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Why in the news?
River need Legal Rights
In 2017, the legal status of four rivers in Aotearoa New Zealand, India, and Colombia was granted, and there was a recent attempt to extend these rights to the Colorado River in the United States. For both water resource management and environmental law, understanding the implications of developing legal rights for rivers is a pressing topic. Giving rivers legal rights allows the law to recognise rivers as legal people, resulting in the creation of new legal rights that can be enforced.
Advantages of giving legal rights to river:
- Identity to river: The first major advantage is that cases, if any, shall be brought in the name of the river itself.
- Damages and compensation: Second, in such circumstances, the damages and compensation awarded will be paid directly for the benefit of the river and from the river’s standpoint. The damages and compensation paid will go to the river, not to any human being. This can be used to create the river’s fund, and it can be used to meet a variety of needs, such as the money spent on lawsuits. Furthermore, the compensation can be utilised to restore the river’s health, thereby revitalising it.
- Preserving the river: Third, if the lower riparian people are dispersed and lack the financial or physical resources to submit a case, the entity designated to do so will do so, conserving the river.
- Multipurpose projects: When numerous multifunctional projects, like as dams, hydroelectric projects, canals, and so on, are planned to be built on the river in an efficiency-hungry world, the river must have a say in the process.
- Sue the opposite party: The River can also take part in such a procedure and sign contracts for it. When the contracts are broken, the river has the right to sue the other party.
- Best interests of the river: The River, through its representatives, shall be a party to any legislation or court dispute involving the river, with the representatives acting in the river’s best interests and ensuring that the river is productive.
- Role of legislature: The River, through its representatives, can bring to the attention of the Courts or the Legislature a variety of issues that might otherwise go unnoticed but are critical to the river’s survival.
Approach in giving legal personality to rivers in India:
- Salim v State of Uttarakhand: The Uttarakhand High Court, in this judgement, recognised the rivers Ganga and Yamuna to be juristic/legal persons/living entities with all the rights, obligations, and liabilities of a living person in order to maintain and safeguard the rivers Ganga and Yamuna.
- Lalit Miglani v State of Uttarakhand and others: It is stated once more that the river is a legal entity with all of the rights, responsibilities, and liabilities of a live person.
Case study New Zealand’ Whanganui River:
- In New Zealand, the Iwi (original inhabitants), who have waged a 140-year court battle to acknowledge the Whanganui River as a legal person, has been appointed as one of the members to represent and act on the river’s behalf.
- Furthermore, because these representatives have the desire to protect rivers as well as the expertise to do so, they will not abstain from performing their duties and will act in the best interests of the river.
- Furthermore, because the representatives will also be performing a state function, such a setup will ensure that the representatives can ask for governmental agencies’ cooperation and that this will happen without much friction and hindrance.
- If the representatives so appointed are sincerely interested in saving and preserving the river, the fees or emoluments required to be paid to them will not be excessive, as they are not in it for the money.
- When rivers are adequately protected and cleansed, the water contained in the river is clean and safe; this also assures that no suits are filed by lower riparian right holders, lowering the complexity and number of cases submitted before the various courts, hence minimising the courts’ load.
- Ecuador was the first country to include legal rights to nature in its constitution, which it did in 2008.
- In 2011, Bolivia passed a similar law.
- Uttarakhand, India, declared the Yamuna and Ganges rivers to be “living creatures” (a verdict that was later stayed by the Supreme Court).
- El Salvador acknowledged its woods as living entities, stating that each individual must commit to caring for, protecting, and honouring them.
- In 2019, the city of Toledo, Ohio, enacted the Lake Erie Bill of Rights to safeguard its coastlines, making it one of few cities in the United States to do so.
- In July 2019, Bangladesh became the first country to offer equal legal status to all of its rivers..
If a river is declared as a legal person, can it be said to have rights and duties?
- The owner of the right, the subject of the right, or the person entitled to the right is the first characteristic. The river is the focus of the right here.
- The duty should be assigned to a subject. The right to be protected can be used against the entire society in this case. As a result, people in general can be said to be bound by the correlative duty.
- There should be a content to the right, which in the instance of rivers would entail refraining from polluting or encroaching on the river, among other things.
- There should be a correct object. The river is also the object of the right in this example. This means that the river has a right to the water it contains, as well as the soil beneath its bed, and that no one can take those items away from it without its permission.
- The legal right must be given a name. It can be interpreted in terms of rivers as a statute, court rulings, or the Constitution itself that grants legal rights to rivers.
Legal rights can be established through both judicial and legislative means. As a result, legal rights are a versatile water governance tool with its own set of benefits and drawbacks. Bringing about change through legislative means, as Australia and New Zealand have done, can be slow but effective. The Indian case, on the other hand, demonstrated that legal rights to rivers can be acquired quickly through the court process, but can also be quickly revoked by subsequent judgments. Although the High Court of Uttarakhand established certain broad legal rights for the Ganges and Yamuna rivers, the judgements lack the institutional depth of Australia and New Zealand’s models. The lack of larger government action in India raises concerns about the guardians of the Ganges and Yamuna rivers’ ability to act, given the lack of financial backing, institutional capability, and statutory independence.
Mains oriented question:
There should parallel changes effectuated in the law when a river is conferred legal personality. This shall ensure a smooth transition and thereby a successful functioning. Illustrate the statement. (200 words)