A Project on

A detailed study on the concept of legal persons

Subject: - Jurisprudence

Submitted to Submitted by
Astha Ma'am Harshal Parashar
Faculty of Law Semester 7th
Roll No.- 4
 Declaration

I hereby declare the project work titled ‘A detailed study on the concept of legal persons’
is a bona fide piece of work under the supervision of Astha Ma'am, faculty member MSB
Global Law Institute, Bharatpur. The Project is based on original research done by me
and all references are cited at the end of the paper.

Harshal Parashar

Semester 7th
Date-
 Acknowledgement

I would like to take this opportunity to express my gratitude to my college MSB Global
Law Institute for all their guidance, inspiration, constructive suggestions which helped
me in the project. The successful start of this project was made by their guidance and
co-operation. I would also like to thanks all the people who directly indirectly who have
helped and encouraged me in completing the project effectively and timely.

Harshal Parashar

Semester 7th
Date-
 Table of Content

S.N Topic Page Number

1 Introduction 1

2 Types of persons 1

3 Legal personality of Unborn Person 2

4 Legal personality of a Dead Person 3

5 Legal personality of a Lower 3

Animal
6 Legal personality of Idol and 4
Mosque
7 Legal Personality of Corporations 4

8 Legal status of lunatic and drunken 7

person
9 Position and Legal Status of Minor 8
in India
10 International Legal Personality 10

11 Legal Personality of Rivers 11

12 Conclusion 15
13 References 16
Introduction
The main object of the law is to regulate the relationship between the individuals in the
society. The individuals concerned must be not only human beings but persons in the
eyes of law. The law being concerned with regulating the human conduct, the concept of
legal personality is an important subject matter of the law because rights and duties
cannot be there without a person. A person can be defined as an entity recognized by
the law as separate and independent, with legal rights and existence including the ability
to sue and be sued, to sign contracts, to receive gifts, to appear in court either by
themselves or by lawyer and generally, other powers incidental to the full expression of
the entity in law. In common parlance we use person as only human beings, either male
or female. The prime case of a person is a human being, and personality would seem to
entail the possession of those characteristics belonging particularly to mankind, i.e., the
power of thought, speech and choice.

In the advanced context of natural person means male, female or transgender. However,
all human beings do not possess legal personality. The exceptions are, under Roman law
slaves are not considered as persons. They were treated as chattels destitute of any
personality. Infants and lunatics enjoy a restricted personality. Another example for
restricted personality is under the traditional Hindu Mitaksara joint family women are not
entitled to any right except right to maintenance and residence. Conversely entities
other than human beings enjoyed full legal personality, e.g.; corporations, joint stock
companies, partnership firms etc. A fictitious legal personality is assigned to these
institutions that are why we call it as a juristic person.
Origin of the concept of Legal personality
The word person is derived from “persona” which is a Latin word meaning of which is a
mask. Until the sixth century, this particular word denoted the part played by man in his
life. Later it started to be used in the sense of a living being which could be conferred
with rights and duties.
Definition of legal personality
Salmond:-According to Salmond “A person is any being whom the law regards as
capable of rights and duties. Any being that is so capable is a person, whether a human
being or not, and no being that is not so capable is a person even though he be a man.”

Savigny:-He defines the person as the subject or bearer of right.

Gray:-According to Gray, a person is an entity to which rights and duties may be

attributed.

Austin:-According to Austin, the term “person” includes physical or natural person

including every being which can be deemed human.

Types of persons
There are two kinds of legal persons recognized by law-

 Natural person- Natural person means a living human being, but all human
beings are not recognized as natural persons in the eye of law. For example- a
lunatic, an idiot, a minor is not a natural person because they cannot possess
rights and duties.

 Legal persons- it may be anything which is considered by law as a legal person.

Legal personality is the creation of law by conferring rights and duties. It is
imaginary or artificial in nature.

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Legal personality of Unborn Person
Law attributes legal personality to unborn persons as well. It means a child who is not
even born and is only conceived in the mother’s womb. It means Law
confers legal personality on an unborn too provided that such child shall been born
subsequently.

Under different laws, there are following policies-

Hindu Law- it provides the provision for the transfer of property in favor of the unborn.
A gift can be made in favor of a child who exists in the womb of her mother.

In a partition, a share of the property will be allotted to the unborn child as

well. If it is not done the child after his birth can challenge the partition and can claim his
share.

Section 20 of the Hindu Succession Act provides that an unborn child will have the same
right to inherit the property as if he had been born at the time of the death of the
intestate.

Indian Penal Code- Explanation III of section 299 provides that causing death of a
child in its mother’s womb is culpable homicide though it is not born completely but if
any part of the child has come forth, it is punishable according to the law.
CRIMINAL PROCEDURE CODE- Section 416 of this law provides that if any pregnant
woman is punished with death sentence, such order cannot be executed till her delivery.

Medical Termination of Pregnancy Act- This act provides that abortion should not be
done after 18-20 weeks of pregnancy because till this period the fetus is fully developed
hence it turns into a crime. There is a provision made that if the doctor feels that the
termination of pregnancy is necessary for the sake of the life of the mother, it can be
done.

Indian Succession and Transfer of Property Act- section 113 of former and 13 of
later provides that there can be a valid transfer in favor of a person unborn. These
sections provide some requirements to be fulfilled. Such as, if such transfer is of limited
interest in favor of a living person and at the time of his death, the unborn person must
be alive thereafter once he’s born, absolute right must be given to him after attaining
majority.

Law of Tort- law of torts does not have the clear recognition of an unborn person.

Cases
Pinchin N.O vs. Santam Insurance Co. 1963 it was held that an action may be taken by a
child who was born with deformity caused to him due to the pre-natal injury to her
mother.

Walker vs. Great Northern Railway, 1890 in this case it was held that a child who got
deformity because her mother met with an accident while traveling in train in her
pregnancy cannot claim damages.

Montreal Tramways vs. Levill, Co. 1933 Supreme Court of Canada held that if mother
met an accident at the time of her pregnancy and due to it some injury was caused to
the infant, that child can file a case to claim damages.

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Legal personality of a Dead Person
As Salmond says that personality is created with the birth and ends with the death
because in the eyes of law dead men are no more a legal personality. Reason behind this
concept is that a person is no more able to hold the rights and duties.

However, the law protects the following rights of a dead person-

Body- Right of the deceased body is protected under the law. Although the body is
nobody’s property still it is the duty of the government to ensure a decent cremation.
There are rules regarding the burial of unclaimed dead bodies. Grave violation is an
offence.

Reputation- To some extent law protects the reputation of a dead person. If the
defamation of a dead person affects the rights of his family members, it is punishable
under the law. There is a maxim “De mortius nil nisi bonum” which means neither dead
have rights nor can suffer wrong.

As per the explanation of section 499 of Indian Penal Code if there is any accusation
against a deceased person it may amount to defamation and it will be presumed that by
doing so the living people of the family of the deceased are defamed.

Property- A person’s desire about the devolution of property will be given respect. Any
movable or immovable property of such dead person will be transferred according to the
testament made by him.

Cases
Williams vs. William, it was held that earlier a person could not make a will regarding the
disposal of his body but now it is completely legal for living person to donates his eyes to
somebody after his death by way of will.

Ashray Adhikar Abhiyan vs. Union of India, Supreme Court held that even a homeless
person who was found dead on road has the right of decent burial as per his religious
faith.

Legal personality of a Lower Animal

Law never recognized the animals as legal personality, they are things, therefore,
animals are not the subjects of legal rights and duties. An Animal
cannot possess rights and duties. The modern law personifies the interest of an animal.

A wrong caused to an animal or pet may be a wrong caused to his master. In the same
way if a wrong is caused by a pet, his master shall always be liable for the same. An
animal cannot own any property in his name but law still recognizes rights of animals in
following ways-

 If a trust is created for a group of animals and not any particular animal, such
trust will be treated as a public trust and is protected as a right of those animals
under the provisions of law.

 Also, an animal cannot be treated with cruelty under the provisions of certain
laws, even though it may be considered a wrong against public at large and not
against it individually.

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Provision has been given under Art 48 of the Indian Constitution for protection of
environment, forests, and animals and further, it is said that laws shall be made by
states to protect the same.

One of the examples in this context is – Police use dogs for investigation of any crime.
Dogs help in the detection of crime and criminals but still, conviction is only possible of
those criminals when there is some corroborative evidence. The reason behind this
position is that a dog cannot be cross-examined at the time of trial.

Case
Jamnabai Vs.Khimji and Lalla Prasad vs. Brahmanand, 1953 in these cases Supreme
Court held that it is legal if a trust is created for the benefit of animals. There are many
Non-government organizations working for the protection of animal life. The central as
well as State governments make the laws for the protection and preservation of wildlife.

Legal personality of Idol and Mosque

The idol is recognized by the judiciary as a juristic person as it can hold the property in
its name. Position is same as the position of a minor. A guardian is required to be there
for the management of such property.

Cases
Pramathanath Mullick vs.Pradumna Kumar Mullick Privy Council held that idol is a juristic
person and can put its point of view in the court through the uninterested next friend.

Devkinandan vs. Murlidhar in this case Supreme Court held that property of idol or a
temple vests in idol only but its management remains with the Shebait.

Krishna Singh vs. Mathura in this case Supreme Court differentiated between the legal
position of a math and a temple. Math is a religious institution presiding element of
which is Mahant the property belongs to Math is attached to Mahant which passes on
through in inheritance but in case of temple presiding element is the deity.

Maula Bux vs. Hafizuddin it was held by the Lahore High Court that a mosque being
juristic person can be sued.

Sriomani Gurudwara Prabandhak Committee vs. Somnath Das it was held by the
Supreme Court that Guru Granth Sahib which is a holy Granth of Sikhs, is juristic
person. It cannot be compared with Hindu idols because it is contrary to Sikh religious
belief to worship idols. They respect Guru Granth Sahib same as Hindus respect their
idols.

Legal Personality of Corporations

Under English law, corporations are of two types, corporate aggregate and corporate
sole. Indian law follows the English law. A corporation aggregate is an incorporated
group of co-existing persons, and a corporation sole is an incorporated series of
successive persons. The former consisted of group of members at a time, e.g. Registered
company and municipal corporation etc., and the latter consisted of single member, e.g.
President of India, Post master general etc. Corporation sole are found only when the
successive holders of some public office are incorporated so as to constitute a single,
permanent and legal person.

A corporation sole does not require a seal, but a corporate aggregate can only act or
express its will by deed under its common seal. The power to possess and use a seal is

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incidental to a corporation. The existence of common seal is evidence of incorporation
and nonexistence of evidence is against incorporation. A property owned by a person as
a corporate sole is distinct from individual property which he acquired from his individual
capacity and after his demise the property owned by him under his former capacity will
devolve upon his successors in the office.

The acts and liabilities of a corporation

In ordinary cases principal can appoint an agent through will or with the consent of the
principal. However, a legal person like a corporation is unable to act in propria persona
and can only confer, limit and determine its authority upon agents and representatives
either by wills of some human beings who are for this purpose identified in law with the
corporation, or by the law itself.

Generally, the rights of the individuals are not limited and the only exception is if the
source of such right is from a contract his rights will be limited to the terms of the
contract. But in the case of companies theirs powers are restricted by law. Any act which
lies beyond these legally appointed limits is said to be ultra vires of the corporation and
such corporate act will be null and void. Ultra vires rule is a necessary consequence of
the fact that the corporation itself has no will. However, although there is no will, the law
can and does regard certain human beings as the equivalent of the corporations for
certain purposes.

Under the common law system, a corporation may be held liable for wrongful acts, and
that this liability extends even those cases in which malice, fraud or other wrongful
motive or intent is necessary element.

A corporation may have both civil as well as criminal liability. Corporations, no less than
man, are within the reach of the arms of the criminal law. If its human representatives
do an act on behalf of and in the name of the corporation with a guilty mind, such
mental condition would be imputable to the corporation and, therefore, even in a case in
which mens-rea is the essence of an offence i.e. Fraud, malice, or other wrongful acts,
the corporation would be liable for the offence so committed. The corporation is
responsible not only for what its agents do, but also for the manner in which they do it.
If its agents do an act negligently or fraudulently that which they might have done it
lawfully and with authority, the law will hold the corporate liable.

Two objections are raised with regard to the fixing of criminal responsibility on a
corporation. The first objection is whether it is natural justice to punish corporate body
for the acts of its agents, when the ultimate result of such punishment is bound to fall on
the shoulders of beneficiaries. But this objection doesn’t seem sound, according to
Salmond, the representatives of a corporation, though in legal theory its agents, are in
fact the agents of beneficiaries. Just as the principle is held liable for the acts of the
agents, so also in the case of a corporation it is held liable for the acts of the directors.

The second objection is that a corporation which from its very nature is incapable of
acting or authorizing should not be made liable for wrongful acts of its agents outside the
limits of its authority. Salmond offers two different solutions for this objection. He says in
the first place, although a fictious person cannot do acts which go beyond the scope of
his authority, he certainly can fail to do what he has been authorized to do and can be
punished for such omission. In the second place, the liability of a corporation for the acts
of its agents is a perfectly logical application of the laws as to an employer’s liability for
the acts of its servants. The corporation is liable not because it authorized its agents to
commit the wrongful act, but because it was wrongful for it to select careless and
dishonest agents.

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Objects and use of incorporation
The object of incorporation is twofold, general and special. The general purpose of
incorporation of a group of persons is to reduce the complex form of collective ownership
in several men into the simple form of individual ownership. Collective ownership is
cumbersome to law as well as the owners will have to act and will result in various
difficulties in their management and protection. These difficulties can overcome by
incorporation. Incorporation, therefore, secures permanency, uniformity and unity in the
personality of the group of owners.

The special purpose is that it helps commerce. It enables the members to trade with
limited liability, without risking their whole fortunes. In a corporation the liability of the
members being limited the shareholders are immune from any further liability beyond
the unpaid amount of the shares.

Theories of incorporation
There are four theories of incorporation of corporate personality. They are hereunder:

The Fiction Theory

The exponents of this theory are Salmond and Holland, which says that a personality is
attached to groups and institutions by a pure legal fiction, and this personality is distinct
from personality of the individual beings. An idol is a legal person because the law
describes it as such. Salmond said that group has reality or existence, but that is has no
real personality in the philosophical sense. Not being a real person, the corporation
cannot have any “personality” of its own; it has no will, no mind, no ability to act. It can
have only so much as the law imputes to it by a fiction as though it were a real person.

The Realistic Theory

This theory expounded by Gierke holds that the group or institutions has an existence
beyond the aggregate of the individualities of person forming the group. A corporation
has a real existence and not a fictions construction of the law. Its personality exists not
by a figment of imagination but is independent of recognition by the state, for law has
taken notice of it to keep pace with the realities. This theory says a corporation is
nothing more than the aggregate of its members conceived as unity, and this unity – the
organisation of human beings-is a real person and a living organism, capable of actions.
This view apparently excludes corporation sole from

its purview. Even in corporate aggregate nobody disputes the reality of a company as
the group of shareholders, which although a real thing, is a fictitious person.

The Concession Theory

This theory expounded by Savigny holds that the sovereign and the individual are the
only realities. All intermediate groups and institutions cannot claim recognition as
persons. They derive their existence from the sovereign and as such as corporate
personality arises only as a result of state acts and exists merely by concession of
sovereign.

Bracket Theory
It rest on the proposition that only human beings can have interest and right, and that a
corporation is only a legal device or formula which will enable very complex jural
relations to be comprehended more simply or otherwise the members of the corporation
as the bearers of the rights, and as being bound by the duties, which are for
convenience referred to the corporation itself. A, B, and C form a company, as it is
incontinent to refer always to all of them, a bracket is placed around them to which a
name is given- but, in order to understand the real position, we must remove the
bracket. One of the advantage of this theory is that it emphasis that it may be necessary
for the law to look beyond the entity to discover the real state of affairs. But while

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ultimately we may regard legal personality as merely a convenient device of the law,
nevertheless it is a very important device, for it set up a new unit and makes possible a
clear distinction between the property, rights and duties of the corporation on the one
hand and of the individual on the other. One can hardly make a contract with a bracket.
It is socially and economically false, as well as legally untrue, to say that only individual
men can be the bearers of legal rights.
Hence we can say a person means who has the capacity to hold right and duties. The
best example for this concrete principle is the decision given by the US court. Recently
there is a decision by the New York court of appeal that chimpanzee is not entitled to the
rights of a human and does not have to be released from the cage in which he is housed.
The three judge panel ruled unanimously to deny chimps a writ of habeas corpus and
“legal personhood”. Further added a writ of habeas corpus is designs to protect from
being held against their will.

Extent of Liabilities Ultra Virus doctrine

In the case of companies, individual’s powers are restricted by law. Any act which lies
beyond these legally appointed limits is said to be ultra vires of the corporation and such
corporate act will be null and void. Ultra vires rule is a necessary consequence of the fact
that the corporation itself has no will.

Civil and criminal liability.

If its human representatives do an act on behalf of and in the name of the corporation
with a guilty mind, such mental condition would be imputable to the corporation and,
therefore, even in a case in which mensrea is the essence of an offence i.e. Fraud,
malice, or other wrongful acts, the corporation would be liable for the offence so
committed.

Vicarious liability
If company’s agents do an act negligently or fraudulently and they might have done it
lawfully and with authority, the law will hold the corporate liable.

Legal status of lunatic and drunken person

Status of lunatic and drunken person have some special position. They are natural
persons and have legal identity but are not capable o enter into contract. If at the time
of entering into a contract lunatic or drunken person is incapable of understanding the
nature of contract, then they are considered to be incapable of entering into a contract

Law of contract provisions for Lunatics

By virtue of S. 12 of Indian Contract Act 1872, a sane person can be said as person who
while entering into a contract, understands the nature of contract and hence can form
rational judgment regarding the same. Therefore, we can say that a person is said to be
of unsound mind if he is not capable to understand the nature of contract and is unable
to form a reasonable judgment. As per S. 11 of this Act, if a person of unsound mind
enters into a contract, it will be declared as void.

Now, a person of unsound mind can be a lunatic or an idiot.

 IDIOT- A person who is of unsound mind by birth or permanently of unsound

mind is said to be an idiot. Therefore, the contracts entered upon by him are
void-ab-initio.

 LUNATIC- A person who is not permanently of unsound mind but during specific
periods he is of sound mind is regarded as a lunatic. They are allowed to enter
into a contract only during a period of their sanity.

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Insanity/lunatic – Mc’naghten rule
In 1843, the law of insanity was formulated in the case of R v. Mc’Naghten. Principles in
Mc’naghten case:-

1. Every person is presumed to have sanity unless the opposite is established.

2. In order to take the plea of insanity, it has to be proved that at the time of
committing the crime the person was so insane that he didn’t understand the nature of
the act or had no idea that the act he was doing was of criminal nature.

3. The test of wrongfulness of the act is in the ability to distinguish between right and
wrong not in general but related to that particular act committed.

Law of Contract provisions for drunken person

A person having a majority age is considered to be capable of entering into a contract
usually. But to a contrary there are certain exceptions as to this that under certain
circumstances a drunk person is incapable of entering into a valid contract. Generally,
the Contractual capacity of a drunken person is regarded same as that of one who is a
lunatic. Therefore, the burden of proving drunkenness rests on the person asserting it.

Contracts entered into by the drunken person are not binding on him in the following
cases: -

1. When he was too drunk to understand the nature of contract;

2. The opposite party took advantage of it knowing of his condition.

By this it can be assumed that a drunk may ratify the contract entered into by him at the
time of his incapability to understand the nature of contract. Also in certain
circumstances, an infant, a lunatic and a drunk is bound to pay a price as compensation
for goods sold and delivered to him according to Sale of Goods Act (1893). Thus, a
drunken and lunatic person has to pay not only when goods are sold to them but even
when delivered and also for necessary goods. According to Sale of Goods Act, goods
delivered to drunken must be suitable to the condition of his life.

Indian penal code provisions as regards Intoxication

The provisions for intoxication is provided under Sections 85 and 86 of IPC. The major
difference between these is that S.85 deals with a person who is involuntarily intoxicated
whereas S.86 is a person who is voluntarily intoxicated. Thus according to S. 85 a
person is not liable criminally but in case of S. 86 a person cannot take a defense of
intoxication.

Essential elements under S. 85 for a person to be safeguarded from action against him:
-

1. The person was incapable of knowing the nature of act committed.

2. He was not in a sense to know the acts were wrong or against law.
3. The act committed by him was as a result of such intoxication.

Where the accused was persuaded by his father to drink alcohol, the plea of defense
cannot be taken here since he had the knowledge of drink offered to him.

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Position and Legal Status of Minor in India

According to Indian Contract Act

According to section 3 of the Indian Contract Act, the person who is a citizen of India
and whose age is under the age of 18 years then that person is considered as the minor.
According to this section, the minor agreement is void. A minor is not a competent
person to enter into a contract. Section 2 of the Indian Contract Act says that the parties
must be competent to come in the contract or to make an agreement; they must not be
unsound mind, not disqualified by law and minor. Section 3 of the Indian Majority Act
1875, explained the term “minor “. The minor is a person who is not completed his 18
years of age.

In the case of Mohri bibi v. Damodardas Ghosh, held that any agreement made by a
minor is completely void. That agreement is void ab initio and the court cannot allow a
specific performance of a contract with the minors because it is completely void.

According to Transfer of Property Act

A minor is a person who is not competent to contract in Transfer of Property Act but the
Transfer of Property Act; a minor can accept the gift of an Immovable property and also
without the intervention of his guardians. According to the Transfer of Property Act, the
property can be transferable to the unborn child as per Section 13; the Transfer of
Property Act 1882 defines the unborn child or a child who is in mother womb. The
property can be transferred to the unborn child, for this transfer a life interest or a life
holder is created. A person who is a life interest he can enjoy the property behalf the
unborn child but he cannot transfer the property. A minor can acquire the immovable
property out of his funds.

According to Indian Succession Act

Section 144 of the Indian succession act, 1925 provides for the creation of prior interest
before the unborn person may be made the owner of the property. The person can
create an interest in the name of the unborn child in a property. But that created interest
of the property can only be vested after the unborn child is born alive.

According to Indian Penal Code

According to section 82 of the Indian Penal Code, a child below the age of 7 years old
get a complete defense from any kind of criminal liability. A child below the age of 7
years old the child cannot be guilty of any offence. Because this age of a child cannot
distinction between what is good or wrong. It works under the assumption that a child
below the age of 7 years lacks the ability of understanding and unable to understand the
nature and consequences of the act that he or she has done and the mens rea is not
present in this case.

According to section 83 of the Indian Penal Code, there is a partial defense from the
criminal liability conferred on child above the age of 7 years and below the age of 12
years. Age between the 7 years and 12 years is capable to understand the nature and
consequences of the offence that he or she is done.

Maturity of Understanding
The child is whose age is between the 7 years and below the 12 years; the liability
depends upon the maturity level of the child.

Example: A is a child whose age is 10 years and he is unable to understand the nature
and consequences of the things or his act. His act can be absolved from the liability. But
B is another child whose age is 9 years and he has enough maturity and he can

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understand the nature and consequences of the act he does, can be held liable. The
maturity and understanding of the child can be inferred from the circumstances that
involve in the crime. And it is different in different cases.

In The Indian penal code, the child is 7 years and below the age of 12 years, it has to
prove that the child has not attained enough maturity or understanding of the nature
and consequences of the offence he does.
In the case of Krishna Bhagwan v. State of Bihar held that if the accused of the offence
or act during the trial, he has attained the age of 7 years or at the time of decision that
child attained the age of 7 years can be convicted if he can understand the nature and
consequences of the offence.

In the case of Marsh v. Loader held the A child was caught stealing a piece of wood from
the premises of the defendant. But the child was not liable, he was discharged on the
ground that he was under the below age of 7 years.

International Legal Personality

International law is based on rules made by states for states. States are sovereign and
equal in their relations and can thus voluntarily create or accept to abide by legally
binding rules, usually in the form of a treaty or convention. By signing and ratifying
treaties, states willingly enter into legal, contractual relationships with other state parties
to a particular treaty, which observance is normally controlled by the reciprocal effects of
non-compliance. The capacity of states to enter into such relationships with other states
and to create legally binding rules for themselves, is a result of states' international legal
personality, a prerogative attributed to all sovereign states.

In the beginning of the 18th century sovereign states alone were considered to have
international legal personality and therefore the only entities with capacity to have rights
and obligations under international law. As such, states were (and still are to a large
extent) the omnipotent creators of international law which in turn primarily concerned
states and their conduct internationally. Individuals, International Organizations (IOs)
and other non-state actors (NSAs) were of no concern to international law as they were
devoid of international legal personality, which is a prerequisite for the capacity to have
international rights and/or obligations.

With globalization however, international law and international relations expanded

rapidly with increasing complexities: new technology made the world smaller and more
interconnected, new global threats emerged that could not be fought unless with state
cooperation, new players emerged at the international forum such as various IOs and
NSAs. International law was greatly influenced by this development and shifts in
international relations whereby states were no longer the only players on the
international arena and thus not the only subjects of international law any longer.

In a landmark case of 1949 the International Court of Justice (ICJ) found that IOs, in
that case the United Nations (UN), could indeed have international legal personality and
thus have rights and obligations under international law. The ICJ claimed that
international legal personality of the UN was derived from the UN Charter and the
organization's given mandate and functions, for without it the UN could not perform
those tasks it was required to by the UN Charter.

After World War II the Security Council established two international ad hoc tribunals in
an attempt to prosecute for war crimes that were committed during the war. The
Nurnberg and Tokyo tribunals confirmed that under certain circumstances, individuals
can have legal personality under international law and have capacity to have rights and

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obligations directly under international law, in particular Humanitarian Law (HL) and
Human Rights Law (HRL). For the first time in the history of international law, individuals
were held accountable for international crimes such as war crimes and crimes against
humanity prohibited under customary international law as well as several international
conventions.

International liability of individuals has subsequently been confirmed on numerous

accounts by various courts such as the United Nations International Criminal Tribunal for
the former Yugoslavia and Rwanda, especially established by the UN Security Council to
prosecute persons responsible for war crimes, crimes against humanity and genocide
under international law.

The procedure for holding individuals internationally responsible for international crimes
was finally made permanent with the establishment of the International Criminal Court
(ICC), governed by the Rome Statute which entered into force in 2002. The Courts
mandate is to prosecute individuals under international law for crimes such as genocide,
war crimes and crimes against humanity. Currently there are total of 121 state parties to
the Rome Statute.

How about individuals' rights under international law? Can individuals, John and Jane,
have rights under international law and moreover seek justice in case their rights are
violated?

The treatment of individuals on foreign territory has been regulated by international

customary law as well as conventions for decades. Such rules protect states' own
citizens when they're on foreign territory, against illegal actions of the foreign state.
Thus for example if a citizen from country A would live and do business in the territory of
state B and state B would illegally confiscate the assets and business of country A
citizen, state A can hold state B responsible under international law before the ICJ (see
Diallo case). Whether or not state A drags state B before the ICJ (or other regional or
international court) is entirely up to state A without any regard to the wishes of the
citizen.

This stems from state sovereignty and the gradually diminishing principle of non-
interference in a state's internal affairs. Few decades ago, how a government would treat
its own citizens, was an entirely “domestic affair” or an “internal matter” which was by
no means of any concern to other sovereign states, left alone the rest of the
international community. For decades’ states' sovereignty veil seemed to be
impenetrable until international and regional human rights law acquired global
acceptance with unprecedented speed.

The emergence of international human rights law however altered the sanctity of state
sovereignty and imposed certain international obligations upon states to respect, protect
and fulfil the human rights of all individuals within their territory. International human
rights law moreover established “soft” (complaint procedure under the International
Covenant on Civil and Political Rights) enforcement mechanisms and regional human
rights law went a step further, establishing a hard enforcement mechanism of a human
rights court with the capacity to give legally binding judgements on whether or not a
state has violated the European Human Rights Convention.

Legal Personality of Rivers

To conserve the holy rivers Ganga and Yamuna, massively polluted due to waste
dumping and pilgrims’ ritual bathing, an Uttarakhand high court in March 2017 deemed
the water bodies “living entities.” Since the rivers can’t fight for their own rights, they
have been assigned three legal guardians to ensure their protection.

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Before India, New Zealand’s indigenous Māori people rallied to recognise the Whanganui
river as an “ancestor” with the same rights as a human being in their country, too.

Now, when one argues that rivers should have legal rights, questions arise as to what
are the characteristics of those legal rights. The first characteristic is, who is the owner
of the right or subject of the right or the person entitled to the right. Here, the river is
the subject of the right. In furtherance, there should be a subject of the duty. Here, the
right to be protected can be availed against the society at large. Thus, persons in
general can be termed as bound by the correlative duty.

Thirdly, there should be a content of the right and this in the case of rivers would mean
abstention from polluting the river or encroaching on the river etc. Fourthly, there should
be object of the right. In this case, the object of the right is the river as well. This means
that the river has a right on the water contained in it, the soil underneath its bed etc.,
and no one shall deprive the river of those things without its consent.
Fifthly, the legal right should have a title. With respect to rivers, it can be construed as
the statute, judicial pronouncements or the Constitution itself which confers legal right to
the rivers.

In the Indian scenario, a judicial decision rendered by the High Court of Uttarakhand
conferred title to the rivers Ganga and Yamuna, including all their tributaries and
streams in 2 decisions, namely Mohd. Salim v State of Uttarakhand 9 and Lalit Miglani v
State of Uttarakhand. 10 However, in the New Zealand context, the same is conferred
through a thoroughly drafted and well thought out legislation called as Te Awa Tupua
(Whanganui River Claims Settlement) Act, 2017. Chapter 7 of the Constitution of
Ecuador expressly confers rights to nature, which includes rivers by virtue of Articles 71
to 74.

Before delving into the intricacies of legal rights which are ascribed to rivers, it is of
paramount importance for one to understand the classification of rights, duties and
liberties and no-right and the correlation between them under the Hohfeldian scheme.
The concept of positive and negative rights can be ascribed to rivers. The river shall
have a right against the society at large not to be polluted, encroached upon etc.,
whereas it shall have a right against the body representing it to protect it from the
same. Such a right, in this case, for example applies to a guardian appointed to act in
the best interests of the river and a failure with respect to the same, shall warrant legal
action against the guardian so appointed. Such a warrant ensures that the right
possessed by the river is not an imperfect one, but a perfect one and can be enforced
unequivocally, without any doubt or impediment.

A river shall have a right in rem and this right shall be the right not to be polluted and
not to be encroached upon and defaced. It shall have a right in personam against the
guardian or body appointed for the protection of the river from all sorts of pollution,
encroachment and harm etc.

However, this does not warrant a blanket ban on certain people who want to protect the
river and act in its best interest. In the present context, liberty should be viewed through
the Hohfeldian lens. This is their liberty and there shall be no impediment or interference
in this regard from the law. There is no duty either on the citizens to do so. This shall
ensure that various NGOs, nonprofit organisations and environmental organisations shall
file a case on the same.

Parallels can be drawn in this regard to derivative suits by shareholders on behalf of the
company when the directors of a company or whoever is in charge of the company is
silent when there is a fraud or has himself committed a fraud.
As right to clean and healthy environment and right to clean and safe drinking water is
read into Article 21 and thus a fundamental right, polluted river and usage of its water

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warrants the violation of the same and therefore the body appointed on behalf the river
when it is conferred with legal personality can be sued as it is failing in its duty of
protecting, preserving, conserving and acting in the best interests of the river. In such a
situation when the body so appointed is failing in its duty, then the members may be
personally liable for their actions.

A duty can be both moral and legal. The duty to protect, preserve and conserve rivers is
a moral duty on the society at large. This is because rivers have been the cradles of
civilization across the world and tend to our necessities. We are dependent on rivers for
various instances, besides drinking and irrigation. In our nation, rivers are of immense
importance as they are the major source of fresh water. Thus, it is imperative to protect,
preserve and conserve rivers for the same reasons in the moral sense.

However, for not performing moral duties does not warrant a legal sanction. Thus, in this
regard it is of immense importance to give this moral duty of protecting, conserving and
preserving rivers a binding effect. This is done under the Indian constitution through
Article 51A(g) which reads as follows: “to protect and improve the natural environment
including forests, lakes, river and wildlife, and to have compassion for living creatures;”
However, the outcome is not significant in this regard. According to Hohfeld11, there
should be a right with someone in order to vest in someone else a corresponding duty
and rivers do not expressly have a right to be protected, preserved and conserved from
any sort of exploitation.

In furtherance, a duty is of two types—positive and negative. Positive duty implies that
an act needs to be performed and a negative duty implies that the person who is bound
by the duty should abstain from doing an act. When the person bound by the duty acts
in contravention to the duty, then that shall be construed as a breach of duty and shall
be punished for the same. However, this legal recognition of the duty does not
necessarily mean that the right shall legally enforce the performance of it or punishes
the disregard of it by the persons bound by the duty.12

For an interest to become subject of a legal right, it must not merely obtain a legal
protection, but also a legal recognition. At present, the interests of rivers are to some
extent protected by the law, inasmuch as polluting them or encroaching them or
defacing them attracts fines and penal sanction. However, this does not mean the rivers
possess rights. The duty of humanity so enforced is not to be understood by the law as a
duty towards rivers, but merely as a duty in respect of them. There is no vinculum juris
between humans and rivers, for there is no bond of obligation between humans and
rivers.
Let us examine what are the kind of duties that river might be bound with.

One can say that the river shall have the duty of providing water to human beings for
various purposes such as drinking, domestic purposes etc. The river can fulfil this duty
as long as there is sufficient water in it, which depends on sufficient rainfall as in the
case of peninsular rivers. In reality, rivers cannot determine the amount of rain it shall
receive. It is dependent on various factors. In the recent years, there is a decrease in
rainfall and the major cause for this is due to the pollution caused by human beings,
reduction in the number of trees etc., largely due to human conduct and developmental
activities. Thus, human beings should stop this widespread act of felling trees in order to
meet their developmental needs so that the river gets it share of rainfall and provides
water for human beings, thereby fulfilling its duty, the feasibility of which is
questionable.

The river may be bound with another duty of providing enough fish for the people having
riparian rights. This can be possible too. However, this issue suffers from the same
infirmities akin to the issue dealt with in the preceding paragraph. For the river to

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provide enough fish to the fishermen situated, there should be no deterioration of the
quality of the water contained in the river which might kill the aquatic and other life
forms in it. This can be ensured when there shall be no pollution of the river, which is
mainly due to human conduct and development whereby industrial waste,
untreated/partially treated sewage etc., are let into the river. However, it is too far-
fetched.

The river can be said to be bound with the duty not to flood and cause harm to life and
limb of a person. However, when the river breaches the same, then it shall be liable for
the harm caused. Compensation to the victims can be borne out of the fund of the river
in such a case.

As observed, rivers can hold duties, the performance or nonperformance of which are
subject to external factors.
However, as inferred from above, even though a river cannot hold a duty conclusively,
the same cannot stand in the way for granting legal personhood to rivers. Parallels to
this can be drawn from granting legal personhood to unborn children. They do not have
any sort of duty, but they are granted legal personhood, thereby legal personality.

When a river is being conferred legal personality, it shall include its bed as well. Thus, as
the plants and other types of flora are situated on the bed, there is a conflict here and it
needs to be addressed. One may look into the definition of “bed” provided under Te Awa
Tupua (Whanganui River Claims Settlement) Act, 201713. The definition of bed herein
includes the plants attached to the soil as well. If such a definition is followed, it would
mean that the plants on the bed shall be legal persons too.

Before delving into the crux whether fauna in the river bed shall have legal rights too, it
is necessary to define what comes under the ambit of fauna. Here, fauna refers to as the
aquatic life such as fish, crocodiles, snakes, frogs etc. These come under animals in
general and thus it is imperative to know about the current position of animals.

Under the current legal system in India, animals are not conferred with any legal
personality. They are only considered as objects of rights rather than subjects of rights.
Cruelty to animals is considered a criminal offence. The Prevention of Cruelty to Animals
Act, 1960 and rules made thereunder are an extension of the same principle. However,
this must not be wrongly construed that the animals have rights and this duty of
humanity so enforced should not be construed as a duty as a duty towards the beast,
but merely as a duty in respect of them.14 However, there are certain judicial
pronouncements which deviate from the same and have recognized the rights to
animals. The most notable in this regard is the Uttarakhand High Court Judgment in
Narayan Dutt Bhatt v Union of India and Ors.15 where the division bench comprising of
Justices Rajiv Sharma and Lokpal Singh, declares as follows: “The entire animal kingdom
including avian and aquatic are declared as legal entities having a distinct persona with
corresponding rights, duties and liabilities of a living person. All the citizens throughout
the State of Uttarakhand are hereby declared persons in loco parentis as the human face
for the welfare/protection of animals.” However, this judgment is of little significance as
this is a High Court judgment and thus only has a persuasive value outside the State of
Uttarakhand. In furtherance, the wisdom of the High Court in propounding such a drastic
step can be questioned in light of judicial overreach, but need not be delved into right
now. Nonetheless, this is a landmark judgment in this regard.

Another notable judgment in this regard is Animal Welfare Board of India vs. A. Nagaraja
& others16 where it is held that every species has a right to life and security, subject to
the law of the land, which includes depriving its life, out of human necessity and that
Article 21 of the Constitution, while safeguarding the rights of humans, protects life and
the word “life” has been given an expanded definition and any disturbance from the

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basic environment which includes all forms of life, including animal life, which are
necessary for human life, within the meaning of Article 21 of the Constitution.

Thus, as can be inferred from above, animals do not have a legal personality and
thereby no rights in the absolute sense which means that their rights are subject to
human beings’ necessity and rights. However, when the definition of the river is being
defined, it must be specified by the legislature whether aquatic life and other life forms
are included or not.
However, Whanganui Act, under Section 16 17 says that it shall not create, limit,
transfer, extinguish or otherwise affects any rights to, or interests in, wildlife, fish,
aquatic life, seaweeds, or plants unless expressly provided for in the Act. If such a
method is followed, then it shall preserve status quo and thus not lead to chaos and
confusion overnight as there are lot of fishermen and other stakeholders in this regard
who are dependent on rivers for multifarious purposes such as water, fish etc.

Conclusion
Thus personality in law is a wider term. It is different than humanity. Humanity refers to
being born as a human being. On the other hand, personality is a concept where an
entity enjoys rights and duties with respect to the fact of its existence.

A non-human can be a legal person for the purpose of the law, for example an idol
placed in a temple. On the other hand, a human being may not be considered a legal
person sometimes, for example slaves in ancient times that were treated as mere
chattels of their owners and not a person.

The concept of legal personality is basically related to the fact of rights and duties
attached to them and certain immunities and responsibilities attached to them.

Hence there is a vast difference between a human and a legal person as human is the
existence given by nature whereas legal person is a fiction created by act of law.

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References
1. http://www.legalserviceindia.com/articles/jud.htm
2. http://www.legalserviceindia.com/legal/article-3203-legal-status-of-unborn-dead-
person-and-animal.html
3. https://lawtimesjournal.in/constitutional-provisions-relating-to-environment-law/

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