Sukhna Lake as a “Legal Person” : The Challenges Ahead

By Aparna Sojan









Recently the Punjab & Haryana High Court, in its judgment in Court on its own Motion v. Chandigarh Administration (herein referred to as the Sukhna Lake case), declared the Sukhna Lake to be a ‘legal person’, having the “corresponding rights, duties and liabilities of a living person.”[1] This comes in the backdrop of the much debated Mohd Salim v. State of Uttarakhand[2] where a High Court verdict declaring Ganges and Yamuna rivers as legal entities was stayed by the Supreme Court of India. This piece aims to critically analyse the Sukhna Lake case and deconstruct the problems with holding natural entities as legal persons.   









Background

Conferring nature with a legal personality of its own was first mooted by Prof. Stone in his widely acclaimed paper “Should Trees Have Standing?” wherein he advocated that nature should be able to initiate legal actions at its own behest. By doing so, the injury caused to the natural entity can be taken into consideration while determining the amount of compensation that is to be granted. This compensation can be utilised to augment nature’s welfare.[3] 

Often, in the garb of protecting nature, it is human’s right to preserve himself that is being safeguarded. For instance, the public trust doctrine as well as the sustainable development model focuses on preserving nature so that humans can continue to reap benefits from it.[4] The idea of viewing natural entities as legal persons, capable of possessing and defending rights of its own, has sprung out as a rejection of this anthropocentricism.  Hence, it aims to underlie that nature’s existence is not for catering to humans needs alone and that it has its own identity, thereby marking a shift to ecocentrism.  









Rationale for legal personhood for Sukhna Lake

The Sukhna Lake case was primarily about damage caused to its catchment area due to the construction of commercial and residential structures.[5] The Court came down heavily on the Chandigarh administration as well as the State governments of Punjab and Haryana. The Court also directed that the area around the Sukhna Lake Wildlife sanctuary be designated as an eco-sensitive area. A sum of Rs 100 crore was announced as the fine that each of the State governments would have to pay, as exemplary or punitive damages which would in turn be utilised for restoring the lake. This would have seemed just in the ordinary course.

But, in its concluding remarks, the Court, by invoking its parens patriae jurisdiction, declares that Sukhna Lake was to be henceforth a ‘legal entity.’ Such recognition was sought to be conferred for ensuring its “survival, preservation and conservation.”[6] The Court also observes that “the preservation, conservation and saving of environment is based on the doctrine of public trust.”[7]

Firstly, the two aforementioned concluding observations are contradictory as legal personhood for natural entities is always granted as a rejection of anthropocentric perspectives such as the public trust doctrine.[8] By conflating legal personhood and public trust doctrine, the judgment creates room for ambiguity. Secondly, the judgment is silent about why such a legal personhood model is being introduced. It needs to be ascertained whether it is being introduced as the already existing models of public trust doctrine, polluter pays principle or sustainable development principle has failed to preserve environmental entities from being exploited. In the judgment,  there is an elaborate discussion on the jurisprudence surrounding public trust doctrine, and nowhere is it disregarded or doubts regarding its effectiveness are expressed. In fact, it is based on the public trust doctrine and polluter pays principle that the Court fixed liability on the State governments to make reparations to the damage caused. Thus, the Court has neither explicitly nor implicitly negated the effectiveness of any of these principles. Hence, one cannot infer that the legal personhood model is being regarded by the Court as a replacement to the prevalent doctrines in India.   This brings to fore the question as to the rationale behind granting legal personhood to Sukhna. 









Legal persons v/s Living persons

The Indian cases differ significantly from other jurisdictions that have similarly recognised rivers and other natural entities as legal persons. It is only in India that the rivers and lakes are attributed all the rights, duties and liabilities of a ‘living person,’ rather than that of a ‘legal person.’ This would inevitably mean that they are entitled to all the fundamental rights as well as human rights that are available to natural persons. This, in itself is problematic because the Court’s recognition of lakes as “living entities,” and equation of their rights, duties and liabilities to that of human beings is hardly an ecocentric approach. Furthermore, it makes little sense to accord to lakes, the same rights that a human being possesses. Certainly, courts would find it difficult to enforce a lake’s civil, political or social rights due to its inherent impossibility. Rather, rights of lakes and every other natural entity should be so identified and delineated which protects any interest that it might be legitimately expected to have.

Moreover, the Court has declared all the citizens of Chandigarh as “loco parentis” or “the human face to save the lake from becoming extinct.”[9] Lakes cannot speak or indicate what their interests are. This is why humans are placed as their guardians or spokesperson who can act with the best interest of nature in mind. However, the Court has overlooked the possibility of citizens advocating for those rights of the lake that appeal to their interest  rather than gauging what is best for the lake’s sake. Hence, the whole exercise of recognising the lake as a legal person seems futile when ultimately its guardianship is bestowed on humans, who are its exploiters and whose dereliction from their duties resulted in its damage.









The problem of liability

Usually, when legal recognition is extended to natural entities, a public authority is also appointed who has the duty to safeguard it and who is also liable to be sued on failure to do so. For instance, the Ecuadorian Constitution vide Article 71 recognises the right of all persons, communities, peoples and nations to call upon public authorities to enforce the rights of nature.”[10]Such a right to call upon a public authority for enforcement of the rights of Sukhna Lake is absent in the judgment. In fact,  the Court has only made directions for ensuring that the State pays and undertakes liability for all the damage that the lake has hitherto suffered. No responsibility to ensure that the lake is not further polluted is placed on it. It also seems that the citizens were made the ‘human face’ so as to substitute the State, its earlier trustee, who had failed.

While the rights of all the citizens to protect the lake have been recognised, the Court has not clearly stated on whom the liability would lie when rights of the lake are violated.Logically surmising, citizens themselves would be liable for infringement of the lake’s rights as it is on them that the duty of saving the lake has been placed. Rarely is a lake’s damage the result of an isolated activity that is committed by an individual. More often than not, it is a consequence of systematic activities of numerous individuals. In such a scenario, identifying each such perpetrator of damage is an unfeasible option. Thus, citizens acting as guardians would not be fruitful unless and until it can call upon the State for enforcement of rights.

Further, the question of liability of the lake for destruction caused by it in the wake of natural disasters, the same question which led to Supreme Court ordering a stay on Mohd. Salim, remains unaddressed in the judgment.









Impact on human rights and animal rights

Instances of exclusion of indigenous communities whose livelihoods are inextricably dependant on rivers after the latter has been granted legal status have been reported in recent past.[11] Hence, it brings to fore the possibility of local people living on the shores of Sukhna being evicted so as to enforce the rights of the lake.[12]

The judgment orders for removal of residential and commercial structures as well as stray animals from the catchment area. It is worthwhile to note that in Narayan Dutt Bhatt v. Union of India, the Uttarakhand High Court had declared ‘animals’ to be legal persons with the “rights, duties and liabilities of a living person.”[13]

When lakes, humans and animals are all entitled to rights that are equal in scope and measure, how would courts resolve whose right is to be given prominence when the interests of each are weighed against the other? In other words, the judgment fails to delineate the basis on which we are to infer that rights of the lake would override those of humans or animals, when in fact, all of them possess the rights of living persons. In the absence of this, exclusion of humans and animals from the shores of the lake are susceptible to challenges in courts of law.









Is legal personhood the solution?

It is pertinent to examine whether granting legal personhood to rivers and lakes is the only remedy to address its concerns. In 2017, Australian Parliament enacted a new legislation for the protection of Yarra River and recognised it as a “single, living entity.” However, the Act does not declare the river as a legal person or appoint a legal guardian for it. Instead, it has formed an independent statutory advisory Council which has only representatives of Traditional Owners, local communities and environmental and agricultural industry groups.[14] Thus, this is a model which ensures that rivers would be protected and the voices of the communities who have an interest over safeguarding it are not left unheard. Even New Zealand who has granted legal personhood to the Whanganui River has only extended the rights that a ‘legal person’ has and not that of a living person. The legislation enacted for this purpose identifies Whanghanui Iwi, a group which has historical and cultural ties to the river as its guardians.[15]

A comparison with other jurisdictions shows that irrespective of whether or not they have recognised legal personhood, they have a clearly identifiable set of guardians, who are independent from the government so that the latter can be held accountable for its inactions. Their rights have been comprehensively worded and the principles which should guide the protection of such rivers are also clearly spelt out so as to avoid ambiguity. It also does not exclude indigenous communities, thereby preventing violations of their rights. The same cannot be said true for India.  









Way forward

At best, giving the lake the status of a legal person enables the Court to take cognisance of the lake’s grievances directly as the lake itself would be a party to the suit. As Stone argues, it makes the lake “count in the eyes of law.”[16] But it goes little beyond such a formal acknowledgment of its interests. In India, we already have fairly relaxed rules for standing and Public Interest Litigation enables any aggrieved individual to speak for a natural entity that is believed to be facing environmental threats[17]. Thus, creation of a separate guardianship model, which would lend a voice to the lake, seems unnecessary.

There is no dearth of comprehensive legislations, judicial precedents and special tribunals for the cause of environmental justice in India. Thus, the unabating pollution of rivers, lakes and other natural ecosystems seem to be resulting from lack of compliance to existing laws. The legal recognition granted to the lake would be as redundant as these legislations unless and until there is a sound policy as well as an institutional framework to ensure its effective implementation. Hence, having an independent body which can aid, advice and act as a check on the State’s action like the Australian approach would go far longer in achieving the protection of the lake. This can be achieved even without recognising the lake as a person, thereby avoiding the concomitant problems of duties and liabilities of the lake that come with it. A mere recognition of legal personhood of the lake without having means to enforce it meaningfully is detrimental to the intended objective.









The author, Aparna Sojan, is currently a law student at the National University of Advanced Legal Studies (NUALS), Kochi.    










[1] Court on its own motion v. Chandigarh Administration, CWP No. 18253 of 2009 & other connected petitions (P&H H.C) (Unreported).

[2] Mohd Salim v. State of Uttarakhand, 2017 SCCOnLine Utt 367, ¶173.

[3] Stone, Christopher D. “Should Trees Have Standing? – Towards Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450-501.

[4] O. Donnell, E.L., and J. Talbot-Jones, 2018. Creating legal rights for rivers: lessons from Australia, New Zealand and India. Ecology and Society 23(1):7.

[5] Court on its own Motion v. Chandigarh Administration, CWP No. 18253 of 2009 & other connected petitions (P&H H.C) (Unreported). ¶4,7.

[6]Court on its own Motion v. Chandigarh Administration, CWP No. 18253 of 2009 & other connected petitions (P&H H.C) (Unreported)., ¶160.

[7] Id., ¶162.

[8] Public trust doctrine essentially provides that State holds natural resources in trust so that they can be utilised by public. Thus, it protects people’s right to continue to benefit from environment. It does not recognise the intrinsic value of environment as an entity in itself. Rather, the environment derives value from it being a public resource on which humans are dependent.  

[9]Court on its own Motion v. Chandigarh Administration, CWP No. 18253 of 2009 & other connected petitions (P&H H.C) (Unreported)., ¶173. ,

[10] Constitution of the Republic of Ecuador, 2008 (Ecuador).

[11] REUTERS, Fears of evictions as Bangladesh gives rivers legal rights, July 5, 2019, available at https://www.reuters.com/article/us-bangladesh-landrights-rivers/fears-of-evictions-as-bangladesh-gives-rivers-legal-rights-idUSKCN1TZ1ZR (Last visited on August 02, 2020).

[12] HINDUSTAN TIMES, Sukhna catchment:HCorder likely to affect 1,700 houses, 30,000 people living in Kansal, March 16, 2020, available at https://www.hindustantimes.com/cities/sukhna-catchment-hc-order-likely-to-affect-1-700-houses-30-000-people-living-in-kansal/story-8xfUEJ9QOZ7JGBTtvv3SwL.html (Last visited on August 02, 2020).

[13] Narayan Dutt Bhatt v. Union of India, 2018 SCCOnLine Utt 645, ¶99.

[14] Yarra River Protection (Wilip-Gin Birrarung Murron) Act, 2017 (Australia).

[15] Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 (New Zealand).

[16] STONE, supra note 3 at 458.

[17] Shyam Diwan & Armin Rosencranz, Environmental Law And Policy In India : Cases, Materials And Statutes 135 (2001).  

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