Environmental Law

09/04/2017

From ‘Natural Objects’ to Holders of Legal Rights: The Expanding Concept of Personhood in India

In 1972, Christopher Stone published one of the seminal articles in environmental legal thinking: ‘Should Trees Have Standing?’. Stone observed that the history of law has seen the gradual extension of legal personality, and accompanying legal rights, to entities to whom it had previously been unthinkable that rights should be granted. Although such entities have included various categories of human beings (such as women, children, and slaves), the boundaries of legal personality have also been stretched to include certain non-humans, such as corporations. From this foundation, Stone proceeded to construct an argument for the extension of legal rights to what had hitherto been ‘natural objects’. Later the same year, in his dissenting opinion in Sierra Club v Morten, US Supreme Court Justice William Douglas famously aligned himself with Stone’s position, asserting that ‘[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. Nevertheless, it is probably safe to assume that, as had been the case in respect of other historically ‘rightless’ entities, the suggestion that rights be conferred upon nature initially struck many as being completely outlandish.

Fast forward almost half a century, and Stone’s proposal does not sit quite as uncomfortably as it might have when initially published. In the period since the early ‘70s, an abundance of environmental laws have emerged at both the international and national levels; and although it is not yet commonplace for states to bestow rights upon the environment (or components thereof), this practice is rapidly gaining traction in several jurisdictions. In 2008, Ecuador became the first country to include ‘rights of nature’ in its Constitution, including ‘the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’, as well as ‘the right to be restored’. Then, in 2014 and 2017 respectively, New Zealand passed the Te Urewera Act and the Te Awa Tupua (Whanganiu River Claims Settlement) Act, recognizing a national park and a river to be legal entities, with ‘all the rights, powers, duties and liabilities of a legal person’.

Last month, India became the most recent country to grant rights to particular features of the natural environment – not through legislation, but rather through two public interest litigation cases decided by the High Court of Uttarakhand (for an overview of how the cases emerged, see here). This post provides a brief synopsis and critique of the two judgments and comments on their significance.

Judgment #1: Cracking open the door to personhood

River Ganga (Photo by Flickr user Roehan Rengadurai)

In the first judgment (Mohd. Salim v State of Uttarakhand & Others), the Court was of the view that the ‘extraordinary situation’ in which the Ganga and Yamuna Rivers ‘are losing their very existence’ requires that ‘extraordinary measures be taken to preserve and conserve’ these rivers. After noting the deep spiritual connection between Hindus and the Rivers Ganga and Yamuna, the Court cited several previous judgments (predominantly from India’s Supreme Court) in which the concept of legal personality and its extension have been considered. The Court paid particular attention to decisions holding that a Hindu idol/deity is a juristic person, capable of possessing its own property (which is managed on the deity’s behalf by a human guardian), being taxed, and suing as a pauper. It further emphasized that the concept of ‘juristic persons’ emerged to serve ‘the needs and faith of society’ and that ‘a juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons’. The Court proceeded to again stress the religious significance of the Rivers Ganga and Yamuna. Importantly, it also commented on the rivers’ role in supporting ‘both the life and natural resources and health and well-being of the entire community’ and pointed to provisions of the Constitution of India which require both the state and its citizens to protect the environment.

The Court ultimately held that ‘to protect the recognition and the faith of society’ and ‘preserve and conserve’ the Rivers Ganga and Yamuna, it was necessary to declare these rivers, ‘all their tributaries, streams, [and] every natural water flowing with flow continuously or intermittently of these rivers’ to be juristic persons ‘with all corresponding rights, duties and liabilities of a living person’. It further declared the Director of government’s NAMAMI Gange project, along with the Chief Secretary and Advocate General of the State of Uttarakhand, to be ‘persons in loco parentis as the human face to protect, conserve and preserve’ the rivers and their tributaries; and directed these persons to ‘uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers’. The Court stated that, in making this decision, it was exercising parens patriae jurisdiction (i.e. the jurisdiction to assume responsibility for the welfare of those unable to act on their own behalf), but did not elaborate upon this principle.

Judgment #2: Allowing more persons to enter the room

A mere ten days after its striking decision concerning the Rivers Ganga and Yamuna, the Uttarakhand High Court widened the ambit of legal personality even further to encompass ‘the Glaciers including Gangotri [and] Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’, and declared several individuals to be persons in loco parentis of these entities in the State of Uttarakhand (Lalit Miglani v State of Uttarakhand & Others). This second judgment was penned by the same two judges as the first, but is considerably longer and, unfortunately, also considerably less coherent.

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

While the first judgment had hinged largely – albeit not exclusively – on the religious importance of the rivers in question, less weight was placed upon this aspect in the second judgment. In reaching its decision, the Court considered the significance of, and threats to, various features of the natural environment. It expressed concern that the Gangotri and Yamunotri Glaciers (from which the Rivers Ganga and Yamuna originate) are receding due to pollution and climate change; that the various natural parks in the State of Uttarakhand, which ‘function as lungs for the entire atmosphere’, are threatened by human activities; that the State’s forests are threatened by large scale deforestation; and that forest fires are polluting the environment and harming wild animals, whose habitat is also shrinking. Throughout its judgment, the Court quoted extensively from several publications, which discuss, inter alia, the biodiversity of the Himalayas; the importance of trees from religious, cultural, economic and ecological perspectives; and the need to deviate from traditional approaches to protecting nature by recognizing nature’s rights. Curiously, no extracts from Stone’s ‘Should Trees Have Standing’ appeared in the decision, despite Stone having advocated precisely the kind of expansion of legal personality that the Court undertook in this judgment. Nor were excerpts included from the dissenting opinion in Sierra Club v Morten, although the Court did refer to New Zealand’s Te Urewa Act as an example of a country having recognized the legal personality of a national park.

The Court additionally drew text from a variety of international environmental instruments, reproducing the 1972 Stockholm Declaration, 1992 Rio Declaration, and 1992 Rio Forest Principles in their entirety, and also quoting large portions of the 1982 World Charter for Nature and 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). References to forests in the 1997 Kyoto Protocol and 2007 Bali Action Plan were additionally mentioned. The Court drew no distinction between legally binding and non-binding instruments – indeed, several mistakes in the judgment (which, for instance, erroneously refers to the Kyoto Protocol as the ‘Kyoto Declaration’) suggest that its authors failed to fully appreciate the nature of India’s commitments under the various instruments they referred to. The Court also failed to explain why it considered this selection of instruments to be relevant in reaching its decision, though presumably its rationale was that they illustrate the existence of wide-scale agreement amongst states concerning both the importance of the natural environment and the concomitant need for environmental protection. Further, although none of the instruments go so far as to call upon states to bestow legal rights upon nature, doing so is conceivably one route through which to achieve environmental protection, and thereby respond to some of the exhortations/obligations that the instruments contain. That said, the list of instruments that the Court chose to cite is somewhat surprising – in both its inclusions and its exclusions. Amongst the instruments referred to in the judgment, CITES stands out as a particularly odd choice. While numerous CITES listed species inhabit Uttarakhand (examples including the snow leopard, Uncia uncia, and the snow orchid, Diplomeris hirsuta), the Convention requires only that states protect these species from overexploitation through international trade, not that they engage in broader in situ conservation efforts, such as the protection of natural habitats. Given that the Court’s eventual expansion of legal personality pertained to particular habitats, but not to individual species, the 1992 Convention on Biological Diversity (CBD) would seemingly have provided better support for the decision – especially considering that this Convention recognizes the intrinsic value of biodiversity, whereas CITES’ focus is strictly utilitarian. However, the CBD received no mention in the judgment. Nor did the 1971 Ramsar Convention on Wetlands of International Importance or the 1972 World Heritage Convention, despite the Court both recognizing the legal personality of wetlands and emphasizing the need to protect natural parks in the State of Uttarakhand (which include the World Heritage listed Nanda Devi and Valley of Flowers National Parks). Still further instruments that could have been referred to, but weren’t, include the 2007 Non-legally Binding Instrument on All Types of Forests, the Outcome Document of the 2012 Rio+20 Conference (‘The Future We Want’), the 2015 Sustainable Development Goals, and the 2015 Paris Agreement. The Court’s failure to consider these four relatively recent documents might be explained by its apparent reliance on the outdated book Documents in International Environmental Law (2^nd ed.: 2004) as its primary source of information concerning relevant international instruments.

As had the initial judgment regarding the Rivers Ganga and Yamuna, this second judgment referred to citizens’ Constitutional duty to protect the environment. It further stated that ‘[t]he Courts are duty bound to protect the environmental ecology under the “New Environment Justice Jurisprudence” and also under the principles of parens patriae’. It then provided a lengthy collection of quotes from judgments and journal articles discussing parens patriae – in particular, in the context of allowing states in a federal system to sue to prevent injury to the environment. What is remarkable about this collection, however, is that the texts cited discuss the origins and evolution of parens patriae in the United States’ legal system, and provide no explanation whatsoever of how this principle operates in Indian law.

Towards the end of its judgment, the Court stressed that ‘[b]esides our constitutional and legal duties, it is our moral duty to protect the environment and ecology’, and ‘to hand over the same Mother Earth to the next generation’. It stated further that ‘rivers, forests, lakes, water bodies, air, glaciers, [and] human life are unified and are [an] indivisible whole’; and that rivers and lakes have an ‘intrinsic right not to be polluted’, and rivers, forests, lakes, water bodies, air, glaciers and springs ‘have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system’. In holding that these entities are legal persons the Court directed that their rights ‘shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury to the human beings’. At an earlier point in the judgment, the Court had also commented that ‘[t]rees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment’ – however, the rights of wild animals were not reasserted in the decision’s concluding paragraphs and, as noted above, the Court did not go so far as to recognize the legal personality of any of Uttarakhand’s native fauna.

Where to from here?

Whilst Indian law already obliges both citizens and the government to protect the environment, the legal significance of these two judgments is (as suggested by the title of Stone’s article) that litigation can now occur on behalf of certain features of the natural environment. Whether or not this enhances the environment’s protection in practice remains to be seen, although concerns have already been raised regarding the Indian government’s poor track record regarding environmental matters and the Court’s appointment of government officials as persons in loco parentis. As noted by Shivshankar, the second judgment did recognize the need for community participation (providing that ‘[t]he Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers’), but failed to specify how community members will be chosen or what their precise role will be. The judgments have further been criticized for failing to unpack what these new ‘persons’ can sue for, who they can sue, and whether there are any breaches of duty in respect of which they themselves can be sued. As things currently stand, a great deal of uncertainty thus remains concerning the implications of their newly established personhood. It is further significant that, since they originate from a High Court judgment rather than the Indian Supreme Court, the orders only apply within Uttarakhand. This clearly dilutes their potential to contribute to the protection of transboundary entities such as the Rivers Ganga and Yamuna.

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

The judgments would also arguably have been of greater persuasive value for courts in other Indian states, as well as foreign jurisdictions, had their legal reasoning been more carefully developed. Nevertheless, the Court’s acceptance that the spiritual and ecological value of certain aspects of the natural environment, combined with the threats faced thereby and the duties enshrined in the Indian Constitution, constitute ‘good and sufficient reasons’ for attributing legal personality provides an important precedent for future expansions of personhood. Indeed, the Nonhuman Rights Project has already stressed the potential of this precedent to assist animal advocates in making the case for legal rights for nonhuman animals.

Regardless of the various difficulties that will inevitably arise in implementing the Court’s orders, at the very least they reflect an important conceptual shift away from humans’ traditional, anthropocentric notion of environmental management, which has thus far been largely unsuccessful in preventing environmental destruction. Decades before Christopher Stone suggested that nature might be afforded legal standing, Aldo Leopold posited that: ‘We abuse the land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.’ Recognizing that various aspects of the natural environment, rather than simply being things for us to use, are capable of holding legal rights is an important step towards embracing the latter perspective.