Indian Court Recognizes Rivers as Legal Entities

—Vrinda Narain, Associate Professor and Associate Dean Academic, Faculty of Law, McGill University

On March 20, 2017, the Uttarakhand High Court in Nainital, India, ruled that the rivers Ganges and Yamuna are legal entities.[1] This remarkable decision came just five days after the New Zealand Parliament passed a Bill recognizing the Whanganui River as a legal entity.[2]

The story began with Mohd. Salim v. the State of Uttarakhand, decided on December 5, 2016, in the High Court of Uttarakhand at Nainital, which was a PIL concerning illegal constructions and encroachment on government land.[3] This decision followed years of wrangling over encroachment disputes as well as a dispute over the management of Water Resources Development and Management in relation to the rivers Ganges and Yamuna and their tributaries, between the newly created state of Uttarakhand and the state of Uttar Pradesh of which it was formerly a part.

As per Section 80 of the Uttar Pradesh Reorganization Act, 2000, the Central Government was to constitute the Ganga Management Board and to induct Uttarakhand as a member of the Upper Yamuna Board, but the High Court of Uttarakhand found that neither step had been taken.[4]

The primary focus of this decision was on the nature of Indian federalism and the respective rights of the federal and state governments, particularly in relation to water rights.[5] The Court directed that the illegal encroachments and construction on government land be removed. More important, the High Court directed the Central Government to constitute a Ganga Management Board and induct the State of Uttarakhand as a member of the Upper Yamuna Board within three months. Finally, the Court banned mining in the riverbed of the Ganga and its highest flood plain area with immediate effect.

Subsequently, on March 20, 2017, the Uttarakhand High Court issued a set of mandatory, follow-on directions noting its displeasure with the lack of cooperation of both the governments of Uttar Pradesh and Uttarakhand with the Central Government in setting up the Ganga Management Board. The Court also noted that the encroachers on government land had not been evicted and issued directions for eviction within seven days from the order. The Court stressed the critical situation with regard to the very existence of the two rivers, Ganga and Yamuna, as requiring extraordinary measures for preservation and conservation. In this context, the Court declared the Ganges and the Yamuna as legal entities.

The Court underscored the spiritual significance of these two rivers, noting that Ganges and Yamuna are sacred to Hindus and worshiped by them.[6] Tracing the evolution of Supreme Court of India jurisprudence regarding personhood for Hindu deities, trusts and temple endowments, the High Court reaffirmed the recognition of a Hindu deity or idol as a juridical person entitled to hold property as well as to be subject to taxation, to be managed by those “who are entrusted with the possession and management of its property.”[7] The Court stated that “to protect the recognition and the faith of society, Rivers Ganges and Yamuna are required to be declared as the [sic] legal/living persons.”[8] Drawing on Hindu spirituality and religious faith, the Court noted that these rivers “support and assist both the life and natural resources and health and well-being of the entire community. Rivers Ganges and Yamuna are breathing, living and sustaining the communities from mountains to sea.”[9]

Further supporting its argument with constitutional provisions under Articles 48-A and 51A(g) the Court invoked the need for the constitution of the Ganga Water Management Board to focus on irrigation, rural and urban water supply, hydropower generation, navigation, industries as part of the imperative to confer legal personhood on these two rivers.[10] A. 48A is a directive principle of state policy and obliges the state to protect the environment. It provides: “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”[11] Relying on the fundamental duties set out in the Indian Constitution, the Court cited Article 51A(g) which provides that is the fundamental duty of every Indian citizen, “to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.”[12]

Finally, the Court declared, “Accordingly, while exercising the parens patrie jurisdiction, the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently these 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 preserve and conserve river Ganga and Yamuna. The Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand are hereby declared in loco parentis as the human face to protect, conserve and preserve the Rivers Ganga and Yamuna and their tributaries. These Officers are bound to uphold the status of the Rivers Ganges and Yamuna and also promote the health and well-being of these rivers.”[13]

The future implications of the decision are mixed. There are significant environmental implications, including the protection of the rivers, conservation of the waters, the prohibition against the dumping of waste in the rivers and the complete ban on mining in the riverbed and high plain area.  Indeed, according to estimates, more than 3,000 million liters of untreated sewage are pumped into the Ganga on a daily basis from towns along the river.[14] At the same time, this ruling raises questions about the repercussions for the controversial river linking scheme proposed by the Modi government involving the diversion of water through the construction of reservoirs, dams, and canals, from the Ganga to regions of water scarcity. It also has potential consequences for the cross-border use of water as these rivers cross India’s borders with Nepal and Bangladesh.[15] Notwithstanding the obvious environmental implications, the centrality of Hindu religious faith to the directions issued is worrying. In the context of rising Hindu right wing rhetoric, the Court’s linking of the Hindu faith with national identity and the corresponding casting out of religious minorities implied by this method of argumentation by the court is cause for concern. Indeed, while this decision and its mandatory directions bode well for environmental protection, the premise of such protection is troubling for the future of minority rights and India’s democratic secular consensus.

Suggested Citation: Vrinda Narain, Indian Court Recognizes Rivers as Legal Entities, Int’l J. Const. L. Blog, June 13, 2017, at: http://www.iconnectblog.com/2017/06/indian-court-recognizes-rivers-as-legal-entities

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[1] Mohd. Salim v. State of Uttarkhand and Others (Writ Petition (PIL) No. 126 of 2014, (March 20, 2017)

[2] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 Public Act 2017 No 7 Date of assent March 20, 2017.

[3]  Mohd. Salim v. State of Uttarkhand and Others (Writ Petition (PIL)No. 126 of 2014 (December 5, 2016)

[4] Paragraph 19 supra note 1.

[5] Paragraph 23 ibid.

[6] Paragraph 11, supra note 2.

[7] Paragraph 13, ibid.

[8] Paragraph 16, ibid.

[9] Paragraph 17, ibid.

[10] Paragraph 18, ibid.

[11] Article 48A, Constitution of India, 1950.

[12] Article 51A(g), Constitution of India, 1950.

[13] Paragraph 19, ibid.

[14] https://www.thequint.com/environment/2017/03/20/ganga-is-now-a-living-entity-what-does-it-mean-for-the-river-uttarakhand-high-court-order

[15] https://www.thethirdpole.net/2014/11/20/india-renews-disasterous-river-linking-project