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Ganga And Yamuna As A Living Entity: What Does This Mean To The Rivers?

The Supreme Court stayed on the order given by the Uttarakhand High Court in December 2016, according to which the status of "living entity" is given to both the Ganga and Yamuna rivers. The order came from the bench of Justice Jagdish Singh Khehar and Justice D Y Chandrachud during the tenure of J S khehar as a chief Justice of India on a plea by the Uttarakhand government.

The high court order came from the Public Interest Litigation filed by local resident of Haridwar Mohammed Salim, regarding the high levels of pollution and encroachment in the rivers and its tributaries.

In Mohammed Salim vs. State of Uttarakhand[1],the petitioner asks the court to direct the government of the state of Uttarakhand to remove the illegal construction along the banks of the river Ganga and Yamuna, as well as order the central government to properly manage the land and water resources. The court decided with the strong instructions as the justices were concerned about the neglect and destructions of the rivers as they were losing their very existence and strict measures are to be taken to protect them. So, it gave order that both the rivers are to be considered legal entities and should have their own right as a human being.

The order mandate that the "Central Government is directed to constitute a Ganga Management Board, under Section 80 of 'the Act', and make it functional. The Central Government shall also induct State of Uttarakhand as member of the Upper Yamuna Board."[2]

Ganga and Yamuna rivers

Why Were Ganga And Yamuna Given The Living Entity Title?

In the Indian epic times, the Ganga is considered the river of purity and the holiest river where people have some beliefs with it. But Ganga is not only the holiest river but is the most polluted river. For years, Ganga has been a dumping ground for raw sewage, human waste, cremated corpses, industrial waste, discarded idols, and threatening the existence of the river. Yamuna, on the other hand which does not have any resembles of mighty river once it was. Today it is dirty with waste and full of black colour which was famous for its beauty is now infamous for pollution.

Even more than million litres of untreated sewage from the towns situated along the banks of the rivers pump the water into the river on daily basis. Making it harmful both for rivers and humans as river is the ecosystem on which human beings depends.

In 2015, the centre has set up the 'Namami Gange Project' to clean and preserve the river. The government set a budget of Rs 20,000 crore for five years. But the government of state of Uttarakhand and Uttar Pradesh showed no sign of improving the worst condition of both the rivers.

The Uttarakhand High court on the file PIL [3]observed that the protection and faith of society in both the rivers, requires that the rivers are to be declare living entity. The bench said that under article 48- A and 51A (g) of constitution of India, which "states that the State shall protect and improve the natural environment which includes forests, rivers, lakes, wildlife and to have compassion for living creatures."[4] And all the Indian citizens have a Fundamental duty to do the same within their capacity. This often allows the courts to pass the judgements in the favour of environmental protection.

However, the rivers itself is a life to many people. These rivers have provided both physical and spiritual support to all the people from the time immemorial. All the Hindus have deep belief of holy god in both the rivers. These rivers are being used for irrigation purpose by many of the farmers. Thus, polluting and harming the rivers is ultimate harm to the people.
In Shiromani Girudwara prabandhak Committee vs. Shri Som Nath Dass [5], it was held that the legal person concept can arise out of the necessities in the human development which has a faith in the society.

Therefore, both the rivers were given the title of living entity as the failing of both Uttarakhand and Uttar Pradesh government in maintaining the sacred rivers made High court to take such decision to bring back the existence of both the rivers.

Living entity

What Does This Title Mean To Ganga And Yamuna Rivers?

Considering the words "living entity" in layman terms, this means that both the rivers are given the legal rights same as persons. They are not the natural persons, but in the eyes of law they are considered as the legal person.

"Legal persons are made for the sake of convenience, to manage the assets. Say for example, to manage the huge properties that are regularly dedicated to Tirupati Balaji. Therefore, the law has recognized that the idol of the temple be consider as a legal person." explained by Supreme Court Advocate Nipun Saxena.[6]

With this ruling, Ganga and Yamuna are no more voiceless water bodies but "persons' with legal rights. As a legal person the rivers have a legally right to protect themselves from any harm or destruction and polluting them will be considered as a violation of human rights which can bring legal recourse.

The legal person includes minor-who is incapable of holding or using property so as to be kept under a care of guardian or parents for the minor interest. In the same manner, both the rivers are minors who are incapable of holding their own property therefore are kept under the care of guardians.

The justices have given parens partie (the power of the state to act as parents when the parents are not able to fulfil those functions) [7] The guardians here are the Director of Namami Gange Project and the Chief Secretary and Advocate General of Uttarakhand. "They will be responsible for the protection and conservation of these rivers and their tributaries, they will uphold the status and promote health and well being of both the rivers. Through them the rivers will be represented in the court and contest cases on the issues related to both the rivers." [8]The court said. These also states that the fund rise for these rivers will only be used by the chosen guardians for best interest of both the minor rivers.

Also, the rivers have a right to flow freely. Any interference in their path, including dam construction or any such activity will be look by the court authorities. This ruling may be new for the Indians, but India was the second country to recognise the rivers as "legal person." Just few days ago of this ruling, New Zealand was the first country to grant its largest river Whanghui river the legal rights same as human being because of the local Maori culture, long history dispute with the nations management of area and its beliefs about the river were the key in decision of their parliament to grant legal rights. Here in Ganga and Yamuna river matter, the rights are given for pollution control and bring back the old sanctity of the two rivers.

Thus, the court decided that anyone polluting or harming the rivers in any way would be penalised in the courts in the same way the courts punish anyone who cause harm to any other human being.

Conflicts

Can The Rivers Have Human Rights?

The very first conflict arise was of jurisdiction by the Uttarakhand government that the Ganga and Yamuna rivers flows through the different state, it is the centre to decide to give the title to both the rivers and not the particular state. They also state that just in the faith of the society the rivers cannot be called living entities.

Further, the conflict was if the rivers were given human rights this means that they can sue and can be sued too. So in case, where Ganga and Yamuna are lifeline for half the population of farmers for irrigation, tube wells, etc so if the farmers pool out a water from the river for irrigation, then can he be sued for violation of rivers rights. In the case of floods, the damage can be cause to people lands then the rivers be sued for it and can those guardians be held liable and compensate for those damages.

Moreover, the controversial project issued by the Narendra Modi's government called India's massive river-linking scheme, which requires large scale diversions of water from Ganga and Brahmaputra basins to scarce region of water in eastern India through the construction of dams, canals and reservoirs. These arose the conflict that if the government interferes in such river cases can these guardians act and take decisions on it.

However, the existed dispute in India of river Cauvery between Karnataka and Tamil Naidu, which is also considered as sacred, giving them the person rights just in case for faith of the society. Then these can make the condition exacerbate rather than bringing calm in the society.

At last, the Ganga River not only flows in Indian, but it also has tributaries in Nepal and Bangladesh. Thus, how these guardians be represented in their cases if they bring any harm to the river.

Therefore, it was widely stated that the rivers cannot have the title because it flows through various regions and one parent cannot take its responsibility as a whole and it also give rise to decision making power conflict.

Conclusion
Though the law gave a legal person title to only idols of the temples but this time the Court extend the definition of legal person and gave it to the rivers. The decisions taken by the Uttarakhand High Court gives the strong solution to reduce pollution and abuse of both the rivers. The rivers are losing their beauty and their use because of such harm and destruction causing to it. Therefore, such strict measures are required to control such damage.

Even though the rivers cannot be given persons rights but the people being citizen of the country as a fundamental duty to not destroy such nature and should protect the environment. After all, a healthy environment is the only key to healthy life of a human being.

Though the rivers are considered sacred by the Hindus, they belief that taking a dip in water of these rivers removes sins. But they do not consider these while throwing waste in the rivers which increase their sins as making it dirty which is consider as pure water.

At last, I would like to conclude that though several steps, project, schemes, and fund be raised to improve the condition of both the rivers they cannot be bring back to its original condition because the condition is worst. The only solution to it is that each person must consider the rivers as normal being who as some life and is capable of giving life to others.

End-Notes:
  1. Mohammed Salim vs. State of Uttarakhand ( Uttarakhand High Court,20/03/2014).
  2. Ibid.
  3. Ibid.
  4. Article 48A AND 51A(g) OF Constitution of India,1950.
  5. Shiromani Girudwara prabandhak Committee vs. Shri Som Nath Dass, AIR 2000 SC 1421.
  6. http://www.theweek.in/content/archival/news/india/living-entities-ganga-yamuna.html, last seen on 22/10/17.
  7. http://legal-dictionary.thefreedictionary.com/parens+patriae, last seen on 22/10/17.
  8. http://indiatoday.intoday.in/story/ganga-yamuna-human-entity/1/908905.html, last seen on 22/10/17.

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