Rivers in the Court: Legal Personhood and Nature’s Right in India

Rahul Ranjan*

“Ko te Awa te mātāpuna o te ora

The river is the source of spiritual and physical sustenance.

E rere kau mai te Awa nui mai i te Kāhui Maunga ki Tangaroa

The Great River flows from the mountains to the sea

Ko au te Awa, ko te Awa ko au

I am the River and the River is me

Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua

The small and large streams that flow into one another and form one River” [i]

Introduction

Cataclysmic environmental change is upon us. Raging floods, forest fires, rising sea levels, dams, and glacial outbursts populate our news screen. Anthropocene, a geological marker that illustrates the impact of human activity on the entire ecology – transforming ways of life on the earth, is now well accepted.[ii] These transformations bear on both historical processes (such as colonial extraction of resources, genocide) as well as unprecedented on-going environmental harm (enforced by growing carbon-intensive and fossil fuel industries). Many efforts have been made to highlight this crucial standpoint at global forums, including the Intergovernmental Panel on Climate Change and the United Nations Framework Convention on Climate Change (UNFCCC).[iii]

While the increased rate of anthropogenic interventions triggering environmental changes continues for most of the 20th and early decades of the 21st century, the law – by extension, legal provisions and environmental jurisprudence, remain static. An exception to this was postcolonial laws in countries including India, where legal provisions and acts, such as The Water (Prevention & Control of Pollution) Act, 1974, were introduced in an attempt to identify environmental harm. However, the unprecedented change also means asking, perhaps, more urgent questions on the longstanding relationship between the limits of nature’s exploitation and human needs. Addressing these questions requires recognising the complex interplay of sociocultural and biophysical processes – impacting how we know, understand and live with environmental changes. Especially as climate change becomes pronounced, the inaction could mean confronting the lack of material and social-political infrastructures, which are crucial to support resilience. Nightingale et al. suggest that “the dangers are not simply lack of action, but also that we do not know and cannot know exactly what changes – including thresholds and feedbacks – are in motion”.[iv]

Amongst changing realities, environmental jurisprudence that advocates for and seeks to develop an innovative right-based framework has significantly grown over the past two decades. Rights of Nature has been an incremental and emergent but transformative framework. David Boyd, a UN Special Rapporteur on human rights and the environment argues that the rights of nature are a ‘legal revolution’ which will significantly harmonise the imbalance between humans and nature, reconciling conflict arising from abuse of nature.[v] The framework seeks to bestow or grant ‘legal rights’ to nature and, has already established rivers as the key area of focus. Rights of nature – especially the advocacy of river rights – are deeply embedded in Indigenous peoples’ socio-material and cosmological worldview. I illustrate this in the next section.

River’s rights undoubtedly became a flashpoint for environmental jurisprudence. Following Macpherson, who highlights the role of these developments as “incremental, and influential, steps in a broader project of more fundamental social and environmental reform”, O’Donnell points out that the legal rights of “living rivers” often do not explicitly include rights to water; and Miriama, who argue that while the Te Awa Tupua Act aligns with rights of nature, it is primarily a recognition of Indigenous rights and law, I contend that river advocacy in India through the framework of nature’s rights must address justice concerns, incorporate situated knowledge, and, crucially, be grounded in a participatory approach that includes riparian communities.[vi] While there has been a proliferation of rights of rivers elsewhere, the Indian case is faced with inaction. Nonetheless, it became a rallying point for legal personhood.  

Rights Of Nature

Various theoretically sophisticated legal theories have attempted to explain how recognising rivers as legal persons or subjects with their rights, duties, and obligations can placate the frictions emerging from environmental conflicts. Broadly, theories such as ‘environmental constitutionalism’, ‘legal personhood’ and ‘ecological constitution’, while conceptually varied, make an interesting case for transcending the given ordinance and assumed limits of the law.[vii] These theories and legal endeavours advance conceptual foundation of environmental jurisprudence and thereby, also incorporate a number of substantive and procedural environmental rights to protect the natural environment. Kurki, in his work, argues terms such as ‘legal personhood’ or ‘legal person’, signals that “all of them make reference to a conceptual scheme extant in Western legal systems: the person/thing distinction, or as I will call it, person/nonperson distinction”.[viii] This conceptual scheme enables models that deploy or ascribe some variation of either personality or legal rights – enabling various routes to achieve this.

Stone’s work, “Should the trees have standing? law, morality and the environment,” published originally in 1972, became a flashpoint for environmental litigation to deploy the rights of nature. Ecuador, for instance, in 2008, formally used rights of nature through constitutional provisions. By drawing on the cosmological worldview, the Pachamama, sometimes spelt as Pacha Mama, the mother earth, illustrates an embodiment of the ‘Andean goddess who sustains the life on earth’ the Article 71 of Ecuadorian constitution states, “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, function and evolutionary processes”.[ix] The cultural translation of worldview into the constitutional framing highlights what I call “the thickening of law” by worldview – opening up interest of ecological well-being, human and non-human actors, in the court of law. Several judicial, constitutional and administrative routes have enabled the realisation of the rights of nature (see Figure 1). The rights of nature become a conceptual premise to articulate the unequal relationship and often abuse of nature. Using ‘nature’ to codify moral claims and rights of nature poses interesting opportunities and challenges to attain. Mihnea et al., in their work, argue, “While the reform of the Constitution in 2008 inspired the remaking of several subordinate legal regimes, including in ways that aligned with RoN (e.g. the 2014 reform to the Criminal Code), Ecuadorian courts applied inconsistent and sometimes contradictory interpretations of the RoN concept from 2012….” [x]

The growing interest in the rights of nature became grounded through the country-specific legal, administrative and judicial provisions that identified key sites to expand this incipient idea. Rights of rivers (hereby, ROR) became the foundation for thickening the law to encapsulate the rights-based framework for non-human actors. Driven by various political, historical, and legislative circumstances, the ROR became a rallying point for competing claims staged by petitioners, civil society, indigenous peoples, and federal courts. Various countries such as India, Aotearoa New Zealand, and Colombia, for instance, are bestowed or recognised, with a degree of reservation or inaction (India), rights to a river or assigning personality. Macpherson et al. argue that

“Each case attempts to reset the political power dynamics between governments and communities/interest groups. Each case uses the language of ‘rights’ to secure environmental and social objectives and attempts to elevate those rights above ordinary regulation, appealing to constitutional norms. This may be done for a range of reasons, including (but not limited to) the furtherance of Indigenous political claims for self-determination over river governance and use (New Zealand), the influence of transnational environmental non-governmental organisations (NGOs) and the global rights of nature project (Colombia); and the personal ambitions of creative lawyers, politicians and judges who wish to ‘make their mark’ (India)”. [xi]

Figure 1

In 2017, the Parliament of New Zealand, led by lawyers, petitioners, and Maori community members, passed the Te Awa Tupua Act (Whanganui Settlement Act, 2017). Te Awa Tupua is a spiritual and physical entity that supports and sustains both the life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū, and other communities of the river.[xii] As Miriama Cribb et al., powerfully argues that “the Whanganui River settlement used legal personhood as a workaround to the complicated issue of ownership. The legislation recognises the status of the river and its tributaries as ‘an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and meta-physical elements’…These values acknowledge the direct link between the health of the river and the health of the people, and emphasise the living, integrated and holistic nature of the river...The model also recognises the living being status of the river as ‘legal person’, with all corresponding rights, powers, duties, and liabilities, as represented by Te Pou Tupua (the human face of the river)”.[xiii] Such an impressive and well-defined articulation ROR took a longstanding negotiation with the crown, an extended span of debate in the parliament, broader consultation with Iwi tribe for an eventual outcome of an act with substantial limitations, too.

However, this enabled a floodgate of litigations and recognition of legal personhood as a possible mechanism to address the environmental imbalance. The ROR warrants that sometimes there is a conceptual overlap between living persons and living beings, which can obscure our understanding. O’Donnell articulates this tension clearly: “Without any status as a person (living or legal), being recognised in law as (only) a ‘living entity’ does not necessarily confer any legal rights or duties. The world is full of living entities (plants, animals, fungi), none necessarily considered legal persons… Therefore, recognising a river as a ‘living entity’ can be seen as an extension of existing legal frameworks that accord some living entities specific legal protections”.[xiv] The distinction of various living beings poses a normative standpoint for the law to legislate and enforce specific provisions. These complexities are exposed in the Indian case, providing an opportunity to recognise how legal frameworks sometimes emerge from place-based and situated knowledge. Therefore, the RON – the rights of the river, in particular, instrumentalise the legal pluralism. However, addressing structural transformations required for socioenvironmental crises steeped in clear power relations is imperative.

Rivers In The Indian Court

Environmental law is at a crossroads in India with emergent climate change, shift in land use, urban expansion and deepening fossil fuel consumption, despite the promised targets for net zero. The scale of immediacy defines these challenges to balance environmental changes and longstanding inequality that sometimes coalesces into a crisis. In response to the emergent framework of ROR in India, the Uttarakhand High Court, in 2017, delivered two case orders led by a Division Bench comprising Justice Rajiv Sharma and Justice Alok Singh: ‘Mohd Salim v State of Uttarakhand’ and ‘Lalit Miglani vs State of Uttarakhand’, explicitly pronounced the ROR and RON respectively – granting legal personhood to not only rivers (first order) but entire non-human entities (second order).[xv] In making a concerted effort to ensure conservation of the river Ganga, the Uttarakhand High Court in ‘Mohd. Salim’s judgment on 20 March 2017 and ‘Lalit Miglani’ on March 30 2017 invoked a rather unusual clause of ‘parens patriae’, the parent of the homeland jurisdiction. In doing so, the court identified a few guardians, including the Director of the Namami Gange Programme (a Central government programme), Uttarakhand Chief Secretary, and Advocate General of Uttarakhand, in the first case, who would serve in the interest of the two rivers.[xvi] While the latter case, Lalit Miglani, sought to advocate RON: “Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles … wetlands, grasslands, springs and waterfalls – all of which is located in Uttarakhand.[xvii] The legal life of these two orders, even though short-lived due to the stay put on them in the summer of 2017, they were significant and quite unusual orders that led to proliferation of various environmental moves.

These orders followed a series of interventions that sought to widen the scope for non-human rights and create legal obscurity for the enactment of the rights-based framework, overlooking longstanding issues of environmental justice, which I aim to address in the next section. The ‘Narayan Dutt Bhatt v. Union of India’ on July 4 2018, led by Justice Rajiv Sharma, granted all animals, including aquatic and avian species, with legal personhood, whereby residents of the Uttarakhand were upheld for their responsibility.[xviii] Similarly, the High Court of Punjab and Haryana in 2020, headed by a bench of judge including Justice Rajiv Sharma, declared the ‘Sukhna lake’ in Chandigarh as a living person, declaring thereby that non-human actor (lake) as the subject of law.[xix] Yet another judgement followed this in 2022, whereby the Madras High Court led by the Madurai Bench declared ‘all of nature as living’.[xx] These court orders and cases, in many ways, illustrated the key proponent of nature’s rights – grounding transnational environmental coverage of legal transformation in India. Even as emergent frameworks promise transformation, they can sometimes overlook, withdraw, or move away from the longstanding problems that necessitate it at the very outset. Specifically, two cases (Mohd Salim and Lalit Miglani) bring out some of this.

Origin And Limits Of Riverine Rights

The origins of the ROR case can be traced to a petition filed in 2014 by Mohd Salim – seeking to raise concerns of illegal construction on government land – or, by extension, development projects on sites including the river bed of Ganga.[xxi] Whereas the second petition filed in 2015 by Lalit Miglani – highlighting the continual degradation of Ganga’s water quality because of discharge of effluences from the untreated toxic industrial waste into the river.[xxii] Both of these petitions were admitted as the Public Interest Litigation (PIL). The petitions, however, as Upadhyay shows, “…PIL did not include any aspect of RoR or RoN. Not only the judgments, the court hearings in both cases till December 2016 also did not involve arguments or discussions on nature’s rights”.[xxiii] These PIL became crucial standpoint to both explain the decaying condition of the river and how might the ROR/RON be either relevant/helpful thereof as a response. Surprisingly, Justice Rajiv Sharma stands out as a commonality amongst both RO and RON, amongst other cases, that expands nature’s rights.

However, as I note elsewhere, the judges invoked a few interesting reasons in favour of the rivers and for their protection in the ROR judgement. There is a notable attempt by the Judges to characterise the river Ganga as needing to be saved from ‘extinction’, declaring a state of emergency.[xxiv] This ‘extraordinary situation has arisen since River Ganga and Yamuna are losing their very existence’ as argued in the judgment.[xxv] Cases on rivers tends to lean on legacies of environmental litigation. However, this ROR judgement detracts from invoking religious significance, drawing attention to the function of the river in the tenets of Hinduism and showing:

Hindus worship rivers Ganges and Yamuna. These rivers are very sacred and revered. The Hindus have a deep spiritual connection with Rivers Ganges & Yamuna. According to Hindu beliefs, a dip in the River Ganga can wash away all the sins. The Ganga is also called ‘Ganga Maa’. It finds mention in ancient Hindu scriptures, including ‘Rigveda’.[xxvi]

Forming core religious values, rivers are well-established as deities in Hinduism. Perhaps this is an exception to the history of deities being admitted in the court as a juristic person, and in fact, it remains consistent with shaping personalities of such kinds.[xxvii] The judge substantiates this invocation by maintaining that a Hindu idol is a juristic entity capable of holding property…’, thereby establishing a linkage to the legal precedent.[xxviii] The deployment of religious worldview can be arguably seen as a way of legal manoeuvring to ‘protect the recognition and faith of society, River Ganga and Yamuna’ and therefore ‘are required to be declared as the legal persons/living persons’.[xxix]

There are specific substantive organising principles for the argument in the judgment, which can challenge the scope of its implementation. Briefly, two instances can illustrate this. Firstly, the judgment is drawn out to protect the failing state of the river and nature (in the case of RON), but it remains uncertain to identify and explain the causes that may inflict harm. The treatment of the river as fragmented ecologically – removing it thereby from a composite whole expose the weakness of the argument. The lack of focus on the hydro projects, for instance, that continue to play a significant role in shaping riverine rights highlights how it contradicts the principles of ROR. This overlooks the longstanding research by academics and expert committees. These findings, especially the Ravi Chopra Committee report, which was undertaken in the aftermath of the Uttarakhand folds in 2013, suggest strong links between hydro projects and disasters.[xxx] Anthropogenic interventions through expansive infrastructure projects, when interacting with natural disasters, not only aggravate but also cascade disasters.[xxxi] Importantly, rivers’ ecological well-being is a part of the ecosystem – a web of relational and functional relationship that constitutes its ecological health.[xxxii] The ROR judgement states: “Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea … all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers”.[xxxiii] Fundamentally, the inaction on hydro projects render the ROR framework challenging to implement, if not quite unrealisable.

Secondly, the lack of deepening the ROR framework by drawing on existing and robust Indian environmental jurisprudence weakens the scope of articulating the principles of rights framework for non-human actors. The ecological landscape in India is embedded in highly differentiated social and cultural norms and values. These differentiations emerge from caste inequalities that shape environmental stewardship and access to natural resources. The judgement, as it stands, does not specify how the places-based knowledge and experiences can be incorporated and used to enrich the ROR. It subsumes the environmental stewardship led by communities by assigning rivers a ‘minor status’, thereby appointing expert members as guardians. Kodiveri shows that “In articulating the rights of nature, it will be important to incorporate an inclusive model where all these relationships find expression. This will democratise the meaning of the rights of nature instead of having it applied in ways that limit diversity, like the Ganga judgement”.[xxxiv] As opposed to developing a participatory framework by designing consultations and advocating for increased participation by the riparian communities, the judgement, despite novel as an idea and unique attempt, remains very likely to remain stayed by the Supreme court.

Conclusion

Arguably, the dividing lines between human and nature’s rights are thinning.[xxxv] Many possibilities in this direction to reimagine environmental jurisprudence without anthropomorphism are realised through various models, including ROR, biocultural and constitutional rights. They come together to form an assemblage of legal transformations that seeks to build space for nature’s rights. This article brought out the key development of such models, which, when animated, perhaps without expansive and deepened socioenvironmental and cultural rights, may, in turn, produce irreconcilable outcomes.

As noted above, the ROR/ROR is an incipient but transformative framework. It nonetheless requires the inclusion of place-based knowledge and enabling community participation. Legal pluralism provides some of the key tools to achieve this. O’Donnell proposes that “emphasising the importance of our enduring relationship with rivers can also be an effective driver for the protection of the water flows essential to the life of the river”. These efforts are more realisable when legal provisions invite multiple possibilities and ways to rethink the relationship between nature and humans. In the Indian case, the judgement inaugurates a key opportunity to open up the question of environmental stewardship, community partnership and riparian rights. An impressive history of environmental litigation, acts and provisions that already exist in India can be incorporated to widen the scope of ROR implementation.

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*Rahul Ranjan is a Lecturer (Assistant Professor) in Environmental and Climate Justice at the Department of Geography, School of Geosciences, University of Edinburgh. His work captures key themes of anthropology, emotion and environmental humanities, and political ethnography. His long-term research and doctoral work on “The Political Life of Memory: Birsa Munda in Contemporary India” was published by the Cambridge University Press in 2023

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[i] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ) https://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html.

[ii] P J Crutzen, ‘The Anthropocene’ in E Ehlers and T Krafft (eds), Earth System Science in the Anthropocene (Springer 2006).

[iii] The term Anthropocene is well contested. I find it crucial for nature’s right explanation.

[iv] AJ Nightingale and others, ‘Beyond Technical Fixes: Climate Solutions and the Great Derangement’ (2019) 12(4) Climate and Development 343 https://doi.org/10.1080/17565529.2019.1624495.

[v] David R Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW Press 2017).

[vi] E Macpherson and others, ‘Where Ordinary Laws Fall Short: “Riverine Rights” and Constitutionalism’ (2021) 30(3) Griffith Law Review 438 https://doi.org/10.1080/10383441.2021.1982119; E O’Donnell, ‘Rivers as Living Beings: Rights in Law, but No Rights to Water?’ (2020) 29(4) Griffith Law Review 643 https://doi.org/10.1080/10383441.2020.1881304; M Cribb, E Macpherson and A Borchgrevink, ‘Beyond Legal Personhood for the Whanganui River: Collaboration and Pluralism in Implementing the Te Awa Tupua Act’ (2024) The International Journal of Human Rights 1 https://doi.org/10.1080/13642987.2024.2314532.

[vii] Louis J Kotzé, ‘Global Environmental Constitutionalism in the Anthropocene’ in L J Kotzé (ed), Environmental Law and Governance for the Anthropocene (Hart Publishing 2017).

[viii] A J Visa and A Kurki, A Theory of Legal Personhood (OUP 2019) 3.

[ix] Constitution of the Republic of Ecuador (Georgetown University, 31 January 2011) https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html accessed 10 February 2025.

[x] M Tănăsescu and others, ‘Rights of Nature and Rivers in Ecuador’s Constitutional Court’ (2024) The International Journal of Human Rights 1 https://doi.org/10.1080/13642987.2024.2314536.

[xi] E Macpherson and others, ‘Where Ordinary Laws Fall Short: “Riverine Rights” and Constitutionalism’ (2021) 30(3) Griffith Law Review 438, 441 https://doi.org/10.1080/10383441.2021.1982119. The emphasis in italics is introduced for emphasis by me.

[xii] Ibid.

[xiii] M Cribb, E Macpherson and A Borchgrevink, ‘Beyond Legal Personhood for the Whanganui River: Collaboration and Pluralism in Implementing the Te Awa Tupua Act’ (2024) The International Journal of Human Rights 1, 3 https://doi.org/10.1080/13642987.2024.2314532.

[xiv] E O’Donnell, ‘Rivers as Living Beings: Rights in Law, but No Rights to Water?’ (2020) 29(4) Griffith Law Review 643, 650 https://doi.org/10.1080/10383441.2020.1881304.

[xv] Mohd Salim v State of Uttarakhand & Others (20 March 2017) Writ Petition (PIL) No 126 of 2014 (Uttarakhand HC).

[xvi] Mohd Salim v State of Uttarakhand & Others (20 March 2017) Writ Petition (PIL) No 126 of 2014 (Uttarakhand HC) 12.

[xvii] Lalit Miglani v State of Uttarakhand & Others (30 March 2017) Writ Petition (PIL) No 140 of 2015 (Uttarakhand HC) 64.

[xviii] Narayan Dutt Bhatt v Union of India & Others (4 July 2018) Writ Petition (PIL) No 43 of 2014 (Uttarakhand HC).

[xix] Court on its Own Motion & Others v Chandigarh Administration & Others (2 March 2020) CWP No 18253 of 2009, COCP No 2613 of 2013, CWP No 5809 of 2015, COCP No 3088 of 2015, CWP No 12280 of 2017, CWP No 12284 of 2017, CWP No 12355 of 2017 (Punjab & Haryana HC).

[xx] A Periyakaruppan v Revenue Department, Government of Tamil Nadu (19 April 2022) W.P. (MD) Nos 18636 of 2013 and 3070 of 2020 (Madras HC).

[xxi] Government of Uttarakhand, ‘State Profile’ https://uk.gov.in/pages/state-profile#:~:text=The%20State%20is%20rich%20in,crore%20employ%205%20lakh%20persons accessed 20 February 2025.

[xxii] Lalit Miglani v State of Uttarakhand & Others (19 August 2015) Writ Petition (PIL) No 140 of 2015 (Uttarakhand HC).

[xxiii] K Upadhyay and B P Nayak, ‘Tracing the Legal Journey of Petitions in the Uttarakhand High Court that Became Springboards for Rights of Rivers and Nature in India’ (2024) The International Journal of Human Rights 1 https://doi.org/10.1080/13642987.2024.2380850.

[xxiv] Lalit Miglani v State of Uttarakhand & Others (2 December 2016) Writ Petition (PIL) No 140 of 2015 (Uttarakhand HC) 72.

[xxv] Mohd Salim v State of Uttarakhand & Others (20 March 2017) Writ Petition (PIL) No 126 of 2014 (Uttarakhand HC).

[xxvi] Emphasis mine. Mohd Salim v State of Uttarakhand 4.

[xxvii] Gautam Patel, ‘Idols in Law’ (2010) 45 Economic and Political Weekly 47.

[xxviii] Mohd Salim v State of Uttarakhand & Others (20 March 2017) Writ Petition (PIL) No 126 of 2014 (Uttarakhand HC) 5.

[xxix] Ibid.

[xxx] Ravi Chopra and others, ‘Assessment of Environmental Degradation and Impact of Hydroelectric Projects During the June 2013 Disaster in Uttarakhand’ https://gbpihedenvis.nic.in/PDFs/Disaster%20Data/Reports/Assessment_of_Environmental_Degradation.pdf accessed 15 February 2025.

[xxxi] Ranjan, R. ‘Ecology of grief: Climatic events and disasters in the Himalaya’ (2024) Environment and Planning E: Nature and Space, 7(5), 2058-2077. https://doi.org/10.1177/25148486241264414 

[xxxii] S Wuijts and others, ‘An Ecological Perspective on a River’s Rights: A Recipe for More Effective Water Quality Governance?’ (2019) 44 Water International 647.

[xxxiii] Mohd Salim v State of Uttarakhand & Others (2017) WPPIL 126/2014 (Uttarakhand HC) [17, 19].

[xxxiv] ‘If Nature Has Rights, Who Legitimately Defends Them?’ https://www.openglobalrights.org/if-nature-has-rights-who-legitimately-defends-them/.

[xxxv] Jérémie Gilbert, ‘The Nexus Between “Human Rights” and the “Rights of Nature”: Debates, Tensions, and Complementarities’ (Agence Française de Développement, 2025) https://www.afd.fr/en/ressources/nexus-between-human-rights-and-rights-nature.