Water laws

A court naming Ganga and Yamuna as legal entities could invite a river of problems

The Uttarakhand High Court's March 20 ruling could create more conflict than it solves.

On March 20, the Uttarakhand High Court issued a remarkable series of directions following on from a case on which they had ruled on December 5, 2016. In the original case, local resident Mohammed Salim had filed a petition asking the High Court to direct the government of the state of Uttarakhand to remove illegal construction along the banks of the Yamuna, as well as to order the Central government to properly manage land and water resources.

The judgement in Mohd Salim versus State of Uttarakhand and others, delivered by justices Rajiv Sharma and Alok Singh, was basically concerned with the issues of federalism, and whether a state – through its judiciary – could order the Central government to take steps protect the river.

The justices decided that it was well within the rights of a state to pass such an order, because on certain subjects within the federal structure of the Indian Constitution, the states are supreme in their field – water being one of the most important such areas. Accordingly, the High Court directed that not only should the people who had encroached on the land be evicted, but that the Central government clarify the division of authority between Uttarakhand and Uttar Pradesh (from which Uttarakhand was carved out in 2000).

The order also mandated that:

The Central Government is also directed to constitute a Ganga Management Board, under Section 80 of the Act, and make it functional within a period of three months. The Central Government shall also induct State of Uttarakhand as member of the Upper Yamuna Board within three months.

Lastly, it said, “mining in the riverbed of Ganga and its highest flood plain area is banned forthwith”.

While the strong instructions in the order made it clear that the justices were very concerned with the destruction and neglect of the rivers, the follow on directions went far beyond that, by arguing that the Ganga and Yamuna rivers should be considered legal entities in their own right. The reason for this, the justices explained, was that, “The extraordinary situation has arisen since Rivers Ganga and Yamuna are loosing [sic] their very existence. This situation requires extraordinary measures to be taken to preserve and conserve Rivers Ganga and Yamuna.”

The extraordinary measure that the justices had in mind was to declare,

Accordingly, while exercising the parens patrie jurisdiction, the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person in order to preserve and conserve river Ganga and Yamuna.

The justices buttressed their argument by referring to Articles 48A and 51A (g) of the Indian Constitution. The first refers to the duty of the state to protect and improve the environment and take care of wildlife, while the second is part of the fundamental duties of an Indian citizen to do the same in their capacity. Article 48A has often been cited by Indian courts in passing judgements in favour of environmental protection.

Sacred rights for holy rivers

In this case, though, the argument of the justices rested on the sacred nature of the two rivers, which are holy to Hindus. In Indian jurisprudence, a deity may be a legal entity and is represented by the management staff of the temple, or caretakers of the deity. This is because such religious entities also have secular aspects – money given to religious trusts, for example – that means that their rights and responsibilities also exist. In the case of the rivers, the justices have granted parens patrie (the power of the state to act as parents when the parents are not able to fulfil those functions) powers to state representatives, with the “Director NAMAMI Gange [the National Mission to Clean the Ganga], the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand are hereby declared persons in loco parentis as the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries”.

Although the justices cite largely Indian law, the wording of their statement is remarkably similar to legislation passed in New Zealand – coincidentally given the royal assent on March 20 – in relation to the Whanganui river, sacred to the Maori indigenous people. The New Zealand law also recognised the river as a legal entity with all the “rights, power, duties and liabilities of a legal person”, and was billed as a world first.

Difficult questions

Despite the striking similarities, there are key differences between the two declarations of personhood for a river. The New Zealand legislation is the outcome of one of the longest legal disputes in the nation’s history and is primarily a power distribution agreement about the management of a protected area whose parameters and status are very clear.

This is certainly not the case with the Yamuna or the Ganga – which are extensively used in irrigation and other forms of use. Unlike the Te Awa Tupua, the protected area of the Whanganui river, the Ganga is “one of the most engineered rivers in the world” – with large dams, irrigation projects, and millions of tube wells.

As a lawyer at the Indian Supreme Court asked, “If a farmer pumps water onto his land from the river, is he violating the ‘person’ of the river? What happens in the case of a flood, will the authorities in loco parentis compensate the people harmed?”

Speaking on the condition of anonymity, he explained the issue that the court had ignored in making a comparison with deities regarded as legal persons. “In the case of temples and their trusts, there are rights and responsibilities, but in this case there are only rights. A religious trust can both sue, and be sued. Who is going to sue a river, if it runs dry, if it is polluted, if it floods?”

River diversion plans

More significantly, with the new legal status given to rivers, India’s massive river-linking scheme would become impossible. The controversial project being pushed by Narendra Modi’s government involves the large-scale diversion of water from the Ganga and Brahmaputra basins in eastern India to water scarce regions of western and central India through the construction of reservoirs, dams and canals. This leaves open the important question that if the government interferes in the river by making these interventions, will the advocate general of Uttarakhand act?

Potential for new conflict

An additional complication with the Ganga is that it is a transboundary river. Not only does it wind through a number of Indian states, it also has tributaries coming in from Nepal, and is one of Bangladesh’s major rivers – where it is called the Padma. How could the officers of Uttarakhand represent the other Indian states, and other countries?

There is also the issue of precedent. One of the most contentious water issues in India revolves around the Cauvery river flowing between Karnataka and Tamil Nadu. It is also considered sacred, as are many other water bodies in India – giving them personhood is likely to exacerbate, rather than calm, already frayed relations.

Given the number of questions that the directions raise, they should be seen in the light of the Indian judiciaries’ continued commitment to the Directive Principles found in the Constitution to preserve the environment – Articles 48A and 51A (g) – and the judiciary’s frustration at how badly these articles have been neglected.

This article first appeared on The Third Pole.

Support our journalism by subscribing to Scroll+ here. We welcome your comments at letters@scroll.in.
Sponsored Content BY 

Tracing the formation of Al Qaeda and its path to 9/11

A new show looks at some of the crucial moments leading up to the attack.

“The end of the world war had bought America victory but not security” - this quote from Lawrence Wright’s Pulitzer-Prize winning book, ‘The Looming Tower’, gives a sense of the growing threat to America from Al Qaeda and the series of events that led to 9/11. Based on extensive interviews, including with Bin Laden’s best friend in college and the former White House counterterrorism chief, ‘The Looming Tower’ provides an intimate perspective of the 9/11 attack.

Lawrence Wright chronicles the formative years of Al Qaeda, giving an insight in to Bin Laden’s war against America. The book covers in detail, the radicalisation of Osama Bin Laden and his association with Ayman Al Zawahri, an Egyptian doctor who preached that only violence could change history. In an interview with Amazon, Wright shared, “I talked to 600-something people, but many of those people I talked to again and again for a period of five years, some of them dozens of times.” Wright’s book was selected by TIME as one of the all-time 100 best nonfiction books for its “thoroughly researched and incisively written” account of the road to 9/11 and is considered an essential read for understanding Islam’s war on the West as it developed in the Middle East.

‘The Looming Tower’ also dwells on the response of key US officials to the rising Al Qaeda threat, particularly exploring the turf wars between the FBI and the CIA. This has now been dramatized in a 10-part mini-series of the same name. Adapted by Dan Futterman (of Foxcatcher fame), the series mainly focuses on the hostilities between the FBI and the CIA. Some major characters are based on real people - such as John O’ Neill (FBI’s foul-mouthed counterterrorism chief played by Jeff Daniels) and Ali Soufan (O’ Neill’s Arabic-speaking mentee who successfully interrogated captured Islamic terrorists after 9/11, played by Tahar Rahim). Some are composite characters, such as Martin Schmidt (O’Neill’s CIA counterpart, played by Peter Sarsgaard).

The series, most crucially, captures just how close US intelligence agencies had come to foiling Al Qaeda’s plans, just to come up short due to internal turf wars. It follows the FBI and the CIA as they independently follow intelligence leads in the crises leading up to 9/11 – the US Embassy bombings in East Africa and the attack on US warship USS Cole in Yemen – but fail to update each other. The most glaring example is of how the CIA withheld critical information – Al Qaeda operatives being hunted by the FBI had entered the United States - under the misguided notion that the CIA was the only government agency authorised to deal with terrorism threats.

The depth of information in the book has translated into a realistic recreation of the pre-9/11 years on screen. The drama is even interspersed with actual footage from the 9/11 conspiracy, attack and the 2004 Commission Hearing, linking together the myriad developments leading up to 9/11 with chilling hindsight. Watch the trailer of this gripping show below.


The Looming Tower is available for streaming on Amazon Prime Video, along with a host of Amazon originals and popular movies and TV shows. To enjoy unlimited ad free streaming anytime, anywhere, subscribe to Amazon Prime Video.

This article was produced by the Scroll marketing team on behalf of Amazon Prime Video and not by the Scroll editorial team.