CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

OPINION


River in a 'Court of Law' - Legal issues pertaining to its personality


I. Introduction

Humans, in the early stages of existence on this planet, lived incredible in harmony with nature. Ancient civilizations and cultures treated rivers as being alive or as Gods. Heraclitus, a Greek philosopher used the river in an allegory to say that nothing in the material cosmos is static, and everything keeps on changing. His words are: "No man ever steps in the same river twice, for its not the same river and he is not the same man". Worship of rivers can also be linked to Pantheism, which views everything in existence as God. Thomas Hobbes, in his most famous work, Leviathan, opens with the word "Nature" and then parenthetically defines it as "the art whereby God hath made and governs the world".

For Hindus, the Ganga is the most sacred river and is also the lifeline for millions of Indians living along its course and depending on it for their sustenance. It has kindled man's thought and imagination for centuries.PanditJawaharla Nehru, stressing on the importance of the river said: "The Ganga, especially, is the river of India, beloved of her people, round which are intertwined her memories, her hopes and fears, her songs of triumph, her victories and her defeats. She has been a symbol of India's age-long culture and civilization, ever changing, ever flowing, and yet ever the same Ganga."

Over time, with the population growth and the advancement of science and technology, theman-nature relationship has been one of overuse, misuse and imbalance leading to environmental degradation. The philosopher Jean Jacques Rousseau, in the eighteenth century, accepting that nature is the ideal and source of morals, enlightenment and the pursuit of happiness gave the clarion call "Back to Nature." His aim was to correct urban society's alienation from nature.

The disharmony of the existential relationship between men and nature has also been felt in India. The holy river Ganga has come to beconsidered to be one of the most polluted rivers needing state intervention. The Government of India in July 2014 announced an Integrated Ganga Development Project titled 'Namami Ganga' and allocated 2,037 for the project.

In New Zealand, in a first in the world, river Whanganui (also named as Te Awa Tupua) has been accorded legal personality and has been conferred same rights as that of human beings. However, this was done by enacting a Bill by the Parliament and not by judicial legislation. 'Rights of Nature' are specifically provided in the Ecuador Constitution. In local parlance, the river used to be think as having spiritual connection with the Maori Tribe 'iwi'. They describe it as, "I am the river and the river is me."

Recently, in case of Mohd. Salim v. State of Uttarakhand&Ors. [Judgment dated 20.03.2017 in W.P. (PIL) No. 126 of 2014] – Alok Singh &Rajiv Sharma JJ., in an unprecedented judgment declared the river Ganga, Yamuna and all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers to be living entity. Court bestowed upon them all the fundamental rights available to a person under the Indian Constitution by equating them to 'legal person' or 'juristic person'. The said rivers, it has been held by Court, are capable of enjoying all the rights, duties and liabilities of a living person. Court reasoned that these rivers provide 'physical and spiritual sustenance' to half the Indian population. Therefore, to protect the recognition and faith of the society such extraordinary measure was deemed expedient.

Court adopting the principle of Parenspatriaedeclared Director of NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand as loco parentis.

II. Jurisprudential analysis of concept of 'person'

Legal person refers to a non-human entity that is treated as a person for limited legal purposes, for example, corporations. Courts have also held deities and idols to be legal persons. Legal persons can sue and be sued, own property, and enter into contracts. Of late jurisprudence hasalso developed that legal person like corporations may also commit a crime. There are two facets of being a legal person,first, capability to possess certain rights and second, of having obligations.

Wesley Newcomb Hohfeld in his analysis of jural relations said that jural correlative of right is duty. Every right, therefore, involves a relationship between two or more legal persons, and only legal persons can be bound by duties or be the holders of legal rights. Rights and duties are correlative.We cannot have a right without a corresponding duty or a duty without a corresponding right.To say that X has a legal claim-right means that he is legally protected from interference by Y or against Y's withholding of assistance with respect to X's project Z. Conversely, Y, who is to abstain from interference, or is required to provide assistance in connection with X's project Z, is under a correlative duty to do so. The correlativity stipulation commands that if X has a claim-right against Y, this entails Y owing a duty to X.

Analysing from Hohfeldian perspective, if river Ganga is legal person capable of possessing 'legal right' then it shall have certain 'duties' (fact also recognised by the high Court). It means for breach of 'legal duty' river Ganga or Yamuna can also be sued. This makes us ponder that, what 'legal duty' can we attribute to river? Will this 'legal duty' of river be same as that of other 'legal persons'.

III. Legal implications of declaring river as person

In an article published in the Hindu (Shibani Ghosh, The river as being), author has emphasised on the 'rights of river’'by raising questions like, "In the eyes of the law, living persons... the rivers can sue persons acting against their interests… If yes, who will sue whom? … Do other riparian State governments now have less of a role in the protection of the rivers as they are not the identified 'custodians'?..." However, the question of 'duties of river' have been left open ended. If we encumber river with duties then the necessary legal implications would be as follows:

1. Whether, Ganga or its tributaries has a duty to provide us water and whether can they be sued for non-supply of water Example – 1. If a farmer has adjoining agricultural fields to river or its tributaries, can farmer sue the river ganga, if the water is not available for his fields because of drought situation or for some other circumstance and consequently farmer suffers loss of crops.Example – 2 There is a village which is relying on the water from one of the tributaries of ganga and in a particular season due to climate change or change in direction, the water in the tributary has dried up.In any case the consequence is that the village have to be without water.Few people died thirsty due to non-availability of water. Whether, in such situation can a tortuous or criminal liability may arise?

2. Act of God is an exception to tortuous liability. In torts, it has been constantly held that liabilityfor destruction of crops due to flood or draught will not arise as it is a case of 'Act of God'. However, recognising 'flood' or 'draught' as Act of God and parallely recognising river as a natural person is nothing but, paradox. It seems difficult to reconcile the concept of 'act of god' and 'legal person'.

3. Can river which has been declared as legal person is capable of committing a crime as it has now been recognised that companies can be made criminally liable. For example, due to sudden rise of water, a person who is swimming orsailing in a boat,drowns in the water. Whether, in such case can we held 'culpability of river' for homicide of a person or destruction of property?

Though the arguments may sound far-fetched they are not improbable because of the ensuing consequences in declaring the river as legal person. The rights cannot be divorced from duties. Thus, a judgment which intends to protect the sacred rivers may give rise to unanticipated and unwarranted consequences. It is humbly submitted that judgment is jurisprudentially flawed and legally untenable.

IV. Conclusion

Hohfeld's description of relations between various forms of legal entitlements reflects truths on features of legal rights. Hohfeld argued that the tendency to express all legal interest in terms of "rights" and "duties" resulted in confusion in the analysis of complex legal relations like trust, options, escrows, future interest, and corporate interest etc. in Hohfeld's ownwords: "One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems, frequently arises from the express or tacit assumption that all legal relations may be reduced to "rights" and "duties" and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, "future" interests, corporate interests, etc."

The prime reason for this confusion in his view was the inaccuracy of the terminology. Hohfeldobserved that important legal terms, including "right" and "duty," had no agreed meaning and thereby caused muddled analysis. He notes that the term right was often used to denote several other distinct legal interests such as powers, privileges or immunities. The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the Jural relations can be reduced to rights and duties. These concepts are duty, claim, liberty, no claim, power, liability,disability, and immunity.

Therefore, in light of what Hohfield argued we need to invent some other jural relation by which the real intention behind the judgment may be fulfilled. Ganga is considered to be a sacred place where people take a dip to wash their sins. Certainly, we don't want Ganga to stand in court of law for doing a sin or we don't want them to be imprisoned or hanged. Ganga and Yamuna are beyond legal personality. In Hindu mythology they are reason for 'person' of a being and therefore, can't be treated as a person. We human race is so cruel that by attributing our holy rivers as 'person', we will make them accomplice to our wrongs and crimes.

Other argument against the judgment is that legal person shall be creation of a statute and discretion of legislature. Recently, Justice DY Chandrachud in Union of India v. Rajasthan High Court, (2017) 2 SCC 599, 606 recentlyemphasised on the judicial restraint in unchartered territories in following words:

"The powers under Article 226 are wide—wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision-maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, Judges walk the path on a road well-travelled. When judicial creativity leads Judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of Government."

Legal person is for a specific purpose, however, the judgment without embarking upon the specific purpose opened up the flood gate for the perpetual legal problems for the river. If required, as the case in New Zealand, this should be done through a parliamentary legislation.

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