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Rivers, Lakes- Living Entities Having The Status of A Legal Person

Would a New Zealand law provide guidance and have any persuasive value?

Kia Ora or Welcome is the New Zealand way of greeting it's visitors. Apart from being one of the most picturesque countries of the World, New Zealand has extremely stringent laws governing imports of food items and animal or plant products, which are categorised as biodiversity risk items. There is an instant 400 NZ$ fine for false declaration. The tagline reads - Dispose or Declare. The manner in which the passenger arrival card is worded, it does create a sense of responsibility to answer truthfully.

A nation with such policy ideas must love it's nature immensely. An interesting development, known to only a few, goes to show the love the citizens of this Southern Hemisphere nation has for it's natural assets.

New Zealand has declared by law that it's Whanganui River is a living being. The Kiwi Parliament has statutorily declared that the river -Te Awa Tupua and all its physical and metaphysical elements—is an indivisible, living whole, and henceforth possesses all the rights, powers, duties, and liabilities of a legal person.

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 came into effect on 20.3.2017. Section 12 of the Act reads as under:
12. Te Awa Tupua recognition Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.

Section 14 (1) provides that:
14. Te Awa Tupua declared to be legal person 1. Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.

Please note that the above Act incorporates the local Moari expressions. Maoris are the indigenous Polynesian people of New Zealand. The Europeans arrived in the 17th century and the two cultures have co-existed peacefully with the signing of the Treaty of Waitangi in 1840. The Treaty had guaranteed paramount supremacy to the Maori people over their lands and habitation. The Maori people claim that Government (The Crown) has continuously breached the treaty since it's inception.

The Settlement Act of 2017 is a first step to redress the wrongs done by the Crown towards the Maori tribe in order to respect the sentiments the Maoris have towards their natural biome. It is so recorded in the Act of 2017 in the following manner:
3. Purpose The purpose of this Act is:
  1. to record the acknowledgements and apology given by the Crown to Whanganui Iwi in Ruruku Whakatupua—Te Mana o Te Iwi o Whanganui; and
  2. to give effect to the provisions of the deed of settlement that establish Te Pā Auroa nā Te Awa Tupua; and
  3. to give effect to the provisions of the deed of settlement that settle the historical claims of Whanganui Iwi as those claims relate to the Whanganui River.
     
Section 5 lays down that:
5. Act binds the Crown This Act binds the Crown.

Based on the Whanganui precedent, 820 square miles of forests, lakes, and rivers-
a former national park known as Te Urewera—also gained legal personhood. Soon a mountain, Taranaki, will become the third person. (Ref: https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is a-legal-person/)

In in own India too, the New Zealand model has not gone unnoticed. In the context of the Holy River Ganga, the Hon'ble Uttarakhand High Court in the case of Mohd. Salim Vs. State of Uttarakhand & Ors., Writ Petition (PIL) No. 126/2014 vide judgment dated 20.3.2017 has held that:

9. The Court shows its serious displeasure about the manner in which the State of U.P. and State of Uttarakhand have acted in this matter. It is a sign of non-governance. We need not remind the State Governments that they are bound to obey the orders passed by the Central Government failing which the consequences may ensue under Article 365 of the Constitution of India. Consequently, the Chief Secretaries of the State of U.P. and State of Uttarakhand are directed to cooperate with the Central Government in a right earnest manner for the constitution of Ganga Management Board by appointing the Members, failing which it shall be open to the Central Government to constitute the Ganga Management Board without the Members of the successor States, as directed hereinabove.

10. The extraordinary situation has arisen since Rivers Ganga and Yamuna are losing their very existence. This situation requires extraordinary measures to be taken to preserve and conserve Rivers Ganga and Yamuna.

11. Rivers Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and revered. The Hindus have a deep spiritual connection with Rivers Ganges & Yamuna. According to Hindu beliefs, a dip in River Ganga can wash away all the sins. The Ganga is also called ‘Ganga Maa'. It finds mentioned in ancient Hindu scriptures including ‘Rigveda'. The river Ganga originates from Gaumukh Glacier and River Yamuna originates from Yamnotri Glacier.

Thus, while finding that Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea and there is utmost expediency to give legal status as a living person/legal entity to Rivers Ganga and Yamuna r/w Articles 48-A and 51A(g) of the Constitution of India, the Hon'ble High Court passed the following directions:
19. 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 of 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 persons in loco parentis as the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries. These Officers are bound to uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers.

20. The Advocate General shall represent at all legal proceedings to protect the interest of Rivers Ganges and Yamuna.

The Uttarakhand Government challenged the judgment dated 20.3.2017 before the Hon'ble Supreme Court by way of SLP (C) No. 16879/2017 titled The State of Uttarakhand Vs. Mohd. Salim.

The same was listed before the Hon'ble Court on 7.7.2017 when the Hon'ble Court passed the following order:
Issue notice:
In the meantime, the operation of the impugned order shall remain stayed.

The Petition now pending for final disposal before the Court of Hon'ble Chief
Justice and was last listed on 16.12.2019 and will come up for hearing on a non-miscellaneous day. The Central Government has also challenged the order by filing a separate SLP, being SLP (C) No. 33968/2017.

In the meantime, the High Court order continues to be stayed. It remains to be seen how the Hon'ble Supreme Court would finally adjudicate. If the  principles that weighed with the Hon'ble High Court are upheld, it would pave the way  for other natural structures considered holy by the majority of the Indian population to  seek similar status, as for example, the ‘Goverdhan Parvat' and the Nainital lake.

The Uttarakhand High Court has after delivering the Ganga Judgment, accorded the  status of ‘legal person or entity' to the animals in the state which was followed up later  by a judgment of the Punjab and Haryana High Court to the same effect. Although environmentalists would welcome such a view, since it would mean that the  natural resources are preserved even if on the ground that they are sacred and  revered. Even after decades of projects to clean up Ganga, the situation is still grim  and therefore an adjudication by the Hon'ble Supreme Court would go a long way in  preserving the natural resources that India is blessed with. 

This issue requires to be addressed urgently. As recently as in March 2020, a Division Bench of the Punjab and Haryana High Court has held the Sukhna Lake in Chandigarh as a living entity. The Hon'ble Court also ordered that all structures in Sukhna's catchment area (which was demarcated by the Survey of India in 2004) should be demolished, and affected owners whose building plans have been approved should be relocated in the vicinity of Chandigarh and they should be compensated.

I believe that this issue should be presented before the Hon'ble Court in the best possible manner and all assistance should be provided to the Hon'ble Court for a just decision.

Written By: Mukul Kumar, Advocate-on-Record

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