Subject: Conservation & Mitigation

Holding that it is the right time to confer juristic status to ‘Mother Nature’, Justice S. Srimathy of the Madurai Bench of Madras High Court invoked the ‘parens patriae jurisdiction’, and declared ‘Mother Nature’ as a ‘living being’ having the status of a legal entity.

What is the news?

• The Madras HC observed that ‘Mother Nature’ was accorded the rights akin to fundamental rights, legal rights, constitutional rights for its survival, safety, sustenance and resurgence in order to maintain its status and also to promote its health and well-being.

Legal rights for nature: A backgrounder

• The movement for legal personhood for the environment and animals began in the 1970s.
• This concept was articulated by Christopher D. Stone in his thesis, Should Trees Have Standing.
• In this compelling piece, the author makes an argument for the environment to have independent legal rights, much like what was granted by the judgment of the Uttarakhand High Court in 2017.
• He highlights how the theory of rights has developed over the years and that many inanimate objects have both rights and legal duties. They can sue and be sued.

What is the case for Madras HC’s personification of nature?

• The Madras HC has made a personification of nature that focuses on the life-giving and nurturing aspects of nature by embodying it, in the form of the mother.
• It observed that the court is hereby declaring ‘Mother Nature’ a ‘living being’ having the status of a legal person with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve it.
• The State and Central governments are directed to protect ‘Mother Nature’ and take appropriate steps in this regard in all possible ways.

A different course: Ecological Jurisprudence

• The onset of climate change and the potential mass extinction of species is accompanied by the gradual closing window of opportunity to take meaningful action.
• Activists around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones.
• The last 15 years have seen a dramatic increase in the number of laws based on ecological jurisprudence.
• Ecological jurisprudence is a philosophy that sees nature not as a set of objects to be exploited but as a community of subjects (humans and non-humans) who are connected through interdependent, reciprocal relationships.

India’s typical case

• In 2017, the Uttarakhand HC ruled (in two separate orders) that the Ganga, the Yamuna, their tributaries, and the glaciers and catchments feeding these rivers in Uttarakhand had rights as a “juristic/legal person/living entity”.
• In 2018, the same HC ruled that the entire animal kingdom had rights similar to that of a living person (Narayan Dutt Bhatt vs Union of India).
• In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city a living entity, with rights equivalent to that of a person.

Beyond Rights

• Law is a modern human construct. It not only talks in the language of rights and duties that only humans understand but also operationalizes them in a way that can further entrench human-centeredness.
• In most cases where nature’s rights are recognized in law, they have done so by extending to it the concept of “personhood” in other words, akin to humans and, therefore, having human rights.
• Hence, any such movement on recognizing the rights of the rest of nature must challenge the fundamental forms of injustices, including capitalism, stateism, anthropocentrism and patriarchy.

Significance of such status

• These rights-based laws granting legal personhood for nature aim to shift the legal status of the natural world from being human property to living entities in their own right and subjects of law.
• This guarantees their right to exist, thrive, evolve and maintain their natural cycles.
• These rights are not conferred by humans; it is a recognition that these rights have always existed.
• It lays upon humans the duty to act as guardians for the more-than-human world.

Issues of implementation

• Assuming that these rights are recognised, nature or any of its entity cannot represent itself in a court of law.
• Moreover there is the issue of custodianship.

What would account for violations?

• The Uttarakhand court order did not mention what amounted to violation of rights of rivers.
• In order to be able to truly exercise the rights and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to “violation of the rights”.
• Say, the violation of the rights of rivers may be defined as “any obstruction or impediment that disables the entity from performing its essential ecological functions”.

Restitution and compensation

• The New Zealand law has an extensive section lending itself to restitutive, restorative and compensatory action.
• It acknowledged the government’s decisions and actions for more than a century that resulted in the violation of the health of the Whanganui and the rights, culture and well-being of the indigenous people living along the river.
• Several specific examples were given, including the dismantling of traditional structures for fishing and river use, a hydroelectric project and mining.
• Such an acknowledgment is a necessary first step towards seeking appropriate restitutive and compensatory measures.

Another question: Bioregional Governance

• Recognizing river ecosystems or other entities of nature as having rights offers the possibility of managing and governing habitats based on the ecological realities of the region.
• It brings out the bizarre fact that the human-drawn nation state, and political lines on maps in various parts of the world have created conflict situations or disrupted ancient cultural and ecological flows and relations.
• We need to begin reimagining governance from a bioregional governance point of view.
• This would also mean bridging the gap between the customary ways of decision making and the current legal frameworks.
• There is a need for more imaginative lawyers, activists and judges to help move towards an eco-centric and diverse legal framework.

Way forward

• There is a need for a comprehensive system to implement and protect their rights.
• The rights can be safeguarded using the principles of custodianship.
• The Uttarakhand High Court order named several government functionaries and a couple of independent lawyers as “parents”.
• An alternative solution is that custodianship or guardianship be given to a body of local communities associated with the river.
• These communities have traditional or customary rights of the river such as fisherfolk, farmers along the riverbank, and people directly engaged in river-related services.

 

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