DR. B. R.

AMBEDKAR NATIONAL LAW UNIVERSITY

RAI, SONEPAT
________________________________________________________
2022-23

Legal Personality

SUBMITTED TO: SUBMITTED BY:

Reena Azad Ankit Kumar (2101113)
Assistant Professor (Law) B.A. LLB (Hons) (Sem III)
DBRANLU, Sonepat DBRANLU, Sonepat
ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Mrs Reena Azad Assistant

Professor for providing me with an opportunity to work on this project and
allowing me to research on the topic. This project has allowed me to understand
the topic in a much better way and also added to my knowledge many important
topics that would be helpful to me in the future.

I would also like to thank my fellow students who have helped me in the
preparation of this project by providing valuable inputs from time to time.
Introduction

The main object of the law is to regulate the relationship between the individuals in the society.
The individuals concerned must be not only human beings but persons in the eyes of law. The
law being concerned with regulating the human conduct, the concept of legal personality is an
important subject matter of the law because rights and duties cannot be there without a person.
A person can be defined as an entity recognized bythe law as separate and independent, with
legal rights and existence including the abilityto sue and be sued, to sign contracts, to receive
gifts, to appear in court either by themselves or by lawyer and generally, other powers incidental
to the full expression of the entity in law. In common parlance we use person as only human
beings, either male or female. The prime case of a person is a human being, and personality would
seem to entail the possession of those characteristics belonging particularly to mankind, i.e., the
power of thought, speech and choice.

In the advanced context of natural person means male, female or transgender. However,all human
beings do not possess legal personality. The exceptions are, under Roman lawslaves are not
considered as persons. They were treated as chattels destitute of any personality. Infants and
lunatics enjoy a restricted personality. Another example for restricted personality is under the
traditional Hindu Mitaksara joint family women are notentitled to any right except right to
maintenance and residence. Conversely entitiesother than human beings enjoyed full legal
personality, e.g.; corporations, joint stock companies, partnership firms etc. A fictitious legal
personality is assigned to these institutions that are why we call it as a juristic person.

Origin of the concept of Legal personality

The word person is derived from “persona” which is a Latin word meaning of which is a mask.
Until the sixth century, this particular word denoted the part played by man in his life. Later it
started to be used in the sense of a living being which could be conferred with rights and duties.

Definition of legal personality

According to Salmond “A person is any being whom the law regards as capable of rights and
duties. Any being that is so capable is a person, whether a human being or not, and no being that
is not so capable is a person even though he be a man.”
Types of persons
There are two kinds of legal persons recognized by law-

Natural Person - Natural person means a living human being, but all humanbeings are
not recognized as natural persons in the eye of law. For example- a lunatic, an idiot, a minor is
not a natural person because they cannot possess rights and duties.

Legal Person - it may be anything which is considered by law as a legal person. Legal
personality is the creation of law by conferring rights and duties. It is imaginary or artificial in
nature.

Legal personality of Unborn Person

Law attributes legal personality to unborn persons as well. It means a child who is not even born
and is only conceived in the mother’s womb. It means Law confers legal personality on an unborn
too provided that such child shall been born subsequently.

Under different laws, there are following policies-

Hindu Law- it provides the provision for the transfer of property in favor of the unborn. A gift
can be made in favor of a child who exists in the womb of her mother.

In a partition, a share of the property will be allotted to the unborn child as

well. If it is not done the child after his birth can challenge the partition and can claim hisshare.

Section 20 of the Hindu Succession Act provides that an unborn child will have the same right to
inherit the property as if he had been born at the time of the death of the intestate.

Indian Penal Code- Explanation III of section 299 provides that causing death of a child in its
mother’s womb is culpable homicide though it is not born completely but ifany part of the
child has come forth, it is punishable according to the law.

CRIMINAL PROCEDURE CODE- Section 416 of this law provides that if any pregnant woman
is punished with death sentence, such order cannot be executed till her delivery.

Medical Termination of Pregnancy Act- This act provides that abortion should not be done
after 18-20 weeks of pregnancy because till this period the fetus is fully developed hence it turns
into a crime. There is a provision made that if the doctor feels that the termination of pregnancy
is necessary for the sake of the life of the mother, it can be done.

Indian Succession and Transfer of Property Act- section 113 of former and 13 of later provides
that there can be a valid transfer in favor of a person unborn. These sections provide some
requirements to be fulfilled. Such as, if such transfer is of limited interest in favor of a living
person and at the time of his death, the unborn person must be alive thereafter once he’s born,
absolute right must be given to him after attaining majority.

Law of Tort- law of torts does not have the clear recognition of an unborn person.

Cases
Pinchin N.O vs. Santam Insurance Co. 1963 it was held that an action may be taken by achild
who was born with deformity caused to him due to the pre-natal injury to her mother.

Walker vs. Great Northern Railway, 1890 in this case it was held that a child who got deformity
because her mother met with an accident while traveling in train in her pregnancy cannot claim
damages.
Montreal Tramways vs. Levill, Co. 1933 Supreme Court of Canada held that if mothermet
an accident at the time of her pregnancy and due to it some injury was caused tothe infant,
that child can file a case to claim damages.

Legal personality of a Dead Person

As Salmond says that personality is created with the birth and ends with the death because in the
eyes of law dead men are no more a legal personality. Reason behind thisconcept is that a person
is no more able to hold the rights and duties.

However, the law protects the following rights of a dead person-

Body- Right of the deceased body is protected under the law. Although the body is nobody’s
property still it is the duty of the government to ensure a decent cremation. There are rules
regarding the burial of unclaimed dead bodies. Grave violation is an offence.

Reputation- To some extent law protects the reputation of a dead person. If thedefamation of a
dead person affects the rights of his family members, it is punishable under the law. There is a
maxim “De mortius nil nisi bonum” which means neither dead have rights nor can suffer wrong.

As per the explanation of section 499 of Indian Penal Code if there is any accusation against a
deceased person it may amount to defamation and it will be presumed that by doing so the living
people of the family of the deceased are defamed.

Property- A person’s desire about the devolution of property will be given respect. Any movable
or immovable property of such dead person will be transferred according to the testament made
by him.

Cases
Williams vs. William, it was held that earlier a person could not make a will regarding thedisposal
of his body but now it is completely legal for living person to donates his eyes tosomebody after
his death by way of will.

Ashray Adhikar Abhiyan vs. Union of India, Supreme Court held that even a homeless person
who was found dead on road has the right of decent burial as per his religious faith.

Legal personality of a Lower Animal

Law never recognized the animals as legal personality, they are things, therefore, animals are not
the subjects of legal rights and duties. An Animal
cannot possess rights and duties. The modern law personifies the interest of an animal.

A wrong caused to an animal or pet may be a wrong caused to his master. In the same way if a
wrong is caused by a pet, his master shall always be liable for the same. An animal cannot own
any property in his name but law still recognizes rights of animals in following ways-

If a trust is created for a group of animals and not any particular animal, such trust will be treated
as a public trust and is protected as a right of those animals under the provisions of law.
Also, an animal cannot be treated with cruelty under the provisions of certain laws, even though
it may be considered a wrong against public at large and not against it individually.Provision
has been given under Art 48 of the Indian Constitution for protection of environment, forests,
and animals and further, it is said that laws shall be made by states to protect the same.

One of the examples in this context is – Police use dogs for investigation of any crime. Dogs help
in the detection of crime and criminals but still, conviction is only possible of those criminals
when there is some corroborative evidence. The reason behind this position is that a dog cannot
be cross-examined at the time of trial.
Case
Jamnabai Vs.Khimji and Lalla Prasad vs. Brahmanand, 1953 in these cases Supreme Court held
that it is legal if a trust is created for the benefit of animals. There are many Non-government
organizations working for the protection of animal life. The central as well as State governments
make the laws for the protection and preservation of wildlife.

Legal personality of Idol and Mosque

The idol is recognized by the judiciary as a juristic person as it can hold the property in its name.
Position is same as the position of a minor. A guardian is required to be there for the management
of such property.

Cases
Pramathanath Mullick vs.Pradumna Kumar Mullick Privy Council held that idol is a juristic
person and can put its point of view in the court through the uninterested next friend.

Devkinandan vs. Murlidhar in this case Supreme Court held that property of idol or a temple
vests in idol only but its management remains with the Shebait.

Krishna Singh vs. Mathura in this case Supreme Court differentiated between the legal position
of a math and a temple. Math is a religious institution presiding element of which is Mahant the
property belongs to Math is attached to Mahant which passes on through in inheritance but in
case of temple presiding element is the deity.

Maula Bux vs. Hafizuddin it was held by the Lahore High Court that a mosque being juristic
person can be sued.

Sriomani Gurudwara Prabandhak Committee vs. Somnath Das it was held by the Supreme Court
that Guru Granth Sahib which is a holy Granth of Sikhs, is juristic person. It cannot be compared
with Hindu idols because it is contrary to Sikh religious belief to worship idols. They respect
Guru Granth Sahib same as Hindus respect their idols.

Legal Personality of Corporations

Under English law, corporations are of two types, corporate aggregate and corporate sole. Indian
law follows the English law. A corporation aggregate is an incorporatedgroup of co-existing
persons, and a corporation sole is an incorporated series of successive persons. The former
consisted of group of members at a time, e.g. Registeredcompany and municipal corporation etc.,
and the latter consisted of single member, e.g. President of India, Post master general etc.
Corporation sole are found only when the successive holders of some public office are
incorporated so as to constitute a single, permanent and legal person.
A corporation sole does not require a seal, but a corporate aggregate can only act or express its
will by deed under its common seal. The power to possess and use a seal is incidental to a
corporation. The existence of common seal is evidence of incorporation and nonexistence of
evidence is against incorporation. A property owned by a person asa corporate sole is distinct
from individual property which he acquired from his individualcapacity and after his demise the
property owned by him under his former capacity will devolve upon his successors in the office.

The acts and liabilities of a corporation

In ordinary cases principal can appoint an agent through will or with the consent of the principal.
However, a legal person like a corporation is unable to act in propria persona and can only confer,
limit and determine its authority upon agents and representatives either by wills of some human
beings who are for this purpose identified in law with the corporation, or by the law itself.

Generally, the rights of the individuals are not limited and the only exception is if the source of
such right is from a contract his rights will be limited to the terms of the contract. But in the case
of companies theirs powers are restricted by law. Any act which lies beyond these legally
appointed limits is said to be ultra vires of the corporation and such corporate act will be null and
void. Ultra vires rule is a necessary consequence of the fact that the corporation itself has no will.
However, although there is no will, the lawcan and does regard certain human beings as the
equivalent of the corporations for certain purposes.

Under the common law system, a corporation may be held liable for wrongful acts, and that this
liability extends even those cases in which malice, fraud or other wrongful motive or intent is
necessary element.

A corporation may have both civil as well as criminal liability. Corporations, no less than man,
are within the reach of the arms of the criminal law. If its human representativesdo an act on
behalf of and in the name of the corporation with a guilty mind, such mental condition would be
imputable to the corporation and, therefore, even in a case inwhich mens-rea is the essence of an
offence i.e. Fraud, malice, or other wrongful acts, the corporation would be liable for the offence
so committed. The corporation is responsible not only for what its agents do, but also for the
manner in which they do it.If its agents do an act negligently or fraudulently that which they
might have done it lawfully and with authority, the law will hold the corporate liable.

The second objection is that a corporation which from its very nature is incapable of acting or
authorizing should not be made liable for wrongful acts of its agents outside thelimits of its
authority. Salmond offers two different solutions for this objection. He says inthe first place,
although a fictious person cannot do acts which go beyond the scope of his authority, he certainly
can fail to do what he has been authorized to do and can be punished for such omission. In the
second place, the liability of a corporation for the actsof its agents is a perfectly logical application
of the laws as to an employer’s liability for the acts of its servants. The corporation is liable not
because it authorized its agents to commit the wrongful act, but because it was wrongful for it to
select careless and dishonest agents.
Two objections are raised with regard to the fixing of criminal responsibility on a corporation.
The first objection is whether it is natural justice to punish corporate body for the acts of its
agents, when the ultimate result of such punishment is bound to fall on the shoulders of
beneficiaries. But this objection doesn’t seem sound, according to Salmond, the representatives
of a corporation, though in legal theory its agents, are in fact the agents of beneficiaries. Just as
the principle is held liable for the acts of the agents, so also in the case of a corporation it is held
liable for the acts of the directors.

Objects and use of incorporation

The object of incorporation is twofold, general and special. The general purpose of incorporation
of a group of persons is to reduce the complex form of collective ownershipin several men into
the simple form of individual ownership. Collective ownership is cumbersome to law as well as
the owners will have to act and will result in various difficulties in their management and
protection. These difficulties can overcome by incorporation. Incorporation, therefore, secures
permanency, uniformity and unity in the personality of the group of owners.

The special purpose is that it helps commerce. It enables the members to trade with limited
liability, without risking their whole fortunes. In a corporation the liability of the members being
limited the shareholders are immune from any further liability beyondthe unpaid amount of
the shares.

Theories of incorporation
There are four theories of incorporation of corporate personality. They are hereunder:

The Fiction Theory :-

The exponents of this theory are Salmond and Holland, which says that a personality is attached
to groups and institutions by a pure legal fiction, and this personality is distinct from personality
of the individual beings. An idol is a legal person because the law describes it as such. Salmond
said that group has reality or existence, but that is has no real personality in the philosophical
sense. Not being a real person, the corporation cannot have any “personality” of its own; it has
no will, no mind, no ability to act. It can have only so much as the law imputes to it by a fiction
as though it were a real person.
The Realistic Theory :-
This theory expounded by Gierke holds that the group or institutions has an existence beyond the
aggregate of the individualities of person forming the group. A corporation has a real existence
and not a fictions construction of the law. Its personality exists not by a figment of imagination
but is independent of recognition by the state, for law has taken notice of it to keep pace with
the realities. This theory says a corporation is nothing more than the aggregate of its members
conceived as unity, and this unity – theorganisation of human beings-is a real person and a living
organism, capable of actions.

The Concession Theory:- This theory expounded by savigny holds the sovereign holds and the
individual are the only realities. All intermediate groups and institutions cannot claim recognition
as persons. They derive their existence from the sovereign and as such as corporate personality
arises only as a result of state acts and exists merely by concessions of sovereign.

Bracket Theory
It rest on the proposition that only human beings can have interest and right, and that acorporation
is only a legal device or formula which will enable very complex jural relations to be
comprehended more simply or otherwise the members of the corporation as the bearers of the
rights, and as being bound by the duties, which are for convenience referred to the corporation
itself. A, B, and C form a company, as it is incontinent to refer always to all of them, a bracket is
placed around them to which a name is given- but, in order to understand the real position, we
must remove the bracket. One of the advantage of this theory is that it emphasis that it may be
necessaryfor the law to look beyond the entity to discover the real state of affairs. But
while

Extent of Liabilities Ultra Virus doctrine

In the case of companies, individual’s powers are restricted by law. Any act which lies beyond
these legally appointed limits is said to be ultra vires of the corporation and suchcorporate act
will be null and void. Ultra vires rule is a necessary consequence of the factthat the corporation
itself has no will.

Civil and criminal liability.

If its human representatives do an act on behalf of and in the name of the corporation with a guilty
mind, such mental condition would be imputable to the corporation and, therefore, even in a case
in which mensrea is the essence of an offence i.e. Fraud, malice, or other wrongful acts, the
corporation would be liable for the offence socommitted.

Vicarious liability
If company’s agents do an act negligently or fraudulently and they might have done it lawfully
and with authority, the law will hold the corporate liable.

Legal status of lunatic and drunken person

Status of lunatic and drunken person have some special position. They are natural persons and
have legal identity but are not capable o enter into contract. If at the timeof entering into a
contract lunatic or drunken person is incapable of understanding the nature of contract, then they
are considered to be incapable of entering into a contract

Law of contract provisions for Lunatics

By virtue of S. 12 of Indian Contract Act 1872, a sane person can be said as person who while
entering into a contract, understands the nature of contract and hence can form rational judgment
regarding the same. Therefore, we can say that a person is said to be of unsound mind if he is not
capable to understand the nature of contract and is unable to form a reasonable judgment. As per
S. 11 of this Act, if a person of unsound mind enters into a contract, it will be declared as void.

Now, a person of unsound mind can be a lunatic or an idiot.

IDIOT- A person who is of unsound mind by birth or permanently of unsoundmind is
said to be an idiot. Therefore, the contracts entered upon by him are void-ab intio

LUNATIC- A person who is not permanently of unsound mind but during specific periods he is
of sound mind is regarded as a lunatic. They are allowed to enter into a contract only during a
period of their sanity

Insanity/lunatic – Mc’naghten rule

In 1843, the law of insanity was formulated in the case of R v. Mc’Naghten. Principles in
Mc’naghten case:-

1.Every person is presumed to have sanity unless the opposite is established.

2.In order to take the plea of insanity, it has to be proved that at the time of committing the
crime the person was so insane that he didn’t understand the nature of the act or had no idea that
the act he was doing was of criminal nature.

3.The test of wrongfulness of the act is in the ability to distinguish between right and wrong not
in general but related to that particular act committed.

Law of Contract provisions for drunken person

A person having a majority age is considered to be capable of entering into a contract usually.
But to a contrary there are certain exceptions as to this that under certain circumstances a drunk
person is incapable of entering into a valid contract. Generally, the Contractual capacity of a
drunken person is regarded same as that of one who is a lunatic. Therefore, the burden of proving
drunkenness rests on the person asserting it.

Contracts entered into by the drunken person are not binding on him in the following cases: -

1. When he was too drunk to understand the nature of contract;

2. The opposite party took advantage of it knowing of his condition.

By this it can be assumed that a drunk may ratify the contract entered into by him at thetime of
his incapability to understand the nature of contract. Also in certain circumstances, an infant, a
lunatic and a drunk is bound to pay a price as compensation for goods sold and delivered to him
according to Sale of Goods Act (1893). Thus, a drunken and lunatic person has to pay not only
when goods are sold to them but even when delivered and also for necessary goods. According
to Sale of Goods Act, goods delivered to drunken must be suitable to the condition of his life.

Indian penal code provisions as regards Intoxication

The provisions for intoxication is provided under Sections 85 and 86 of IPC. The major difference
between these is that S.85 deals with a person who is involuntarily intoxicatedwhereas S.86 is a
person who is voluntarily intoxicated. Thus according to S. 85 a person is not liable criminally
but in case of S. 86 a person cannot take a defense of intoxication.

Essential elements under S. 85 for a person to be safeguarded from action against him:

1. The person was incapable of knowing the nature of act committed.

2. He was not in a sense to know the acts were wrong or against law.
3. The act committed by him was as a result of such intoxication.

Where the accused was persuaded by his father to drink alcohol, the plea of defense cannot be
taken here since he had the knowledge of drink offered to him.
Position and Legal Status of Minor in India

According to Indian Contract Act

According to section 3 of the Indian Contract Act, the person who is a citizen of India and whose
age is under the age of 18 years then that person is considered as the minor.According to this
section, the minor agreement is void. A minor is not a competent person to enter into a contract.
Section 2 of the Indian Contract Act says that the partiesmust be competent to come in the contract
or to make an agreement; they must not be unsound mind, not disqualified by law and minor.
Section 3 of the Indian Majority Act 1875, explained the term “minor “. The minor is a person
who is not completed his 18 years of age.

In the case of Mohri bibi v. Damodardas Ghosh, held that any agreement made by a minor is
completely void. That agreement is void ab initio and the court cannot allow a specific
performance of a contract with the minors because it is completely void.

According to Transfer of Property Act

A minor is a person who is not competent to contract in Transfer of Property Act but the Transfer
of Property Act; a minor can accept the gift of an Immovable property and also without the
intervention of his guardians. According to the Transfer of Property Act, the property can be
transferable to the unborn child as per Section 13; the Transfer of Property Act 1882 defines the
unborn child or a child who is in mother womb. The property can be transferred to the unborn
child, for this transfer a life interest or a life holder is created. A person who is a life interest he
can enjoy the property behalf the unborn child but he cannot transfer the property. A minor can
acquire the immovable property out of his funds.

According to Indian Succession Act

Section 144 of the Indian succession act, 1925 provides for the creation of prior interest before
the unborn person may be made the owner of the property. The person cancreate an interest
in the name of the unborn child in a property. But that created interestof the property can only be
vested after the unborn child is born alive.

According to Indian Penal Code

According to section 82 of the Indian Penal Code, a child below the age of 7 years oldget a
complete defense from any kind of criminal liability. A child below the age of 7 years old the
child cannot be guilty of any offence. Because this age of a child cannot distinction between what
is good or wrong. It works under the assumption that a child below the age of 7 years lacks the
ability of understanding and unable to understand thenature and consequences of the act that he
or she has done and the mens rea is not present in this case.

According to section 83 of the Indian Penal Code, there is a partial defense from the criminal
liability conferred on child above the age of 7 years and below the age of 12 years. Age between
the 7 years and 12 years is capable to understand the nature and consequences of the offence that
he or she is done.

Maturity of Understanding
The child is whose age is between the 7 years and below the 12 years; the liability depends upon
the maturity level of the child.
persons- it may be anything which is considered by law as a legal person. Legal personality is
the creation of law by conferring rights and duties. It is imaginary or artificial in nature.

For example :- A is a child whose age is 10 years and he is unable to understand the nature and
consequences of the things or his act. His act can be absolved from the liability. But B is another
child whose age is 9 years and he has enough maturity and he can understand the nature
and consequences of the act he does, can be held liable. The maturity and understanding of the
child can be inferred from the circumstances that involve in the crime. And it is different in
different cases.

In The Indian penal code, the child is 7 years and below the age of 12 years, it has to prove that
the child has not attained enough maturity or understanding of the nature and consequences of
the offence he does.
In the case of Krishna Bhagwan v. State of Bihar held that if the accused of the offence or act
during the trial, he has attained the age of 7 years or at the time of decision that child attained the
age of 7 years can be convicted if he can understand the nature and consequences of the offence.

In the case of Marsh v. Loader held the A child was caught stealing a piece of wood from the
premises of the defendant. But the child was not liable, he was discharged on the ground that he
was under the below age of 7 years.

International Legal Personality

International law is based on rules made by states for states. States are sovereign and equal in
their relations and can thus voluntarily create or accept to abide by legally binding rules, usually
in the form of a treaty or convention. By signing and ratifying treaties, states willingly enter into
legal, contractual relationships with other state partiesto a particular treaty, which observance is
normally controlled by the reciprocal effects ofnon-compliance. The capacity of states to enter
into such relationships with other states and to create legally binding rules for themselves, is a
result of states' international legalpersonality, a prerogative attributed to all sovereign states.

In the beginning of the 18th century sovereign states alone were considered to have international
legal personality and therefore the only entities with capacity to have rightsand obligations under
international law. As such, states were (and still are to a large extent) the omnipotent creators of
international law which in turn primarily concerned states and their conduct internationally.
Individuals, International Organizations (IOs) and other non-state actors (NSAs) were of no
concern to international law as they were devoid of international legal personality, which is a
prerequisite for the capacity to have international rights and/or obligations.

With globalization however, international law and international relations expanded rapidly with
increasing complexities: new technology made the world smaller and more interconnected, new
global threats emerged that could not be fought unless with state cooperation, new players
emerged at the international forum such as various IOs and NSAs. International law was greatly
influenced by this development and shifts in international relations whereby states were no longer
the only players on the international arena and thus not the only subjects of international law any
longer.

In a landmark case of 1949 the International Court of Justice (ICJ) found that IOs, inthat
case the United Nations (UN), could indeed have international legal personality and thus have
rights and obligations under international law. The ICJ claimed that international legal personality
of the UN was derived from the UN Charter and the organization's given mandate and functions,
for without it the UN could not performthose tasks it was required to by the UN Charter.

After World War II the Security Council established two international ad hoc tribunals in an
attempt to prosecute for war crimes that were committed during the war. The Nurnberg and Tokyo
tribunals confirmed that under certain circumstances, individuals can have legal personality
under international law and have capacity to have rights and obligations directly under
international law, in particular Humanitarian Law (HL) and Human Rights Law (HRL). For the
first time in the history of international law, individualswere held accountable for international
crimes such as war crimes and crimes against humanity prohibited under customary international
law as well as several international conventions.

International liability of individuals has subsequently been confirmed on numerousaccounts by

various courts such as the United Nations International Criminal Tribunal for the former
Yugoslavia and Rwanda, especially established by the UN Security Council to prosecute persons
responsible for war crimes, crimes against humanity and genocide under international law.
The procedure for holding individuals internationally responsible for international crimes was
finally made permanent with the establishment of the International Criminal Court (ICC),
governed by the Rome Statute which entered into force in 2002. The Courts mandate is to
prosecute individuals under international law for crimes such as genocide, war crimes and crimes
against humanity. Currently there are total of 121 state parties tothe Rome Statute.

How about individuals' rights under international law? Can individuals, John and Jane, have
rights under international law and moreover seek justice in case their rights are violated?

The treatment of individuals on foreign territory has been regulated by international customary
law as well as conventions for decades. Such rules protect states' own citizens when they're on
foreign territory, against illegal actions of the foreign state. Thus for example if a citizen from
country A would live and do business in the territory ofstate B and state B would illegally
confiscate the assets and business of country Acitizen, state A can hold state B responsible
under international law before the ICJ (see Diallo case). Whether or not state A drags state B
before the ICJ (or other regional or international court) is entirely up to state A without any regard
to the wishes of the citizen.

This stems from state sovereignty and the gradually diminishing principle of non-interference in
a state's internal affairs. Few decades ago, how a government would treatits own citizens, was
an entirely “domestic affair” or an “internal matter” which was byno means of any concern to
other sovereign states, left alone the rest of the international community. For decades’ states'
sovereignty veil seemed to beimpenetrable until international and regional human rights law
acquired global acceptance with unprecedented speed.

The emergence of international human rights law however altered the sanctity of state sovereignty
and imposed certain international obligations upon states to respect, protectand fulfil the human
rights of all individuals within their territory. International human rights law moreover
established “soft” (complaint procedure under the International Covenant on Civil and Political
Rights) enforcement mechanisms and regional human rights law went a step further, establishing
a hard enforcement mechanism of a human rights court with the capacity to give legally binding
judgements on whether or not a state has violated the European Human Rights Convention.

Legal Personality of Rivers

To conserve the holy rivers Ganga and Yamuna, massively polluted due to wastedumping and
pilgrims’ ritual bathing, an Uttarakhand high court in March 2017 deemed the water bodies
“living entities.” Since the rivers can’t fight for their own rights, they have been assigned three
legal guardians to ensure their protection.

Before India, New Zealand’s indigenous Māori people rallied to recognise the Whanganui river
as an “ancestor” with the same rights as a human being in their country, too.

Now, when one argues that rivers should have legal rights, questions arise as to whatare the
characteristics of those legal rights. The first characteristic is, who is the ownerof the right or
subject of the right or the person entitled to the right. Here, the river is the subject of the right. In
furtherance, there should be a subject of the duty. Here, the right to be protected can be availed
against the society at large. Thus, persons in general can be termed as bound by the correlative
duty.
Thirdly, there should be a content of the right and this in the case of rivers would mean abstention
from polluting the river or encroaching on the river etc. Fourthly, there shouldbe object of the
right. In this case, the object of the right is the river as well. This meansthat the river has a right
on the water contained in it, the soil underneath its bed etc., and no one shall deprive the river of
those things without its consent.

Fifthly, the legal right should have a title. With respect to rivers, it can be construed as the statute,
judicial pronouncements or the Constitution itself which confers legal right tothe rivers.

In the Indian scenario, a judicial decision rendered by the High Court of Uttarakhand conferred
title to the rivers Ganga and Yamuna, including all their tributaries and streams in 2 decisions,
namely Mohd. Salim v State of Uttarakhand 9 and Lalit Miglani v State of Uttarakhand. 10
However, in the New Zealand context, the same is conferred through a thoroughly drafted and
well thought out legislation called as Te Awa Tupua (Whanganui River Claims Settlement) Act,
2017. Chapter 7 of the Constitution ofEcuador expressly confers rights to nature, which includes
rivers by virtue of Articles 71 to 74.

Before delving into the intricacies of legal rights which are ascribed to rivers, it is of paramount
importance for one to understand the classification of rights, duties and liberties and no-right and
the correlation between them under the Hohfeldian scheme.

The concept of positive and negative rights can be ascribed to rivers. The river shall have a right
against the society at large not to be polluted, encroached upon etc., whereas it shall have a
right against the body representing it to protect it from thesame. Such a right, in this case,
for example applies to a guardian appointed to act in the best interests of the river and a failure
with respect to the same, shall warrant legal action against the guardian so appointed. Such a
warrant ensures that the right possessed by the river is not an imperfect one, but a perfect one and
can be enforced unequivocally, without any doubt or impediment.

A river shall have a right in rem and this right shall be the right not to be polluted and not to be
encroached upon and defaced. It shall have a right in personam against the guardian or body
appointed for the protection of the river from all sorts of pollution, encroachment and harm etc.

However, this does not warrant a blanket ban on certain people who want to protect the river and
act in its best interest. In the present context, liberty should be viewed through the Hohfeldian
lens. This is their liberty and there shall be no impediment or interferencein this regard from the
law. There is no duty either on the citizens to do so. This shall ensure that various NGOs,
nonprofit organisations and environmental organisations shall file a case on the same.
Parallels can be drawn in this regard to derivative suits by shareholders on behalf of the company
when the directors of a company or whoever is in charge of the company is silent when there is
a fraud or has himself committed a fraud.

As right to clean and healthy environment and right to clean and safe drinking water is read into
Article 21 and thus a fundamental right, polluted river and usage of its water warrants the
violation of the same and therefore the body appointed on behalf the river when it is conferred
with legal personality can be sued as it is failing in its duty of protecting, preserving, conserving
and acting in the best interests of the river. In such a situation when the body so appointed is
failing in its duty, then the members may be personally liable for their actions.

A duty can be both moral and legal. The duty to protect, preserve and conserve rivers is a moral
duty on the society at large. This is because rivers have been the cradles of civilization across the
world and tend to our necessities. We are dependent on rivers for various instances, besides
drinking and irrigation. In our nation, rivers are of immense importance as they are the major
source of fresh water. Thus, it is imperative to protect,preserve and conserve rivers for the same
reasons in the moral sense.
However, for not performing moral duties does not warrant a legal sanction. Thus, in thisregard
it is of immense importance to give this moral duty of protecting, conserving andpreserving
rivers a binding effect. This is done under the Indian constitution throughArticle 51A(g)
which reads as follows: “to protect and improve the natural environmentincluding forests,
lakes, river and wildlife, and to have compassion for living creatures;” However, the outcome
is not significant in this regard. According to Hohfeld11, thereshould be a right with
someone in order to vest in someone else a corresponding dutyand rivers do not expressly
have a right to be protected, preserved and conserved fromany sort of exploitation.

In furtherance, a duty is of two types—positive and negative. Positive duty implies that an act
needs to be performed and a negative duty implies that the person who is bound by the duty
should abstain from doing an act. When the person bound by the duty actsin contravention to
the duty, then that shall be construed as a breach of duty and shall be punished for the same.
However, this legal recognition of the duty does not necessarily mean that the right shall legally
enforce the performance of it or punishesthe disregard of it by the persons bound by the duty.12

For an interest to become subject of a legal right, it must not merely obtain a legal protection, but
also a legal recognition. At present, the interests of rivers are to some extent protected by the law,
inasmuch as polluting them or encroaching them or defacing them attracts fines and penal
sanction. However, this does not mean the rivers possess rights. The duty of humanity so enforced
is not to be understood by the law as aduty towards rivers, but merely as a duty in respect of them.
There is no vinculum juris between humans and rivers, for there is no bond of obligation between
humans and rivers.

what are the kind of duties that river might be bound with.

One can say that the river shall have the duty of providing water to human beings for various
purposes such as drinking, domestic purposes etc. The river can fulfil this dutyas long as there
is sufficient water in it, which depends on sufficient rainfall as in thecase of peninsular rivers.
In reality, rivers cannot determine the amount of rain it shall receive. It is dependent on various
factors. In the recent years, there is a decrease in rainfall and the major cause for this is due to the
pollution caused by human beings, reduction in the number of trees etc., largely due to human
conduct and developmental activities. Thus, human beings should stop this widespread act of
felling trees in order tomeet their developmental needs so that the river gets it share of rainfall
and provides water for human beings, thereby fulfilling its duty, the feasibility of which is
questionable.

The river may be bound with another duty of providing enough fish for the people havingriparian
rights. This can be possible too. However, this issue suffers from the same infirmities akin to
the issue dealt with in the preceding paragraph. For the river to provide enough fish to the
fishermen situated, there should be no deterioration of the quality of the water contained in the
river which might kill the aquatic and other life forms in it. This can be ensured when there shall
be no pollution of the river, which is mainly due to human conduct and development whereby
industrial waste, untreated/partially treated sewage etc., are let into the river. However, it is too
far- fetched.
The river can be said to be bound with the duty not to flood and cause harm to life and limb of a
person. However, when the river breaches the same, then it shall be liable for the harm caused.
Compensation to the victims can be borne out of the fund of the river in such a case.

As observed, rivers can hold duties, the performance or nonperformance of which are subject to
external factors.
However, as inferred from above, even though a river cannot hold a duty conclusively, the same
cannot stand in the way for granting legal personhood to rivers. Parallels to this can be drawn
from granting legal personhood to unborn children. They do not have any sort of duty, but they
are granted legal personhood, thereby legal personality.

When a river is being conferred legal personality, it shall include its bed as well. Thus, asthe
plants and other types of flora are situated on the bed, there is a conflict here and it needs to be
addressed. One may look into the definition of “bed” provided under Te Awa Tupua (Whanganui
River Claims Settlement) Act, 201713. The definition of bed herein includes the plants attached
to the soil as well. If such a definition is followed, it would mean that the plants on the bed shall
be legal persons too.

Before delving into the crux whether fauna in the river bed shall have legal rights too, it is
necessary to define what comes under the ambit of fauna. Here, fauna refers to as theaquatic life
such as fish, crocodiles, snakes, frogs etc. These come under animals in general and thus it is
imperative to know about the current position of animals.

Under the current legal system in India, animals are not conferred with any legal personality.
They are only considered as objects of rights rather than subjects of rights. Cruelty to animals is
considered a criminal offence. The Prevention of Cruelty to Animals Act, 1960 and rules made
thereunder are an extension of the same principle. However, this must not be wrongly construed
that the animals have rights and this duty of humanity so enforced should not be construed as
a duty as a duty towards the beast,but merely as a duty in respect of them.14 However, there
are certain judicial pronouncements which deviate from the same and have recognized the rights
to animals. The most notable in this regard is the Uttarakhand High Court Judgment in Narayan
Dutt Bhatt v Union of India and Ors.15 where the division bench comprising of Justices Rajiv
Sharma and Lokpal Singh, declares as follows: “The entire animal kingdomincluding avian and
aquatic are declared as legal entities having a distinct persona with corresponding rights, duties
and liabilities of a living person. All the citizens throughout the State of Uttarakhand are hereby
declared persons in loco parentis as the human face for the welfare/protection of animals.”
However, this judgment is of little significance as this is a High Court judgment and thus only
has a persuasive value outside the State of Uttarakhand. In furtherance, the wisdom of the High
Court in propounding such a drasticstep can be questioned in light of judicial overreach, but need
not be delved into right now. Nonetheless, this is a landmark judgment in this regard.

Another notable judgment in this regard is Animal Welfare Board of India vs.
A. Nagaraja& others16 where it is held that every species has a right to life and security, subject
to the law of the land, which includes depriving its life, out of human necessity and that Article
21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life”
has been given an expanded definition and any disturbance from the basic environment
which includes all forms of life, including animal life, which are necessary for human life, within
the meaning of Article 21 of the Constitution.

Thus, as can be inferred from above, animals do not have a legal personality and thereby no
rights in the absolute sense which means that their rights are subject to human beings’ necessity
and rights. However, when the definition of the river is being defined, it must be specified by the
legislature whether aquatic life and other life forms are included or not.
However, Whanganui Act, under Section 16 17 says that it shall not create, limit, transfer,
extinguish or otherwise affects any rights to, or interests in, wildlife, fish, aquatic life, seaweeds,
or plants unless expressly provided for in the Act. If such a method is followed, then it shall
preserve status quo and thus not lead to chaos and confusion overnight as there are lot of
fishermen and other stakeholders in this regard who are dependent on rivers for multifarious
purposes such as water, fish etc.

Conclusion

Thus personality in law is a wider term. It is different than humanity. Humanity refers to being
born as a human being. On the other hand, personality is a concept where an entity enjoys rights
and duties with respect to the fact of its existence.

A non-human can be a legal person for the purpose of the law, for example an idolplaced
in a temple. On the other hand, a human being may not be considered a legal person sometimes,
for example slaves in ancient times that were treated as mere chattels of their owners and not a
person.

The concept of legal personality is basically related to the fact of rights and duties attached to
them and certain immunities and responsibilities attached to them.
Hence there is a vast difference between a human and a legal person as human is the existence
given by nature whereas legal person is a fiction created by act of law.
References
1. http://www.legalserviceindia.com/articles/jud.htm
2. http://www.legalserviceindia.com/legal/article-3203-
legal-status-of-unborn-dead- person-and-animal.html
3. https://lawtimesjournal.in/constitutional-provisions-relating-to-
environment-law/