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Rivers and Forest are Legal Persons

Updated: Jun 16

Written By: Ajay A. Bhosle, G.H. Raisoni Law College, Rashtrasant Tukadoji Maharaj Nagpur University

The entire world has received three new legal persons: the Whanganui River in New Zealand and the Ganges and Yamuna River in India. In New Zealand, the government passed legislation, which recognized the waters of the Whanganui River as a legal figure. Similarly, the Uttarakhand High Court in India, in response to the urgent need to reduce pollution in two rivers considered sacred in Hinduism, has given the Ganga and Yamuna rivers equal legal rights as a person. Since then, both the Ganges and Yamuna rivers will be recognized as a legal person by the Uttarakhand High Court. In July, Bangladesh's top court granted all the country's rivers the same legal rights as humans. In early July, Bangladesh became the first country to grant all of its rivers the same legal status as humans. From now on, its rivers will be treated as living entities in a court of law.

The purpose of this paper is to study rivers and forests and to protect nature, new laws have been made, such laws which are compatible with nature and humans. No legal rights are the same as human rights, and therefore a "legal person" does not have to be human. For example, take corporations, which are also considered in law as "legal persons", as a way of closing companies with special legal rights, and consider the company legally separate from its managers and shareholders goes.


Giving legal rights to nature means that the law can see "nature" as a legal person, thus creating rights that can then be enforced. Legal rights focus on the idea of ​​legal standing (often described as the ability to sue and be sued), which enables "nature" to go to court to protect its rights. Legal personality also includes the right to enter and enforce contracts, and the ability to hold property.


There is still a big question about whether these types of legal rights are relevant or appropriate to nature. But what is clear from the experience of applying this concept to other non-human entities is that these legal rights mean more than they were meant to be enforced.

1. INTRODUCTION

In India, the Uttarakhand high court ruled that the Ganga and Yamuna Rivers have the same legal rights as a person, in response to the urgent need to reduce pollution in two rivers considered sacred in the Hindu religion. Legal rights are not the same as human rights, and so a "legal person" does not necessarily have to be a human being. Take corporations, for example, which are also treated in law as "legal persons", as a way to endow companies with particular legal rights, and to treat the company as legally distinct from its managers and shareholders. Giving nature legal rights means the law can see "nature" as a legal person, thus creating rights that can then be enforced.


Professor Christopher D. of the United States. Stone first wrote his article in the 1970s, "Should Trees Stand? Towards Legal Rights for Natural Goods?" A legal person cannot be owned; Therefore, any ownership with an established legal personality cannot be attributed to the environmental entity. Permanent (law) is directly related to legal personality. Standing, or with locus standi, is the right or ability to take action or appear in court. Environmental organizations cannot take action on their own or appear in court. However, this action can be obtained on behalf of a legal guardian for a permanent entity. Representation can increase the protection of culturally significant aspects of the natural environment, or areas vulnerable to exploitation and pollution.


Domestic rights to nature


New zealand

In 2014, Te Urewera National Park was declared the environmental legal entity Te Urewera. The area created by Te Uvera ceased to be a state-owned national park and this self-owned undisturbed land was converted into a freehold.


Following the same trend, New Zealand's Whanganui River was declared a legal person in 2017. The name of this new legal entity was Te Awa Tupua and is now recognized as "indivisible and entire living from mountains to the sea", including the Wuhangui River and all its physical and spiritual elements. "The river will be represented by two guardians, one from Wuhangui Ivy and the other from the Crown.


India

The Ganges and Yamuna rivers are now considered legal persons in an effort to combat pollution. Rivers are sacred to Hindu culture for their healing powers and the attraction of pilgrims who bathe and scatter the ashes of their dead. The rivers are heavily polluted by 1.5 billion liters of untreated sewage and 500 million liters of industrial waste enters the rivers every day.

In March 2017, the High Court in the north Indian state of Uttarakhand ordered that the Ganga and its main tributary Yamuna be accorded the status of legal entities. Rivers will "benefit all related rights, duties and liabilities of a living person." This decision meant that polluting or harming rivers is equivalent to harming a person. The court cited the example of the New Zealand Whanganui River, which was also declared as an absolute right of a legal person.


This development of environmental personality has been met with skepticism as merely declaring that Ganga and Yamuna are alive will not protect them from significant, ongoing pollution. There is a need to change the long-standing cultural attitude towards the Ganges, which believes that the river has self-purifying qualities.

There is further criticism that the conservancy of the rivers was given only to Uttarakhand, a region in northern India, which comprises a small portion of the rivers entirely. The Ganges flows for 2,525 km through Uttarakhand, Uttar Pradesh, Bihar, Jharkhand and West Bengal, covering only 96 km through Uttarakhand. Only a small section of the Yamuna tributary, 1,376 km, passes through Uttarakhand - which passes through the states of Haryana, Himachal Pradesh, Delhi and Uttar Pradesh.


Despite the skepticism of the Uttarakhand High Court's decision, declaring these vulnerable rivers as legal entities is a movement for change towards the protection of environmental and cultural rights. Decisions can be made as the foundation for future environmental legislative change.


United States of America

In 2006, a small community in Pennsylvania called Tamaka Borough worked with the rights of a nature group called the Nature Environmental Legal Defense Fund. Together, the groups drafted legislation to protect the community and its environment from the dumping of toxic sewage. Since 2007, the CELDF has helped develop local laws with more than 30 communities in ten states of the United States to codify the rights of nature. The CELDF also assisted in drafting Ecuador's 200A constitution following a national referendum.


Ecuador

Rights of nature have been declared "to exist, to sustain and to develop again" under Ecuador's 2008 constitution. It was followed by a national referendum in which the Ecuadorian constitution was allowed to reflect the rights of nature, the first world. Every person and community has the right to advocate on behalf of nature. The constitution declares that "the state will encourage natural persons and legal entities and communities to protect nature and to promote respect for all elements containing an ecosystem. “The first successful case of nature implementation rights under Ecuador constitutional law was presented before the Provincial Court of Loja in 2011. The case involved the Vilcabamba River as PAC.


2. History


In Indian history, rivers and forests are seen as a person from very old times. The reason for this is that in India, rivers and forests are associated with gods and religions, so rivers and forests in India are worshiped for a long time. This is why it has long been worshiped in India as a religious ritual in rivers, forests, sky, India is not the only country where rivers and sun are worshiped. In the Roman Empire, the Sun is considered as a deity, religious texts in India repeatedly mention the importance of water and rivers in various contexts. Water is called Jeevan or "Jeevanam". Water is the life described in the Veda and in this belief seven sacred rivers of India are mentioned. Except the Brahmaputra, all other Indian rivers are considered female. In the Vedic period, rivers were considered gods and worshiped with sound reverence. The epic Mahabharata states that Ganga was Bhishma mother, from Kalidasa to Tagore, describing the beauty and mysticism of the rivers in her works. Some of Tagore's greatest compositions were Suvarnalin (he called the river the Golden Belt). Rivers are witness to everything - war, birth and death keeping in mind this religious significance


3. Legal person


Environmental personality is a legal concept that gives certain environmental institutions the status of a legal person. It gives these institutions the rights, protections, rights, responsibilities and legal obligations of a legal personality. Environmental protection emerged from the development of a legal focus in the pursuit of conservation of nature. Over time, the focus has been on concepts that allow nature to be preserved as intrinsically valuable, to protect nature from future human generations, from human interests in the exploitation of nature. This concept can be used as a vehicle for the relationship of indigenous peoples to natural entities, such as rivers. Environmental personality, which grants certain rights to nature (or aspects thereof), provides a means for concurrent individuals or groups, such as indigenous people, to fulfill their human rights.


What does it take to apply the legal personality of a river or other natural entity?

It may be a religious institution or any such useful unit which may impel the Courts to recognize it. This recognition is for sub serving the needs and faith of the society. Corpus Juris Secundum, Vol.6, page 778 explains the concept of juristic persons/artificial persons thus: “Artificial persons. Such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.” A juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons. Juristic 11 persons being the arbitrary creations of law, as many kinds of juristic persons have been created by law as the society require for its development. (See Salmond on Jurisprudence 12th Edition Pages 305 and 306).


3.1 Legal Person River

Legal jurisprudence states that non-human entities can also be a person in the eyes of the law like breathing and living person. The application of this concept of jurisprudence by the High Court of India, no doubt, enriches the philosophical idea behind it. But are the results of such development effective in the conservation of rivers.


The recognition of rivers is a big thing, but nothing can change anyone in a meaningful way. This is not to mention that out of some additional judgments, only a few historical instructions are actually in practice.


In this case, the court in its judgment referred to other countries identifying and protecting rivers. Indeed, the likes of the Wilkamba River in Ecuador and the Atrato River in Colombia have legal rights. New recognized the Whanganui River. But, the most important thing is that Yamuna and Ganga were recognized as legal persons in India. The move was seen as a measure to increase protection for the rivers, which are deeply venerated in India but are heavily polluted.


It overruled an order made in March by the High Court in Uttarakhand state, which said that the two rivers had the same legal status as human beings.


The Supreme Court on Friday stayed the landmark judgment that accorded the Ganga and Yamuna rivers the status of "living human entities". On March 20, 2017, this year, the Uttarakhand HC accorded the status of "living human entities" to the two rivers.


3.2 Not a legal person forest

Gods have been worshiped in India since ancient times. Like Trimurti Brahma, God in Hinduism. Veda is the creator of knowledge and salvation. Vishnu at the same, "protector." The God of Conservation preserves well, karma and salvation. And Shiva, the "Lord" legislator of God, divine energy, meditation, art, yoga, time, disaster and God; God of Gods is also called Mahadev. Earth is considered to be Mother Earth. Sanskrit name of 'Prithvi'. Alaik, Agni, God of Fire, Varuna, God of Water, Vayu, God of Vayu, similarly in Hindu religions, nature is worshiped in many ways.


In nature worship, the nature gods are in charge of the forces of nature such as water gods, plant gods, sky gods, solar gods, fire gods or any other naturally occurring events such as mountains, trees or volcanoes. Gods symbolize natural powers and may have characteristics of the Mother Goddess, Mother Nature, when accepted in Pantheism, Pantism, Desism, Politism, Animism, Totism, Shamanism, and Paganism. The Bodhi tree (Peepal tree) under which Buddha is believed to have meditated and attained enlightenment, like Indian religions, forests have been worshiped in other countries as well as in India.


In this way, like India, whatever laws have been made for nature in other countries, it is all based on our ancient traditions. If we pay attention, we have more authority over nature than people living before us like forests, animals, and all those creatures that you cannot ask for rights from us. We should keep this in mind before making any law. They exist before us. We have come to earth after them.


Plants are living things because they are made up of living cells. They honor our exchange gases with the air around us. They need food, so make their own food for energy (photosynthesis) they grow (unlike animals, indefinitely). They respond to stimuli such as light, heat, water, touch, salt, too much water. They emit waste and toxic products. They breed to create more of their kind. And like humans, they also die

4. Remedies for Environmental Protection: Civil, Criminal & Constitutional


The right of a person to pollution free environment is a part of basic jurisprudence of the land. Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty. The Supreme Court has interpreted the right to life and personal liberty to include the right to wholesome environment.


Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect the human environment at the international level.


As a consequence of this Declaration, the states were required to adopt legislative measures to protect and improve the environment. Accordingly, the Indian Parliament inserted two articles, i.e., 48A and 51A in the Constitution of India in 1976, Article 48A of the Constitution rightly directs that the state shall endeavor to protect and improve the environment and safeguard forests and wildlife of the country.Like, clause (g) of Article 51A imposes a duty on every citizen of India, to protect and improve the natural environment including forests, lakes, river, and wildlife and to have compassion for living creatures. The cumulative effect of Articles 48A and 51A (g) seems to be that the 'state' as well as the 'citizens' both are now under constitutional obligation to conserve, perceive, protect and improve the environment.

Apart from the constitutional mandate to protect and improve the environment, there are a lot of legislations on the subject but more relevant enactments for our purpose are the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Act, 1977; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986; Public Liability Insurance Act, 1991; the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997; the Wildlife (Protection) Act, 1972; the Forest (Conservation) Act, 1980. The Water Act provides for the prevention and control of water pollution and the taking or resorting of the wholesomeness of water. The Act prohibits any poisonous, noxious or polluting matter from entering into any stream or well.


Litigation related to environmental contamination and toxins has grown at a rapid pace, as businesses come under greater scrutiny for their environmental practices and face potentially costly claims. Industrialization has posed serious concern for the protection of environment. If we follow the development around the world in the last two decades or so, it is clear that both judicial and legislative processes have applied the yardstick of 'Strict or Absolute Liability' to judge the conduct of the polluters.


A toxic tort is a special type of personal injury lawsuit in which the plaintiff claims that exposure to a chemical caused the plaintiff's toxic injury or disease. Under the English law, 'a person who for his own purposes brings on his own land and collects and keeps there anything possible to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape 'as laid down by the landmark judgment of Ryland v. Fletcher. Absolute liability for the harm caused by industry engaged in hazardous and inherently dangerous activities is a newly formulated doctrine free from the exceptions to the strict liability rule in England.


The Indian rule was developed in MC Mehta v. Union of India, which was popularly known as the Oleum gas leak case. It was public interest litigation under Article 32 of the Indian constitution. In the judgment, on the substantive law it was emphasized that the principle of absolute liability should be followed to compensate victims of hazardous and inherently dangerous activity. Industries engaged in such activities are absolutely liable to compensate those who are affected by the harm arising from such activities. The Bhopal Gas Disaster and the judgment of the court in the Oleum Gas Leak case were the preludes to the Environment (Protection) Act 1986, the Factories (Amendment) Act 1987 and the Public Liability Insurance Act, 1991 (PLIA).The UN Conference on Environment and Development held at Rio de Janeiro in 1992 provided further spurt, as did environmental activism and environmental litigation. The National Environmental Tribunal Act, 1995 (NETA) is the most recent in the field of ‘accident’ law. The long title to the Act suggests that it is enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for establishing a National Environmental Tribunal. The NETA and PLIA are both concerned with the aftermath of the same occurrences.


Conclusion


This paper contains a brief description of the laws related to all the legal matters related to the environment. This paper provides a simple summary of the current law by which new laws can be made in India which are in the interest of the country and the world, besides it can be used to understand the basics of law making defects. Which can be used in a lawsuit.

References

· https://en.wikipedia.org/wiki/List_of_nature_deities#Hinduism

· https://indianexpress.com/article/india/sc-stays-uttarakhand-hc-order-on-ganga-yamuna-living-entity-status-4740884/

· https://www.bbc.com/news/world-asia-india-40537701

· Rylands v. Fletcher, [1868], L.R. 3 H.L. 330 (UKHL)

· https://www.elaw.org/content/india-mc-mehta-v-union-india-wp-127391985-19860217-oleum-gas-leak-case

· https://journals.openedition.org/vertigo/16199?lang=en

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