THE LALIT MIGLANI CASE: A CRITICAL ANALYSIS OF THE LEGAL PERSONHOOD DOCTRINE
Smarnika Srivastava, IV Year of B.A.,LL.B, from O.P. Jindal Global University, Sonipat.
Introduction: Procedural History, Facts & Decision in Lalit Miglani
Lalit Miglani v. State of Uttarakhand (2017) was filed in 2015 as a public interest litigation and its decision was delivered in 2017. In this case, the petitioner sought to declare the “Himalayas, glaciers, streams, water bodies, etc. as juristic persons at par with the pious rivers Ganga and Yamuna.” This judgement was rendered right after the Uttarakhand High Court conferred legal personhood rights to the rivers Ganga, Yamuna and all their tributaries in 2017 in the Mohd. Salim v. State of Uttarakhand (2017) case. The Miglani case was filed as a part of the continuing mandamus issued by the Uttarakhand High Court under the main judgement Lalit Miglani v. State of Uttarakhand (2016) [hereinafter referred to as Order 1]. In that case, the court had passed detailed mandatory orders to save the river ganga but was unfortunately faced with a lot of non-compliances, as the state of the river was deteriorating day by day, without any positive steps taken to make it any better. Thus, the present case was filed.
The court initially noted that it was atypical for any application to be heard after the main petition has been disposed off, but in accordance with the principles of continuing mandamus and in larger public interest, it decided to hear the case. The court questions the very idea of sustainable development, which allows development and conservation to go hand in hand, and asks, “if sustainable development finishes off all our biodiversity, heritage and resources, is it admissible?”. To destroy the natural forests to make way for mines and then balance such destruction with compensatory afforestation is viewed with suspicion. The court noted that precautionary and polluter pay principles also have also been in practice for a long time, but looking at the depleted state of natural resources, it is clear that they do not work well anymore.
The court uses the reasoning of the public trust doctrine to mention that as the population increases, the problem of environment preservation increases. The court concludes that there is a grave threat to all the natural resources, such as forests, air, rivers, glaciers, meadows, lakes, etc., which have a “right to sustain, maintain and regenerate their own vital energy”.
Hence, it is duty bound to protect the environment from further degradation under the “new environment justice jurisprudence” and the parens patriae doctrine and bestow Mother Earth with “constitutional legal rights”. Thus, the court bestowed all natural objects in the state of Uttarakhand with legal personhood and invoked the parens patriae doctrine to “declare the Glaciers, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, legal entity/ legal person/juristic person/juridical person/ moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights.
The court further appointed certain government officials, judges and lawyers to act in the capacity of “persons in loco parentis” as the human faces who would be in charge of preserving and “upholding their status and promoting their health and wellbeing”, in the state of Uttarakhand. It also directed the Union of India to reconcile and Inter-state council under Section 3 of the Environment Protection Act under Article 263, by making it Ganga specific.
On Legal Personhood
The granting of the status of legal personhood to nature has been a recent development in Indian environmental jurisprudence. A case like Lalit Miglani showcases an attempt made by judges, petitioners and advocates to enforce broad resource conservation and the legal concept of a person with “rights of nature approach”. This case came right after the Salim case where, for the first time in Indian environment jurisprudence, a natural entity (rivers Ganga and Yamuna) was accorded the status of legal personhood. However, Salim relied a lot upon religious and sacred sentiments of Hindus, thus, linking religious practices with environmental concern for the entities. It hence followed a very human-centric approach while giving the decision as it considered how important both the rivers are for the people, especially Hindus. Several scholars also questioned why only these two rivers were accorded this status, while all other rivers (as well as natural resources) were ignored. The Miglani case recognized all of nature’s components as a natural person, rather than limiting it to just the two sacred rivers.
The Miglani case provided a more expansive definition of a juristic person as any other natural person in law (but only through a designated person) who is conferred with the same rights and obligations, as compared to the Salim case. However, in Miglani, the court did not just limit itself to creating legal rights for nature but converged it with a ‘living person’, hence, blurred the distinction between rights which a living person has by birth and conferring legal rights of an entity. What this means is that the court used ‘legal’ or ‘juristic’ person as interchangeably with what a ‘living person’ is. Harm done to nature is equated with harm done to human beings as well as the rights conferred on human beings would also be conferred on these ‘legal’ persons.
This is different from how usually the environmental law principles protect nature, which is by simply regulating human actions on the pretext of sustainable development. However, there is not enough clarity on how this will play out in practice. According to Hohfeld’s jural analysis of rights and duties, every person who has a right is conferred with a duty. In light of the case, it becomes confusing to say that rivers or trees have similar rights to that of a human because nature simply cannot apply the same legal rights as have been conferred on humans. E. G., a tree cannot be expected to have a cause of action against an insect who ate its leaves, or, one cannot expect a river to observe a duty not to flood and cause damage to human lives. Hence, environmental scholars have suggested that the rights given to nature must be customized for their needs; hence, rivers or trees must have rights suited them by creating an eco-centric approach to law. But in Miglani, this is not considered as nature is equated to a legal minor by according to substantive rights and imposing rights and duties on nature. However, the court did not define the extend of these rights and duties and how to balance these with the rights of humans for exploitation of these resources to fulfill their basic needs. In fact, some scholars have suggested that believing that there is a fallacy in imbibing legal rights of persons to nature because once the rights of nature are denied and precedence is given to the interest of humans by the court, such a decision would result in the wearing off of environmental protection. For example, in Equador, it has already happened so that the interests of humans with respect to developmental activities have been considered more important than rights of nature.
Scholars have also suggested that this also affects the community feeling of looking after nature as now, it will be viewed as the “other” entity possessing similar rights to that of humans, and this situation will prove to be counterproductive. Therefore, it becomes very important to carefully cull out the exact extent of rights imbued on nature so as to clearly identify what human activities are allowed. Thus, the “interest theory of rights” must be adopted so that the rights of nature are located in the duties that humans owe to the environment in general, which will help in the protection, implementation and balance of interests.
This eco-centric ethic will result in making humans the trustees of nature with the duty of its preservation and protection. A natural object can impinge on the rights of natural or legal persons, and also has the duty to avoid doing so to other legal persons. By blurring the distinction between a legal person and a natural person, the court “humanized” the environment, which was unnecessary and impractical because now, nature also has to observe the duty of not encroaching upon the rights of other living persons. But, nature cannot, in any possible way, recognize this aspect, and the ‘rights of nature’ movement does not account for this anomaly. In New Zealand, with the Whanganui judgement, legal rights were bestowed in the river by recognizing the rights of nature, but not in the nature of legal personhood per se. This means that the recognition of their rights was limited in nature and not equated to that of humans.
Another question that arises is whether granting legal personhood to rivers, lakes and other water bodies also includes the flora and fauna in it. With respect to flora (or plants), scholars have suggested that when a river is granted personhood, it shall include its bed too.The Miglani case does not address this issue, hence, to understand what this includes, the Te Awa Tupua (Whanganui River Claims Settlement Act, 2017) can be looked at. Under that Act, the definition of “bed” includes the plants that are attached to the soil as well. Thus, it can be said that granting personhood to rivers would also include the plants in it. With respect to animals, the Indian framework does not confer them with legal personhood. A notable case in this regard is the Narayan Dutt Bhatt v. State of Uttarakhand (2018) case, whereby, the court declared the entire animal kingdom, including aquatic animals with legal personhood in the State of Uttarakhand. However, scholars have termed this judgement as a “judicial overreach”; also, it only had a persuasive value outside Uttarakhand, hence, it is of little significance. In the case of Animal Welfare Board of India v. A. Nagaraj and Ors. even though it was recognized that “every species has a right to life under Article 21”, however, it cannot be inferred that animals were granted legal personhood. Therefore, it can be concluded that the rights of animals living in the river are subject to the necessity and rights of humans.
In creating these new rights for nature, the court resulted in widening the definition of harm by combining it with a strict liability approach. It rules that any person who intentionally or non-intentionally causes any harm to nature is liable to be proceeded against under penal, environmental as well as common law.
This proves to be a very powerful precedence with respect to climate jurisprudence in India as well as for other common law jurisdictions. But the court also observes the riparian rights of other states in these natural objects and limits the applicability of the decision of the case to the state of Uttarakhand only, thus, the judgement is only of persuasive value outside the state.
The overall movement of recognizing the rights of nature is under construction, which will bring a lot of confusion and uncertainty. There is an ardent need to be mindful of these rights and develop a symbiotic and harmonious relationship with nature. As already been reiterated, by simply granting nature with legal personhood would not solve the problem of conservation and preservation of nature unless the ambit of the rights of nature are not clearly culled out under an eco-centric approach. Instead of making most of the government authorities (who have already been apathetic) the parents of nature, community-based monitoring systems, evaluation schemes as well as educating the people would be of more use in helping to conserve and preserve nature.