Tag Archives: Rivers

All rivers require special status

Narmada in Madhya Pradesh

By Ritwick Dutta

If rivers are considered as living beings, we must recognise that in India today, they are an endangered species.
In his book, Animal Revolution (1975), Peter Singer popularised a term called ‘speciesists.’ According to him, “Racists violate the principle of equality by giving greater weight to the interests of members of their own race when there is a clash between their interests and the interests of those of another race. Sexists violate the principle of equality by favouring the interests of their own sex. Similarly, speciesists allow the interests of their own species to override the greater interests of members of other species. The pattern is identical in each case.”

The recent decision of the Uttarakhand High Court (Mohd Salim vs State of Uttarakhand) in declaring the river Ganga and Yamuna as living entity/legal person/juristic person, raises important questions similar to speciesists. It is important to point out that the HC has not recognised ‘rivers’ per se as living being/legal person. It has recognised only rivers Ganga and Yamuna and its tributaries as living entity/legal person.

This recognition is largely in view of the fact Ganga and Yamuna are regarded as sacred by Hindus and have a special place in the cultural ethos of the country. Though the HC has recognised that the two rivers provide sustenance to communities from the mountain to the sea, the main reason for conferring special status is the sacredness attached to the rivers.

Even at the national level, the Ministry of Water Resources has been renamed as the Ministry of Water Resources, Ganga Rejuvenation and River Development. The priority of the Central government is clear: water is a resource to be utilised, rivers have to be ‘developed’ (that is tapped and harnessed), while the river Ganga is the only river that needs to be rejuvenated. The Ganga has clearly been conferred a special status both by the courts and the government.

Notwithstanding the fact that the decision places Ganga and Yamuna on a higher legal pedestal than other rivers, the most significant aspect of the HC decision is that it does provide for a new perspective from which way decision/policy/law-makers should view rivers. It has held that Ganga and Yamuna are “breathing, living and sustaining the communities from mountains to sea.”

However simplistic this statement may seem, the fact is that the present legal and policy framework does not consider the river as either a ‘breathing’ or ‘living entity.’ On the contrary, it is viewed as ‘natural resource’ whose ‘potential’ has to be realised. It requires to be ‘tapped,’ ‘tamed,’ ‘harnessed,’ ‘dammed,’ ‘dredged’ or ‘linked’ in order to realise its full ‘potential.’

A river which is not subjected to any of the above processes and allowed to flow into the sea/ocean is viewed as a national waste. The Supreme Court’s controversial decision in the Narmada Bachao Andolan, Tehri and the River Linking cases is a reflection of the mindset which emphasises on the need to tap this potential of rivers to attain sustainable development. In a way, the HC decision marks a fundamental departure from the ecologically myopic views held by the courts till date.

Having said that, the court decision does have its shortcomings. Having conferred the unique status, it has invoked the principle of persons in loco parentis (that is, in place of parents) and has appointed the chief secretary and advocate general of the state and director, Namami Gange as the ‘human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries.’ According to the court, “These officers are bound to uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers.”

Conflict of interest

The problem is that, this is bound to lead to conflict of interest. The chief secretary is the secretary to the Cabinet whereas the AG is the highest law officer of the state government. Though Article 165 of the Constitution may give an impression that the AG is answerable only to the governor, in reality, he/she is a political appointee and defends the action of the state government before the courts.

Neither of them is an independent authority like the Comptroller and Auditor General of India or the Chief Election Commissioner. In such a situation, it is difficult to assume that either of them will be able to discharge their role as independent officers or representatives of rivers.

No judgement is perfect. A judgement is not a legislation and every word in a judgement need not be interpreted like letters of law. However, what is significant is that the HC judgement can be an important starting point for those fighting for the right of the rivers to flow uninterrupted.

If rivers are considered as living beings, we must recognise that in India today, rivers that are living and breathing, are an endangered species. They require special status and proactive conservation efforts. A ‘speciesist approach,’ however discriminatory, for all of the last free flowing rivers, and not just the Ganga and Yamuna, may be the last hope to save our rivers.

(The writer is an environmental lawyer and Managing Trustee of International Rivers, South Asia)

The above write up was first published in Deccan Herald on April 4, 2017 and can be read here

Are Ganga and Yamuna going to be ‘living entities’ only for Uttarakhand?

Allowing the river to be a legal entity means according it the right to live

Ganga at Jhala near Gangotri
Ganga at Jhala near Gangotri

“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.”

These were the words used by justices Aloke Singh and Rajiv Sharma of the Uttarakhand High Court on March 20, 2017 while declaring Ganga and Yamuna, two of the most sacred rivers in India, living entities.

On expected lines, the news break brought loud cheer from environmentalists and conservationists, not to mention even ordinary citizens who have deep aastha for Maa Ganga.

The Ganga is not only significant in view of the pride of place it occupies for its spiritual or cultural standing, but more so because it feeds almost 40 per cent of the country’s population.

From the lofty Himalayas to the Gangasagar, the Ganga basin – comprising the main river and its numerous tributaries – irrigates a large portion of the Indian subcontinent.

The slight change in water availability and the quality of Ganga, truly our national river, has a direct bearing on the economy of this region.

Treated/untreated sewage being dumped into Yamuna at Delhi
Treated/untreated sewage being dumped into Yamuna at Delhi

But, post-euphoria, reading the judgment by Uttarakhand High Court makes you wonder if the celebrations came a tad too soon.

Declaring the rivers, its tributaries and streams – essentially the entire basin – legal entities, the justices said: “The Director NAMAMI Gange, 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 human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries. These Officers are bound to uphold the status of Rivers Ganges and Yamuna and also to promote the health and well-being of these rivers.”

Therein lies the catch.

The judgment is a major step in river conservation efforts, but it has a huge implication vis-à-vis the territorial jurisdiction of the high court.

In simple terms, it applies only to the state of Uttarakhand.

“(But) The decision can have persuasive value for litigants from other states to get similar orders for respective states,” said Ritwick Dutta, environmental lawyer.

The Centre, state governments, as also litigants from other states, can extend the judgment to their stretch of the rivers.

It is too early to know if the Uttarakhand government or the Centre will approach the Supreme Court against the Uttarakhand High Court’s decision.

But water being a state subject, the decision to accord similar status to the stretches in their territory will rest entirely with the states.

“Government of India – or for that matter, even the government of Uttarakhand – should not technically approach the Supreme Court. Else, all the talk of cleaning the Ganga river, the Namami Gange etc will be futile,” Dutta said.

Drains of Ganga and Yamuna

This was originally a case of removal of encroachment from the river’s floodplains – a common phenomenon in the hills of Uttarakhand, which had resulted in heavy loss of life and property in the 2013 disaster following the cloudburst.

The court had insisted on encroachment removal and the authorities paid no heed.

Not only this set of encroachments, but the rivers Ganga and Yamuna have also seen a host of problems: dumping of debris, dumping of treated/untreated sewage, encroaching the flood plains, building dams that obstruct the flow, diverting the flow of rivers for hydropower projects and haphazard planning – rather the lack of planning and illegal sand mining.

In fact, barring a few pristine stretches, the rivers had stopped being rivers – not qualifying on two simple, universal aspects that make any living river: aviral (continuous) and nirmal (unpolluted).

“People along the river Ganga are already going away from the river. The river no longer provides irrigation, the fish catch is declining, it brings increased floods each year, thus complain those staying along the river. The same people who revered it as Maa Ganga, are now saying, ‘We don’t feel this is our river’,” Siddharth Agarwal of Veditum, who has been walking upstream along the Ganga from Gangasagar, told me over the phone.

Starting last year, Agarwal has already walked 2,300km and is now traversing the snaking route near Uttarkashi, about 100-plus kilometres before Gangotri and Gomukh, the origins of the holy Ganges. “They don’t have any hope from the river.”

The Uttarakhand High Court echoed what Agarwal experienced while interacting with a multitude of people along the Ganga’s banks as part of his project “Moving Upstream”.

“The extraordinary situation has arisen since Rivers Ganga and Yamuna are losing their very existence. The situation requires extraordinary measures to be taken to preserve and conserve Rivers Ganga and Yamuna,” the court said.

Outlook needs to change

In 2013, the Kedarnath disaster had jolted everybody out of wits. Government and the people took to some remedial measures.

Committees were set up, declarations made and prayers held in reverence of the Maa Ganga. But, obviously, it was not enough.

Those who suffered and witnessed the destruction first hand described it akin to mythological “pralay (excessive flooding)” .

Be it the mythological pralay or the disaster that wreaked havoc, the message was loud and clear: mere obeisance is not enough, mere rituals of aartis and pujas are not enough, mere slogans of Namami Gange are not enough.

In 2014, the new dispensation at the Centre took over and one of the major decisions in the initial days was to declare the integrated Ganga conservation mission called “Namami Gange” to arrest the pollution of Ganga river and revive it.

The Union Cabinet approved an action plan to spend Rs 20,000 crore till 2019-2020 as part of the 100 per cent central sector scheme.

This was over and above the humongous budget spent as part of the National Mission for Clean Ganga (NMCG), with no result.

But the moot question is: Have we adopted the right approach?

Have we achieved the balance between environment and development or have we let development (read human greed) to rob the river – overpowered the need of the river to live?

Allowing the river to be a legal entity means according it the right to live.

Are we prepared to pull down the already-built dams that obstruct the aviral (continuous) flow?

While the intention of the Uttarakhand High Court is laudable, what is alarming is it indirectly relieved the ministry of water resources, the nodal front, of any task (perhaps again playing the jurisdictional card) to ensure the protection of the river.

“The presence of the Secretary, Ministry of Water Resources, River Development and Ganga rejuvenation is dispensed with,” the court said after tasking the “parent-ship” of rivers Ganga and Yamuna to the director, Namami Gange, the chief secretary of Uttarakhand and the advocate general of Uttarakhand.

Ganga at Varanasi
Ganga at Varanasi

In fact, it is the ministry of water resources, and in turn, the government of India, that should be the real parent of the rivers Ganga and Yamuna in the light of the new status.

Uma Bharti, the Union minister for water resources, had launched a “Save Ganga” campaign prior to her appointment in 2014.

“Mujhe Ganga ne bulaya hai (Ganga has called me),” Prime Minister Narendra Modi had famously declared soon after his victory from Varanasi in the 2014 general elections.

With such illustrious prodigies at the helm of affairs, Maa Ganga should be confident that Modi (by extension, the government of India) and Bharti (the ministry of water resources) would definitely extend the “Living Entity” status to the entire length of river Ganga? Will they?

(This story was first published by Daily O and it can be read here