by Nirmal John
There is an imminent groundwater crisis and the Indian government must take immediate steps to save the country from a disaster. Given its severity, changes in legislation must be made to allow everyone, not merely landowners, access to groundwater resources. With climate change likely to aggravate the ground water crisis, a law must be introduced to curb groundwater contamination and ensure extraction is regulated with new methods implemented to replenish the groundwater supply
Shifting to the Public Trust Doctrine:
Water is a resource that falls under the public trust doctrine, which rests on the principle that certain resources of great importance like water and forests cannot become a subject of private ownership. As such, these resources should be made freely available to everyone. For this reason, the state would be required to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. However, in India the doctrine is only applicable for surface water (i.e. water available in streams, rivers and lakes).
Applying the public trust doctrine to ground water resources however, poses a serious challenge. Under common law, every individual who owns a private property is entitled to whatever benefit that arises from that land. In other words, groundwater is part and parcel of the land. Legislations like The Indian Easement Act, 1882, provides every landowner with the right to collect and dispose, within his own limits, all water under the land and on the surface. This makes it difficult to regulate groundwater extraction as the landowner is vested with the power over groundwater. While the common law rule is one that has been endorsed by courts over a long period of time, it is fallacious because it safeguards the rights of the landowners. Furthermore, the rule is one that was formulated at a time when few were aware of the value of groundwater, a resource which was largely underexploited at the time.
The Environmental Law Research Society’s publication “Governing water in India: Review of Law and Policy Developments” stated that the common law rule ignores the nature and depth of groundwater aquifers as well as the shape and spread of groundwater aquifers which have no relation to the property boundaries of the land. Additionally, the rule overlooks the implications of over-exploitation or the effect contamination of groundwater can have on the enjoyment of pollution-free water, which is part of the fundamental right to life.
Therefore, it is time to debunk this common law principle in light of the conflicts that have arisen in recent years as a consequence of groundwater depletion. There are cases that have come up before courts in India that have raised their concerns with the ongoing groundwater crisis. One case in particular that recently gained attention in this regard is Hindustan Coca-Cola Beverages (P) Ltd v. Perumatty Grama Panchayat. In this case, the Coca-Cola company was given a license by the Plachimada Panchayat to use the groundwater for production of its beverages but refused to renew this license after residents raised concerns about the exploitation of resources and groundwater pollution. Ultimately, the High Court was confronted with two issues: Whether the landowner has a right to extract groundwater from his land, or whether a panchayat has the power to regulate the use of groundwater by private individuals.One of the many observations made by the Kerala High Court was that groundwater is a public trust and the state’s duty is to protect it from excessive exploitation. Furthermore, the court did take into consideration the fact that its exploitation can result in negative environmental consequences. Nevertheless, the High Court did make the assertion that the landowner has absolute control over groundwater because there is no specific law at this point to prohibit groundwater extraction. This case is significant because on one hand, the High Court recognizes the importance of conserving groundwater. But, on the other hand, the absence of a law that prohibits the landowner from extracting groundwater has compelled the court to refrain from granting a decision that would vindicate the Panchayat’s decision to refuse the renewal license. The case is now pending before the Supreme Court who must now decide whether the groundwater should be considered a resource that falls under the public trust doctrine.
The primary concern for the Government when creating a Bill to regulate groundwater extraction is not to moderate the landowner’s right to extract groundwater. Instead, the government must regulate groundwater extraction but at the same time, prevent its exploitation. This way the landowner does not lose all his rights to avail groundwater resources. At the same time, it would ensure groundwater remains a sustainable resource.
The fact that water is a state subject further compounds the difficulty the Central Government has with creating a framework to regulate groundwater. The reason for this is because under the Constitution of India, water is a state subject. Entry 17 under List II of the Seventh Schedule provides that water including water supplies, irrigation and canals, drainage and embankments, water storage and water power would be included in the State List. However, it is subject to the provision of Entry 56 of List I. This gives the Central Government the power to regulate and develop inter-state rivers only to the extent to which such regulation and development is in public interest. The problem is that this provision only gives the Centre the power to regulate surface water but not groundwater because no one at the time was aware of the value of groundwater. This entry in List I was made at a time where few (if any) knew about the value of groundwater. Therefore, Entry 56 of List I ought to be amended to give the Central Government the power to regulate surface water and groundwater.
Alternatively, adding water (both surface water and groundwater) to the Concurrent List might be a long term solution given the concerns being raised regarding groundwater, not least the depletion of aquifers in many parts of the country. This change would give the State governments and the Centre the power to make laws on a subject like water. In the event there is a conflict between the Central and State law on a subject like water, the Central law will always prevail.
Hence, the Ministry of Water Resources has formulated a Model Bill for the Conservation, Protection, Regulation and Management of Groundwater in 1970 which was revised as recently as 2016. This Model Bill provides state governments with the guidance it needs to formulate their own groundwater policies.
Implications of Climate Change on Groundwater
While it would be difficult to predict future groundwater levels, climate change will put an additional strain on groundwater resources and could potentially impair groundwater recharge and availability. The onset of climate change has led to the melting of the Himalayan glaciers which will bring about an increased water discharge in the Indo-Gangetic Plains until the 2030’s but there will be gradual reductions thereafter. This increase in precipitation can bring about a high rate of flooding, devastating major parts of India. This rate of high run off and low recharge will lead to a degradation of aquifers in Northern India.
A growing population that is heavily reliant on groundwater only aggravates the crisis. According to the World Bank, more than 60% of India’s agricultural sector relies on groundwater. This would mean that the water table would inevitably fall on account of increasing demand for water from a growing population. Nearly 85% of the rural water supply in India is dependent on groundwater and an unplanned discharge of groundwater has caused groundwater levels in many states like Tamil Nadu, Gujarat, Rajasthan and Punjab to fall sharply. With the exception of states in North Eastern India where groundwater resources are under-utilized, as many as 289 districts in India have seen a decline in groundwater resources.
Given the rate at which the groundwater level is plummeting across most states in India, there is an urgent need to create a groundwater governance framework at a local and national level. The governance framework is one that must include stakeholders from various sectors, including policymakers and scientists. Urgent reform is needed for better management of the Central Ground Water Board (CGWB). This would not only include making administrative changes to would allow the CGWB to better perform its role as the manager of groundwater resources. It would also require collaboration with ministries like The Ministry of Environment Forest and Climate Change (MOEFCC) who would be required to seek the opinion of the CGWB in all groundwater stressed regions as well as in cases where negative impact on water quality can be anticipated.
Climate change, ought to spur local governments to take adequate steps to ensure aquifers are adequately recharged. Creating a policy to enhance the recharge capability of an aquifer is vital as it not only ensures protection of groundwater but would ensure it remains a sustainable resource. Recharge of an aquifer will depend largely on factors like soil type, vegetation, amount of precipitation, surface temperature, discharge patterns etc., all of which could have a detrimental effect on groundwater quality. Therefore, policies must be introduced to not only ensure recharge of aquifers but also prevent groundwater contamination.
A failure to prevent groundwater contamination would mean that the State and Central governments would have failed in its duty to provide people their right to safe drinking water. Although not expressly recognized as a fundamental right, various High Courts as well as the Supreme Court have recognized the fundamental right to water (including the right to get access to drinking water and a right to safe drinking water) as a part of the right to life under Article 21 of the Constitution.
Best Practices in Groundwater conservation and governance
In this regard, Tamil Nadu is among the first states that passed a law to provide compulsory Rainwater Harvesting structures in every establishment and household to improve groundwater recharge. Further any building that fails to set up a rain water harvesting structure on or before the date specified will not be given a water supply. While the scheme is one that was initially met with resistance, it appears to have helped elevate the water table in places like Chennai which were previously water-starved. At the same time, the scheme has provided locals with access to clean water for needs like drinking, cooking and personal hygiene. The success of the rainwater harvesting scheme was only possible because of the active involvement of non-government agents. Implementing this scheme at a national level is daunting because the union government has not been successful in raising awareness of the current groundwater crisis. Although the union government could learn from Tamil Nadu by mandating every house and establishment (existing as well new establishments) to set up a rainwater harvesting structures and impose sanctions for failing to install them. This way the government is not interfering with a landowner’s access to groundwater yet at the same ensuring that groundwater remains a sustainable resource.
If the Union government is serious about conserving groundwater, it must revisit the current law on groundwater. Various High Courts have recognized that there is a groundwater crisis and have conceded there is a need to create a law that would conserve groundwater resources, not least due to factors like climate change which would adversely affect groundwater recharge and availability. One way of doing this is to ensure that legislators include surface water and groundwater, remove water from the State List and include this as a subject in the Concurrent List. This would give the State governments and the Centre the power to make laws on a subject like water. At present, the common law doctrine gives the landowner absolute control over groundwater resources. The fact that there is no law in place to regulate the use and extraction of groundwater makes it difficult for the union government to conserve this resource.
Any attempt on the part of the government to moderate groundwater extraction would be seen as violative of the landowners right to privacy which has recently been recognized as a part of the right to life under Article 21 of the Constitution of India. On the other hand, the union government can learn a valuable lesson from the groundwater governance framework in Tamil Nadu by mandating every household and establishment to set up a rainwater harvesting structure in order to recharge aquifers, restore groundwater levels as well as provide a source of clean water. Although more research is needed to find other ways to preserve and maintain groundwater resources. The reason for this is because rainwater harvesting as a method of recharging aquifers fails to take into account the differences in geological patterns, rainfall and usage. In the interim, the government should do more to raise awareness of the current groundwater situation and would need the help of non government agents to conserve and maintain groundwater resources.
NIRMAL JOHN IS A LAWYER CURRENTLY BASED IN MADRAS, INDIA. HIS AREA OF INTERESTS ARE IN PUBLIC POLICY, REGULATORY AFFAIRS LAW AND ENVIRONMENTAL LAW.
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 Hindustan Coca-Cola Beverages (P) Ltd. vs. Perumatty Grama Panchayat, 2005(2) KLT 554
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 Id at 554
 S. Panwar and G.J. Chakrapani, Climate change and its influence on groundwater resources, Department of Earth Sciences, Indian Institute of Technology Roorkee, Current Science, Vol. 105, No.1, July 10th, 2013
 India: Climate Change, The World Bank, June 19th, 2013, See: http://www.worldbank.org/en/news/feature/2013/06/19/india-climate-change-impacts
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 Id at 14
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 Wasim Ahmed Khan v. Govt. of AP, 2001 SCC Online AP 1090; (2002) 2 ALD 264
 Section 225-A, Tamil Nadu Municipal Laws (Second Amendment) Ordinance, 2003. See: http://cms.tn.gov.in/sites/default/files/acts/muncipal_ord_2003_0.pdf
 TN’s Success story: Rainwater Harvesting, Hindustan Times, June 5th, 2015, https://www.hindustantimes.com/india/tn-s-success-story-rain-water-harvesting/story-u2LJmSHM4O4vA155wEtmOK.html
 Interface of Law and Scientific solutions for Groundwater Governance in Chennai City, India, International Journal of Water Resources Development