Ganga and Yamuna given legal rights : Weekly Important Articles

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The Ganga and Yamuna—have been granted legal rights by the Uttarakhand high court.
Both rivers originate in Uttarakhand —the states and their rivers—are precious by definition not only for the future of those living in the state but for others living elsewhere in India, a point noted by the court.
The move in Uttarakhand is not the first such, but it certainly is extremely rare and puts the state on a pretty much uncharted course.
There is only one example we have of authorities actually enforcing a legal case brought by a person on behalf of a river—the Vilcabamba in Ecuador—and even that is by no means clear-cut.
The Uttarakhandjudgement delivered this month came in response to a 2014 public interest litigation by Mohammad Saleem, seeking the removal of certain encroachments on a stretch of a Ganga waters canal in Dehradun district.
In delivering their judgement, however, judges Alok Singh and Rajiv Sharma appear to have taken the opportunity to address some wider solutions to the problem of pollution in the two rivers.

Why such a Decision by the High Court

The Ganga is desperately sick. But the pollution in the Yamuna is particularly serious—its inability to support life in vast stretches would make it a “dead river” in other parts of the world.
Downstream in Delhi, it is “dead water quality”, unfit for irrigation, domestic or industrial purposes, according to R.S. Dubey, the author of a report published last year in theInternational Journal of Engineering Sciences and Research Technology.

Understanding the Judgment

There are three main components of the Uttarakhandjudgement: The first two are aimed at enforcing an old order from last year.
Firstly—the task at hand—they ordered the removal of the encroachments Saleem wanted removed within seven days of the judgement.
Secondly, the judges reaffirmed the need to create a Ganga Management Board.
Thirdly, the judges declared the Ganga and the Yamuna to be “juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person.”
Not just the rivers, but “all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers.”

Could decision be implemented?

Recognizing the rivers as a living entity grants them new found legal identity and all rights laid out in the Constitution of India.
The two rivers thus have the right to be legally protected and not be harmed/destroyed. They can also be parties to disputes.
The rights, experts say, can be used to protect the interests of the rivers.
Clearly, there is a problem with enforcing court orders in Uttarakhand.
The same two judges of the high court had issued both these orders on 5 December 2016.
Back then, it wanted the Ganga Management Board created and made functional within three months and had ordered those encroaching on government land along the canal to vacate the land within 12 weeks. Neither happened.
Now, the judges said, they have been assured by the ministry of water resources and Ganga rejuvenation that the board will be set up within eight weeks.
Apparently, the central government had previously tried but failed to get the cooperation of the governments of Uttarakhand and neighbouring Uttar Pradesh.
With assembly elections in March leading to the installation of BharatiyaJanata Party governments in both Uttarakhand and Uttar Pradesh—as at the centre—the Ganga may finally benefit from some coordination.
But pinning down the many levels where such obstruction occurs may not be easy.
They appointed three officials as persons inloco parentis (Latin for ‘in place of parents’) as “the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries.”
They are the Director of NAMAMI Gange (a central government project to clean the Ganga), the chief secretary of Uttarakhand and the advocate general of Uttarakhand.

Bonafide but uncharted territory

The legal precedence for such sweeping action, thrilling though it may be, points to an uncharted territory.
The Indian case differs fundamentally from the two previous such actions to grant natural entities rights.
The world’s first known case is the 2008 Ecuadorian Constitution, but its sweep is breathtakingly wide, recognizing as it does all the rights belonging toMother Earth,.
Including those to “integral respect for its existence”, “maintenance and regeneration”, and “restoration.” Rivers are one part of them.

Precedents

The Ecuador initiative sparked off a similar movement in the US, with the native American Spokane tribals demanding legal rights for the Spokane river. But this demand remains unfulfilled.
The second instance—the first specifically for a river—came last week when the New Zealand government on 15 March granted the river Whanganui the legal rights of a human being.
This status was given after a 140-year campaign by local indigenous Maoris for the river to be recognized as their ancestor.
There are similarities—the fact that the river is worshipped in all three cases is an obvious one. But the difference with Uttarakhand is also evident.

The debate

The actions in both New Zealand and Ecuador came in response to a specific demand by locals in the context of justice and centuries of exploitation.
In Ecuador, the 2008 Constitution was adopted by a government headed by socialist president Rafael Correa and it was ratified by a referendum.
Experts in Uttarakhand do not see any immediate benefits from the ruling.
The solution is that environment and development must go hand-in-hand. For instance, you cannot stop all hydro power projects in Uttarakhand, as they have done, without affecting development.
Economists have written about how the lack of private property rights often leads to environmental degradation, or what has been described as the tragedy of the commons.
Externalities such as pollution are a burden on society because there is no mechanism to force the polluter to directly pay the victim.
Nobel laureate Ronald Coase argued that the problem could be solved through bargaining, as long as there were defined property rights as well as zero transaction costs.

Will granting legal rights to rivers like the Ganga, change the on-ground situation?

The Ganga is no ordinary river. For millions, it is sacred, and for millions more, it is the lifeline – providing livelihoods, sustenance, and water for quenching parched throats and fields .
It makes the 2,500 kilometre journey from the Himalayas to the Bay of Bengal. Yet, the river is neglected.
Some 1,500 million liters of municipal waste and 500 million liters of industrial waste are discharged into it every day.
According to some experts “This was a knee-jerk reaction.”
The court applied the Whanghui decision on the Ganga without providing an implementation roadmap.
If the order is implemented then a lot of things, such as building of dams and barrages, dumping of waste in the river will become illegal.
But for that the order must be implemented, and the court has not provided any pathway or timeline for that.
Experts say that for the High Court decision to be effective, the bench should have given clear directions to the government on what it would mean for the rivers and their tributaries to be `legal and living entities.
The court has designated the Namami Ganga director, the Uttarakhand Chief Secretary, and the state’s Advocate General as “persons in loco parentis” or the human face to protect, conserve and preserve the Ganga, Yamuna and its tributaries.
The chief secretary and advocate general are representatives of the state and it is their duty to safeguard the interests and welfare of the state and its people.
It could well be that the interests of the state and the Ganga are at odds.
The Uttarakhand high court took the first step, but for it lead to real change, there is a need to follow through with concrete actions.