“DOES NATURE POSSESSES RIGHT? – THE DEBATE OF EXPANSIVE ENVIRONMENTALISM V. ETHICAL ENTRENCHMENT

By Shivansh Soni, 3rd Year Student, Maharashtra National Law University, Nagpur

Unless men are held to possess some attribute over and above those which they have in common with natural objects- animals, plants, things, etc, (whether this difference is itself called natural or not), the moral command not to treat men as animals or things has no rational foundation[1]

The ongoing environmental degradation has been and is causing major threats to humanity, and the nature as well, and for this there is a strongly growing opinion that we as humans, must fundamentally change the relationship between humanity and the nature which can be done very much within the contours of the existing legal framework.[2]

As opposed to the conventional notion of humans being the only possessor of rights or the only “beings” who can behold rights, Can the nature per se be entitled to rights for a better recognition and protection of environment? as it would hold the existing jurisprudence as to who can behold right to an expansive interpretation. However, creating this paradigm shift would necessarily change the ways human being act against the nature. The recognition of nature as a subject of rights is premised upon the fact that humanity is just one member of the wider community what we call “earth”. This affirmative assertion has been made in Ecuador, being the first country to embed the Rights of Nature in to its Constitution.[3] Following this Bolivia hosted the first conference on Climate Change and the Rights of Mother Earth. The United Nations, furthermore, has emphasised on the need to avert the “Planetary Catastrophe”.[4] This article, therefore, in this furtherance shall advocate for the inculcation of an explicit provision for the protection to the Environment in India in light of the Welfare and Rights Approach) and shall also entrench upon the various Judicial Precedents of Indian Courts which initiated ways for the recognition of Nature’s Rights.

Indian Standpoint

Many jurisdictions across the world in furtherance of the stance as proposed has already started working for Right of Nature per se[5]and expanded the ambit of exiting legal rights to recognize the human right to healthy environment.[6] The human right to healthy environment under the Article 21 of the Constitution of India has also, in this furtherance substantially been a gateway to protect the environment[7]. As penned down by the Supreme Court in the case of Virender Gaur v. State of Haryana,[8]Environmental, ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21. It would be impossible to live with human dignity without a humane and healthy environment”. However, any such assertion of Human Right would morally, pre-requisite the securing of the Environment’s own rights first.

The Punjab and Haryana High Courts, early this year, declared “Sukhana Lake” a separate legal entity and a legal entity with rights, duties and liabilities analogous to what are possessed by a legal person.[9] It also furthermore, declared the citizen of India as in the place of “parent” to save the lake from extinction. A similar stance was taken in the year 2019 w.r.t to animals by the same High Court with a view to protect animal cruelty.[10]

The Uttarakhand High Court in the case Mohd. Salim v State of Uttarakhand[11], relied upon “Parens Patriae” as a form of interpretational tool for defending the Environment, and envisaged for the Rights of Nature.Personhood” as a concept has been implicitly adopted by Indian Courts, and could be seen in the aforementioned judgement which grated legal personhood to the Himalayan Lakes, Forest, Waterfalls and to the Gangotri and Yamunotri Rivers, stating, “The rights of these entities shall be equivalent to the rights of human beings and any injury or harm caused to these bodies shall be treated as injury or harm caused to human beings.” The judgement premised upon the Bedrock of the International Environment Agreements namely the Stockholm and the Rio Declaration, and various other Agreements and Conventions and also, had been seen as a significant step towards recognition of Nature’s Rights. A similar judgment by the same high court was passed inn the year w.r.t animal protection against cruelty in the case of Narayan Dutt Bhatt v. Union of India.[12]

Comparative Jurisdictional Analysis

In furtherance of the inculcation of a legal framework to protect the environment, and recognizing the rights of Nature, which is commonly known as the Earth Jurisprudence, many countries across the globe has put a foot forward in this respect. The law has seen the initiation of the fundamental rights of nature to thrive, exist and evolve. In the year 2014, Colorado, a federal state of US passed a state constitution amendment to add Section 32 to article II, which bestowed upon the municipalities the right to pass such laws, which establishes the Rights of Nature.[13] Apart from these there are various judicial pronouncement as well which bestow upon the nature the right to sue for their protection[14]. A similar approach is adopted by New-Zealand which awarded legal personhood to the Whanganui River, by rendering any harm made to the river an illegal act[15], additionally in the year, 2014, Te Urewera (then a National Park), was considered a legal entity with all due rights at par a legal person.[16] Considering these example and various other examples from other jurisdictions it can be very well concluded that an explicit right to nature should not be new for any country, and this in turn would be expected to pave ways for the recognition of rights of nature.

Call for the Rights of Nature

Interpreting the constitutional provisions which are primarily based on the welfare of individual and not emanating any specific rights of nature against exploitation altogether warrants for the expansiveness and the protection of environment. Acknowledging the facts such as the shortfall in water by 40% by the year 2030 as per one of the UN reports, earth’s 20% of the oxygen the source of which is the Amazon Rainforest set to fire by MNCs, Therefore, ascribing upon nature the rights not necessarily a replication of rights of as humans, but for the protection and against exploitation could be one possible alternative for the protection of environment. Another could be the consideration of a wide opinion of nature as a “subject who beholds any property”. This creative extension could in some ways help addressing the wider environmental picture. Particularly, the natural resources are means to sustainable development and when compared to other alternatives for the welfare, this way turns out to be a feasible option. This legal approach though is evolving, acknowledges the fact that the traditional environmental jurisprudence which are profound in any jurisdiction regard nature as property which shall be protected by the humans, in turn for the benefit of humans. This approach however overlooks the rights-bearing partner with which humanity has co-evolved. Nature’s rights in this furtherance could be seen to have been grounded in the acknowledgement that humanity and nature share a same fundamental, non-anthropocentric relationship owing to the emergence from co-existence on Earth.

Conclusion

As an address to the conundrum which arises after the implementation of such laws, this article proposes for legislative or litigation to formalize the largely unrecognized property rights. Regulation of which could be on the basis of private governance with the backdrop of action Indian trust laws[17]; Indian Trusts Acts, 1882, whereby the concerned authorities would abide by the rules based on the environmental principles and act as a representative of nature on their land. Its implementations would call for intricate issues with respect to the suits filed through nature or animals and their human representation, various other claims of competing, invasive species, and the basic argument of nature owning the said property[18]. A few issues amongst these are:

  1. Welfare Approach v. Rights Approach– The first in line shall be the avoidance to protect the environment, as any such affirmation of right to nature shall provide for the probable avoidance of the basic protection of the environment. As evident from Ecuador, though the environment was given a legal right under the Constitution, yet the expansive interpretation in turn led to overlook the wider question of welfare.
  2. Question of Prosecution– For the purpose of Protection of Environment, we may embed onto it some constitutional right, however, the more troubling question in this furtherance shall be who will be held liable for the infringement of Rights of Nature[19]. In the light of the Uttarakhand Judgement, which noted the receding glaciers, who shall be considered to violating the right of nature? The Carbon Dioxide or the Greenhouse gas emissions? To date there is no clarified stance as to the question which arose thereupon.

The environmental problems are difficult to address owing to various factors, as suggested above the property-based solution if not to all, then at least could make these approaches viable.[20] The limitations upon such ascription shall also not be overlooked. Concluding the arguments presents above, in the matters of Environmental protection, the approach adopted may not always be the best but what could be adopted is the better amongst the existing alternatives.


[1]     M. Varn Chandola, Dissecting American Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment, 8 Wisconsin Environmental Law Journal 3 (2002)

[2]     Community Environmental Legal Défense Fund, “Champion the Rights of Nature”, (2020), https://celdf.org/a dvancing-community-rights/rights-of-nature/ (Last Visited 06/07/2020).

[3]     Constitution of Ecuador (2008), Chapter 7, https://pdba.georgetown.edu/Constitutions/Ecuador/english08.htm l (Last Visited 06/07/2020).

[4]     UN News, “New industrial Revolution needed to avert the Planetary Catastrophe”, https://news.un.org/en/st ory/2011/07/380582-new-industrial-revolution-needed-avert-planetary-catastrophe-un-report#.V2LFJPkrK M8 (La st Visited 04/07/2020).

[5]     Australian Earth Laws Alliance, has been working with the International Centre for the Rights of Nature, managed by the Community Environmental Legal Defence Fund, and it altogether advocated for the Rights of Nature in Australia. Additionally, in the year 2019, Toledo, Ohio also nodded to the adoption of Lake Erie Bill of Rights, which can probably be said to be the first Right of Nature Law for a specific Ecosystem, https://celdf.org/2019/02/rights-of-lake-erie/ (Last Visited 06/07/2020). In the year 2020, the Pennsylvanian Department of Environmental Protection (DEP), revoked a permit to inject the waste in the Grant Township. 

[6]     Spain, France, Portugal, Finland, Greece and to some extent India through the judicial precedents have begun recognizing the human right to clean environment.

[7]     Noralee Gibson, The Right to a Clean Environment, 54 Sask. L. Rev. 5 (1990).

[8]     1992 (2) SCC 577, ¶ 7.

[9]     Court on its Own Motion v. Chandigarh Administration CWP No. 18253 of 2009.

[10]    Karnail Singh v. State of Haryana, 2019 SCC OnLine P&H 3616.

[11]    2017 SCC OnLine Utt 367: (2017) 2 KLJ (NOC 4) 7.

[12]     2018 SCC OnLine Utt 645.

[13]    Constitution of Colorado, amendment pursuant to addition of Section 32 in the Article II, http://files.harmonyw ithnatureun.org/uploads/upload685.pdf (Last Visited 06/07/2020).

[14]    Sierra Club v. Morton, 405 U.S. 727

[15]    Madeleine Sheehan, “Rights of Nature movement spreads as India and New Zealand give legal personhood to Glaciers and River”, Leonardo DiCaprio Foundation.

[16]    Section 11(1), Te Urewera Act, 2014, (Act 2014 No. 51).

[17]    As per the Indian Trust Act 1882, “trust” means, “An obligation annexed to the ownership of property, & arising out of a confidence reposed in & accepted by the owner for the benefit of another or for another and owner.”

[18]    John Hadley, Animal Property Rights: A Theory of Habitat Rights for Wild Animals (2015); Karen Bradshaw, Animal Property Rights, 89 University of Colorado Law Review, 809 (2018).

[19]    Omair Ahmed, Indian Regional Court give rights to Nature, thethirdpole.net, https://www.thethirdpole.ne t/2017/04/03/indian-regional-court-gives-rights-to-nature/#:~:text=Indian%20regional%20court%20gives%2 0rights 20to%20nature%20Expanding,by%20Steven%20Cassidy%5D%20Omair%20Ahmad%2C%20April %203%2C%202017 (Last Visited 12/08/2020).

[20]         Jonathan H. Alder, How Property Rights Could Help Save the Environment, The Atlantic (May 29, 2012), https://www.theatlantic.com/business/archive/2012/05/how-property-rights-could-help-save-the-environmen t/25 7756/ (Last Visited 12/08/2020).

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