Laws should not only bring about order, but change perception too

by Saurabh Malik

A law cannot do what morality can. But where morality fails to act as a deterrent or a persuasive force, laws are required to plug in the gaps. The need for implementing the laws is all the more pronounced when it comes to enforcement of rights for nature, predominantly when morals fail to protect the natural world and the environment. Law here assumes the form of a catalyst that evokes a sense of morality in people for the creation of changes that ethics and principles would have brought about had these been in place.

A law, any law, primarily aims at bringing about not just peace and security in a society, but also to curb certain practices that have the potential of turning harmful and detrimental to the interest of the people at large. But a common and a fallacious perception related to law is that it is almost always punitive.

It is by and large believed that laws are restrictive in temperament and are implemented to make certain the prevalence of order in the societal set-up by instilling a sense of fear among people who care for the rules and regulations. They come into play primarily after, and not before, the occurrence that may bring to mind a sense of detestation, threaten public peace and order or endanger lives of people affected by it.

But there are laws that are preventive in character and are deterrent to the commission of crime. They work on the psyche of the people and aim at changing the viewpoint of people who come under their jurisdiction.

The fact that a law or a judgment can bring about a change in the thought process through its enactment or pronouncement is an actuality that may, however, be in the realm of obscurity but is not in the domain of doubt.

It, to an extent, works the way religion does to induce a sense of responsibility among people who believe in it.

The High Court of Uttarakhand in March 2017 demonstrated how laws and judgments can be deployed to instill a sense of accountability and conscientiousness among people. The judgments make it obvious how people can be made to do things by stirring up a sense of responsibility among them - something a sense of fear would have failed to do.

The High Court declared Ganga and Yamuna, all their tributaries and streams juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person to preserve and conserve the rivers.

The Director, Namami Gange, the Uttarakhand Chief Secretary and the Advocate-General were also declared persons in the place of a parent as the human face to protect, conserve and preserve the rivers and their tributaries.

The Punjab and Haryana High Court also ruled that animals and birds have legal rights like humans. In the judgment that echoes the prediction of Nostradamus that the world around this time would start thinking differently about animals, a Division Bench of the High Court also declared citizens the guardians of animal kingdom with duty to ensure their welfare and protection. All citizens throughout the state of Haryana were declared persons in loco parentis or responsible for a child in parents' absence "as the human face for the welfare/protection of animals." Emphasising on the need to show compassion towards all living creatures, the High Court asserted animals may be mute but "we as a society have to speak on their behalf"

The judgments have in common the rights of nature, which make it obvious that natural world in all its living shapes has the entitlement to exist, persist, preserve and renew its crucial cycles and cannot be dealt with as property under the law.

To an undiscerning mind, all this may sound puzzling and a question bound to crop up under the circumstances is how bestowing human-like legal rights to water bodies, animals and birds make a difference. But the answer is not as perplexing as the mental query.

Criminal justice expert Prof Christopher Stone's assertion is that legal personality plays an important part in "making a thing count in the eyes of the law. The conferral of legal personality upon right-less objects or beings carries with it legal recognition that those objects or beings have "worth and dignity" in their own right".

But there is another argument in favour of such rights. The two judgments bring into play laws that are neither punitive nor restrictive in the strict sense of the terms, but tend to call to mind a feeling of morality and evoke a sense of care that humans have for children. The Bench, by declaring all citizens in a state as persons in loco parentis or responsible for a child in the parents' absence, made attempts to evoke among people an acute sense of responsibility for preserving the "human-like" animal kingdom. Speaking for the Bench, Justice Rajiv Sharma summed up the legal philosophy behind the judgment in just one line: "Live and let live".

Extending the viewpoint to Sukhna Lake and according it the status of juristic/legal person/living entity having the status of a legal person with all corresponding rights, duties and liabilities of a living person may go a long way in preserving the water body by making it count in the eyes of the law and instilling a sense of conscientiousness among the people to act as parent or appointed guardian.

Law, and the order

Pay first, recover later

The Punjab and Haryana High Court has made it clear that an insurance company was required to pay compensation first to the victims of an accident and recover the amount later from the insured in case of an invalid licence. The ruling by the Bench came on an appeal filed against an order passed by the Motor Accident Claims Tribunal. The Bench asserted the tribunal had wrongly exonerated the insurance company of liability to pay compensation to the claimants. Even if the issue of driving licence was answered against the insured, the insurance company could at the best be conferred with the right of recovery against the insured after payment of compensation to the claimants.