ENVIRONMENTAL PERSONHOOD: CAN RIVERS AND ECOSYSTEMS HOLD CONSTITUTIONAL RIGHTS IN INDIA?

In March 2017, the Uttarakhand High Court, in Mohd Salim v State of Uttarakhand (2017 SCC Online Utt 367), declared that the rivers Ganga and Yamuna are living persons possessing all the rights, duties, and liabilities of a human being. Within four months, the Supreme Court stayed that order, leaving the legal status of India’s most sacred rivers constitutionally unresolved. This raised a genuine, unresolved question: can a river, glacier, or forest hold rights within a constitutional framework built entirely around human and corporate persons? India’s jurisprudence already recognises non-human juristic persons, from temple idols to companies, and the Constitution imposes clear duties to protect the environment under Articles 48A and 51A(g), read alongside an expansive judicial interpretation of Article 21. This article argues that environmental personhood is a concept that is available within Indian constitutional doctrine, but that the judiciary’s attempt to confer it through a single-state judicial order, without legislative backing or a governance structure, produced a doctrine that was constitutionally plausible yet practically unworkable. The discussion first traces the doctrinal foundation for extending personhood to natural entities, then examines why the judicial method adopted in India failed and contrasts it with New Zealand’s legislative model for the Whanganui River.

THE DOCTRINAL FOUNDATION: JURISTIC PERSONALITY AND THE ENVIRONMENTAL CONTENT OF ARTICLE 21.

Indian law has never confined legal personality to human beings. Courts have long recognised idols and religious endowments as juristic persons capable of holding property and suing in their own name. The reasoning in these cases is instructive. Personality is a legal fiction created wherever the law finds it useful to attribute rights and duties to an entity, whether that entity is human or not. Alongside this doctrine, the Constitution places express obligations regarding the environment. Article 48A directs the State to protect and improve the environment, while Article 51A(g) states the fundamental duty of every citizen. The judiciary has read these provisions into Article 21, holding in Subhash Kumar v State of Bihar that the right to life includes the right to a wholesome and pollution-free environment, a principle applied repeatedly in the Ganga pollution litigation before the Supreme Court.

It was against this backdrop that the Uttarakhand High Court, in Mohd Salim v State of Uttarakhand, declared the Ganga and Yamuna, together with their tributaries, to be juristic and living persons, invoking Articles 48A and 51A(g) and appointing the Chief Secretary and Advocate General of Uttarakhand as loco parentis guardians responsible for the rivers’ health and well-being. Days later, in Lalit Miglani v State of Uttarakhand, the same bench extended the doctrine further still, declaring the Gangotri and Yamunotri glaciers, along with streams, lakes, forests, meadows, and even the air, to be legal persons entitled to rights akin to fundamental rights for their survival and sustenance. The Court explained that polluting or damaging these entities would be legally equivalent to causing injury to a person. Taken together, the two rulings represent the most ambitious judicial extension of legal personality to nature attempted anywhere in the common law world at the time, resting squarely on existing constitutional text rather than any new legislative enactment.

INSTITUTIONAL DEFICITS IN THE JUDICIAL MODEL AND THE PATH TO REFORM.

The State of Uttarakhand appealed, and in July 2017, the Supreme Court stayed the High Court’s order. While the Court acknowledged the protection of the Ganga and Yamuna Rivers as a matter of utmost national importance, it held that conferring personhood on natural entities of this scale required legislative authorisation, not judicial authorisation. The concern was not justified. The rivers flow through several states beyond Uttarakhand’s jurisdiction, yet the High Court’s order bound only Uttarakhand’s own officials as guardians, leaving no clarity on who would answer for the rivers’ welfare, or their potential liabilities, once they crossed state lines. The order also left unresolved a paradox at the heart of the doctrine: a river declared a living, rights-bearing minor could, in principle, also be sued for the flood damage it causes, a liability regime the High Court plainly never intended to create but never expressly excluded either. The Miglani order compounded the difficulty by extending personhood to categories as diffuse as air and meadows, entities with no fixed boundary, no identifiable custodian, and no mechanism for enforcement beyond the goodwill of the state officials nominated as their guardians.

A useful comparison is New Zealand’s Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which conferred legal personality to the Whanganui River through an Act of Parliament rather than a court order. The statute created Te Pou Tupua, a dedicated two-member office funded and empowered by law to act and speak on the river’s behalf, with clearly defined powers, funding, and lines of accountability. The contrast with the Uttarakhand orders is instructive: legislative personhood arrives with an institutional architecture built to bear it, whereas judicial personhood, however doctrinally sound, is improvised onto existing administrative officials who already hold full-time responsibilities and no statutory mandate specific to the task. The Indian Jurisprudence, therefore, shows that rivers and ecosystems cannot hold rights under a constitutional order. It shows that the source of that status matters as much as the status itself. A right without an institution to exercise it, fund it, and defend it in litigation is a right that exists mainly on paper.

Indian constitutional doctrine supplies every conceptual ingredient necessary for environmental personhood, a flexible theory of juristic personality already extended to non-human entities, an express constitutional duty to protect the environment, and a judicially expanded right to life that already encompasses ecological well-being. What it has lacked is a legislative authorisation capable of translating that doctrine into an enforceable, properly resourced regime, the absence of which led to the Uttarakhand orders to suspension within months of their delivery. Parliament, drawing on the Whanganui precedent, could enact a dedicated rights of nature statute for India’s major river systems, one that designates statutory guardians with defined powers, secures dedicated funding, and coordinates the interests of every riparian state along a river’s course. Until such legislation exists, the question posed by this article must be answered narrowly: rivers and ecosystems can hold constitutional rights in India in principle, but they cannot yet hold them in practice, and the difference between the two is precisely the legislative architecture that remains unbuilt.

REFERENCE(S): –

Statues

Constitution of India 1950, arts 21, 48A, 51A(g).

Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ).

Case laws

Subhash Kumar v State of Bihar (1991) 1 SCC 598.

C. Mehta v Union of India (1988) 1 SCC 471.

Mohd Salim v State of Uttarakhand, 2017 SCC Online Utt 367.

Lalit Miglani v State of Uttarakhand, Writ Petition (PIL) No. 140 of 2015, order dated 30 March 2017 (Uttarakhand HC).

State of Uttarakhand v Mohd Salim, Special Leave to Appeal (C) No. 016879/2017, order dated 7 July 2017 (SC).