Thursday, May 26, 2022

By Making Ganga, Yamuna Living Entities, Did High Court Unwittingly Open The Door For River Pollution Victims To Sue For Damages?

A juridical person can sue and be sued. It is for the Centre and the states and peoples to study the legal and political implications of the Uttarakhand court order and take remedial action if their interests are adversely affected.

By Making Ganga, Yamuna Living Entities, Did High Court Unwittingly Open The Door For River Pollution Victims To Sue For Damages?
File Photo

The Uttarakhand high court's recent judgment conferring the status of juridical persons on the widely revered rivers Ganga and Yamuna raise legal and political issues which merit serious consideration.

The judgment, first of its kind in India, came within days of New Zealand enacting a law granting the status of a living being to the river Whanganui, which the country’s Maori tribes consider sacred.

Jean-Louis de Lolme, an 18th century authority on constitutional law, famously observed that Britain’s parliament "can do everything but make a woman a man and a man a woman".  But it has not made a river or mountain a person in all its history. It was left to New Zealand to create history in this regard.

The New Zealand legislation must be seen in the context of the heroic struggle the Maoris have waged to save their mountains and rivers as white settlers spread across the land, grabbing all they could.

Like all ancient communities, the Maoris viewed the mountains and rivers with awe. When they realized that they were powerless to stop the whites from taking them over they devised ingenious ways to preserve them. Te Heuheu Tukino, the chief of a tribe saved the Tongariro mountain, which his people believed was the abode of their ancestors, by gifting it to Queen Victoria and asking her to protect it! As Tongariro became Crown property, the settlers stayed away. In 1887, the New Zealand government declared Tongariro a national park, the first of its kind in the world.

As early as 1840, the chiefs of the Maori tribes had ceded the lands under their control to the British under the Treaty of Waitangi in exchange for protection.  Persistent differences on the terms of the agreement bedevilled relations between the government and the tribes. 

Since 1870 the Whanganui tribe, which regards the river which bears its name as its ancestor, was agitating to establish its rights over it. In August 2014, the government finally conceded its demand in the Whanganui River settlement. Speaking on the occasion, the Treaty of Waitangi Negotiations Minister Chris Finlayson said, “The river will own itself. That is a world-leading innovation for a river system.”

The law declaring the river as a living being and authorising two persons, one chosen by the Whanganui tribe and the other by the government, to manage its affairs was enacted to give effect to the terms of the settlement. “The legislation recognizes the deep spiritual connection between the Whanganui iwi (tribe) and its ancestral river,” Finlayson said.

 Justices Rajeev Sharma and Alok Singh of the Uttarakhand high court, who declared the Ganga and the Yamuna as living beings, did so invoking the tradition of granting the status of juridical person to the deity of a Hindu temple, established by Indian courts during the colonial period when they were called upon to adjudicate on disputes over temple property. The deity, as a juridical person, is assumed to be a minor and the temple administrator represents him in legal proceedings as his guardian. What the British Indian courts did was to adopt the practice in England, where the parish church was treated as a juridical person. Way back in 1307 an English court had ruled that “a church is always underage and is to be treated as an infant.”

A basic difference exists between the situation in New Zealand and that in India. The Whangaui tribe had to wage a long struggle to save the river because the country is ruled by whites who do not share its belief in its sacredness. The Ganga’s problems are not caused by people who do not hold it sacred.

It is people who revere the Ganga as mother and goddess that cremate about 32,000 bodies on its banks each year causing an estimated 300 tonnes of half-burnt human flesh to float in its waters. Most, if not all, of those who own the factories which pollute the river with effluents as well as their employees are people who regularly seek Mother Ganga’s blessings. So, presumably, are those who control the civic bodies which are responsible, through acts of omission or commission, for the dumping of about 1.5 billion litres of untreated sewage in the Ganga each day.   

Thanks to mythology, Indians are familiar with the concept of rivers and mountains as living persons. Add to it the deep spiritual connection that exists between the rivers Ganga and Yamuna and the bulk of the population of the country, and the Uttarakhand judgment comes through as one that will be immensely popular, especially among those swayed by the rising Hindutva wave. But it raises some questions. 

The first question that arises is whether the declaration of the two rivers as juridical persons and the consequential arrangements proposed by the judges actually render justice in the issues raised before the court. It is not anybody’s case that the rivers have been suffering for want of legal protection or lack of ability to initiate action against polluters. Both the Centre and the states through which the rivers flow have enacted laws to deal with the problem of pollution. These laws have vested in their officers power to take action against polluters.

The issue came up before the Uttarakhand high court through a public interest petition filed by Mohammad Salim, a resident of Haridwar, in 2014, drawing its attention to the damage caused to the Ganga by mining and stone crushing activities on its banks. It also pointed out that more than a decade after Uttarakhand’s separation from Uttar Pradesh there had been no proper distribution of properties attached to the Ganga and the Yamuna and their tributaries between the two states. 

On December 5, 2016, the court issued an order with the following directives: (1) The two offending respondents must be evicted from government lands on the river bank within 12 weeks. (2) The Centre must take a final decision on the division of assets/properties between the two states in three months on the basis of the settlement they had reached on February 2, 2016. (3) The Centre must constitute a Ganga Management Board and make it functional within three months. (4) Mining in the Ganga river bed is banned forthwith.

When the petition was taken up on March 20, the deadlines set by the court had passed without the authorities implementing any of its directives. The petitioner’s counsel told the court that the polluters had not been evicted. An officer of the Union Ministry of Water Resources and Ganga Rejuvenation informed it that the governments of UP and Uttarakhand were not cooperating for the formation of the Ganga Management Board.

Therein lies the core problem. Not only sacred rivers like the Ganga and the Yamuna but all water bodies in the country are getting polluted because central and state authorities are failing to take steps which they are required to do.  Soon after assuming office, Prime Minister Narendra Modi, who represents Varanasi in the Lok Sabha, launched a programme, named Namami Ganga, to clean-up the river. Last year, in response to a query by Aishwarya Sharma, a Lucknow school-girl, under Right to Information Act, the Prime Minister’s office stated that in 2014-15 the Centre allocated Rs 2,053 crore for the Ganga mission but spent only Rs 326 crore. In the 2025-16 budget a provision of Rs 2,750 crore was made for the programme but it was later cut down to Rs 1,650 crore, and the actual expenditure fell short of even that amount. How is grant of status of juridical person to the rivers a solution to this problem?

The high court judgment is questionable on other grounds too. The Ganga, which runs through Uttarakhand, UP, Bihar, Jharkhand and West Bengal, is 2,525 kilometres long. Of this, only a stretch of 96 km is in Uttarakhand. The Yamuna’s course, from its origin to Allahabad where it joins the Ganga, is 1,376 km long. It flows through Uttarakhand, Haryana, Himachal Pradesh, Delhi and UP. Only a small portion of it is in Uttarakhand. Yet the high court thought it fit to exclude the other riparian states and grant Uttarakhand alone guardianship of the rivers, along with the Centre.

Division of assets and property necessitated by the creation of Uttarakhand is a matter that concerns only that state and residuary UP. The assets of the Ganga and the Yamuna which sustain nearly 40 per cent of the country’s population are an issue in which states other than Uttarakhand too have much at stake. The high court judgment is deficient to the extent it acted without hearing others who have stakes in the matter.

A juridical person can sue and be sued. There is, therefore, need to examine whether the high court, in appointing guardians to sue polluters on behalf of the rivers, have also unwittingly opened the door for victims of pollution and other forms of suffering attributable to rivers to sue them for damages.

It is for the Centre and the governments and peoples of the states concerned to study the legal and political implications of the Uttarakhand court order and take remedial action if their interests are adversely affcted. If they are all of the considered view that grant of status of living persons to the rivers will help save them, they must work together to evolve a scheme to grant such status also to other river and mountain systems that are jeopardized by undesirable human activity.