A river has the right to life

VENKATESH DUTTA

DESPITE our professed love for rivers and water bodies, our actions have inflicted deeper injuries on their wholesome existence. The rights of rivers and the representation of their interests when they are threatened are often ignored. Rivers, as essential components of our ecosystems, face significant challenges and suffering due to rapid urbanization.

There is a big conceptual gap, and holistic provisions are missing so far as river rights are concerned. The various rules and guidelines to protect rivers from abuse primarily rely on a combination of Central and state laws. They are routinely cited in court proceedings with an attempt to ensure that the spirit of these isolated provisions is honoured.

 There is a growing movement to establish legal rights for rivers and ecosystems in many countries, often granting them a form of legal personhood. The idea behind this is to attribute a clearly defined set of rules to save rivers from degradation and extinction.

While human rights are well-established and advocated by various organizations and activists, the rights of rivers and ecosystems have been a more recent topic of discussion. The biggest challenge is determining who or what represents the rights of rivers when they are under threat. Efforts to represent and protect the rights of rivers may involve creating legal frameworks, tools, organizations, and advocacy campaigns aimed at raising awareness about the ecological importance of rivers. In some legal systems and regions, there have been attempts to assign legal guardians or custodians to represent the interests of rivers and ecosystems. These guardians can then take legal action on behalf of the rivers when there are violations or threats to their well-being.

While we have the right to life as individuals or members of a species (Article 21 of the Indian Constitution), rivers themselves do not have rights in the traditional sense.  There are many rules and legal provisions in our country that put forward a fascinating lens through which a rights-based approach towards river protection can be established. Many of these provisions are now cited in legal proceedings to deter wrong-doers. 

There could be a set of eight rights explicitly defined for protection of rivers. These include:

1. The right of rivers to the land of rivers (riparian lands, floodplains and vegetation buffer zone).
2. The right of rivers to flow naturally (ecological flows).
3. The right of rivers to flow without human-generated waste (quality and wholesomeness).
4. The right of rivers to maintain their ecosystems (ecological integrity).
5. The right of rivers to remain connected with their smaller tributaries and streams (stream connectivity).
6. The right of rivers to maintain water bodies (lakes/ponds/other natural water sources) in their catchment (connectivity with water bodies).
7. The right of rivers to have sufficient groundwater as base flows (floodplain aquifers).
8. The right of rivers over all the streams, water sources and underground water to be considered as an integral part (family) of the river (basin integrity).

Article 21 guarantees the fundamental right to life. It is believed that the right to life cannot be attained or guaranteed without also guaranteeing access to clean water sources such as rivers, ponds and lakes. In M.C. Mehta vs. Union of India, AIR 1987 SC 1086 the Supreme Court treated the right to live in a pollution-free environment as a part of the fundamental right to life under Article 21.  Article 48A is kept in mind whenever a matter regarding maintenance of a river or ecology is brought before the Court. It says that “the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.

Further, according to Article 51A (g), it shall be the duty of every citizen of India “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”. The Supreme Court in Delhi Water Supply and Sewage v. State of Haryana, AIR 1996 SC 2992 said that “A river has to flow through some territory; and it would be a travesty of justice if the upper riparian States were to use its water for purposes like irrigation, denying the lower riparian States the benefit of using the water even for quenching the thirst of its residents.”

Rivers flow meanderingly and dissipate inherent energy in their floodplains. To prevent illegal encroachment in their meandering/floodplain zone due to urbanization and unplanned settlement, the Uttar Pradesh government has made various guidelines. According to a March 2010 order by the chief secretary, the floodplain zone along rivers should be treated as a flood affected area in the master plan and no construction should be allowed in it, the land use of these areas should be kept green. Under the Uttar Pradesh (Regulation of Building Operations) Act, 1958, the UP Urban Planning and Development Act, 1973 and the Industrial Development Act, 1976, ‘no objection’ will not be provided for any kind of construction work on the floodplain, nor will the map be approved. To stop any type of illegal construction, effective action should be taken under the provisions of these Acts. According to the notification of the Ministry of Water Resources, River Development and Ganga Rejuvenation dated October 7, 2016, Section 6(3), “No person shall construct any permanent or temporary structure for residential or commercial or industrial or any other purpose on the banks of the riverbank or in its active floodplains.”

Despite the state and Central governments’ efforts to codify river rights and establish legal frameworks for river protection, a clear-cut implementation mechanism is still missing. Also, the district-level committees have done little to enforce key judicial decisions related to protection of rivers, especially removal of encroachments. There are inherent difficulties in translating the rights due to lack of coherence between agencies.

By granting legal rights to rivers, it becomes possible to take legal action on behalf of the river or ecosystem when there are threats or harm caused by human activities. It signifies a shift in perspective from viewing rivers solely as a resource to be ‘exploited’ to acknowledging that they have ‘intrinsic value’ and deserve care and protection in their own right. This change in our approach can contribute to more sustainable and harmonious relationships with our rivers. Hopefully, some clear river rights may emerge in response to critical challenges our rivers are facing.

Venkatesh Dutta is a Gomti River Waterkeeper and a professor of environmental sciences at Ambedkar University, Lucknow