Rivers and Rights: Rights of Nature and Systemic Transformations in India

by Shrishtee Bajpai

Despite their immense cultural and spiritual significance, India's rivers have been suffering from severe pollution for years. Meanwhile, the Uttarakhand High Court recognised the north Indian rivers Ganges and Yamuna as legal entities in a landmark judgement in 2017. The judgement, however, was seen as 'impracticable' and thus suspended.

What role can Rights of Nature play in India? What would it mean - theoretically and practically - for a river to have rights? And what are the broader transformations this requires and implies?

The indigenous and other nature-dependent communities in India have challenged the fundamental tenets of Western thinking—that humans alone are possessed of rights and all the rest of the living world exists for human use. Multiple faiths and traditions of people living with the rest of nature have revered it. Their everyday lives have been guided through rhythms and moods of the natural world by respecting the ecological limits and nourishing cooperation.

With the onset of facing dire impacts of climate change and potential mass extinction of species, and the closing window of opportunity to take meaningful action, a growing number of communities, organisations and governments around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones.

The last two decades have seen a striking increase in the number of laws based on ecological jurisprudence. But what does it mean for a river and/or other natural entities to have rights and duties like a 'living person'? What will happen to the rights of humans living along these ecosystems? Are these discourses truly transformative?

This article explores some of these questions, cautions about some potential dangers in RoN discourse and the need to continuously struggle for fundamental and intersectional transformations.

The crisis of ‘development’ and environmental governance in India

The reciprocal relationship that communities living along nature have long nurtured is being threatened and is going through many fractures due to the acceleration of invasive neo-colonial ‘development’. The onslaught of the current dominant unsustainable extractive approach reflects a colonial framework that sidelines indigenous communities, their ways of being and the rest of nature. In doing so, the lands and natural ecosystems that the communities live in are being polluted, destroyed, and are vanishing.

The current planetary crisis has become the crisis of civilization. The crucial dimensions of life are failing, simultaneously leaving several communities in very desperate situations and future deplete.

The environmental governance in India is marred by several such contradictions. As a result of colonial legacy, most bureaucracy still operates in colonial logic of looking at the rest of nature as a resource property to be controlled and managed. This extractive logic has created four major issues including regulatory failure, limits to judicial activism, the assumption that conservation is environmentalism and domination of neo-liberal growth ideas. But what is really doing to our environment?

Around 351 river stretches in India are excessively polluted according to the The Central Pollution Control Board (CPCB). This has resulted in the near extinction of species like the Gharial and Gangetic dolphin and endangering several other species. Moreover, these dams and the pollution of the water hamper ecological balance, ruining livelihoods of fishers and farmers, and impacting human health. With climate change, unprecedented floods, landslides, and other such disasters are exacerbated and already threatening the safety of dams around the world, with more extreme weather events elevating the risk of catastrophic dam collapses. The fragile ecosystems such as the Himalayas and the Western Ghats (where most dams are proposed and operational) in India are already prone to disasters which are worsened by climate change.

Rights of Nature – an alternative?

Recognising that the rest of nature is alive in the formal legal systems and transcends the traditional boundaries within which classical environmental law has been constructed is a new discourse emerging across the world. A series of decisions by courts or governments across the world may just provide a fresh lease of life to these movements. But is RoN in its current form and in the present western discourse, truly an alternative? We will examine this question in the coming section.

The Uttarakhand High Court (hereafter, UHC) ruled (in two separate orders on the 22nd and 30th March) that the north Indian rivers Ganga and Yamuna, their tributaries, and the glaciers and catchment feeding these rivers in Uttarakhand, have rights as a ‘juristic/legal person/living entity’. In July 2017, the UHC order was stayed by the Supreme Court of India, after the state of Uttarakhand filed a petition against it, arguing that the order is legally unsustainable and simply not ‘practical’.

On July 4th, the High Court of the State of Uttarakhand delivered another judgement in which it recognised all members of the animal kingdom as legal persons. The petition was filed pro bono publico for the protection and welfare of animals. However, the scope of the writ petition was enlarged with the consent of parties and in the interest of the larger public to promote the protection and welfare of the animals (Narayan Dutt Bhatt vs. Union of India & others, 2018).

In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city as a living entity, also with rights equivalent to that of a person (CWP No. 18253 of 2009 and other connected petitions vs State of Punjab and Haryana, page 137, 2020.).In April 2022, the Madras HC recognised the rights of mother earth as a living person.

There have also been processes in neighboring countries like Bangladesh when the Dhaka High Court, in January 2019, recognised the river Turag as a living entity with legal rights and held that the same would apply to all rivers in Bangladesh. Similarly, there has been an ongoing effort in Nepal to include rights of nature through a constitutional amendment and in Pakistan to draw Bill of Rights for the transboundary river, Indus.

What would it mean for a river to have rights?

The Uttarakhand High Court in its ruling in the case of Lalit Miglani vs. State of Uttarakhand & othersobserved that:

“The rivers sustained the aquatic life. The flora and fauna are also dependent on the rivers. Rivers are grasping for breath. We must recognize and bestow the Constitutional legal rights to the 'Mother Earth'. The very existence of the rivers, forests, lakes, water bodies, air and glaciers is at stake due to global warming, climate change and pollution.”

For a river to be recognized as a person entitled to rights in the eyes of laws would mean to grant it, among other rights and duties, the power to bring a suit under its name, have its injuries be recognized, hold its polluters for harms caused, and claim compensation and be entitled to other remedies.

Fundamental rights, in that sense, are the most basic of obligations because they emanate from the idea that they are present even if no law exists. In the case of a river being recognised as a legal person, the most basic right would be the right to live. I argue that this would mean the river has a right to flow without being dammed or diverted in such a significant way that the river’s basic character is altered (e.g. being converted into a reservoir, or channelised through canals and tunnels). Furthermore, the right to live implies the right not to be polluted to an extent that essential biological and other processes are irreparably damaged.

Fundamentally, the rights of nature should mean that the ecological conditions making up a natural habitat are to be respected and protected. Hence, the river has a right to maintain its identity and integrity.

Note, here, that I am not arguing that this puts an end to fishing or other human activities related to the river, it rather pushes for a healthy relationship respecting the river’s flow, its constituent plants and animals, its catchment, the rocks and soil and other elements of the landscape it flows through. In the same way, the destructive activities that damage the river including pollution, dams, diversions, industrial fishing and trawling, and sand mining could be challenged.

An additional question being raised is whether all components of the river and its catchment also get rights. For instance, is the flora and fauna that lives within a river’s ecosystem also recognised as having rights as living entities, as ‘persons’? If so, would this apply to each individual of each such species, or to the species as a whole? Would it also include indigenous and other local communities?

At a recent dialogue, organised by civil society, on unpacking some of these issues, a collective vision agreed on was that these rights should include whatever a river can do naturally, without any hindrance.

One of the participants, KK Chatradhara from Assam defined the rights of rivers as ‘a right to behna, khelna and khelana (flow, to play and to feed).As such, the river must have the right to flow (unhindered), meander, and to flood in its floodplains.

The rights of the soil and groundwater flow must also be included while keeping in mind the close relationship between the two. Moreover, the rights of the river should include the rights of all that determine the health of the river including the species in the river, its basin, catchment areas, and the forests near the river among others. Of course, these varied parameters of health need to be more clearly defined.

Along with the aforementioned, it was stressed that rivers cannot be separated from people as human civilisations have grown with and by rivers and their actions are important to look at. Hence, the traditional local and subsistence uses need to be within the ambit of defining the rights, with a gradation of priority and hierarchy of uses and stringent regulation or prohibition on large-scale, commercial uses.

Implementing the Rights

Assuming a common understanding of what is a river and what the rights of a river could mean, how will such rights be protected? Since the river cannot do this itself, and since, in the first place, it is humans who are recognising its rights, there would need to be a system of custodians or guardians that helps guarantee and protect its rights. This would resemble the system put in play for a human infant or a person with severe ‘disability’.

In saying this, the author does not mean to suggest that nature does not have its own ways to express dissonance; for instance at one level of understanding, we could think of ‘irregular’ behaviour such as sudden floods, cloudbursts, droughts etc as some form of ‘dissent’. However, in the realm of law which is a human construct, rights are primarily for regulating human behaviour in order to protect the integrity of nature including the species that comprise it.

Parenthood / Custodianship

In both UHC orders, a set of individuals have been appointed as ‘parents’ to protect the rights of the rivers. Amongst the ‘parents’ appointed by the UHC there are government functionaries and a couple of independent lawyers. These appointments however evoke less confidence as a concern over the interests of the river may be overshadowed by state functionaries' loyalty to their governments who are themselves violators of the river’s rights. Moreover, within the second order of the Court the ambit of power is widened to include:

“The 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 (Lalit Miglani vs. State of Uttarakhand, 2017).”

Unfortunately, the Court has left decisions on this to the state’s Chief Secretary (topmost bureaucratic position). Recently, there is a poor record of state and central governments simply not filling such positions or filling them with people who will not challenge the status quo.

The spirit of the following observation made by the UHC could mean a more democratic decision making process through meaningful consultations at various levels:

“we would hasten to observe that the local inhabitants living on the banks of rivers, lakes and whose lives are linked with rivers and lakes must have their voice too” (Lalit Miglani vs. State of Uttarakhand, 2017).

There is a need for a commission comprising local communities, government, and civil society with a multiscale, nested institutional framework to enable participation across the entire stretch of the river. The need is for local participation determined by gram sabhas (village assemblies) and area sabhas (urban area assemblies) and representation of various livelihoods relating to the river with independent mediators and clear rules of functioning that ensure transparency and accountability.

Moreover, subsequent questions arise when you begin to consider what happens if the “parents” or custodians fail to discharge their duty. Will they be personally penalised for a failure to discharge their duties? Or will they simply be replaced? And what of disagreements on what constitutes a violation? Given the enormous grey areas left undefined in the Court orders there are a lot of issues that need to be spelt out when the orders are operationalised. Across other cases in different parts of the world, several of these issues remain to be expanded or have limited understanding.

Violation, restitution, restoration and compensation

To efficiently exercise the rights of rivers and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to ‘violation of the rights of rivers’ and the extent and scope of ‘the process and nature of restitution’. For instance, restitution could mean the restoration of a river to the healthy state it was in prior to violation. As stated in the 2020 Dialogue on Rights of Rivers:

“For example, restitution may be dismantling dams that have blocked the river's flow or so drastically altered its nature that it can no longer be recognized in its original form (including, for instance, flowing only though tunnels inside the mountain, in so-called run-of-the-river hydro projects). It may also be to adequately compensate all affected communities and other relevant parties.”

In some parts of the world, dams have in fact been decommissioned or removed to enable the river to run free again, helping restore its health or populations of wild fish. Could restitution also mean regenerating catchment areas, so that ‘normal’ water and silt flows are re-established? All such possibilities need to be considered as some have pretty far-reaching positive, albeit challenging, consequences.

Rights of Nature – can it be a systemic alternative?

As highlighted above, for RoN to be truly transformative it has to be built on grounded imaginations of what people would articulate as ‘rights’. Along with a strong conservation angle, it has to have the goals of direct democracy, local and bioregional economies, cultural diversity, human well-being, and ecological resilience at the core of its vision. Without keeping the intersectionality and holistic imagination of transformations, it stands the risk of being appropriated. Hence, it is important to look at the holistic alternatives. For example, when the Quechua residents of Potato Park in the Peruvian Andessay

“our food systems are not just the work of humans. They are the work of the mountains, of Pachamama [Mother Earth], of the sacred, the whole community which is centred on reciprocity, solidarity, and respect for elements of life. This is buen vivir (‘living well’) for us”,

they highlight important learnings for conservation, sustaining their own livelihoods, through immersive community participation. Or how the Gond adivasis (India’s indigenous peoples) and other traditional forest dwellers of central India have protected their water, forests, and land using their traditional knowledge generation after generation. Village assemblies in Korchi, India, along with resisting against mining, are actively engaged in reimagining and reconstructing systems of gendered direct democracy and gaining control over means of production. The Tharakans of Tharaka territory, traditionally known as Nthiguru iri Njuki (The Land of the Bees) in Kenya are reviving their rituals, ceremonies, and traditional governance to cope with the crises that the pandemic posed as a result of larger systemic crises; in turn revealing the resilience and strength of traditional knowledge systems and practices.

The cosmovisons are part of these communities’ aesthetics rooted in their gritty experience, intuitive intelligence and interdependence. The Indian concept of Swaraj (from ancient India, popularised by Mahatma Gandhi during Independence struggle) is a combination of radical autonomy (individual and community level), responsibility for the well-being of others, restraint on one’s own consumption and behaviour so as not to impinge on the sovereignty and well-being of others, and a non-binary relationship between the material and the spiritual; as part of the ongoing processes in India, this has been extended to include the more-than-human world as ‘eco-swaraj’. These examples, as well as, several across the world have solidarity that binds all humans and more-than-humans together. These struggles are not just political but have sacredness, reverence for the rest of nature articulated in forms of rituals and prayers.

Our existential challenge is: How do we build the Rights of Nature movement and other such discourses further based on these emerging coalitions? How do we bring in the voices of more-than-humans? How do we revive and sustain our relationship with the rest of nature to bring out systemic transformations?

There is a need for cultural change that can bring about an ethics of care, a discourse that can alter the way we see the rest of nature, especially in the western world. Indigenous people around the world have respected the rest of nature as part of their worldviews, as part of living. In recent times, eco-feminists, gift economists, eco-spiritualists, have also argued for recognition of nature’s rights as part of attitudinal shifts in human beings, not only as legal measures but as a way of being.

Ultimately, we will respect, and achieve harmony with, the rest of nature not so much because we have given it legal rights, but rather because it is simply the right thing to do.


Shrishtee Bajpai is a researcher, writer, activist and serves on the executive committee of Global Alliance for the Rights of Nature. Her work focuses on alternatives to extractive development, traditional/more-than human governance, and rights of nature.


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