[Case Comment] Emerging Environmental Jurisprudence in Md. Salim v. Uttarakhand by Ashutosh Kumar

Mohd. Salim Versus State of Uttarakhand & others
Writ Petition (PIL) No.126 of 2014
Court: Uttarakhand High Court

FACTS: Extreme human interference and commercial activity near the bank of river Ganga and Yamuna at downhills of the origin, both the rivers in the state of Uttarakhand, which  moved the petitioner to file the public interest litigation as these human interference and commercial activity at wide-scale was not only polluting the river but also leading to widespread damage to environment as well as aquatic ecosystem resulting in degradation of ecological balance as well purity of one of the most sacred and  revered rivers of India.

This case whistled the reality of India’s environmental governance regime as well as the ushered rise of new principle of environmental governance in India. The real inspiration of this can be attributed to New Zealand’s decision to declare one of its rivers as a living legal entity in order to protect the soul of the river. On the same format, Uttarakhand High Court in its decorated judgment using all poetic and ornamental literary style presented a landmark view preaching lesson to live with symbiosis and harmony with nature. It has declared Yamuna and Ganga river as juristic personality and living entity in order to protect the lifeline of the country which has become prey to human commercial activity and industrialization. Hon'ble court using precedent discussed the importance of living entity and juristic personality, and how it can also be used as a tool of environmental protection. Further, it has not only covered the River Ganga and Yamuna but one of the related cases has widespread coverage of all-natural resources including forest, lakes and wildlife also. As our present domestic legislation and manipulated version of the concept of sustainable development is suffering red-tapism, this innovative decision can convert weak enforcement and implementation regime into strong active law by reasoning of legal personality adding more vibrant and accountable approach of legal personality as it is in case of companies and corporations to realize India's commitment towards Paris agreement as well world most ambitious document of sustainable development goals which includes protection of waters and nature to combat climate change .  

The judgment of the case
Uttarakhand High Court using its inherent power accordingly, and exercising the parens patrie jurisdiction, the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person in order to preserve and conserve river Ganga and Yamuna. The state of Uttarakhand is hereby declared persons in loco parentis as the human face to protect, conserve and preserve Rivers Ganga and the Yamuna and their tributaries. These Officers are bound to uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers.  
Present status of the case However, It is to be stated that Supreme Court has put hold on the decision of Uttarakhand High Court, till the final hearing of the appeal filed by the State of Uttarkhand. alert-info

This particular case has given rise to new environmental jurisprudence in India. As by declaring natural resources like forest,  rivers (Ganga, Yamuna), lake as a living entity or juristic personality has made all dead environmental jurisprudence alive with a new approach to environmental protection regime. Despite all effort and numerous domestic environmental legislation has so far proved to be a toothless tiger on the paper due to weak implementation and enforcement mechanism under the range of environmental legislation along with constitutional mandate provided Art. 48 A and Art. 51 A(g). Though the supreme court has put a hold on the judgment after the state of Uttarakhand went in appeal but it has started a new era of environmental protection regime which has vibrated the conscience of India’s environmental governance under the guise of sustainable development and India's commitment under Paris pact signed in December 2015 [PDF] at COP- 21. Whatever may be the final verdict of the case in the Supreme Court but this case has put forth the strong concept of public trust doctrine as well intergenerational equity putting in a line of juristic personality which is creation wisdom and intellect of the Judiciary. The decision of Uttarakhand High Court has forwarded strong concept public trust doctrine as well as intergenerational equity in line of juristic personality to support the idea of sustainable development in more refined attitude to protect planet earth and allow to live in symbiosis with nature for a longer time.
Mr. Ashutosh Kumar is former legal officer at Asian African Legal Consultative Organisation, New Delhi and visiting faculty of law at various universities. He can be reached at [email protected]

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