After river Whanganui in New Zealand and Atrato in Colombia were declared as “living persons”, the Uttarakhand High Court accorded the Yamuna and Ganga the same status but for all of 109 days. Madhuri Karak examines our faith in legal solutions for safeguarding the environment.

Four rivers in three corners of the world – the Atrato in Colombia, the Whanganui in New Zealand and the Ganga and Yamuna in India – were declared “living persons” earlier this year. Enshrined as inviolable persons by the law of the land, the rivers became rights-bearing entities and could even be parties to disputes. In all three cases, representatives of the community and the government were to jointly oversee their preservation, protection and futures.

Image credit: Scott Dexter/Flickr/CC BY-SA 2.0

This was welcome check against ecologically harmful human activities on rivers. Yet, the question of whether a law-based, rights-of-nature approach can surmount environmental challenges in the Anthropocene, our geological epoch that has been marked by irreversible human impact on the Earth, still remains. I survey the Indian case, with brief references to Colombia and New Zealand, and interrogate i) our faith in legal solutions to safeguarding the environment and ii) how relationships between communities and rivers as ancestor, goddess or resource shape these new legal arrangements.

In India, the “living persons” court order was met universally with hope, and the expectation that proper implementation would ensure improved environmental outcomes for two of the world’s most polluted rivers. However, even before the dust on celebratory editorials had settled, the Supreme Court abruptly stayed the order in July. A petition from the Uttarakhand government raised an issue, which had potentially steep financial consequences for the State: could flood victims sue the Ganga and Yamuna’s legal guardians for compensation? Indiscriminate damming in the upper reaches of the Ganga was held primarily responsible for the devastating flash floods of 2013, and authorities were wary of what the “living persons” formulation, if stretched to its legal limit, might entail. The Supreme Court did not hesitate, and stripped both rivers of the “living persons” designation. The Ganga and Yamuna returned to being merely rivers after 109 days as “living persons”.

 

River Whanganui is considered an ancestor that is indivisible from the mountains to the sea. Image credit: Department of Conservation/Flickr/CC BY 2.0

Although the initial Indian judgment was widely reported as inspired by the landmark Whanganui decision in New Zealand, the two cases are markedly different from one another. The Whanganui has been a contentious issue between indigenous Maori and New Zealand’s settler-colonial state since 1895, when 152 Whanganui women petitioned the parliament to stop the removal of stones from the riverbed. Over the years gravel extraction has destroyed fish habitats, and by extension, traditional livelihoods. In this context, the tribe’s common saying “I am the river and the river is me” isn’t hard to comprehend. On 15 March 2017, the Treaty of Waitangi was signed, a long overdue acknowledgement of the tribe’s special relationship with River Whanganui which is considered an ancestor that is indivisible from the mountains to the sea. Especially significant is the legal shift from management, ownership and use of nature by humans to granting nature ‘personhood’, which is a far closer approximation to Maori understandings of the environment. As per the agreement, one representative from the tribe and the Crown each will jointly oversee the implementation of the Treaty.

If the Whanganui case exemplifies a community’s centuries’ long resolve to protect its environmental heritage against all odds, the Atrato, Ganga and Yamuna were vested with legal status by ecologically conscientious courts. The Atrato flows through Colombia’s Chocó area, a region devastated by illegal gold mining. In its judgment, the country’s Constitutional Court argued that not unlike women, indigenous peoples and slaves through history, nature too has been treated as “property” or “right-less” under the law. The Court no longer saw its role as regulator of human use and access to nature, and instead ruled on the Atrato as subject to rights. The Atrato River Guardians, a group of ordinary people drawn from ethnic communities residing in the catchment area and government officials, will oversee its protection, conservation, maintenance and restoration. The Guardians will be trained by experts to generate a recovery plan for the river struggling with mercury pollution as direct fallout of gold mining.

The Atrato flows through Colombia’s Chocó area, a region devastated by illegal gold mining. Image credit: Galo Naranjo/Flickr/CC BY-NC-ND 2.0 

Pollution in the Ganga on the other hand has been a concern since the 1980s. Flowing from the Himalayas to the Bay of Bengal over a distance of 2,525 kilometres across five regional states the Ganga is one of the ten most polluted rivers in the world. The cumulative impact of hydropower projects, haphazard irrigation infrastructure built since the 1840s, effluents from paper mills, sugar refineries and tanneries is staggering. Over 4,800 million litres of sewage from 118 towns and cities dotting the great northern plains flow into the Ganga daily. Successive governments have instituted expensive clean-up policies — from the Ganga Action Plan (1986) and Mission Clean Ganga (2009) to current Prime Minister Narendra Modi’s Namami Gange or “Obeisance to the Ganga” (2014) — but with little success. Ironically, Ganga’s material pollution remains spiritually inadmissible for many Hindus because the river is venerated as a cosmic goddess, although its allegedly self-purifying quality – attributed to a combination of sulfur springs, natural radioactivity in the Himalayan headwaters and the presence of bacteriophage viruses that can destroy bacteria – has not kept ecological degradation at bay. The Uttarakhand High Court’s decision to name the Ganga and its tributary, the Yamuna “living persons” on 20 March 2017, only five days after the Whanganui case, must be seen in light of this complex social context. Three State government officials, including the director of the Namami Gange programme, were entrusted to defend the rivers’ interests as “parents”. In their judgment the Bench stated: “All the Hindus have deep astha (sic) in rivers Ganga and Yamuna and they collectively connect with these rivers. Rivers Ganga and Yamuna are central to the existence of half of Indian population and their health and wellbeing. The rivers have provided both physical and spiritual sustenance to all of us from time immemorial.”

Responding to a 1994 newspaper article on pollution levels in the Yamuna, the Supreme Court introduced a writ petition to clean up the river. Image credit: Roehan Rengadurai /Flickr/CC BY-NC-ND 2.0 

This is not the first time an Indian court has come to the rescue of a river. Public interest litigations in India have taken on a wide array of social justice and environmental causes since its inception in the post-Emergency period. Responding to a 1994 newspaper article on pollution levels in the Yamuna, the Supreme Court introduced a writ petition to clean up the river. Twenty years in, the Court is still overseeing the installation of interceptor drain sewers. In 2002, this time responding to then-President APJ Abdul Kalam Azad’s call for interlinking the country’s rivers as a possible solution for unseasonal floods and droughts, the Yamuna clean-up petition was transformed into the “Networking of Rivers” petition overnight. Pollution alleviation had morphed into a social engineering project that could potentially change rivers’ courses and displace human populations.

As the above example indicates, the PIL mechanism relies more on ideological predilections of individual judges rather than a consistent stance on any given issue. By naming Hindus as the Ganga’s spiritual heirs in its statement, the Uttarakhand High Court excluded other groups who have eked out a living along the river for as long as Hindus have. Furthermore, one can ask: were the Ganga and Yamuna deemed persons because they are sacred to the Hindu majority? Communally divisive articulations of potentially progressive environmental legislation are a step in the wrong direction. Observers are already asking if, in keeping with adivasi worldviews of sacred coexistence, the HC ruling can serve as a precedent for declaring rivers as legal persons in Scheduled Areas which are under threat from hydroelectric projects.

By naming Hindus as the Ganga’s spiritual heirs in its statement, the Uttarakhand High Court excluded other groups who have eked out a living along the river for as long as Hindus have. Image credit: Roehan Rengadurai/Flickr/CC BY-NC-ND 2.0

Although the Ganga and Yamuna are no longer legal persons, the issue of how best to secure our and the environment’s future remains.  Industries and the common people need to be more ecologically conscious and there needs to be popular consensus to uphold and adhere to worthwhile norms and laws that are already in place. Unless the three most egregious causes of river pollution – industrialisation, mining and damming – are checked, judicial activism can only go so far. Simultaneously, communities’ historical relationships with particular rivers – as ancestor, resource or goddess – will continue to structure their fate. Legal persons or not, our rivers won’t recuperate until we collectively realise that current human-environment relationships need an overhaul from one oriented to use and extraction to sustainable coexistence.

This article gives the views of the authors, and not the position of the South Asia @ LSE blog, nor of the London School of Economics. Please read our comments policy before posting.

About The Author
Madhuri Karak is a Ph.D. candidate in cultural anthropology at The Graduate Center, City University of New York. Her research explores processes of state-making in the bauxite-rich mountains of southern Odisha, India. She tweets @madhurikarak

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