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Rights of rivers, hard to enforce

LiveMint logoLiveMint 24-03-2017 Dipankar De Sarkar

In only the third such instance worldwide, two rivers that flow through the beautiful mountain state of Uttarakhand—the Ganga and Yamuna—have been granted legal rights by the state high court. Both rivers originate in Uttarakhand, one of only three northern Himalayan states in India. They—the states and their rivers—are precious by definition not only for the future of those living in the state but for others living elsewhere in India, a point noted by the court.

The move in Uttarakhand is not the first such, but it certainly is extremely rare and puts the state—indeed India, given that the Ganga is called the nation’s lifeline—on a pretty much uncharted course. There is only one example we have of authorities actually enforcing a legal case brought by a person on behalf of a river—the Vilcabamba in Ecuador—and even that is by no means clear-cut.

The Uttarakhand judgement delivered this month came in response to a 2014 public interest litigation by Mohammad Saleem, a resident of the Hindu holy town of Hardwar, seeking the removal of certain encroachments on a stretch of a Ganga waters canal in Dehradun district. In delivering their judgement, however, judges Alok Singh and Rajiv Sharma appear to have taken the opportunity to address some wider solutions to the problem of pollution in the two rivers.

The Ganga is desperately sick. But the pollution in the Yamuna is particularly serious—its inability to support life in vast stretches would make it a “dead river” in other parts of the world. Downstream in Delhi, it is “dead water quality”, unfit for irrigation, domestic or industrial purposes, according to R.S. Dubey, the author of a report published last year in the International Journal of Engineering Sciences and Research Technology.

There are three main components of the Uttarakhand judgement: The first two are aimed at enforcing an old order from last year. Firstly—the task at hand—they ordered the removal of the encroachments Saleem wanted removed within seven days of the judgement. Secondly, the judges reaffirmed the need to create a Ganga Management Board.

Clearly, there is a problem with enforcing court orders in Uttarakhand. The same two judges of the high court had issued both these orders on 5 December 2016. Back then, it wanted the Ganga Management Board created and made functional within three months and had ordered those encroaching on government land along the canal to vacate the land within 12 weeks. Neither happened.

Now, the judges said, they have been assured by the ministry of water resources and Ganga rejuvenation that the board will be set up within eight weeks. Apparently, the central government had previously tried but failed to get the cooperation of the governments of Uttarakhand and neighbouring Uttar Pradesh.

With assembly elections in March leading to the installation of Bharatiya Janata Party governments in both Uttarakhand and Uttar Pradesh—as at the centre—the Ganga may finally benefit from some coordination.

But pinning down the many levels where such obstruction occurs may not be easy. For instance, Dehradun district magistrate Ravinath Raman told the Hindustan Times newspaper, “I had earlier asked officials to remove encroachments. I will find out why it was not done and take action against concerned officials.”

Thirdly, the judges declared the Ganga and the Yamuna to be “juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person.” Not just the rivers, but “all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers.”

They appointed three officials as persons in loco parentis (Latin for ‘in place of parents’) as “the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries.” They are the Director of NAMAMI Gange (a central government project to clean the Ganga), the chief secretary of Uttarakhand and the advocate general of Uttarakhand.

The legal precedence for such sweeping action, thrilling though it may be, points to an uncharted territory. The Indian case differs fundamentally from the two previous such actions to grant natural entities rights. The world’s first known case is the 2008 Ecuadorian Constitution, but its sweep is breathtakingly wide, recognizing as it does all the rights belonging to Pachamama (the indigenous Quechua world correlating to Mother Earth), including those to “integral respect for its existence”, “maintenance and regeneration”, and “restoration.” Rivers are one part of them.

The Ecuador initiative sparked off a similar movement in the US, with the native American Spokane tribals demanding legal rights for the Spokane river. But this demand remains unfulfilled.

The second instance—the first specifically for a river—came last week when the New Zealand government on 15 March granted the river Whanganui the legal rights of a human being after a 140-year campaign by local indigenous Maoris for the river to be recognized as their ancestor.

There are similarities—the fact that the river is worshipped in all three cases is an obvious one. But the difference with Uttarakhand is also evident. The actions in both New Zealand and Ecuador came in response to a specific demand by locals in the context of justice and centuries of exploitation. In Ecuador, the 2008 Constitution was adopted by a government headed by socialist president Rafael Correa and it was ratified by a referendum.

Experts in Uttarakhand do not see any immediate benefits from the ruling.

“We worship all rivers in Uttarakhand, not just the Ganga and Yamuna,” said Avdhash Kaushal, chairperson of the non-profit Rural Litigation Entitlement Kendra (RLEK), Gandhian and a leading Indian legal activist. “The solution is that environment and development must go hand-in-hand. For instance, you cannot stop all hydro power projects in Uttarakhand, as they have done, without affecting development.”

“It’s true that all these rivers are our mothers. But it’s also true that we drink mother’s milk,” Kaushal added.

Dipankar’s Twitter handle is @Ddesarkar1

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