The Juridical Mirage: Why Legal Personhood Cannot Save Bangladesh’s Dying Rivers

Introduction

The Bangladesh Water Development Board (BWDB) estimates that there are now 907 rivers in Bangladesh, making the country a riverine nation. Nevertheless, Bangladesh’s river system has long influenced its character and allowed it to survive. Their gradual demise now portends an ecological catastrophe that threatens the nation’s economic and ecological foundations. 

The Supreme Court of Bangladesh granted legal personality to the river Turag in 2016 after the Human Rights and Peace for Bangladesh filed a writ suit against illegal encroachment, filling, and building along the riverbank. The court also ruled that all other rivers that pass through Bangladeshi territory will have the same status. Theoretically, this ruling has shifted the focus of the legal framework for river protection from a paternalistic approach that only considers human interests and makes river protection dependent on them to a right-based procedure that guarantees the legal protection of rivers for their own survival.

Despite the symbolic power of declaring rivers “living entities,” legal personhood is still a juridical mirage and not a viable protection mechanism because it lacks institutional enforcement mechanisms.

Concept of Legal Personhood in Environmental Jurisprudence

When nonhuman creatures are granted the same legal rights as humans in a court of law, this is referred to as legal personhood. In recent years, the rights of nature and its entities, such as rivers, glaciers, and forests, have been recognised by law worldwide. For instance, in Bangladesh, India, New Zealand, and many other nations, legislative or judicial judgements have added a new dimension to the legal status of nature. 

In 2017, the Whanganui River was given legal personality by the New Zealand government. According to the law, the river has “all the rights, powers, duties, and liabilities” of a person as it is an indivisible, living whole.

However, using the Public Trust Doctrine, the Uttarakhand High Court ruled in a case that the Ganges and Yamuna rivers and their tributaries are living, breathing beings with all the rights, obligations, and responsibilities that go along with them. The court must appoint a legal guardian on their behalf since these legal persons are considered “children” under Indian law. The Court exercised parens patriae jurisdiction. The Supreme Court of India later upheld this ruling.

In the Turag River case, the High Court Division of Bangladesh rendered a decision based on the same approach, establishing the Turag River and all rivers that flow through and inside Bangladesh as a living and legal person and issuing the following 17 directives. The National River Conservation Commission (NRCC) is designated as the “Person in Loco Parentis” of all rivers in Bangladesh, including the River Turag, for the purpose of protecting, conserving, and developing them by preventing pollution and encroachment. The doctrine that has been explained, examined, and narrated in this case is an essential component of our nation’s laws. Both the Polluter Pays Principle and the Precautionary Principle are now established as national legislation.

The court’s decision created a robust, abstract right by granting rivers legal personhood status, but this victory was undermined by transferring the power of enforcement to the National River Protection Commission (NRPC). Historically, the NRPC has been a weak, under-resourced, and non-judicial organization, rendering its legal status an immediate “juridical mirage” that lacks the authority to confront powerful encroachers and polluters.

The Juridical Mirage: Why Legal Personhood Fails in Practice

The appearance of legal advancement devoid of real consequences is known as the juridical mirage, like the implementation is still difficult despite the jurisprudential ambition, as rivers continue to sustain unrelenting damage. Illegal dumps, frequently supported by political benefactors, restrict the banks of the Buriganga and Turag rivers, and more than 200 enterprises release untreated wastewater into them. The Padma River is choked by over 50 unauthorised brick kilns, several of which have been mentioned in High Court decisions. In the name of development, the Payra River, which is dredged year-round for a coal plant and ports, is losing its natural flow. The myth of legal personhood without ecological stewardship is exposed by these examples. The following discussion will highlight the challenges in the implementation of personhood:- 

(i) Institutional Discord

The Bangladeshi courts granted symbolic rights to rivers, but institutional change, more specifically, the powerlessness of the NRCC and the factional character of inter-ministerial government, renders the rights ineffective, rendering the progressive legal status an unworkable, theoretical concept (an “ontological disjuncture”) unable to overcome entrenched political and economic interests. Its dependence on frequently complex government institutions significantly limits its ability to bring complaints or enforce measures.

(ii) Conflicting Bureaucratic Mandates

The state’s Incompatible Utilitarian Imperatives are made symbolic in the judiciary’s recognition of personhood. The Ministry of Land treats riverbeds as leasable lands. The Ministry of Water Resources imagines rivers as dredging routes bound with the river using incompatible and non-substantive lenses (project, plot, channel, drain), hence directly denying and functionally deconstructing the river as an entitlement-holding legal subject.

(iii) Jurisprudential Fiction

Being a legal person, an entity has rights in the same way as people or organizations, and through this, it can act legally by taking legal action and claiming compensation. River personhood was initiated in Bangladesh, but is devoid of the mechanisms of campaigning and enforcement required. The rivers can be granted theoretical rights, but without funding, legal representation, and the ability to act independently.

(iv) Absence of Indigenous Stewardship 

It highlights here that the Bangladeshi example illustrates an inherent institutional exclusion of indigenous worldviews. Unlike New Zealand’s situation, the purely judicial order cannot include Indigenous custodianship or Traditional Ecological Knowledge within the government framework. This exclusion leaves the enforcing mechanism lacking the context-specific knowledge and community-based custodianship required for effective ecological conservation.

(v) Retreat of the Judiciary

In the Turag River case, the Appellate Division retained the status of personhood but redesignated many of the operational mandates as obiter dictum. The ruling drastically removed the teeth of the framework in the aspect of punishment, demonstrating the susceptibility of zealous environmental jurisprudence to the lack of executive compliance.

Recommendations for a Way Forward

Based on the study, the following recommendations can be suggested:-

(i) Rivers Right in the Constitution would provide rivers with clear constitutional protection, elevating their conservation from a policy matter to a constitutional state duty. By transferring river protection to Article 18A  or by adding a new clause, the State would be bound under the Constitution to protect rivers as a component of the right to life and ecological balance.

(ii) Strict monitoring mechanisms that can track the present state of rivers must be established. Additionally, it is necessary to guarantee adherence to national and international legal norms. To shield rivers from the negative consequences of climate change, the government may also implement a climate resilience strategy.

(iii) Setting up a Co-Management Framework because Bangladesh’s river guardians do not have the legal authority to act effectively on behalf of the rivers. One of the clearest instances of how funds and an institutional framework have been used to promote the official recognition of the Whanganui River as a legal person in order to provide the new legal arrangements with legal power and effect is the river. Because it benefits the residents, community engagement may be started.

(iv) Enacting Laws on cross-jurisdictional issues since practically all of Bangladesh’s rivers cross international borders. It is possible to pass a unified law to safeguard the shared rivers, particularly in South Asian nations. We want time-tailored river protection laws to preserve the natural balance of rivers, to protect the most vulnerable rivers, and guarantee water security.

(v) Zoning of rivers, digital mapping, and strict liability for polluters would create a codified and responsible river administration in Bangladesh. River zoning can define areas to be reserved and manage industrial or urban activities, while digital mapping offers open observation of encroachment and pollution sites. Coupled with a regime of strict liability, it would make polluters responsible regardless of intent, promote preventive action, and enhance environmental justice through technology and law.

Conclusions

The declaration of legal personality over Bangladesh’s rivers is a “juridical mirage.” Symbolically meaningful as it may be, the theory falls short in practice due to institutional enforcement deficits, most specifically the NRCC’s lackluster mandate. Rivers remain ravaged by virtue of institutional conflict, conflicting bureaucratic imperatives, and ultimate withdrawal by the judiciary, rendering the legal status an ineffective abstraction. On the whole, although the idea of legal personhood of a river considerably improves Bangladesh’s rivers as they stand in the modern era, its efficacy is entirely based on meticulous public policy design, vigilant implementation of river-protecting laws, and intergovernmental authority cooperation.