Paradigms of Legal Jurisprudence: An analysis over the application of legal rights to Natural Entities and the consequential limitations

I. Introduction

The foundation of the idea of protecting and conserving our environment finds its roots in the words of our Constitution. Part IV A of the Constitution sets out duties which includes the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures². Apart from that, the Directive Principles of State policy, incorporated under Part IV of the Constitution, set forth that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country³.

Though the existence of several legislations attended to protect the environment, it was only in 1972 things got a faster pace during the UN Conference on the Human Environment held at Stolkholm. This event plays a significant role in the history of Environment protection initiatives for the reason that, the event became the foundation of the National Council for Environmental Policy and Planning, which in turn was responsible to set up a regulatory body to monitor environment related problems.

The council, established in 1972, later became to what is now known as Ministry of Environment and Forests (MoEF)⁴.Presently MoEF acts as the preliminary body in the country to supervise and monitor environment related issues and regulatory frameworks issued under its authority .The functions of MoEF are executed with the aid of pollution control boards like the Central Pollution Control Boards (CPCB) and State Pollution Control Boards (SPCB) to ensure the adequate efficiency of these bodies.

Among several legislations implemented to protect and preserve the environment, some notable legislations include the following, viz.

• The Air (Prevention and Control of Pollution) Act, 1981,
• The Environment Protection Act, 1986,
• The Water (Prevention and Control of Pollution) Act, 1974,
• The National Green Tribunal Act, 2010,
• The Hazardous Waste Management Regulations, etc.

II. The Origin

This concept of providing legal rights to natural entities was long before acknowledged back in 1972 when a professor from the University of Southern California emphasized the significance of Legal Rights to Natural Objects in one of his essays⁵.The essay was a reply to the Judgment delivered by the U.S Court of Appeals in California in the Sierra Club case filed by them against the construction of a ski resort in the Sierra Nevada Mountains by the Walt Disney Enterprises. The judgment clarified that the Sierra Club itself did not acquire any Locus Standi against the Corporation. Thus the essay was focused in underlining the importance of providing legal rights to natural entities, which in turn grants the Locus Standi to such entities to stand before the Courts in such cases.

His work accentuates on the fact that, when other entities like corporations and societies are given legal rights, natural entities like rivers, mountains and tress must also be recognized under the same category and be provided with similar rights .When broadly interpreted , these concept can be brought under the ambit of the Ejusdem Generis, a classic rule of interpretation which compares objects belonging to the same class or genus to refer meaning to such objects⁶.Thus natural objects can be elucidated to be similar to entities like corporations and societies under this rule. But on other grounds, some argue that these entities, unlike corporations and companies, does not have the capacity to bear duties, an essential element which accompanies a legal right.

The rights of this entities start to exist on the basis of the interaction we have with them. The origin of most of these interactions creates a case and effect relationship between us and natural objects. As contended by many Environmental Scholars, when these relationships change, consequentially the rights takes a different phase. Once these rights are recognized and established, one can understand the duties that needs to be extended towards the same.

III. Exploring the Strata’s of applicability

Now the question is what happens when these entities are granted with the rights they deserve? In usual cases, the instances that take place when a person approaches a legal Court, when his legal rights are violated, can be elucidated into three stages, viz.:

1. The person can institute a suit, after which

2. The Court hears the suit and assigns an injury based on the facts and eventually

3. Compensation or damages granted based on the circumstances.

Thus, these stages are the basic steps that a natural entity would have to follow to approach a Court and receive the appropriate reliefs, depending upon the events. However, as mentioned earlier, when these entities are granted with the authority of Locus Standi, they can proceed with the above steps.

On a big picture, such a phenomenon defines the concept of traversing from a Anthropocentric approach to an Eco-centric approach, focusing the needs of the environment and its natural elements , rather than giving ‘more than adequate’ attention to human comfort and satisfaction.

The strata’s at which these rights exist can be brought under the ambit of International, National and Local Levels. Though the concept was tried to be implemented in various places, the principle took an enforceable structure in 2008 when the citizens of Ecuador adopted an entirely fresh Constitution to follow the harmonious existence of the citizens and the environment⁷. Specific texts of the Constitution grants the Natural entities of the countries basic Rights which includes Right to be Respected and Right to continue to exist without being disturbed by the Human species. This Constitution has allotted portions in its texts to include other Precautionary Principles, which are popularly dealt with in many cases dealing with environmental issues.

Soon after Ecuador’s move to accept the principle was initiated, other countries started to follow the paths of Ecuador to import the principle to their indigenous legal texts. Bolivia’s decision to incorporate Rights of Natural entities to their Constitution is one among the same⁸. Article 33 and Article 34 of Bolivia’s Constitution assigned Living things the Right to live in normal and permanent way. The Governmental approval of the Law of Rights of Mother Earth, a document to improve the legal rights of natural entity was also accounted as a step to promote the principle. However an important conundrum with respect to the above mentioned legal framework was that, the individuals of the country were given the rights to exploit the Natural Resources of the country as long as it’s Government grants permission to continue the same.

The G-77, a coalition of 135 developing countries, held at Bolivia, signed a letter , intended to establish a “ A New World Order for Living Well”⁹. This letter recognized the contributions of other countries across the globe in granting Rights to Natural entities and underlined the need of other countries to adopt the same. Adding on to that, other programs like the International Union for Conservation of Nature (IUCN), headquartered in Switzerland, has acknowledged the need to adopt such an approach, based on recognition of Rights of Nature, to promote conservation of natural resources and encourage sustainable development¹⁰ .

Other parts of the globe including Argentina, Brazil and Europe has begun to employ movements and propose Bills to convert the principle into a legally recognized reality. An important aspect that needs to emphasized before embarking on such initiatives is that, without appropriate regulatory policies, which is capable of putting the individuals and the environment on equal stands, such initiatives can’t produce the expected impact.

At the local levels of existence, Traditional Beliefs of our ancestors and forefathers must be underlined to enunciate the importance of conservation of Natural Resources by keeping them at par with the Sapien Society. Practices and Customs followed by foragers 5000 years ago, a period when the Sapien Civilization is proposed to have begun, projects the need to preserve the environment and its entities. Each tribesmen, belonging to his respective clan, was required to acquire permission from the Natural Resources, before the same was consumed for the benefit of the mankind. Each animal these foragers hunted, was instantaneously killed to avoid suffocation, a symbolic way of expressing their respect towards the earthly entities¹¹.

These practices were based on the preliminary belief of recognizing mother nature as the first God before any other man made religion was invented to suit his personal needs. Gradually , these practices were followed by many Homosapiens across the globe. These includes the Sumak Kawsay principle embodied by the Latin American Indigenous population, which perceives the nature as Pacha Mama or Mother and signifies the need to create an harmonious balance between the people and the nature¹².In addition to that , the Indigenous population of the Africa has regarded definite territories as sacred¹³, which needs to be attended by such individuals with at most respect and divinity. The African Commission on Human and People’s Rights, in 2015, recognized this territories and adopted specific resolutions for the protection of such sacred natural sites in the African continent. Apart from these, the Sanskrit language incorporates a phrase called “Tatwam Asi” , which translates to mean “iam that”. This phrase finds due importance in the vedic practices, followed by the Brahmin Society living in India , to discern the environment as himself in every action he proposes to implement on a day-to-day basis.

A recent incident supporting the present topic of discussion is the Western Lake Erie event¹⁴.The months August and September are known to be the nurturing months of hazardous algae in the river .Their harmful nature has been justified by their propensity to kill fish and other domesticated animals. Agricultural Pollution and climate change has been labeled as the preliminary cause of such harmful algae.

The citizens belonging to this geography has initiated a bill called as the Lake Erie Bill of Rights February 2019 , which grants the river the right to exists, flourish and naturally evolve – the three fundamental rights that can be claimed by a legal person. The implementation of the bill is aimed to provide legal personhood to natural entities like the one involved in the present scenario. The long term object of such actions is to enjoy the benefits of a healthy environment.

However, it is to be underlined that this is not the first case where initiations to grant rights to environmental elements has been implemented. Several other nations including Colombia, Bangladesh, Bolivia etc., have succeeded in awarding legal status to their natural entities¹⁵. Apart from the above, nations like Oregon and Oklahoma are on their way to achieve this propaganda.

IV. The Present Global Status

The next department that needs to be dealt with the implementation of such rights is to understand how does the granting of such rights impact each natural entities. In depth, the prudent questions that can be devised from the headline includes 1) Does every natural entity are empowered with such rights? 2) Is there a necessity to differentiate such entities? And finally 3) Does there exist any criteria to differentiate such entities?

The first natural body to be ever entitled with such rights was the River Body. The same was delivered through Court rulings made in several countries which include Ecuador, New Zealand, India and Colombia. These rulings can be accounted as the first ever historical precedents to support the present topic. Among the above mentioned countries, Ecuador was the first one to step forward¹⁶.This specific ruling was delivered in Vilcabamba, a village situated in the southern region of Ecuador.

The incident took place when construction activities was carried on by a contractor in the banks of an indigenous river belonging to the village. The activity was carried on using Dynamites and other explosive materials, which could probably affect the water bodies existence. The Court in this case held that, the Rivers specific right to exist , to be maintained and to regenerate its vital cycles are being affected by such activities. Though the ruling emphasized the Rights of the Nature under the shades of Constitutional Rights, the decision does not specifically convolute any guidelines regarding the dimensions of Locus Standi applied to such situations. It is to be noted that the principle of “Precautionary” actions were taken in such a case to avoid any further damage to such entities.

When it was contented upon by the Government that the Constitutional rights of the citizens are being violated in such circumstances, the Court rebutted that the Constitutional Rights of the Citizens and the Nature must be Harmoniously Constructed to recognize both and also underlined the absence of such a violation in the present case , when there exists alternate viable options to carry on the construction procedure, without affecting the river body.

However, on this side of the delta, the principle was highlighted by the Judicial Courts of India in assigning legal rights to river Yamuna¹⁷.The Court ruling was delivered by the High Court of Uttarakhand parallel to the implementation of the Te Awa Tupua Act. The ruling underlined that the tributaries, streams and all other connected natural waters flowing through the river shall have the status of a legal person and consequentially, shall acquire the rights , duties and liabilities guaranteed to a legal person. The judgment was the result of a case, which was brought the attention of the Uttarakhand High Court when the Public Officials were negligent in discharging their duties to protect the river Ganges, a task which was to be carried out in collaboration with the Central Government.

The recognition of the Whanganui River, in New Zealand, as an ancestral entity by the New Zealand Courts was utilized as a precedent to deliver the Ganges Judgment. The Judgment was accompanied with directions of the Court to appoint a Director to conserve and preserve the rivers Ganga and Yamuna and their tributaries through a human interface. An interesting jurisprudence that was applied to this Court was based on the recognition of Hindu Deities as legal persons, who were supposed to be managed by those who were entrusted with the same. Like other cases which highlighted this principle, the Court which delivered the above judgment did not discuss the nuances of its application in all circumstances, since the judgment focused on immediate execution and discharge of public duties by the appropriate officials to protect and conserve such natural objects. The judgment also failed to provide the paradigms of the principle’s application on the basis of Locus Standi.

Unfortunately, the said judgment was over ruled by the Supreme Court on an appeal by the Uttarakhand State Government on the grounds of uncertainty prevailing over such rights and its application in reality. The Uttarakhand High Court stood with its bold decision to go about with the judgment, once again, when it utilized the said legal doctrine to designate legal personhood to natural entities like the Himalayan Glaciers, Gangotri and Yamunotri.

These precedents have marked a significant footprint of jurisprudence that can change the course of such rights in the future. However, such historical rulings can only be cherished with the sustenance of political and legislative contributions. Such an event would eventually take some time to acquire roots in the present society. But when the concept gains momentum, such precedents shall be utilized in accordance with the facts and circumstances which are capable of entailing the legal doctrine of recognizing Rights of Natural Entities.

V. Hurdles To Cover And Norms To Confront

The line of issue that needs to be given preliminary importance is the challenges that needs to be confronted in enforcing such a principle in practical circumstances. Answering such a wide array of questions will eventually provide a big picture on how the principle will impact the society at large in the long run.

Though there are different dimensions under which these challenges could be discussed, the same can be brought down to three important questions, viz.;

1. How does the principle apply to different natural entities and what would be the character of the rights and liabilities accompanied with them?,

2. How can such objects or natural persons enforce such rights? and

3. Can a balance be created between such natural rights and human rights?

To answer these questions, one must be thorough with the aspect of what consists the nature. Though such a gargantuan body can be classified under the heads of flora and fauna in general, these heads can be further classified into millions of other sub-divisions. For example, when it comes to the animal world, the institution can be further classified into Mammals, Reptiles and Avians. The head mammal can further be classified into Carnivores and Herbivores and so on. This concept is required to be detailed to understand how legal rights can be applied to such natural creatures. Unlike human beings, they lack the ground of commonness on the basis of which various legal principles can be applied. Thus such a situation requires a new, complex and defined structure of jurisprudence to accommodate such a humongous bowl of creatures varied on the grounds of understanding capabilities and relations. Though some general principles of legal jurisprudence can be utilized to protect such beings, such practices will stir up complex questions in the long run.

Finding a solution to the above would consequentially define the nature and character of the rights and liabilities available to such entities. A fundamental assumption that follows rights granted to any entity in this world, whether it be humans or natural objects, is that such rights shall always be accompanied with liabilities.

In such a scenario can one think of a reality where these natural entities can be sued for the damages caused by these entities? These in fact affects the very core of the judicial concept of “ Act of God”¹⁸ whereby any damages or injuries caused by natural inevitable elements are categorized as an “Act of God” which in turn eliminate any form of liabilities on such entities.

And finally, if at all the idea is decided to be enforced , the same would have an arresting impact on the jurisprudence of “ Sustainable Development” introduced in the Brundtland Report¹⁹and first applied in the case of Vellore Citizen Welfare Forum Vs. U.O.I²⁰in India. When the idea is translated into a reality, it is a much obvious fact that the concept of sustainable development will be firmly contended to favor such entities.

To conclude, though the concept of providing legal rights (in all aspects) provides a significant outlook which consequentially has the potential to change the fundamental structure of legal jurisprudence, it must be calibrated precautiously to confront inevitable future contingencies to satisfy all the individuals in the community. This in turn can only be accomplished by establishing a prudent body to understand the foundation of natural entities. These data would gradually create a defined structure, based on which the law making body can arrive at conclusions with respect to the quantum and applicability of the existing rights to such entities. In fact, these initiative would give way to provide an opportunity to invent new boundaries of legal jurisprudence which eventually has the potential to create an atmosphere where the existing legal rights can evolve to reach newer levels of interpretation.

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