Why You Should Be Excited About India’s “Rivers with Rights” Ruling

On March 20th, 2017, the Uttarakhand high court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights, making it possible for designated humans to represent the rivers in court and for complaints to be filed in the rivers’ names (you can read the full decision here). The court subsequently enlarged the order to extend rights to the glaciers which feed the Ganga and Yamuna rivers (the Gangotri & Yamunotri), as well as connected rivers, streams, air, meadows, dales, jungles, forests wetlands, grasslands, springs, and waterfalls.

The legal status of “living entity” appears to be functionally similar to the status of “legal personhood,” which the Nonhuman Rights Project is currently seeking in the New York courts on behalf of two captive chimpanzees, Tommy and Kiko.

The Ganga and Yamuna are ecologically important and hold sacred significance for Hindus. They’re also among the most polluted waterways in the country largely because of industrial, agricultural, and human waste. By giving them “living entity” status, human proxies will be able to act directly to further the interests of the rivers themselves, thereby bypassing issues of “standing” and other procedural obstacles that have thwarted the protective purpose of many environmental laws.

As you may know, these are not the first “river-persons” in the world. On March 15th, New Zealand’s Parliament formally enacted a treaty—the result of a near 200-year battle by a local Maori tribe—that recognizes the Te Awa Tupua (Whanganui) River as a legal person with fundamental rights, including the right to sue. A national park in New Zealand also enjoys legal personhood status.

The trend towards environmental legal personality is meaningful and real—and growing fast.

The NhRP’s take on these rulings

This decision has the potential to help the NhRP and our animal advocate colleagues in India and around the world make the case for legal rights for nonhuman animals. Yesterday I delivered a letter to the First Judicial Department on behalf of Tommy and Kiko (whose appeals are pending there now) that in part alerts the court to this recent legal development. Much like the recent decision in Argentina on behalf of nonhuman rights for Cecilia the chimpanzee, it is a clear example of nonhuman rights and the expansive power of legal personhood under both the common law and civil law. The Ganga/Yamuna ruling directly supports our cases, and we are all excited and hopeful about this decision and what it might mean not only for the rights of nonhuman animals, but for environmental law.

The NhRP has repeatedly cited the Whanganui treaty in our court briefs and arguments since we began filing suits in New York in 2013 (the agreement itself was first reached in 2012 but was only finalized in 2017). We do so because the Whanganui is a compelling illustration of the fact that legal personhood is not determined by biology but by public policy and that legal personhood is simply the capacity to have rights.

The conferral of legal personality on nonhuman entities has been characterized as one of the most important feats of the legal imagination. As the Uttarakhand court ruled,

“It is well settled and confirmed by the authorities on jurisprudence and Courts of various countries that for a bigger thrust of socio-political-scientific development evolution of a fictional personality to be a juristic person became inevitable. This may be any entity, living inanimate, objects or things.”

The court also referred to the case of Yogendra Nath Naskar v. Commission of Income-Tax, Calcutta, where an Indian court held that a Hindu idol “is a juristic entity capable of holding property and of being taxed through its Shebaits who are entrusted with the possession and management of its property.”

How the religious significance of the rivers impacted the court’s decision

The court did acknowledge that the rivers are sacred and worshipped by Hindus, but it also looked beyond religion. The court spoke of the physical and natural importance of the rivers: “They support and assist both the life and natural resources and health and well-being of the entire community. Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea.”

The court also referred to Article 51A(g) to the Indian Constitution, which specifies a duty of every Indian citizen to “protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures”, explaining that “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 possibility of elephants or other nonhuman animals attaining legal personality in India

We think a similar approach could be put to work to secure elephant personhood in India. Like the rivers, elephants have been worshiped in India for centuries. A sacred animal in Hinduism and a symbol of mental strength, earthiness and responsibility, the elephant represents the living incarnation of the god Ganesh, one of the most important gods. As the historian Heinrich Zimmer said: “In A Passage to India, elephants are a symbol of India itself.”

Moreover, Article 51A(g) to the Indian Constitution (mentioned above) similarly applies to elephants as being wildlife and Article 48A obligates the state to protect and safeguard wildlife.

In addition to elephants, monkeys, cows, and Royal Bengal tigers are considered sacred in India. Although one might think this would mean these nonhuman animals are treated especially well, that is unfortunately not the case, and no animal in India has any actual legal rights (some think dolphins do, but this is based on a misinterpretation of a judge’s 2013 ruling). Still, the Ganga/Yamuna decision represents a potential inroad for nonhuman animal rights in India.

Early reactions from Indian animal advocates (UPDATE)

Priyasha Corrie, Indian attorney with an interest in animal issues:

“This decision reflects the trend of Indian Courts gradually taking up a role of a law-maker rather than a mere interpreter of law. The ruling also demonstrates the success of public interest litigation (PIL) in the sphere of environment protection in India, a unique model enabling greater access to justice for all. Successful PILs have resulted in various pro-animal measures such as the prohibition of the entry and slaughter of camels in the state of Karnataka, a ban on bullfighting in Goa, a ban on camel rides in Mumbai, implementation of protective measures in relation to using animals in films, prevention of illicit trade of birds, and improvement in the welfare of animals at the Byculla zoo in Mumbai.

An impetus behind this decision appears to be religion and culture given that these rivers are considered sacred in India. Given the connotation of the earth and nature as ‘mother’ and ‘life-giver’ in Indian spirituality and philosophy, there is an inherent inclination to treat the environment as a ‘person’ in India and this judgment could mean the beginning of this concept being given legal recognition. Of course, I trust that the Courts would not solely rely on religion and culture as the basis for this conferral given the concept of PIL (an instrument for the voiceless) and the rights of animals and the environment in the Constitution of India.”

Vivienne Choudhury, President of In Defense of Animals India and a longtime animal advocate:

“Despite this wonderful language in the Constitution, companion animals and “food” animals, such as milk cattle, goats, and chickens are all treated and termed by our Courts as property. With regard to wildlife our laws are implemented with some strictness I have noticed.

Surprisingly, the magnificent Indian Elephant can be owned! This probably goes back to some archaic law when the elephant was a beast of burden of great use in the forests of India, picking up logs and transporting them out of wild areas into warehouses and so on. Slowly the law is cracking down on use of elephants in entertainment and recently 20+ circuses had to surrender their elephants and stop these cruel acts. But religion is something else in India. Anything goes as long as it is traditional and religious, especially to do with elephants. At festivals in South India where the unfortunate elephant is the main attraction, the Animal Welfare Board of India is sometimes prevented from inspection of individual animals.

Let’s hope with the new law, pollution from industries and other sources such as disposal of sewage into water bodies will now stop. That at least will make a dent in the burden of pollution that our rivers have to endure.”

How these rulings help the NhRP and the nonhuman rights movement

This ruling shows, once more, that a nonhuman can be a legal person and that expanding who (or what) counts under the law is crucial to societal development, as the India court emphasized when ruling for the rivers.

The court also discusses the capability of legal persons to bear rights and duties and explains that, like an infant, a guardian is representing the legal person to that end:

…Legal personality may be granted to entities other than individual human beings, e.g. a group of human beings, a fund, an idol. Twenty men may form a corporation which may sue and be sued in the corporate name . . . and, of necessity, the law recognizes certain human agents as representatives of the idol or of the fund.

We may, therefore, define a person for the purpose of jurisprudence as any entity (not necessarily a human being) to which rights or duties may be attributed…. the entity acts like a natural person but only through a designated person, whose acts are processed within the ambit of law.

The court, by this acknowledgement, is trying to save two of the most polluted rivers in the world. The same sentiment can be marshaled to demand legal personhood and fundamental rights (specifically, the rights to bodily liberty and bodily integrity) for elephants, who, while among the most cognitively and emotionally complex beings to roam the earth, nonetheless endure extreme torture and are on the brink of extinction because of human institutions and human activities.

We emphatically note that the Ganga/Yamuna Court correctly defined “person for the purpose of jurisprudence as any entity (not necessarily a human being) to which rights or duties may be attributed.” The NhRP has been steadily attacking the erroneous decision made by New York’s Third Department appeals court in Tommy the chimpanzee’s 2014 case, in which it relied on Black’s Law Dictionary’s erroneous statement that a person had to have the capacity to bear right and duties.

Looking ahead

It is too early to speculate what exactly it will look like for human lawyers to litigate the interests of a river in court. But we are thrilled to see how fast the idea of environmental legal personhood is spreading and look forward to charting the development of this body of law in India and elsewhere. As always, we offer our support and resources to lawyers and advocates in India and all over the world. Please email me at kschneider@nonhumanrights.org if you wish to establish a nonhuman rights working group in your home country.

Special thanks to Gali Hagel, Esq. and Shirley Shtiegman, Esq. for their assistance with this article. Look out for an upcoming blog post by NhRP attorney Elizabeth Stein on the letter delivered to the First Judicial Department on March 27th in Tommy’s and Kiko’s cases.

Addendum: The Court has now also recognized the glaciers that feed the two rivers as living entities with fundamental rights.

Photo Credit: Wikimedia Commons