge,
appointed three guardians-the directoi
,r,j thu supforting justice on the bench,
of Namami Gr"frfi government official)
the chief secretary of the state of Uttarakhand """rral
(a gtate gorr"?.,;ur-rt official) and the advocate
officiar) - u", ,p"r;;;" in roco parentis
general of the state (a state government
,in
place of a parent'l face to protect, [Latin:
and Yamuna and their ?" f: furiran
tributaries'. ny tdis order,"orrr".iru
and preserve the Rivers Ganga
the officers were bound to uphold the
status of [the rivers].and a-lso to promote
the heaith ur,a
court confirmed that any harm done to the -"li-u"ing of these rivers,.31 The
river would be a cognisable offence and the
state would initiate criminal proceedings.ryitl.roulwaiting
as people were still trying to understa.r?
for a pefltioner. Ten days later,
qu implicationl order, the same Justices
went on to designate the glaciers, lakes and
wetrands or tn"r" "iir,i"
ur"irc u" r"g"i;"rJJ"r, i,
another case related to reiource uses in the
state.32 rrr.y *"r" intentional in their
in strengthening the Rights of Nature approach interest
even further when they stated,
" the Glaciers including Gangotri & yamunotri, riverq streams,
meadows,
" rivurets, lakes, air,
dales, jungles, foresis wetlands, g.u""irr,arr-";;i;;,
entity/legal person/juristic person,/juridiciaT and waterfalls, legal
having the status of a legal pl.ror,, *ltr, ult
personr-;;;;"r" on/artificialperson
corresponding rights, duties and liabilities
of a living person.in odu. io preserve and
rights akin to fundamental rights/legal
conseive th#. ii;y are also accorcred the
rights,.s:
This second ruling rlas.th; result o{ a petition
filed by Lalit Miglani and argued by his
brother' also an advicate in the sr*"uift
Court. The previous orders in this second
aimed to regulate plastic waste and the case
iischarge J*;g; i;o the Ganga. This second
case' the Lalit Miglani PIL, revealed "f
the gross negligence of governmental authorities
(both central and state) in discharging
thelr statutlrf auti""io p.ur."nt pollution of
Ganga' In an effort to.ensure the the
justices reaffirmed and, in f1ct, [riection of the natural resources of the region, the
expanded their first jr;g;;;;"on the juristic
of the Ganga and Y1m11a by including other personhood
juristic rights'-The justices tt." rguiri natural-resor."",
within this notion of
appointed five legal representatives for the
management of the glaciers, rivers, streamJand
other resouies ,in loco parentis,.3a They
declared that designating,ecosystems as juristic
persons *;, ;^ imperative measure for
their preservation. The judges also directJd
the establirrr*"rri oi
and directed action againsl and closure
of ponutins rndustries i::if,ilffili:':f.i"j:
u"_hlu*" (religious inslitutions;.ss
while the ruling on personhood in Mohd. salim is
conservation and protection, its roots in ostensibly for environmental
religious sentiments ,r,a pnito"optry cannot
be
374 Sustainability and the Rights of Nature in Prqct The ExperimeatwilhR

set aside. ]ustice Sharma began his presentation on these aspects by stating that, 'Rir; - liberalised the notimr ;

Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and rever.,- environmental rights.
He continued,'The Ganga is also ca1led "Canga Maa". It finds mentioned [sic] in ancr..- basis of recreational a
Hindu scriptures including "Rigveda"'.:6 With this statement, he mentioned other case: will be harmed.{
which a Hindu idol had been seen as a juristic entity capable of holding propertv. The notion of stard
guardians who are &
The Problem of Guardianship would not alter the ab
case of pollution or errr
Both these cases prompt the question: In the Indian context, is it possible for a nat-.. implead the three gua
entity to have legal standing on the basis of notions of standing already in existence- that arise as a result o
La Follette ancl Maser argue: to understand the rcQ
understand the goddes
Ti isof course no answer to say that Nature, or any being of Nature, should be denieci
rights because it cannot speak. The American legal system gives rights to manv entitie:
that cannot speak: cities, states, and the federal government are the most common
examples. This could be multiplied to include water districts; religious organizations; Other Considerations:
social service organizations, such as the United Way; trusts and estates; joint venture
The Hindu religious r*
partnerships; and many others. A11 these entities hire attorneys to speak for them ar.rd
argue their cases in court.37
particularly in terms o
goddesses. Of the six .
popular and influentiaj
Western inclustrialised society, La Follette and Maser note, seems to fincl litt,.
Advaita - and all inr-ol
no intrinsic value in Nature unless it is demonstrably 'good for something' or ca:- - :
philosophy of dualism.
converted into something of material value.3S By contrast, the Canga is a Goddess .

In terms of the spirifru

her own sacred power and history. Ganga is a Goddess and also a Mother, and :.- -
toward the rea_lisatisr
also consider her a person or personified Goddess. So in these Hindu interpretatio:-.
followers of Dvaita ard
is feasible to some that she should be able to avail herself of the right-to-life pror.r.--
as the path to liberatfo
in the constitution.3e Before looking into this religious interpretation of Goddess :
separate from Brahman
personhood, however, we need to consider what guardianship means in the transnat-,-
legal discourse.
the universal self, or all
individual self seems di
As La Follette and Maser note, the questions to be answered in the case of a surrc,:'
i mpersonal. It transcerr
who advocates for Nature include the following: Who could be qualified? How woultl :
be selected? What obligations would they have? And what powers would be granteti - [ultimate reality] is n-ii
Brahman is the u]timtr
by whom? h.{ost importantly, to whom would a Nature's Rights guardian be account: --
of its relationship nith I
and according to what standards? They write:
between Nirguna Brahr
A guardian (or ombudsman, to use a term for a governmentally appointed advocate. Brahman is illuson-.
usuallv \ .ith limited powers) could be a €lovernment agency, but might prudently be The abstract phil'osopl
expanded to include qualified environmental organizations that could act as additional, of the concept of a persu
independent, guardians with rights to advocate for species or ecosystems in planninp5, to, deities are either cux
and also through litigation. This is a system already in use in Germany. Guardian: one surrenders w-ith de*l
could be given additional roles in protecting resollrces of the globai commons/ such as religious practice; arlrli+i
oceans or the air: monitoring the health of the commons, and having powers to enforce manifold deifications to ;
treaties and national laws affecting the commons. The guardian would have the power life and society, with sm
to appear before international rule-making and legislative bodies on behalf of the aspect
Personhood of deities i
of Nature the guardian represents, and also have powers to bring suit if the commons
is endangered by human activity.aL)
In relation to this perso
identified, one that consi
In order for any guardianship or ombudsman to enforce Nature's Rights, the,.. another that sees deities
system must give Nature, or its surrogate, 'standing' to fight for rights and defend ag.-. views result in worship, r
harms done to them. As the history of Indian litigation shows, justices have sufficie ' worship is directed torm
deity epitomises the ene
 The Experiment with Rights of Nature in India
375

liberalised the notion and procedures for standing

to allow a range of actors to argue for
environmental rights. Likewise, in the u,iJed stues;gro"p"
hrrru been able to sue on the
aesthetic or ecological rosses, 'for, the prr* o. Lui.,g *,ut
ffin:'a::xjloraf ";"?;#xv
The notion of standing in the High Court ruling
guardians who are designated as ttree government
in India hinges on the role of the
officials. uu:*"r"r, ar..l";rig*"",
would not alter the ability of a public-spiiited
person to file public interest litigation in
case of pollution or environmentil harm
io the Ganga o, yr*rnu. In such a case they could
implead the three guardians as,responderts.
NonEther""rr-ih"r" are other complications
that arise as a result of such a framework. Before
considering these problems, we need
to understand the religious interpretations of these
sacred rivers and the ways devotees
understand the goddess as a diviire being, a Mother
ur,d u p".rorr.

Other Considerations: Retigious Doctrines of personhood

The Hindu religious viewpertaining to deities
is foundational to this judgment and others,
particularly in terms of the personlfication of
different elements of nature as gods and
goddesses' of the six Astiki schools of
Hindu philosophy, vedanta is one of the most
popular and influential. It has three schools of
t:horgr,tI-lvaita,vishishta Advaita and
Advaita - and all invoke different forms of personhJod
for divinity. while Dvaita is the
philosophy of dualism, vishishta Advaita is
qualified monism and Advaita is monism.
. In termstheof rearisation
toward
the spiritual journey, these three elitomise
the progression of the consciousness
of urtimate reality, exemprifieJiy i,arruitu philosophy.
followers of Dvaita and vishishta Advaita believe_in while
u p"r"J.,ur god and explain devotion
as the path to liberation, Advaita metaphysics
holdJ thrt;;" world has no existence
separate from Brahman, the ultimate reality.
The self that is experiencing, or the jiva, and
the universal self, or atmary are the same;
tirey are both B;;l;"", despite the fact that the
individual self seems distinct. The Brahman of Advaita
vedanta advocated by sankara is
impersonal' It transcends all attributes and
thoughts. a" a"r"riu"d by sankara, ,Brahman
[ultimate reality] is without parts or attributesl.. or," *ittlort
Brahman is the ultimatereatiiy as it truly is. a second,. This Nirguna
It, however, b""o-"s a personal god because
of its relationship with the principle of Maya.
The Advaita veaanta school distinguishes
between Nirguna Brahman (attributeless)
and Saguna sruh-u., (with attributes); Saguna
Brahman is illusory.
abstract philosophy of Advaita is difficult to
.The grasp and comprehend; thus, the value
tfe.c.oncert of a personal god is acknowledged.
3f
to' deities are either concepti beneficial forspiritual
D'ep;;*g;; the tradition one adheres
p.ogr""Jo. real beings toward whom
one surrenders with devotion. Either way,
they ur" u i."y'"t"-"r,, orHir,a#prjro"oprry
religious practice; additionally, the expansive r.ra
and multifarious Hindu traditions create
manifold deifications to natural elements and
qualitie" r""ogr;"a as valuable for human
life and society, with some ritual practices traceable
to the vedas.
Personhood of deities is therefore a key aspect
of the living spiritual traditions of India.
In relation to this personificatron, broadly-speaking,
identified, one that considers deities p"r"o,ifi"utions
t*o -diif"r"nt approaches can be
Ji abstr*t and qualities and
another that sees deities as real
|"i.s" embodying divine "rr"rgl", and qualities. Both
views result in worship, with the diffeience that
in ii'," for*","r"rgi""
case, the spiritual aspirant,s
worship is directed toward the ene-rgy symbolised
uy ttt" a"ity. In the latter case, the
deity epitomises the energy or qualit-f *rat is
the object of Jevotion. In both cases, the
376 Sustainability qnd the Rights of Nature in Prqctice The Experiment zoilh R

representation of the deity is of importancg as is the emotional connection developed with Rivers Ganga and Yan
that form and the narrative around it. To give an example, during the Hindu festival of analysis of the religir
Diwali, millions of Hindus pray to Goddess Lakshmi and light lamps to urge her to enter in the Hindu faithhas
and bless their homes, fum in the belief that through proper worship the goddess will be related to the Gang+ t
propitiated and pleased. Ganga is another such deity. She is worshipped as a goddess, and customary in the lqal
places of worship have developed along her banks, including the ancient towns of Varanasi It appears that thev di
and Haridwar. For the devout Hindu, she is a mother, protector, remover of sin and purifier personhood andprqx
of matter and consciousness. to these rivers in ttrese
In the worship of Ganga, one finds the two approaches commingling, for Ganga is at to serve the purposeol
once 'the Supreme Shakti of the Eternal Shiva'and also a real being.a2 Several mythological rights these rivers har
stories about Ganga as the personified goddess exist in scriptures. Devotees bathe in her faith, practice ald mvl
waters to be cleansed of their sins; the ashes of the dead are immersed in her waters, which
leads the departed soul to a higher birth; her name is chanted with the belief that it will
bestow freedom from poverty and protection, even lead to liberation. For the Hindu mind, Overlapping lnstitutin
Ganga is supreme among rivers, an hrchetype of sacred water'. Other rivers are said to be Moving on to institutir
like the Ganga; others are said even to be the Ganga. Such is the strength of the belief in the based onreligiousbdid
personhood of the Ganga and in her divinity and powers. Yamuna, Godavari, Saraswafi, and conservation- Ttsr
Sindhu and Kaveri are the other sacred rivers of India. TWo of the most sacred Hindu these rivers and guidin4
pilgrimage places, Gangotri and Yamunotri, are the sources of these two sacred rivers- in decisions on rivert' r
The river Yamuna is a tributary to the Ganga and, like Ganga, Goddess Yamuna has been religious leaders or c(xr
personified. In Hindu mythology, Yamuna is also a mother who sustains and provides, but in terms of on tlre grcr
she is more concerned with the blessings of this life than Ganga, whose role is purification there would be anv add
and preparation for death. Yamuna is the daughter of Surya (the sun god) and Saranytr Secretary of the State a
The lord of death, Yama, is her brother.a3 loco parentis as the hur
Uma Bharti, when she was Minister of Water Resources, put her own sentiments in this Yamuna and their trilnl
way at an opening statement for a climate conference in 2016: rivers have alreadv bes
itself not bring much clll
I never looked at Ganga from the religious point of view. Because the Hindu point of view
leading to fewer checks
is such that we look at everything with a religious point of view. So the religious point of
Apart from its reli$fur
view is always hidden there. It is always there. It canlot be without it. A Hindu vision
and Alok Singh in,lfofrd
will never be without a spiritual vision. Trees, stoneq rivers, animals, insects, stars, sky,
water, air. God is existing in everything, everywhere. Ganga is the very cool economic of federalism and testec
flow of this country. Because Bihar and UP (Uttar Pradesh), the biggest populated states, government to take stq
are completely dependent totally on Ganga. And Ganga is a story of how we destroy in the state list of tlre C
rivers. So Ganga becomes a model of how we save rivers. In that ecological flow is empowered to enact lar
necessary, cleaning of Ganga through various methods is very necessary. And saving directed that encroaclrr
the rivers of this country because I always say that rivers and women have to fight for central governmerrt rrre
their own existence. Nobody helps them. They create their own existence, they save their Uttarakhand and LAhr
own existence. It is very difficult for them. They struggle a lot. So the flow of women's But there were other in_C
growth and the flow of the river also.a In the December 2fi16.
constituting a Ganga Lfa
However, the religious and cultural basis for the High Court decision begs tlre mandated under Sectlxr
question of whether the river's value for conservation arises solely from this connection reorganisation into tlre tr
to values or'from considerations of it as a highly polluted, transboundary river vital fc allotments of control ard
the livelihoods of millions. It appears, in this case, that environmental conservation cr agricultural fields in the
natural resources does not have importance as a value standing alone, but is based on tlrc needed to solve canal at
cultural, social or religious understandings of these resources. The leading Justice Sharma central and state go\=ernr
of the Uttarakhand High Court justified his position by stating, 'The extraordinarr jurisdiction of Ganga ma
situation has arisen since Rivers Ganga and Yamuna are losing their very existence- level. Even though tlre j
This situation requires extraordinary measures to be taken to preserve and conserre and states, by involving
 The Experiment with Rights of Nature in India
377

Rivers Ganga and Yamun a'.as yet, in the next paragraph, the judgment
launched into an
of-the religious and cultural importi.,." of these riversl Rooting
1a.lrs-i1 the judgment
in the Hindu faith has usually been an implicit rather than explicit justi#atioi-,
related to the Ganga; the justices in this
irr'"r"",
uru therefore going beyond what has been
customary in the legal procedures of the"d"" Supreme Court uia ruutior,al Green Tribunal.
It appears that they did so to argue for the cbncept of personhood, using
prec.Jerrt, of
personhood and property rights pertaining to Hindu allties. the pe.sonliood
attributed
to these rivers in these rulings was not just a metaphor for assertirig
the Rights of Nature
to serve the purpose of environmental protection. It was also an expression
of the divine
rights these rivers have held in colonial and postindependence law as
well as Hindu
faith, practice and mythology.

Overlapping !nstitutions and politics in ,Cuardianship,

Moving on to institutional and bureaucratic considerations, it is not clear
how personhood
based on religious beliefs and prior rulings on deities'rights will
help i, U"tt"r riur",ug;-"r,t
and conservation. There are many agen"ie" involved in-controllingivater
uses, monitoring
these rivers and guiding.agclio^n-mitlng on water allocation.
How would they be included
in decisions on rivers' rights? Since theiulings did not draw in and
the roles of
religious leaders or communities in guardians"hip, it is not clear where"*pr1d
the innovation lies
in terms of on the ground enforcement of protections and regulations. It
is doubtfut that
there would b9 any additional benefit by miking the directo, Jf Nu-r-i
Gange, ttre ctrier
Secretary of the State of Uttarakhand, and the -Advocate General
of the State",persons in
loco parentis as the human face to protect, conserve and preserve
the Rivers Ganga and
Yamuna and their tributaries'.46 Theie and othe-r agencies responsible
for conservirrf th"r"
haye already been failing- miserably; adding the additional titie
1iv11s of guardian?iu i.
itself not bring much change and will on\rnarrowlhe range of decision-mJkers,
potentially
leading to fewer checks and balances orrpower.
Apart from its religious foundations, the judgment delivered by
Justices Rajiv Sharma
and Alok Singh in Mohd Salim rs. State of lJttarakiand and Otherswas
concerned with issues
of federalism and tested whether a state through its judiciary could
-
government to take steps to protect the river.aT Stut"" irave significant- order the central
power ove, wate,
in the state list of the Constitution (i.e. the list of subjects or, iuhi"h staie
legislatrr", ,r"
empowered to enact laws). In earlier orders in the Mohd Salim case,
the Hi[h Court had
directed that encroachers along the Ganga canals and riverbanks
be evii-ted, and the
central government was ordered to clarify the division of canal land
and authoriti u"trr"ur",
uttarakhand and Uttar Pradesh (Uttarakhand was carved out of Uttar pradert,
ir, zooo;.
But there were other institutional tangres just under the surface.
In the December 2016hearing, the Court ordered that there should be
no more delay in
constituting a Ganga Management Board under the Irrigation Department.
rhis haJueen
mandated under Section 80(2Xb) of The Uttar Pradesh R6organi zationAct
2000.as After the
reorganisation into the two states of Uttar Pradesh and Uttaiakhand,
there remained. faulty
allotments of control and maintenance along the many canals that distribute
river water to
agricultural fields in the region. The justicei saw thai the Ganga Management
Board was
needed to solve canal and related property disputes and cooidlnate
river uses between
lentrf and state governments in this rive, tasin, but the actual ruling on personhood put
jurisdiction of Ganga matters under the Namami Gange project
ut *,3c""lui g.""r"-"",
level' Even though the justices appeared to advocatle ftr coordination
between centre
and states, by involving one representative from each of the states
of Uttar pradesh and
378 Sustainability and the Rights of Nature in practice
The Experiment with l

be narrowed to ttre c}
about this in the curc
Quite surprising\.i
and powerful barrish
Court to stay this Hgl
pending a final hearit
motivations as follor,,r:

The order h"d pnt

several states, ool
also raised questic
for damages ard r
pollution in th€ ris

In the petitiory it app

and responsibili[.- iffi
Ganga's rights or rt{rcr
In addition, the Suprr
right, the central goru
and flow through rnn
A cow drinking from thc pollutcd Yamuna River in 2018. The Yamuna is a tributary of the Ganga and a ma
river of its or.t,n as wcll. (Phobgraph by Ke1ly D. A1lcy.)
decision-makers. Agail
the legal manoeu\-rEs,,
ruling was stayed beca
Uttarakhand and a chairman of the board nominated by the central government, ttle both state and central p
configuration appeared messy.4e It was potentially problematic, as the river Ganga passes government fiIed a star
through five states. streams and others, rqi
During the hearing in March 2076, an official in the Ministry of Water Resources told of a Rights of Nature q
-
the court that despite the long correspondence, neither the states of Uttar pradesh or so the conclusion on pe
Uttarakhand had cooperated with the central government in constituting the Gang-a workingin theSuprm
Management Board. This was a problem of noncooperating state govern*"nt" that were the problems back to
ruled by opposition parties. In the March hearing, the judges asked for finalisation of
th
committee membership within 60 days.
As already mentioned, the invocation of fundamental rights in the protection of ttp
environment has been extensive. In the current case, however, the immediate and more
powerful administrative interest of the central government was not to grant Ganga arxl
Yamuna rivers fundamental rights, but to constitute the Ganga Mana[ement Bolard to Conclusion
rein in noncooperating states. By doing so, the central government could use a centralised
method of planning for all water uses in these basins, including hydropower, irrigatiorl As La Follette and \faspr
potable supply and wastewater and water treatment. The justicesigieed with this nJed for maybe through a corrhin
a Board. In the March 2017 hearing, while fussing at all parties for delaying the constitutiur
operating in an indepux
of the Board, the judges issued the order on personhood for the rivers, in effect joining the of the planling and deci
interest in centre-state coordination with a Rights of Nature approach. They stated,-^Itre appear to workbest rrtsr
Constitution of the Ganga Management Board is necessary for the purpose of irrigation, each other's behar-iou-rs -

rural and urban water supply, hydropower generation, navigation, industries. TIere is SupremeCourtandN*lr
utmost expediency to give legal status as a living person/legal entity to rivers Ganga ard behaviours of gor.ern_rrerr
Yamuna r/w Articles 48-A and 51A(g) of the Constitution of India,.5d The Nationai Green I
This personhood ruling became news across environmental policy communities as an cou nterbalancing forces ir
achievement. But it supported another agenda to centralise authority. The problem with rs rampant. This is rr"hv t
centralising authority means that vetting, monitoring and investment in piojects would ongoing pollubion arxl eq
guardians would hare ru
The Experiment with Rights of Nature in India 379

be narrowed to the choices of the central government agencies involved. We will say more
about this in the concluding section.
Quite surprisingly, inluly 2017, the State Government of Uttarakhand hired a well-known
and powerful barrister to represent them in a special leave petition or SLP to the Supreme
Court to stay this High Court order on personhood.sl The Supreme Court stayed the ruling
pending a final hearing, which has not yet occurred. At the time, the media reported the
motivations as follows:

The order had put the state government in a quandary. Since the rivers flow through
several states, only the Centre could frame rules for their management. The ruling
also raised questions like whether the victim of a flood in the rivers can sue the state
for damages and also about whether the state and its officers will be liable in case of
pollution in the rivers in another state through which it flows.s2

In the petition, it appears that the state government does not want to assume the liability
and responsibility for the grievances that people could bring to the court in the name of
Ganga's rights or when suing the rivers as primary agents of floods and other disasters.
In addition, the Supreme Court appeared to argue thaf even though water is a state
righf the central government needed to be in control since the rivers are transboundary
and flow through many states. State rights mean the state governments are the primary
decision-makers. Again, the interest in gaining more centralised control is at the root of
the legal manoeuvres, and the Supreme Court appeared to support that interest. But the
ruling was stayed because it brought on a host of other responsibilities and liabilities that
both state and central governments did not want to bear. A few months later, the central
government filed a stay against the other High Court ruling on personhood for glaciers,
streams and others, registering their continued disinterest in upholding the responsibilities
of a Rights of Nature approach. The final hearings have been pending for almost 2years,
so the conclusion on personhood remains unclear. Yet the general view among advocates
working in the Supreme Court is that the personhood ruling will be overturned, bringing
the problems back to the status quo.

Conclusion
As La Follette and Maser note: 'The best way to achieve honest, factual ecosystem monitoring
may be through a combination of a Nature's advocate or prosecutor with enforcement power,
operating in an independent governmental capacity, and citizen enforcement at every level
of the planning and decision-making process'.s3 In this sense, regulation and enforcement
appear to work bestwhen there are multipleplayers checking each other's powers and vetting
each other's behaviours. This has bden the state of affafus in Indi4 where the High Courts,
Supreme Court and National Green Tribunal have permitted citizens to check the powers and
behaviours of government rninistries, departments and projects through their writ petitions.
The National Green Tribunal, the High Courts, and Supreme Court are important
counterbalancing forces in a political and institutional environment where noncompliance
is rampant. This is why the ruling on personhood was not in fact a viable solution to the
ongoing pollution and ecological problems in these river basins. The appointment of three
guardians would have narrowed the checks and balances on the powers and behaviours
380 Sustainability and the Rights of Nature in Practice The Experiment with l

of those implementing policies and projects for these rivers. It would have eliminated or Press; (d) Aller-" Kl
sidelined the powers of the National Green Tribunal to allow citizen monitoring and policy Oxford Unilersifr
input. It would have centralised authority to decide water allocations to the Namami Gange Rioer of Northern 7
departmenf a central governmental body and two state officials, and it would have mandated Murty, M.N. 2t[r-
a Ganga Management Board with decision-making powers to decide all the uses of these Delhi: Oxford L-nir
river waters. Such centralised decision-making rights would uldermine judicial oversight 3. (a) Rauta, R- 2O15-
through lndia. lre=.
and citizen input.
National Riz,er Garylg
The ongoing problems of compliance with court orders involving pollution and overuse
"The Ganga: A Tric
of these river resources have frustrated the Courts and the National Green Tribunal. In the
Oxford, UK: Ox$m
cases described in this paper, these frustrations have pushed conservation-minded judges 4. Scott, C.A. and *ra
to look for new tools to regulate water users. The personhood ruling is one such tool that in the Indus{,aryI
the judges reached for. They overshot, because the proposed guardianship would have set 5. (a) La Folletts C i
a new precedent for responsibilities and liabilities that government agencies did not want Boca Raton, Fti CR
to uphold. Rights for Nature:
The Personhood decision of the High Court currently stayed by the Supreme Court O'Donnell, E.L- arr
pending final judgment also raises issues related to the role of guardians and what would New Zealand, and
amount to dereliction of their duties. In this regard, an interesting comparison can be Natural Sites Be D
made with the law related to guardians of vulnerable persons such as childrery victims, sacrednaturalsiEsr
detained persons, mentally challenged persons and so forth. Indeed, the guardianship 6. Bhuwania, A. 20il
law paradigm fits better thary for instance, the public trust doctrine, when one adopts Cambridge LrlC Cr
7. (a) Alley, K.D. 2ff8
the personhood model. However, the complications one sees in guardianship cases could
very well arise here too, along with additional complications, because the rivers would not
Enaironmental lt;.
Constitution of Indi
be able to express their interests and wishes in the way other vulnerable persons may be Kapur, J. (ed)., p_ ;![
able to do. What then is in the best interests of these rivers? Because these interests would 8. (a) Alley, K.D. 2t[9.'
be decided by state and society, such an approach remains anthropocentric and in effect 1.1998. 'Preface'in I
undermines the very purpose of endowing such natural resources with rights that do not 9. (a) Alley, K.D.2tB.
cater directly to human intention. These are some of the challenges that a Rights of Nature A.K. 1998. 'In Publt
approach would need to deal with and address, not only in India but in other contexts Int er e st Litigatin -7-1
where specific individuals or entities are granted guardianship roles. 10. (a) Alley, K.D.llan_
This does not mean that a Rights of Nature framework is not possible in India or (ed).1998. Supretw{
elsewhere. The concerns for thriving ecosystems are critical to the sustainability of human 11. (a) Al1ey, K.D. lffirg-'
S.P. Golden ]utri,lee )
life, and a more eco-centric way of understanding conservation and ensuring compliance
12. Bharucha, S.P- C,o&&
would be beneficial. But to limit the potential human misuses of such an approach, a ^;!
LLL.
critical understanding of the values, institutions and political intentions of movements 13. (a) Alley, K.D.lr\li-'
and countermovements involving Nature's Rights, including the specific definitions and S.P. Golden JuhiXe r-
parameters of guardianship needs to be applied. 14. (a) Alley, K.D.2tt09_'l
5.1999. 'PtLin 1ryyn
I. (ed)., pp. V-XIL
15. (a) Amirants D. l0
Reflections on the -\
441.-468; (b) Kumar..
Notes
Environment'. httf 'r
1. Allcy, K.D. and Drew, G. 2012.'Ganga' inHinduism, Oxford Bihlio;qraphies. Oxford, UK: Oxft,i-
(a) protection-of -enriru
University Press; (b) Eck, D.L.1982. 'The Goddess inHindu SacredGeography'inTheDirine Consr , : |ustice: Is the Naticn
Ratlha ond the Goddesses of lndia. Hawley, J.S. and Wulff, D.M. (eds). Boston, MA: Beacon Press. 169-88.
2. (a) Alley, K.D. 2002. On the Banks of the CLtnga: When Wasteutater Meets a Sat:red Rlzrer. Ann Arb, 16. PTi. 'Supreme Court
MI: University of Michigan Press; (b) Alley, K.D. 2014. "Ganga and Varanasi's Waste-Wat.- Aprll 24, 2A17. ht
Management: Why Has ltRemained Such anIntractable Problem? SANDRPSouthAsia Netlr.r,:, source:contentofrrrk
on Dams, Rivers and People (blog); (c) A11e1,, K.D. 2015. "Killing a River: Failure of Regulatior 201e).
in Liz,in:< Riz,ers, Dying Rizters A Quest through hrdia. lyer, R. (ed). Oxford, UK: Oxford Universi: 17. Commentbyadr-omr
The Experiment with Rights of Nature in lndia 381

Press; (d) Allev K.D. and Dreu,, G.2012. "Clanga" tn Hittdui-cnt, Ox.tord Bibliograpthies. Oxforcl, UK:
Oxford University Press; (e) Haberman, D.L. 2006. Rirer o.f Lot,e itt nrt Age ol Pollution: Tht, Yanutna
Riaer of Northttrn lizdla. Berkeley, CA: University of California Press; (f) Markandaya, A. and
Murty, M.N. 2000. Cleaning Up the Ganges: A Cost Benefit Attnlvsis o.f tltc Cnttgn Atliort P/arr. Nen
Delhi: Oxford University Press.
3. (a) Rauta, R.2015. "The Clanga: A Lament and a PIea" in Llz,irg Ritt:rs, DL1itty, llit,os: A Quest
tlrrough lndia. lver, R. (ed). Oxford, UK: Oxford University Press; (b) Sanghi, R. (ed). 2014. Our
National Rtacr Cturga: LtJ.eLine of the MilLions. New York, NY: Springer; (c) Tare, V and Ror,,, G. 2015.
"The Gang;r: A Trickle of Hope" in Iyer, R. (ed). Lit,ing Riaers, Dyitg Riitrs:A Qucst throuch Indin.
Oxford, UK: Oxford University Press.
4. Scott, C.A. and Sharma, B. 2009. 'Energy Supply and the Expansion of Groundn,ater Irrigation
in the Indus-Ganges Basrn'. Internatiottnl lournnl of Rioer Basin Manoge ment 7(2):719-124.
5. (a) La Follette, C. and Chris, M. 2017. Sustninttbility and the Rights of Nnture: Att lntroLiuctiort.
Boca Ratcrn, FL: CRC Press; (b) O'Donne11, E.L. At the Tntersection of the Sacred and the Legal:
Rights fcrr Nature in Uttarakhand, India'. lournal of Erutironnrcntal Larr,30(2018): 135-144; (c)
O'Donnell, E.L. and Taibot-Jones, J. 'Creating Legai Rights For Rivers: Lessons from Australia,
New Zealand, and India'. Ecology nnd Society,23(20i8): 7; (d) Studley, l. "Why Shouldn't Sacred
Natural Sites Be Declared as Juristic Persons Predicated on Spiritual Governance? http://
sacrednatu ral sites.org/2017/06/declarins-sacred-natural-sites-as-juristic-persons/
6. Bhuwania, A. 2017. Courting the People: Pttblic Interest Litigation itt Post-Emergency lntlin.
Cambridge. UK: Cambridge University Press 157 pp.
7. (a) Alley, K.D. 2009. 'Legal Activism and River Pollution in India'. Georgetottn lnte.rnational
Enztironruenlttl Lau Reaieut,2l(2009):793; (b) Bharucha, S.P. 1998. 'Golden Jubilee Year of the
Constitution of India and Fundamental Rights' in Supreme Court on Public Interest Litigation Vll.
Kapur, J. @t1)., p.797.
8. (a) Alle"v, K.D. 2009. 'Legal Activism and River Pollution in India'. Op. cit. pp.797 798; (b) Kapur,
J. 1998. 'Preface' in Supreme Court on Public Interest Litigatiott X-XV Kapur, l. (ed)., p. 798.
9. (a) Alley, K"D.2009. 'Legal Activism and River Pollution in India'. O1l cit.,p.798; (b) Ganguli,
A.K. 1998. 'In Public Interest: A Review of PIL in the Supreme Court'. in Suprente Court on Pttblic
Intt:rest Litigtrtiott A 1. Kapur, l. (ed)., p. 798.
10. (a) Alley, K.D. 2009. 'Legal Activism and River Pollution in lndia'. Op. cit., p. 798; (b) Kapur, J.
(ed). 1998. Stryrrme Court on Public Interest Litigntion. p.798.
11. (a) Alle"v, K.D. 2009. 'Legal Activism and River Pollution in India'. Op. cit., p.799; (b) Bharucha,
S.P Golden fubilee Year of the Constitution of India and Fundamental Rights. Op. cit.
12. Bharucha, S.P Golden Jubilee Year of the Constitution of Ind ia and Fundamental Riglrts. Op.
cit.
13. (a) Alley, K.D. 2009. 'Legal Activism and River Pollution in India'. Op. cit.,p.799; (b) Bharucha,
S.P. Colden Jubilee Year of the Constitution of India and Fundamental Rights. O7t. cit.
14. (a)Alley,K.D.2009.'Legal ActivismandRiverPollutioninlndia'.Op.cit.,p.799;(b)Muralidhar,
S. 1999. 'PIL in 1999 in the Supreme Court' in Supre me Court on Public Intercst Litigtttion iZ Kapur,
j. (ed)" pp. V XII.
15. (a) Amirante, D.2012.'Environmental Courts in Comparative Perspective: Preliminary
Reflections on the National Green Tribunal of India'. Pace Enuironnrcntnl Luttt Reoieto,29(2012):
441 468; (b) Kumar, A. 2016. 'National Green Tribunai: A New Mtrnclate tort,ards Protection of
Environment'. http://u,ww.legaldesire.com/national-green-tribunal-a-nel,r,-mandate-towards-
protection-of-environment/ (accessed 30 September 2018); (c) Shrotria, S. 2015. 'Environmental
Justice: Is the National Green Tribunal of lndia effective?' Enrtironrtt:rrtLtl Ltnu Rerieut, TT(2015):
169-88.
.16.
PTI.'Supremc Court transfers to NGT Plea over Yamuna River Pollution'. EconomicTimes,
April 24,2017. http://economictimes.indiatimes.com/articleshor,r,/58341955.cms?utm_
source-cor-ltentofinterest&utm-medium:text&utm-campaign:cppst (accessed 20 January
2019).
1 7. Comment bv aclvocate practicing in tlre Tribunal, September 20.17
382 Sustainability and the Rights of Nature in Practice The Experimenttith1

18. The Constitution (Forty-second Amendment) Act, 1976. https://www.india.gov.in/ 41. La Follette and \t
my-government/cttnstitut ion-india/a mendments/const itution-ind ia-f orty-second- 42. Eck, D.L.196l""Ga
amendnent-act-1976 (accessed 11 June 2018); (b) Forty-second Amendment of the Constitution and the Godd.rs* I
of Indi:r. https://en.wikipedia.org/wiki,/Forty-second_Amendment_of_the Constitution_of_ 166-83.
India (accessed 11 June 2018)
43. Haberman,DLl
19. Water (Prevention and Control of Pollution) Act of 7974.http:/ /www.indiawaterportal.orglsites/ Berkeley, CA L-nir
indiawaterportal.org/files /e7402-1.pdf (accessed 11 June 2018); (b) Hewameealla, S. 'Control 44. Lecture presented
crf Water [)ollution: Constitutional Aspect in India'. http://dl.lib.mrt.ac.]k/handle/123/12556 'Water for Sustain
(accessed 14 August 2019)
Centre in Delhi
20. The Environment (Protection) Act of 1986. http:/,/toxicslink.org/docs/rulesansregulation/THE- 45. Krishna, G.201i' ']
ENVIRON MENT-(PROTECTION)-ACT-1986.pdf (accessed 14 August 2019) news/column., a-rr
21. Cullet, P. and Koonan, S. 2011. Water Lau in India: An Introdut:tiott to Legal Instrurnents (2nd (accessed 11 fune 3
edition). New Delhi: Oxford University Press India, p. 124. 46. Gopalan,R-'I\}rrd
22. Akhil Bhartiya Soshit Karamchari Sangh. 'Through Its Secretary and Another vs. IJnion oi Op. cit.
India tirrough Its Secretary Ministry of Railway and Others'. http://www.youthforequalitv. 47. Mohd. Salimt Sttr
com/supreme-court-cases /34A.pdf (accessed 11 June 2018).
23.'NarmadaBachaoAndolanv.TheStateof MadhyaPradeshon30September,2OT4'.https:/7'
(PiL) No.126 oi I
files/WPPI-1r6-il
ind i a nkanoon.org/doc/11 8282924 / (accessed 11 ]une 2018).
YAMUNA9"2ORN-I
24. Charanjit l.d Chozudhury a. Union of lndia. http://www.nja.nic.inlP-950_Reading_Material_5-
48. The Uttar PradeJr
NOV-15/6&7%20Charanjit%20Lal%20&%20%20Namit%20sharma.pdf (accessed 11 |une 2018). A2000-29.pdf racre:
25. (a) Mohd. Salim zt State. of UttarakhandrNrlt Petition (PIL) No.l26 of 2011, Order dated 20 March. 49. rbid.
2017; (b) Dasm M. 2017.'Ganga and Yamuna Are Now Legal Entities: What Does This Mean and
50. Mohd.Salim*.itdx
Is lt a Good Move?' The Neuts Minute, March 21,2017. https://www.thenewsminute.com/article,.
P. 11
ganga-and-vamuna-are-n()wJegal-entities-what-does-mean-and-it-good-move-58999 (accessecl 51. State of tlttarakh,xa
11 June 20.18).
016879/2017 (SryE
26. (a) Cop.rlan, R. 2017. 'Why the Court Ru ling to Humanise the Ganga and Yamuna Rivers Ring. 52.'SC Stays Uttara
Holkrw'. ThttWire,March27,2017; (b) Lokgariwar,C.2017. 'TheSadStateof These PersonsCalleti Indian Erpress \t
Clanga & Ya muna - Can State Protect Them? Blog of the South Asian Network for Dams, River.
sc-stays-uttarakhan
and People', April 11, 2017. hftps//sandrp.u,ordpress.com/2077/04/ll/the-sad-state-of-these- 53. La Follette, C. arr:l \!
Persons called-ganga-yamuna-can-state-protect-them/ (accessed 30 September 2017).
27. O'Bryan,K" 2017. 'Giving a Voice to the River and the Role of Indigenous People: The Whanganu
River Se ttlement and River Management in Victctria'. Austrnlian Indigenous Laru Rez,iew,20: 48-7.
28. A Campaign to Establish Rights of the Ganges River'. https://celdf.ory/2016/09/blog-gangas-
.11
rights-rights/ (accessed June 2018).
29. 'Religious Leaders Submit Proposal to Government to Protect Ganga'. https://www.busines:-
standard.com /article/pti-stories/religious-leaders-submit-proposal-to-govt-to-protec:-
ganga-i16090200871_1.htmI (accessed 11 June 2018).
30. Ibid.
31. Gopalan, R. 2017. 'Why the Court Ruling to Humanise the Ganga and Yamuna Rivers Rin::.
Hollow'. TheWire,, March 27,2017
32. W.P.PII No. 140 ot2015,LLtLit Miglanir. Stlte of Llttarakhand.
33. Ibid.
34. Ibid.
35. Ibid.
36. Mohd. Sulim u. Statt: of UttnrakhandWritPetition (PIL) No.126 of 2014, Order dated 20 March,2L, -
pp. 4-5
37. LaFollette,C.andMaser,C.20lT.SustainabilityandtheRightsofNature:AnIntroduction.Op.:
P.89.
38. Ibid.
39. A sample of residents of Varanasi gathering on the Ganga banks were surveyed in October l -
on this point. About half agreed that Ganga could be considered a 'person'. All agreed that .
was a lVfother and should have rights.
40. lbid. p.90.
The Experiment zoith Rights of Nature in India
383

41. La Follette and Maser, op. clf.

42' Eck' D'L 1982 'Ganga: the Gocidess in Hinclu sacred Ge.graphv' in'f
ht: Di,ine CLtn5py[; Bsfll11,
,i:::!:Gorlr./r:sr^es of tndio. Hawtey,l.S. and Wutfl
D.M. (e"asj. e.,rro,.,, MA: Beacon press, pp.
43' Haberman' D L' 2006'.Rioer of in an Age
.Lotte press.. of Pollttion: TLrc Yar,urttt Llitter of Northcrrt lntiio.
Berkeley, CA: University of California
44. Lecture presented at 3rd tndia water
Forum (IWF) 2016, 'International water C.n'ention,,
'water for sustainabirity: towards Deveropment
And prosperity,. 4.2o.2076, rnciia Habitat
Centre iit Delhi.
45. Krishna' G' 2077' A verdict That Could
stall River Linking prol'ect,. http:,2/r,r,rvu..recl iff.com/
news/colurnn/a-verdict-that-could-sta1r-riverJinkin
g-prr\ecttznioszo.t-rt-. Ma1, 26, 2017.
(.rccessed I I june 20lB;.
46. (iopalan' R' 'why the Court Ruling ttt Humanise the Ganga and yamuna
()7t. L.it. llivers Rings Hr.rll..n,,,,
47. state of Llttarakland & others,High Court of Uttarakhand ar Nainiral
(PIL) !:,,,::?.
Yil:'J
No"126 of 20121
writ petition
http://hindi.indiawat'erportal.orglsites/hindi.indiawaterportal.orgl
fiICS/WPPI I- -126-11"/.,2OHC-UTTA RAKH AND'"2OORDER%2OON%,2OGANGA%2OAN
YAMUN A%,20RIVER%20RIGHTS{.pdf (accessed D%20
11 June 201 B).
48. The uttar Pradesh Reorganization- Act 2000. http://legislative.g.v.inlsites/de
42000-29.pdf (accessed 11 faurt/f,es/
June 2018).
49. rbid.
50. Mohd' salin as' stttte- of Llttsrilkhantl writPetition (PIL) No.126 of 2014, order
p.11 dated 20 March,2017,
51. state o;f uttsrakhand & others u. Mohd
salint E_others, petition for special Leave to Appeal
016879/2017 (Supreme Court of India) 7
2017.
52. 'sc stavs uttarakhand HC orderJuly"on Ganga, yamuna Living Entity status,.
Irrdian Etprcss Nez,s se-rrice, July g, 2077, http://indianexpress.com/artic
sc-stays-L1fta rakhand-hc-.,der-on-ganga-yamuna-[iving-entity_sta Ie/india/
53. La Follette, C' arnd Maser, C. sustninibiliiv
tirr_iz+oasq/
ind the Rights oiNatuie: an Introdrtction. op. Cit., p.100.