March has been a week for extraordinary judgements, where between courts and legislature a new way of seeing is being inaugurated. In a landmark judgement, the high court of Uttarakhand declared that the Ganga and the Yamuna will hereafter be treated as persons. On March 27, Parliament of New Zealand declared that the Whanganui river would be recognised as a person, when it comes to the law “in the same way a company is, which will give it rights and interests”. Two landmark decisions defining a new way of thinking. Both decisions have an arid quality, yet both these decisions hide an exciting moment in law. To capture the spirit of it one has to go back to Christopher D. Stone’s classic, Should trees have standing? In a lazy moment of curiosity, Mr Stone as an academic began to wonder what it would take for a tree to be treated as a person. He later on developed it into a monograph which he hurriedly completed hoping it would catch the attention of Justice William O. Douglas, who was hearing a famous Sierra Club case.
In creating a thought experiment, Mr Stone laid down three conditions. First, a suit filed in the object’s name should not be hyphenated with a human. Second, damages should be calculated by a loss to a non-human entity not hyphenated with a human. Third, he argued that damage should not be conceptualised in anthropocentric terms as economic loss to humans. The experiment came to the attention of Justice William O. Douglas. Citing his case in Sierra Club’s appeal against US secretary of interior Rogers Morton, Justice Douglas presented a classic defence around the standing of nature. He argued that inanimate objects are sometime parties to a litigation. Justice Douglas argued that valleys, rivers, lakes, estuaries, groves and swamp lands should have a legal standing. The river, he felt, is a living symbol of life. A river as a system sustains insects, fish, etc. The river as a plaintiff speaks for the ecological unit of life it sustains. In fact, Justice Douglas went on to suggest that “those people who have a meaningful relation to the body of water must be able to speak for the valves the river represents”. His plea for the river was an eloquent one. Oddly, its poetry and its ethics did not touch a consumerist nation, which felt the idea was silly and threatening. A doggerel verse commented:
If Justice Douglas has his way
O come not that dreadful day
We will be sued by lakes and hills
Seeing a redressal of ills
Anyone who read the Twitter responses to the Uttarakhand judgement senses a similar sense of dismissal. One spoof demanded that River Ganga pay back all its taxes. But the Stone-Douglas argument was an idea whose time had come. Mr Stone had argued that all major rivers, as ecosystem, should be represented by guardians. Indian environmental activists observed that the idea of trusteeship seemed more relevant, as, in it the relationship with nature is more symmetrical. Guardianship as a humanitarian idea sustains an asymmetry with nature. The New Zealand bill creates an agreement with the Maori people whereby the river has two guardians — one from the Crown and one from the people. But the decision is triggering a process as the bill has still to decide what values will be involved in protecting the river. A whole river strategy, which will link commercial and recreational needs, has still to be worked out.
The Uttarakhand judgement is a halfway house between these two decisions. It recognises the river not a living ecosystem which needs to be represented. Nor does it give the idea of the river a sense of having rights and being recognised as a person. The judgement is not a full ecological agreement elaborating the idea of nature as having rights and possessing a standing. The judgement is not generalised to rivers as ecosystems. What it emphasises, in fact, is not the aesthetic possibilities of nature but a moral limited argument. The language of the judgement is almost telegraphic. It is a terse recognition that Ganga and Yamuna rivers are sacred to the Hindus and therefore should be recognised as persons. What one senses in the judgement of Justice Sharma and Justice Alok Singh is an administrative diktat verging on the theological. It is neither a full-blooded exercise in eco-philosophical thinking nor a generalised celebration of the river or of nature obtaining rights. In fact, a layman after reading Mr Douglas’ arguments will be puzzled by the Indian judgement.
He has to ask does sacred give rights or is there an attempt to incorporate the river as nature into the Constitution granting nature a different ontological and legal status. The judgement as a narrative disappoints. There is a touch of the parochial. It suggests “all Hindus have a deep astha… in rivers Ganga and Yamuna and they collectivity connect with these rivers.” The judges observe that “the rivers have provided both physical and spiritual sustenance to all of us from time immemorial.” The argument is only elliptically about rivers. The emphasis is more on the sacredness and historicity of Ganga and Yamuna. It then names the chief secretary of the state of Uttar Pradesh and the advocate-general of Uttarakhand as persons, the human face of the river. A huge part of legal scholarship flows under the bridge.
The question one must ask is can one have a wider stakeholder model for the river as an ecosystem or should protecting the river be reduced to a narrow notion of governance? Second, is sacredness a valid argument? What happens to nature in its everydayness? Third, is the decision to be extended to all rivers or restricted to the Ganga? All these issues raise nagging questions on whether there has been a genuine change in legal philosophy? Is the so-called spiritual covering up for a bureaucratic diktat? There is no sense of process, debate or a wider idea of reflection. Is the sacredness of Ganga going to be extended to sacred groves, to ordinary river streams, to ponds dying in the summer? Unfortunately, the judgement is taciturn, even cryptic about it. It is an announcement of good news but one wishes there was a deeper philosophical and legal undertone to it. Democracy otherwise stands puzzled and immobile before it....