Friday, 28 April 2017

Rights of Rivers? -- Are They Realizable?

Some two weeks ago I read an interesting article in which it was reported that on March 20 a High Court judge of a province of India called Uttarakhand has issued a ruling that the rivers Ganga and Jamuna, considered holy by the Hindus, and their tributaries have rights as a ‘juristic/legal person/living entity’. Five days before this, the New Zealand Parliament had passed into law the Te Awa Tupua Bill, which gives the Whanganui river and ecosystem legal personality, guaranteeing its ‘health and well-being’.
    The purpose of the authors of the said article – Ashish Kothari and Shrishtee Bajpai – was not just to report about these cases. They analysed the implications of the ruling on the Ganga and Jamuna and speculated on the possibility and difficulties of implementing the ruling in the real world.
    I read the article with great interest, because, in the mid 1990s, I had read a few eco-philosophical texts of the deep ecology school. The article triggered in my head further thoughts, which I wrote down and posted as a short comment.
    Later, the article gave rise to a long chain of letters in a google discussion group, in which the contributors further speculated on the possibility or otherwise of making the ruling of the Uttarakhand High Court judge operational.
    A few days ago, I had been admitted in this google group as a member. So I got all the letters. I read them and found them too abstract. Then I too made a contribution to the discussion.
    Below, I first give the link to the article of Kothari and Bajpai. Then you will find my comment on the article posted in the same journal. Thereafter I append my contribution to the discussion in the google-group.
    I request my readers to first read the article of Kothari and Bajpai, and thereafter my two texts.

Saral' Comments on the Article

Many thanks to Kothari and Bajpai for this highly informative article. It not only informs but also points out the contradictions involved in this particular piece of court ruling. However, the judges and our authors have opened a Pandora's Box, that cannot be closed without killing many "holy cows". That is to say, they have revealed several more fundamental contradictions that sincere ecological activists know about since long. Let me mention here just the two most fundamental ones: (1) that between economic development per se and protection of the rest of nature, and (2) that between modern humans as a whole and the rest of nature.
    For citizens of India it should be of interest to know that already before 1947, Gandhiji and Nehruji had a very serious dispute on the question of development, which Gandhiji totally rejected and which Nehruji wholeheartedly promoted. They kept their related correspondence under lock and key for fear that, if published, it would split the independence movement
    As regards the other contradiction, it relates to the number of humans living in any habitat or the whole world (taken as one habitat) and their conception of basic needs and good living. Neither the 1.3 billion humans in India nor the 7.5 billion humans in the world can live, let alone live well, without degrading every part of nature. You simply cannot eat the cake and have it too.
    Not Gandhiji, nor the vegetarians of India, but Arne Naess and his followers who initiated the Deep Ecology movement in the West formulated the first of the eight principles of the Deep Ecology Platform as follows:

"The well-being and flourishing of human and nonhuman Life on Earth have value in themselves (synonymous: intrinsic value, inherent value). These values are independent of the usefulness of the nonhuman world for human purposes."

    Can we resolve these contradictions through a compromise? That may be possible, but surely not just through a ruling of a court. May I request Kothari and Bajpai to contribute another, a longish, article on these questions?


Saral's Contribution to the google group Discussion, dt. 27.04.2017

I have been reading this discussion from the very beginning, i.e. beginning with the article of Ashish and Ms. Bajpai, on which I commented in* In the meantime so many things have been said by so many participants that I do not remember who said what. That is however unimportant, because my following comments are very general.

(1) The terms right and duty are necessarily anthropocentric. Neither inanimate beings, such as rivers and mountains and nature reserves nor animals other than humans have such concepts in their head, let alone have the ability to articulate them. So, logically, it is only humans who can give rights to other humans and pronounce duties of humans to fellow humans and inanimate entities.

(2) The whole discussion is too abstract, so abstract that it is of little use either for government action or for activities of political groups. A right or a duty does not at all become more real or useful if a judge of a court declares it in a ruling.
    The Universal Declaration of Human Rights was pronounced in 1948 by humans (UNO) for humans. But, as we know, till today, even such concrete human rights mostly remain on paper, unrealized. Why? Because, as of today, in any big society, say all inhabitants of a village in India, the humans are divided in various interest groups (call it class, caste, religious group, gender or whatever). A particular human right is not in the interest of all members of a society.
    Among humans, an aggrieved person or a group of persons can fight for her/his right. But what can a river do, or a mountain, or a tract of land (nature reserve)? Humans, who are supposed to fight for the rights of a river etc. are themselves divided on the basis of their own material interests.

(3) This is so because water, fertility of land, minerals in or below a mountain are resources needed by humans.
    I remember, as early as in the 1950s (or the 1960s), India and East Pakistan (since 1971 called Bangladesh) fought on the question of right to use the waters of the Ganga. India wanted to build a barrage on the river at Farracka to divert water to the port of Kolkata which was rapidly silting. East Pakistan was worried about the navigability of the river on which the port of Khulna lay.
    In the meantime, the population of both countries have tripled or quadrupled and their needs have skyrocketed and even now growing exponentially.

    In conclusion, I would say if we political activists want to do something about the undeniably abstract rights of such inanimate entities, we should rather pay more attention to the practical questions of material interests of humans, interest conflicts among them, resource and consumption needs of humans, and especially the growing human population.
    Sometime back I formulated an impossibility theorem. It is as follows:

It is impossible to fulfill the continuously growing demands, wishes, aspirations and ambitions of a continuously growing world population while our resource base is continuously dwindling and the ability of nature to absorb man-made pollution is continuously diminishing. It is a lunatic idea that in a finite world infinite growth is possible.


Further Comments of Saral

I think I should here add another important point that occurred to me later:

Both in the article of Kothari and Bajpai and my two comments/contributions we have discussed how difficult it is to make the ruling on the Ganga and Jamuna operational. But in my subsequent readings, till now, I have found no such discussion on the matter in connection with the Whanganui River, as if the New Zealanders and Maoris involved cannot imagine any difficulty that may arise after passing of the said law. I think this difference can be explained if we consider the following facts:
    New Zealand's population density is 17 per km2 , India's 368 per km2. These figures are for the whole area of New Zealand and India respectively. If we could have the figure for the Ganga-Jamuna basin, we would surely see that the figure far surpasses that of India as a whole. I could check the figure for Uttar Pradesh, which is a part of the Ganga-Jamuna basin. It is
829 per km2.
     Kothari and Bajpai have described, in a few sentences, the demands that economic development is making on the Ganga. On the just 290 km long Whanganui River we can read the following sentences: "It is essentially left in its natural state, since it does not flow through any big population or industrial centre. On the contrary, it flows through two national parks and is New Zealand's centre of river Kayak sport" (the German Wikipedia). I hope everything is clear now.

1 comment:

  1. Dear SS,

    This I think has been taken from the already existing practice and legal provision of holding a deity in a temple as a juristic person. Similarly if rivers are being worshipped and gifted as deities, may be the Uttarakhand High Court ruling may not be wrong but if there is no such practice it may be of doubtful validity. Worshipped they are no doubt, but are any gifts and jagirs given in their names - as Ganga Mayee or Jamuna Mayee etc.?

    This article dealing with deities and the Sikh Guru Granth Saheb as juristic persons but rejecting mosque as a juristic person may shed some light on this issue.

    Dear Mallikarjun,

    many thanks for drawing my attention to the fact that in Indian legal practice deities are treated as a juristic person. At first I thought that the Uttarakhand High Court judge gave the ruling in the interest of protecting the environment of the rivers. But now it seems you may be right, that the judge gave this ruling in favour two deities.
    You are a lawyer. Surely all lawyers can get and read the justification the judge gave for his ruling! Would you please do this work for us? Also interesting would be to know who the plaintiff was; and the argument/reason for the plaintiff to go to court.
    I am copying this to Ashish Kothari, one of the two authors of the original article. He may be glad to receive this information. You may also write to him straight.

    With best wishes