A dolphin bobs up from the quiet flowing waters of the river. At a distance, fisherfolk are quietly angling while our boat chugs along the vast stretches of mangrove forests. We were on the revered and celebrated river Ganga near Sundarbans in West Bengal, where the daily lives of most of the river-dependent communities are still at ease with the rhythms of the river. But amid these serene activities there is a stark reality: excessive effluence flowing into rivers and polluting them, hydroelectric dams disrupting the water flow, and river interlinking projects threatening the riverine ecology, desecrating them in every conceivable way.
The latest Intergovernmental Panel on Climate Change (IPCC) report1 notes that humans have had an unprecedented and irreversible impact on climate. The factsheet for South Asia notes that the region will witness intense heatwaves and humid heat stress, glaciers will decline, and there will be a relative increase in sea levels.2
According to the Central Pollution Control Board’s latest report, India has 45 critically polluted river stretches and 300-plus polluted stretches. One-third of India’s wetlands have been lost in the past four decades. The Ganga and the Yamuna, two of the most sacred rivers in India, are choking with untreated sewage and industrial waste that make their water unfit for consumption.
Excessive damming and diversion of rivers have resulted in sinking of deltas and affected the entire riverine ecosystem and the communities living downstream. The dominant view that “any drop of water flowing into the sea is a waste” is basically a formative strategy to dam and divert every drop of water for human use. Recent incidents of landslides and flash floods in the western Himalaya are indicative of the effect of large hydropower and other development projects on fragile ecologies.
All these are linked to several factors, including the extractive, anthropocentric model of development, centralised and bureaucratic governance with little participation of long-time users/residents of riverine areas, a lack of legally mandated and democratic institutional spaces for different interest groups to come together to share data/information/experiences, a lack of ecological understanding among decision-makers, and neglect of cultural/spiritual traditions relating to rivers.
A different course
With the onset of climate change and potential mass extinction of species, and the closing window of opportunity to take meaningful action, a growing number of communities, organisations and governments around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones. The last 15 years have seen a dramatic increase in the number of laws based on ecological jurisprudence—a legal philosophy that sees nature not as a set of objects to be exploited but as a community of subjects (humans and non-humans) who are connected through interdependent, reciprocal relationships.
In 2017, the Uttarakhand High Court ruled (in two separate orders on March 22 and 30) that the Ganga, the Yamuna, their tributaries, and the glaciers and catchments feeding these rivers in Uttarakhand had rights as a “juristic/legal person/living entity”.3 In 2018, the same High Court ruled that the entire animal kingdom had rights similar to that of a living person ( Narayan Dutt Bhatt vs Union of India ).4 In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city a living entity, with rights equivalent to that of a person.5 The Bangladesh High Court recognised the river Turag as a living entity with legal rights and held that the same would apply to all rivers in the country. The Bangladesh judiciary continues to supervise the rights of nature and has ordered the closure of 231 unauthorised factories along the Buriganga river as an enforcement of the rights. Similarly, in Nepal, there is a new effort to recognise the rights of nature which originates from its long-standing recognition of the public trust doctrine.
Recognition of the personhood of “more than human” entities in formal institutions began with Ecuador becoming the first country to recognise that nature has a right to exist, persist, maintain and regenerate. Several towns in the United States have made by-laws that recognise the rights of nature. Similarly, New Zealand in 2014 recognised the Te Urewera National Park as a legal entity with rights, powers, duties and liabilities as a “legal person”. Five days before the Uttarakhand High Court judgment of 2017, the New Zealand Parliament enacted the Te Awa Tupua Bill, which gives the Whanganui river and ecosystem legal personality, guaranteeing its “health and well-being”. Bolivia has enacted the law of Mother Earth, recognising nature’s legal rights, specifically the right to life, biodiversity, regeneration, air, water, balance and restoration. In 2009, the United Nations General Assembly adopted a resolution proclaiming April 22 as International Mother Earth Day. On December 21 that year, it adopted a resolution on Harmony with Nature.6 On February 16, 2021, the Magpie river in Quebec, Canada, was granted rights as a “living person”.
These rights-based laws granting legal personhood for nature aim to shift the legal status of the natural world from being human property to living entities in their own right and subjects of law, guaranteeing their right to exist, thrive, evolve and maintain their natural cycles. These rights are not conferred by humans; it is a recognition that these rights have always existed. It lays upon humans the duty to act as guardians for the more-than human world.
What would the judicial pronouncements according rights to rivers entail? What does “promote the health and well-being of the rivers” mean? By recognising the river as a person entitled to rights, in the eyes of the law, the river has the power to bring suit under its name, have its injuries recognised, hold its polluters responsible for harms caused to it, and claim compensation and be entitled to other remedies. Fundamental rights in that sense are the most basic of obligations.
When a river is recognised as a legal person, its inviolable basic right will be the right to flow freely. The ecological conditions making up a river’s natural habitat are to be respected and protected. The river has a right to maintain its spirit, identity and integrity. At a dialogue organised by Kalpavriksh, International Rivers and LIFE along with other civil society actors, a collective vision emerged that the river must have the right to flow (unhindered), meander, and to flood in its floodplains. A river is “from the place the rain falls or snow melts, to the sea, and the whole basin, ecologically (…) including all the flows, underground, on surface, etc., all that could make up a river should be protected through rights”.8 The rights of the soil and groundwater flow must also be included while keeping in mind the close relationship between the two.
This does not mean fishing or other subsistence activities in the river would come to an end. Rather the recognition of the river as an entity seeks to maintain a reciprocal relationship that respects the river’s flow, its flora and fauna, its catchment, and the rocks and soil and other elements of the landscape it flows through. Consequently, activities that cause irreversible damage to these conditions, such as dams and diversions, industrial and urban pollution, fisheries using explosives or trawlers, could be challenged. The rivers would possess rights that are intrinsic and essential for them to exist, flourish, regenerate, be restored and evolve naturally.
Issues of implementation
Assuming that these rights are recognised, rivers cannot represent themselves in a court of law. Therefore, there is a need for a comprehensive system to implement and protect their rights. The rights can be safeguarded using the principles of custodianship. The Uttarakhand High Court order named several government functionaries and a couple of independent lawyers as “parents”. The court’s follow-up order widened the ambit: “The Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers.” But a question is will state functionaries have the independence to act in the interest of the river when the government itself is a violator?
An alternative solution is that the custodianship or guardianship be given to a body of local communities associated with the river (who have, or should have, traditional or customary rights of the river such as fisherfolk, farmers along the riverbank, people directly engaged in river-related services, and people who stand to lose immediately and heavily if the health of the river is affected); relevant government agencies, and civil society (that have an established record of independent advocacy on behalf of the river), with a multi-scale or nested institutional framework to enable participation across the entire stretch of the river. This would call for strengthening of local units of decision-making, that is, gram sabhas and area sabhas. This should also include the representation of various subsistence-based livelihoods relating to the river by independent mediators who discharge their duties with transparency and accountability.
What would account for violations?
The Uttarakhand court order did not mention what amounted to violation of rights of rivers. However, in order to be able to truly exercise the rights and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to “violation of the rights of rivers”, the extent and scope of “the process and nature of restitution”. The violation of the rights of rivers may be defined as “any obstruction or impediment that disables the entity from performing its essential ecological functions”.
Restitution and compensation
The New Zealand law has an extensive section lending itself to restitutive, restorative and compensatory action. It acknowledged the government’s decisions and actions for more than a century that resulted in the violation of the health of the Whanganui and the rights, culture and well-being of the indigenous people living along the river. Several specific examples were given, including the dismantling of traditional structures for fishing and river use, a hydroelectric project and mining.
“....The Crown acknowledges that it has failed to recognise, respect, and protect the special relationship of the iwi and hapu of Whanganui with the Whanganui river…. With this apology the Crown seeks to atone for its past wrongs, and begin the process of healing.”
Such an acknowledgement is a necessary first step towards seeking appropriate restitutive, and compensatory measures. Restitution should amount to undoing the violations done in the past, restoring the river’s ecological balance, including but not limited to remedial biological, biochemical, and other processes, stoppage of ongoing projects and processes that are causing violation, adequately compensating all affected communities and other relevant parties.
Beyond Rights
Law is a modern human construct. It not only talks in the language of rights and duties that only humans understand but also operationalises them in a way that can further entrench human-centredness. In most cases where nature’s rights are recognised in law, they have done so by extending to it the concept of “personhood” in other words, akin to humans and, therefore, having human rights.
The Lepchas of Sikkim consider the Rongyung river in Dzongu a sacred reserve. “We believe that when someone dies their soul travels through the river Rongyung to reach the caves of Kanchenjunga,” says Gyatso Lepcha from the Affected Citizens of Teesta (ACT), who has been involved in resistance against large hydropower projects in the region. For long, the indigenous communities have lived in harmony with nature and have articulated rights through their visions of “good life” deeply rooted in their connections to the rest of life. Buen vivir, or living well, an ensemble of South American perspective of a good life, expresses a deeper change in knowledge, affectivity and spirituality, and gives an ontological opening to other forms of understanding human and non-human relationships (Chuji et al . 2019)[9]. Similar, yet different in many ways, the Gond Adivasis of central India say, “ the rest of nature is our God. Adivasis do not make cement idols or statues. The leaves, tree, animals, and the spirits in the forest are our gods.”10 It reflects the solidarity that binds all humans and more-than humans together. “These expressions thread a tapestry of many varied possibilities of defining ways of social life and well-being. While actively resisting the idea of development that thrives on endless growth, commodification of human and natural lives.” 11
Hence, any such movement on recognising the rights of the rest of nature must challenge the fundamental forms of injustices, including capitalism, stateism, anthropocentrism and patriarchy.
Bioregional Governance
Another significant question is, once a river’s rights are recognised in one country, can those rights “flow” with it into another country, or will multinational agreements become necessary? Can this paradigm offer peaceful collaborations in the contested borders on ecological grounds?
Recognising river ecosystems or other entities of nature as having rights offers the possibility of managing and governing habitats based on the ecological realities of the region. It brings out the bizarre fact that the human-drawn nation state, and political lines on maps in various parts of the world (such as in South Asia by national elites or in Africa and Latin America by colonial powers) have created conflict situations or disrupted ancient cultural and ecological flows and relations. We need to begin reimagining governance from a bioregional governance point of view, which is based on the understanding that the geographic, climatic, hydrological and ecological attributes of nature support human and more than human living communities, and that these have flows and contiguities that need to be understood and respected. This would also mean bridging the gap between the customary ways of decision making and the current legal frameworks. There is a need for more imaginative lawyers, activists and judges to help move towards an eco-centric and diverse legal framework.
Questioning Development
The fundamental contradiction between the current approach of extractive development and the rights of nature, where the former is inherently exploitative of resources for ever-increasing human needs, underlies the current social milieu. As in the case of all environmental laws and constitutional provisions relating to the environment in India, when there is a contradiction between growth-centred development and the environment, the latter is sacrificed (Shrivastava & Kothari, 2012).
Recognising the need for unpacking several of these questions at a regional level, an alliance committed to representing the interests of free-flowing and healthy rivers, and their dependent communities, has emerged in South Asia.
Rights of Rivers South Asia Allaince
Evolving as a network of organisations, individuals, and other networks from South Asia and across the world, the Rights of Rivers South Asia Alliance aims to foster dialogue and collaboration around the concept of rights of rivers, and to enable community empowerment, regeneration, conservation and responsible policymaking. The collective recognises that we need to change our institutions, bureaucracy and jurisprudence as an essential step in transforming the current destructive relationship with nature to one that honours the deep interconnections between humans and nature.
Shrishtee Bajpai is a researcher-activist with Kalpavriksh and Vikalp Sangam. She is a founding member of Rights of Rivers South Asia Alliance and executive committee member of Global Alliance for the Rights of Nature.
References
1 https://www.ipcc.ch/report/ar6/wg1/
2 https://www.ipcc.ch/report/ar6/wg1/downloads/factsheets/IPCC_AR6_WGI_
Regional_Fact_Sheet_Asia.pdf
3 In July 2017, the Supreme Court stayed the Uttarkhand High Court order after the Uttarakhand government filed a petition arguing that the order was legally unsustainable and simply not “practical”. The stay in Indian jurisprudence implies that the order will not be judicially operative from the day of the “stay order”. However, it does not mean that the said order is wiped out of existence.
4 Narayan Dutt Bhatt vs Union of India, 2018, page 50, Writ Petition (PIL) No. 43 of 2014, (2017).
5 CWP No. 18253 of 2009 and other connected petitions vs State of Punjab and Haryana, page 137, 2020.
6 http://harmonywithnatureun.org/chronology.html
7https://vikalpsangam.org/article/dialogue-on-rights-of-rivers-report-and-
annexures/
8 http://vikalpsangam.org/article/dialogue-on-rights-of-rivers-report-and-
annexures
9 Chuji, M., G. Rengifo and E. Gudynas (2019): “Buen Vivir”,in Ashish Kothari, Ariel Salleh, Arturo Escobar, Federico Demaria and Alberto Acosta (eds), Pluriverse:
A Post-Development Dictionary, Delhi: Tulika and Authors Upfront.
10 In a personal conversation with Samaru Kallo of Zendepar village in Korchi taluka of Gadchiroli district in Maharashtra.
11 Bajpai, S. (2020):A living hill: Reflections on animistic worldviews, Heinrich Boell Foundation, India Centre.
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