Women, blacks, and children tread a long path to gaining this right, and even today, it cannot be said to be true in certain societies. Non-human entities and non-living entities are, except in some jurisdictions worldwide, not treated as legal persons, and hence don't have a right to initiate legal action. However, certain legal systems have undergone shifts in conceptualising this right of standing.

The Tamirabharani judgment of the Madurai Bench of the Madras High Court, delivered in the last week of July, has reopened discussions on extending legal personality. First mooted by Professor Christopher Stone in 1972 to pique his students' interest, it ultimately became one of his most influential writings - Should Trees Have Standing? - Toward Legal Rights for Natural Objects. While most legal articles fade into oblivion, this one did not, thanks to it being immortalised by Justice William O Douglas' famous dissent in Sierra Club v. Morton (1972). Stone poignantly observed that 'whenever a new entity is provided rights, it is met with either ridicule or fear'.

The decision has had its fair share of hurdles to cross, for India doesn't recognise or extend legal personality to non-human entities, barring a few exceptions. Ecological consciousness was prevalent in ancient scriptures and even pervaded our way of life, but sadly, it did not translate into an eco-centric legal approach. Judges have been vocal, but such observations are part of obiter dicta and, unlike ratio decidendi, have no binding value; at best, they are as good as a parental sermon.

Not so long ago, in India, legal recognition was given to non-human as well as non-living entities. Justice Rajiv Sharma, while deciding whether illegal structures on the banks of the Ganga and the Yamuna needed demolition in Mohammed Salim v. State of Uttarakhand (2017), held that rivers are to be treated as 'legal persons', and the state officials and the citizens of Uttarakhand are to act as their 'legal guardians'. However, its impact was short-lived because of the administrative hurdles posed, and the Supreme Court stayed the same.

Nonetheless, Justice Sharma furthered the idea, and in Narayan Dutt Bhatt v. UOI and Ors (2018) and Karnail Singh v. State of Haryana (2019) extended legal personality to the entire animal kingdom, including avian species. In 2020, in a suo motu case, the Punjab and Haryana High Court treated Lake Sukhna as a juristic person. The Supreme Court had a chance to settle the issue in a Public Interest Litigation filed by the People's Charioteer Organisation, an NGO, but declined to afford animals 'legal personality'.

Defining rights

Evidence presented at the court, reiterated by a public activist, brought to light the massive scale of pollution the Tamirabharani river was subjected to, due to regular obsequies. While this was a direct violation of the Water (Prevention and Control of Pollution) Act, 1974, the court also had to consider Article 25 of the Indian Constitution - the Fundamental Right to practice and propagate religion. The court opined that the restrictions that it placed did in no way affect the right under Article 25, and categorically said that such funeral rites should in no way pollute the river. It also pointed out the fundamental duty imposed on citizens under Article 51A(g) of the Constitution and made it clear that the river has to be protected, given its status as a perennial river providing water to a large number of people.

However, the main concern was not yet addressed, and the court had to figure out a way. Deities and idols, in Indian jurisprudence, have 'legal personality' and it is a settled position of law. Falling back on precedents wherein it was held that 'whether something is a deity or not depends upon the faith of the persons who worship the idol', the court recognised the river as a deity, and thereby concluded that it does possess legal personhood. It also specifically laid down that this was afforded only for a limited purpose: 'the right not to be polluted'.

The court also lamented that laws have their own limits and urged people to change their ways. One can only fervently hope that this decision translates into action and more importantly, people realise the intrinsic value that need be attached to nature.

(The writer is the only Indian member of the Expert Group on Harmony with Nature, United Nations. He teaches environmental law and earth jurisprudence at CHRIST University, Bengaluru)

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)