April 3rd, 2017
By: Omair Ahmad
In a broad ruling on March 30, 2017, the High Court of the Indian state of Uttarakhand stated:
We, by invoking our parens patriae jurisdiction, declare glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, legal entity/ legal person/juristic person/juridicial person/ moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights.
Startling in itself, this followed from an order on March 20, 2017, in which the Uttarakhand HC had declared the Ganga and Yamuna rivers as legal entities based on the fact that they are considered sacred to Hindus. Based on that order, Lalit Miglani had petitioned the court that the “Himalayas, Glaciers, Streams, Water Bodies etc. [be declared] as legal entities as juristic persons at par with pious rivers Ganga and Yamuna.”
The earlier order, 12 pages in length, dealt primarily on whether the state of Uttarakhand had the powers, under a federal Constitution, to direct the Central government (according to the order, it did) and whether rivers, as sacred entities, could be considered legal entities under Indian law. This second order, 66 pages in length, is focussed on the ideas of parens patriae as a juridical concept for the states within a federal structure defending their environment, and cites, in a comprehensive manner the idea that nature has rights. The judgement spends six pages citing quotations from a book, “Secret Abode of Fireflies: Loving and Losing Spaces of Nature in the City”, which the judges have quoted from before in a case involving forest fires and forest management.
There is a chapter on the rights of nature by Vikram Soni & Sanjay Parikh that the judgment cites at length, then goes on to detail the special flora and fauna, including endangered species found in the Hindu Kush Himalayan region. The judgment then goes on to quote, in full, two important UN declarations that form the bedrock of international environmental agreement, namely the Stockholm declaration resulting from the United Nations Conference on the Human Environment in Stockholm, June 5-16, 1972 and the Rio Declarations resulting from the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, June 3-14, 1992. It also quotes the Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed in 1973, as well as the Bali Action Plan, formulated in 2007.
The judgment acknowledges the passage of New Zealand’s “‘Te Urewera Act 2014’ whereby the ‘Urewera National Park’ has been given the legal entity under Section 11 of the Act,” while building up to the argument that, “The Courts are duty bound to protect the environmental ecology under the ‘New Environment Justice Jurisprudence’ and also under the principles of parens patriae.” The judgment then spends another 15 pages quoting American jurisprudence on the use of parens patriae – the guardianship of the state of the rights of entities that are unable to fight for their own rights – by states within a federal structure, to assert their rights when their rivers have been polluted, or diverted, or their environment has been otherwise harmed. There is no reference to the use of such law within India.