Regulation of Groundwater in India – Critical Analysis
Introduction:
The term Agriculture and its importance are more connected to Indians, aren’t they? We the people, use 90% of groundwater for Irrigation purpose. Being the source of around 80% of people’s drinking needs; usage of ground water in India has become the highest among other countries in the world. It has been observed that most of existing ground water is solely used for the purpose of irrigation, and to be precise, most of the agricultural production in India depends upon the groundwater. But unfortunately, we ignore the importance of it and produce ourselves to third parties like anti-agrarian companies. World Bank stated that India’s most valuable resource-groundwater, is depleting now, than ever before. Increase in the declination of water level and following water scarcity threatens the food security and the rural livelihoods. Consumption of water by the industries stresses on the insufficient management of groundwater resources. Over-extraction of groundwater by landowners and companies deteriorates the groundwater quality and quantity. With this, the human right to water is at stake, which also impacts the livelihoods of rural areas. This article will critically analyze the existing laws governing groundwater in India.
Background on groundwater regulation in India:
Law making authority of parliament and states are provided under 7th schedule of the constitution. In that aspect, water has been enlisted in the state list, which the central government has nothing to do with. Article 253 read with Entry 13 of Union List empowers the Parliament to enact any law on the subjects that are provided in the state lists like water, police etc. So far there is no central regulation governing the groundwater in India, but has notified few model bills for the state governments, enabling them either to legislate on those guidelines or not. The Indian easement act, gives the right to land-owner of the land, to use the water that belongs within the limit. Moreover each state has its own regulation with respect to usage of the ground water. And also the environment protection act, the central ground water authority has the right to issue guidelines to the states. Currently, the legal framework for groundwater in India is bifurcated into two main elements, i.e. our government has no rights regarding the groundwater and no formal groundwater rights are vested with government and its authorities. Most of the groundwater rights derive from the either through Easement act or through the Property acts. Government of India prepared a Model bill to officially regulate and control the development and Management of groundwater in the year 2005, 2017 etc. It sets out the structure for regulation of groundwater in individual states.
Since there is no central regulation on ground water, the state government for their economic developments, are granting the licenses to the companies to utilize to the ground water. And due to over usage of ground water (both by domestic users and Industrialists), there is depletion of ground water resources. One of the few drawbacks is that the Central Groundwater Management Authority, which sets guidelines, provides no restrictions on domestic usages etc. Also, the groundwater rights in India are mostly regulated through English case laws and allocation of same are not certainly suited solely to Indian situations. It provides unlimited rights to the owner of the land in case of extraction of groundwater, which ultimately led to exploitation. Thus, there is no national policy drafted by central government relating to current issues.
Analysis:
Socio-legal Analysis:
Why do we need central legislation of groundwater?
The main purpose to amend existing basic tenets of groundwater law is associated with the development of much wider and strict legal tools which can lend a comprehensive regulation of groundwater in India. It is also important to ensure that the multiple dimensions of groundwater are taken into account while framing a policy. Many social and environmental scientists argue that the existing legal principles lack the effective enforcement mechanism and are considered very little in Indian context. It is crucial to propose not only new basic legal principles but also to examine the way in which they can be articulated in legislation.
Thus, it becomes important to frame every environment related policy in line with the basic principles that are recognized by world countries through treaties and conventions. It is evident that the existing legislation on groundwater conservation and protection completely ignores such principles. These principles help to frame policy for present and future, by taking the past into consideration. Some of these basic principles relating to groundwater and other resources should be included in the existing regulation, so that the future implementation of any proposed policy never gets diverted from such basic tenets.
Some of those basic principles that are to be considered while framing any legislation/rules under any environmental policy by Parliament in the future are
Human Right to water via Sustainable use of groundwater: Existing laws ignores the concept of sustainability and has led to insufficiency in groundwater for public at large. Inclusion of this principle ensures the International obligation of Human right to water.
Ensuring justice and equity: Some of the principles that ensure the concept of equity and distributive justice, in global perspective, are Public Trust Doctrine, Inter and Intra-generational equity and Precautionary Principle respectively. Any law made hereby, in no way, ignores such principles in its Preamble.
Bottom to top approach: Rules relating to governance and administration of groundwater regulation should be framed as per the norms and guidelines of local bodies that are established under this policy reform. It is nothing but recognition of 11th and 12th schedule of Indian Constitution.
Existing legislation/rules relating to groundwater are not in consonance with aforementioned principles, which results in Environmental issue and improper allocation of resources among public at large. These principles reduce the risk of groundwater scarcity and helps in achieving distributive justice.
Right to water via Groundwater regulation:
One of the obligations that makes Indian parliament to frame an effective groundwater law is the Human right to Water, which was recognized as a human right by United Nations General Assembly in 2010. As the absence of national law would result in water scarcity for most of Indian Population, it is important, at this juncture, to enact a groundwater law. Failure to do the same would result in violation of this obligation at International level.
It was after the historic judgment in Maneka Gandhi v. Union of India in the year of 1978 helped the judiciary to enable new horizons of Article 21 of the constitution. It was this judgment which provided a broader definition to the concept of Personal liberty. It brought the three main principles enshrined in article 14, 19 and 21 (Golden Triangle) together and decided the dignity, equality and freedom of Indians.
Similarly, in case of Virendar Gaur v. State of Haryana, the Supreme Court, for the first time recognized the right to livelihood is an important facet under article 21 of the constitution of India. It stated that protection of environment and ecological balance free from any pollution/damage to its resources (air, water etc.) are forms part of life of every individual. In case of any violation either from the side of state or any individual, would be seen as violation of article 21 (right to life) of constitution.
It was in MC Mehta v. Kamal Nath, the Apex court, in this case, referred different cases under the concept of “Public Trust Doctrine”, where it opined that the state is the trustee of all the natural resources which are, by nature, meant for the Public use and environment. Here, Public at large is beneficiary of natural resources and economically fragile lands and state as a duty-bound organ, should not convert these into private ownership in the violation of duty
Socio-Economic Analysis:
An economic perspective of laws can provide clarity concerning the causes and consequences of environmental deprivation, thereby providing insights regarding public policies intended to protect the environment. Economic concepts and its implications into the field of law have shown us greater efficiency and more reliability. Few of such are Environmental economics; Polluter pays principle, Concept of externalities and Pollutions etc. These concepts help policy designers to make efficient policy decision. The main difference between good law and efficient law is where Economic concepts dominate and strives to achieve the latter than the former. It is inevitable to say that Law and Economics evolved efficiently in Environmental law. Few of the economic concepts that this paper consults are as follows.
Emergence of a problem called - Tragedy of commons:
The Issue of Tragedy of Commons arises when any common resources, groundwater in this instance, are available to public at free of cost, without proper regulation. Hence, it is a public good. However, what is the required rule and regulation is up to the policy makers to decide at different situations. This particular issue was explained in order to enable strict property laws, which puts the common entity in hands of few thereby preventing the tragedy to occur. In such aspect, the existing groundwater law in India does not provide enough distinction between the ownership rights and water rights to the owner. Since there is no proper regulation for domestic usage of groundwater itself, among the local people, the issue of tragedy of commons would be soon possible even with vestige of property rights. Right holder, who uses for domestic purposes, would cause the others to suffer the scarcity of water. If such situation occurs, then people with the property rights would be one to enjoy the right to water. Here is where the concept of Prisoners’ Dilemma provides reasonable solution. To cite the example for this, as per Harrison,
Suppose that two farmers on adjoining land draw water from the same reservoir. If both attempts to draw enough water to maximize their output, the water supply will run out before the growing season ends, and the value of their output will be $50 each. If one farmer takes voluntary conservation measures in the form of rationing her use over the growing season, the conserver will produce output worth $30 and the non-conserver will produce $70 of output. If they both take conservation measures, the water will last the entire growing season, they will each have an output of $60, and joint production will be maximized.
As a result, achieving the economic efficiency from it. Indian policy makers should focus on this kind of concepts in the near future to reduce the tragedy.
Positive Externalities and Concept of Free-riding:
One among the water policy experts, Mr. Himanshu Kulkarni, in his note on the Model bill, 2017, stated that it would be difficult to prevent certain external factors even after taking required policy measures to conserve the groundwater. He gives an example that, considering, if a village comes together and conserves water, how does it get protected from other villages or industries that could free ride on the benefits of conservation? This paper brings the concept of Free-riding to defend his point that, even after such a required policy is framed by asking few to conserve for all, the issue of free-riding would prevail. This is because only few conserves and on the other hand there are lot, who benefits from the former’s efforts. This is better example for positive externality, which was also not addressed in the existing groundwater law regime.
Conclusion: Need for Environmental Economics
As the concept of environmental economics is concerned with societal goals relating to natural resources, such as air, water etc, and its impact, policies with legal personality of natural resources would be a better solution, apart from existing principles cited in the case of Kamal Nath, in achieving sustainability in the future. It has become serious issue now, and requires an immediate solution. There were lot of articles written on this serious issue and the same exists till today in paper and not is practically. Unfortunately, there are people who question the farmers for the over-usage. Being one of the developing countries among the world, are we one among the independent economies in the world? India is one of the developing country which concerns about both the development and environment. But because of granting license to companies, most of them are using the ground water, as a result the natural resource, i.e. Ground water is depleting. To some extent, groundwater would be the only source, for now, to realize and to effectuate the human right to water across the world.
Author details:
M Balaji,
3rd year,
B.A., LL.B.,
Student at CHRIST (Deemed to be University), Bengaluru