The judge invoked the power of the government to act as a guardian for those who cannot care for themselves.
By Katie Surma
The woodland at dawn in Parambikulam Wildlife Sanctuary on Nov. 19, 2009 in Kerala, India. Credit: Phil Clarke Hill/In Pictures via Getty Images
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The highest court in one of India’s 28 states ruled last month that “Mother Nature” has the same legal status as a human being, which includes “all corresponding rights, duties and liabilities of a living person.”
The decision from Madras High Court, located in the southeastern state of Tamil Nadu, also said that the natural environment is part of the human right to life, and that humans have an environmental duty to future generations.
“The past generations have handed over the ‘Mother Earth’ to us in its pristine glory and we are morally bound to hand over the same Mother Earth to the next generation,” Justice S. Srimathy said in a 23-page opinion.
The case is the latest in a series of so-called “rights of nature” laws and court rulings that aim to give ecosystems, animals and elements of the natural world legal rights similar to those of humans, corporations and trusts. Countries including Ecuador, Bolivia, Panama and New Zealand have enacted variations of rights of nature laws, as have over 30 communities and local governments within the United States. Typically, legal rights, such as the right to exist and to regenerate, afford nature a higher degree of protection compared to conventional environmental laws.
The case in Tamil Nadu state came before the Madras High Court on the petition of a government official, A.Periyakaruppan, who had been forced to retire and lost part of his pension for deeding a tract of land in a protected forest to a private individual. The land is located in the Megamalai area, which is known as “green peak” and “high wavy mountain” for its dense evergreen forests and cardamom plantations.
The official, who said he was following the orders of a senior officer, argued that the deed had been corrected and the land remained protected. He asked the court to reverse his punishment. Justice Srimathy reduced the official’s punishment to a six-month suspension for “the act done against nature.”
While the court could have stopped there, Justice Srimathy went on to take up the rights of nature, invoking “parens patriae jurisdiction,” or the power of the government to act as a guardian for those who cannot care for themselves. She then recognized the rights, duties and liabilities of Mother Nature and assigned the state and central governments the responsibility to “protect the ‘Mother Nature’ and take appropriate steps to protect Mother Nature in all possible ways.”
Margaretha Wewerinke, an international law professor at Leiden University in the Netherlands, said it is notable that the court invoked ‘parens patriae jurisdiction’ to assume the court’s authority to protect the environment.
“No one is protecting Mother Earth, so the court stepped in,” Wewerinke said. “It’s not only conceptually about Mother Earth having rights, but the court saying we as judges need to step in and grant this protection.”
In her opinion, Justice Srimathy criticized conventional environmental legal and policy principles such as sustainable development, the polluter pays and the precautionary principle as being insufficient to protect the environment.
“Under the guise of sustainable development the human should not destroy nature. If sustainable development finishes off all our biodiversity and resources, then it is not sustainable development, it is sustainable destruction,” Srimathy wrote.
Wewerinke, who has worked and studied environmental law in India, said the decision goes against the grain of Indian environmental law which has focused on principles like “the polluter pays.”
“Those environmental law principles are used in a way that still allows a lot of environmental damage,” Wewerinke said. “This decision explicitly breaks with that.”
The Rights of Nature in India—A Growing Movement
The Madras High Court decision is the latest in a patchwork of judge-made law in India regarding the rights of nature. At least three of India’s state high courts have issued decisions recognizing that glaciers, rivers, animals and Mother Earth have legal personhood status.
While those rulings are binding at the state level, the law on the rights of nature is unsettled at the federal level. In 2017, India’s Supreme Court reversed a decision out of the Uttarakhand High Court that had granted legal personhood to the Ganges and Yamuna rivers. The Supreme Court found the ruling legally unworkable because the High Court did not just grant the rivers’ legal rights, they also imposed “duties and liabilities” similar to those of human beings.
Those duties and liabilities could allow individuals to sue the rivers in the case of flooding or other natural disasters, potentially raising problematic issues about who would pay for any damages, the Supreme Court said. Another issue related to the rivers’ geography. Since the rivers flowed through multiple states, this created a problem as to which state government was responsible for acting as the river’s guardian.
Despite the Supreme Court’s ruling in that case, other state courts have continued to frame the rights of nature in legal personhood language, imposing the same rights, duties and liabilities as the Uttarakhand high court. In 2018 and 2019, respectively, the Uttarakhand High Court and the Punjab and Haryana High Court recognized that animals in their states have the status of legal personhood. In 2020, the Punjab and Haryana High Court, located near India’s northeast border with Nepal, recognized that the Sukhna Lake, a reservoir in the Himalayan foothills, is a “living entity and ‘legal person.’”
Manjeri Subin Sunder Raj, a lawyer based in India and author of the law book Earth Justice, said it’s unclear why judges in India have stuck to defining nature as a legal person with duties and liabilities instead of recognizing only nature’s rights, such as the right to exist and regenerate, as has been common in other nations including Ecuador and Bolivia.
“When you extend duties and liabilities to natural entities, that opens up a whole new set of problems,” Subin said. “To a certain extent, it’s self defeating. Why wade into those problems?”
Mari Margil, executive director of the Center for Democratic and Environmental Rights based in Spokane, Washington, said recognizing nature as a legal person with the same rights, duties and liabilities as humans is not an ideal approach, since nature is inherently different than human beings and cannot be held liable in the same way.
“We believe that to protect the rights of nature, we need a new system for nature that moves beyond legal personhood, to “legal naturehood” in which the rights of nature are protected and properly interpreted, guaranteed and upheld,” she said, citing a recent Ecuadorian court ruling as an example.
In that case, Ecuador’s Constitutional Court explained the idea of rights being tailored to specific aspects of nature: “…there are rights that can only be guaranteed in relation to unique or exclusive properties of a species, for example, the right to respect and conserve the areas of distribution and migratory routes, is a right that can only be protected in those species of animals with migratory behaviors…”
The Rights of Animals at the Indian Supreme Court
In what could be the biggest decision on the rights of nature in India yet, a 2020 petition is pending before the Supreme Court in New Delhi that asks the court to declare that all members of the animal kingdom, including birds and aquatic species, have legal rights.
The People’s Charioteer Organization, a social and environmental advocacy organization based in Gujarat, filed the 83-page petition, which also asked the court to make all people legal guardians who can enforce animals’ rights.
The petition cites a series of incidents of animal cruelty including the killing of a pregnant elephant and a cow by feeding them explosives, and an incident where 22 dogs were transported across state lines to be slaughtered for meat consumption.
Those cases, the petition said, are “not even the tip of iceberg” and “such torture” has been pervasive in India, though most cases are not reported and are “grossly ignored by those who are in a position of power.”
The petition aims to build upon a 2014 Supreme Court decision which ruled that humans owe legal duties to animals in their care under both India’s Prevention of Cruelty to Animals Act and the country’s constitution. Legal experts say that ruling implies that animals also possess fundamental rights.
The People’s Charioteer Organization’s petition, if granted in full, would explicitly recognize that animals have legal personhood, require the government to track animal cruelty cases, force states to establish animal welfare units to investigate cases of animal cruelty and undertake other measures to strengthen enforcement of animal protection laws.
While India’s Supreme Court has been considering the petition, Ecuador’s Constitutional Court issued its own landmark ruling declaring that the country’s constitutional rights of nature law includes the legal rights of wild animals. Environmentalists and animal rights activists are hoping India will be the next country to afford animals the highest protection of the law.
“Despite the ground-breaking leaps forward in our understanding of the intelligence and rich emotional and social lives of non-human animals, animals are still considered as property—more akin to inanimate objects than living beings,” People’s Charioteer Organization’s said in the petition.
“This status significantly limits their legal protections from cruelty and neglect. This is a reason why the legal status of animals should be elevated beyond mere property. [The] Core purpose of our system of laws is to protect the vulnerable from exploitation and to ensure fairness. Animals deserve a legal status that reflects the kinds of beings they are—individuals with their own desires and lives, who have the capacity for pain and pleasure, joy and sorrow, fear and contentment.”
Katie Surma is a reporter at Inside Climate News focusing on international environmental law and justice. Before joining ICN, she practiced law, specializing in commercial litigation. She also wrote for a number of publications and her stories have appeared in the Washington Post, USA Today, Chicago Tribune, Seattle Times and The Associated Press, among others. Katie has a master’s degree in investigative journalism from Arizona State University’s Walter Cronkite School of Journalism, an LLM in international rule of law and security from ASU’s Sandra Day O’Connor College of Law, a J.D. from Duquesne University, and was a History of Art and Architecture major at the University of Pittsburgh. Katie lives in Pittsburgh, Pennsylvania, with her husband, Jim Crowell.
This article was published on May 4, 2022, at Inside Climate News.